Talley v. Womack et al
Filing
7
MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr. on 5/10/2013; For the reasons set forth, the Court will dismiss the action. cc: Plaintiff, pro se; Defendant (CDF) Modified distribution on 5/13/2013 (CDF).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
RYAN TALLEY
v.
PLAINTIFF
CIVIL ACTION NO. 1:12CV-P208-M
ROGER WOMACK et al.
DEFENDANTS
MEMORANDUM OPINION
Plaintiff, Ryan Talley, filed the instant pro se action under 42 U.S.C. § 1983
proceeding in forma pauperis. This matter is before the Court on preliminary review of the
complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997). For the reasons that follow, the Court will dismiss the action.
I. SUMMARY OF CLAIMS
Plaintiff is an inmate at the Warren County Regional Jail (WCRJ). He sues Roger
Womack and Thomas Maxwell, whom he identifies as corrections officers at the WCRJ, in their
individual capacities only. Plaintiff states that on December 7, 2012, he was attending a Muslim
service with a friend named Cunningham. He states that Cunningham “comes to service every
week only to observe how to pray by watching and listening.” However, Defendants “kicked
Cunningham out of services[.]” Plaintiff states that Defendants told Cunningham that if he was
not participating he needed to leave the service. Plaintiff states that he attempted to intervene
and became upset and “couldn’t go on with the service because of what these two officers had
done.” Plaintiff states that Defendants violated his rights under the First and Fourteenth
Amendments and that Defendant Maxwell was “grossly negligent” in supervising Defendant
Womack. He states that Defendants showed “deliberate indifference” to his and Cunningham’s1
rights. He also alleges that Defendants denied his “Right to express my Religious Denomination
which is a violation of the 1st and the 14th Amendment due process clause.” He also alleges
negligence and “verbal abuse in connection with the 8th Amendment and the 14th Amendment”
and mental and emotional distress. Plaintiff also alleges “negligence in Connection with the
grievance procedure in violation of the 8th Amendment due process clause.” As relief, Plaintiff
seeks compensatory and punitive damages and other relief.
II. STANDARD OF REVIEW
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the complaint, or any
portion of it, if the court determines that the complaint is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2); McGore, 114 F.3d at 604.
In order to survive dismissal for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view the complaint
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To the extent Plaintiff is attempting to bring any claim on behalf of Cunningham,
Plaintiff does not have standing to bring a claim on another’s behalf. See, e.g., Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“pro se” means to appear for one’s self; thus, one
person may not appear on another person’s behalf in the other’s cause). Thus, the Court does not
consider Cunningham a party to this action.
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in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as
true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the district
court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488 (quoting
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for Plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).
To command otherwise would require the Court “to explore exhaustively all potential claims of a
pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to
the improper role of an advocate seeking out the strongest arguments and most successful
strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. ANALYSIS
A.
First Amendment
The First Amendment prevents the government from prohibiting or excessively curtailing
the free exercise of religion. However, Plaintiff alleges one occasion in which Defendants told
Cunningham that he must leave the worship service and therefore Plaintiff “could not go on with
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the services[.]” A one-time interference with the free exercise of religion does not rise to a
constitutional violation. See Gunn v. Kentucky, No. 5:07CV-P103-R, 2010 U.S. Dist. LEXIS
60530, at *5 (W.D. Ky. June 18, 2010); Greenberg v. Hill, No. 2:07-CV-1076, 2009 U.S. Dist.
LEXIS 28027, at *6 (S.D. Ohio Mar. 31, 2009) (“[I]solated or sporadic government action or
omission is de minimis and does not constitute a ‘substantial burden.’”); Cancel v. Mazzuca, 205
F. Supp. 2d 128, 142 (S.D.N.Y. 2002) (finding that an “isolated denial, such as having to miss a
single religious service, does not constitute a substantial burden on a prisoner’s right to practice
his religion”). Consequently, this claim will be dismissed for failure to state a claim upon which
relief may be granted.
B.
Eighth Amendment/Fourteenth Amendment
Plaintiff alleges that Defendants subjected him to “verbal abuse in connection with the 8th
Amendment and the 14th Amendment” and showed “deliberate indifference” to his rights.
“[S]tate pretrial detainees are shielded from cruel and unusual punishments by the Fourteenth
Amendment’s Due Process Clause” while convicted inmates are protected by the Eighth
Amendment’s Cruel and Unusual Punishments Clause. Spencer v. Bouchard, 449 F.3d 721, 727
(6th Cir. 2006) (footnote and citations omitted). Plaintiff does not state in his complaint whether
he is a pre-trial detainee or a convicted inmate. However, the Sixth Circuit has held that
harassing or degrading language by a prison official, although unprofessional and despicable,
does not amount to a constitutional violation. Johnson v. Unknown Dellatifa, 357 F.3d 539, 546
(6th Cir. 2004); Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (“[V]erbal abuse and
harassment do not constitute punishment that would support an Eighth Amendment claim.”);
Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see also Searcy v. Gardner, No. 3:07-0361,
2008 U.S. Dist. LEXIS 10312, at *4 (M.D. Tenn. Feb. 11, 2008) (“A claim under 42 U.S.C.
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§ 1983 cannot be based on mere threats, abusive language, racial slurs, or verbal harassment by
prison officials.”). Therefore, Plaintiff’s claims concerning verbal abuse under either the Eighth
Amendment or Fourteenth Amendment must be dismissed.
Plaintiff also alleges “negligence in Connection with the grievance procedure in violation
of the 8th Amendment due process clause.” An inmate grievance procedure within the prison
system is not constitutionally required. See United States ex rel. Wolfish v. Levi, 439 F. Supp.
114, 163 (S.D.N.Y. 1977), aff’d sub nom, Wolfish v. Levi, 573 F.2d 118 (2nd Cir. 1978), rev’d on
other grounds, Bell v. Wolfish, 441 U.S. 520 (1979); Spencer v. Moore, 638 F. Supp. 315, 316
(E.D. Mo. 1986); O’Bryan v. County of Saginaw, 437 F. Supp. 582, 601 (E.D. Mich. 1977). If
the prison provides a grievance process, violations of its procedures do not rise to the level of a
federal constitutional right. Spencer, 638 F. Supp. at 316. Since Plaintiff has no right to an
effective grievance procedure, Ishaaq v. Compton, 900 F. Supp. 935, 940-41 (W.D. Tenn. 1995);
Flowers v. Tate, Nos. 90-3742, 90-3796, 1991 U.S. App. LEXIS 2976, at *3 (6th Cir. Feb. 22,
1991), a failure to follow the grievance procedures does not give rise to a § 1983 claim. Id.;
Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Thus, Plaintiff’s claim related to the
grievance procedure must be dismissed for failure to state a claim.
C.
State-law claims
Because Plaintiff’s federal-law claims will be dismissed, the Court declines to exercise
its supplemental jurisdiction over his state-law claims. See 28 U.S.C. § 1367(c)(3). Those
claims will be dismissed without prejudice.
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The Court will enter an Order consistent with this Memorandum Opinion.
Date:
May 10, 2013
cc:
Plaintiff, pro se
Defendant
4414.010
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