Creech v. Bell

Filing 8

MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 6/3/13; The court will dismiss Plaintiff's claims by separate order.cc:Plaintiff (pro se), Defendant (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
CIVIL ACTION NO. 4:13-CV-P26-M
DANIEL LEE CREECH

PLAINTIFF

v.
DEPUTY BELL

DEFENDANT
MEMORANDUM OPINION

Plaintiff, Daniel Lee Creech, filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the
action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff, who is a convicted inmate at the Henderson County Detention Center (HCDC),
names as Defendant Deputy Bell in his individual and official capacities. Plaintiff alleges that
on February 14, 2013, Defendant entered the dorm for rounds at which point an inmate made
some kind of noise. Defendant Bell asked who made the noise, and, when no one answered, he
“proceeded to walk around the dorm and ‘jump’ at people in an aggressive manner as if he were
going to attack them, saying ‘was it you!?’” Then, Defendant Bell yelled, “‘Bunch of fu**ing
pus**es.’ At this point a few inmates protest his behavior to which he retorted ‘You can suck
my d**k and if you don’t like it, I’m at the Fast Fuel Station up the road at 10:30 every night.
Come meet me.” Plaintiff alleges that he feels that he was assaulted verbally and sexually by
Defendant’s lewd comments and “attempt to coerce [him] into escaping from the facility to fight
him.” He also alleges that he feels that he was physically assaulted by Defendant when he
jumped toward him from less than two feet away. He states that he believes that his

constitutional right to be free of cruel and unusual punishment was violated. Additionally, he
alleges that his right to due process had been violated “as there should be a procedure for
dealings between officers and inmates.” As relief, he asks for monetary and punitive damages
and injunctive relief in the form of having Defendant relieved of his job.
II. ANALYSIS
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 action, if the court
determines that it 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) and (2). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a
light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Eighth Amendment claim
The Eighth Amendment prohibits cruel and unusual punishment, including inflictions of
pain that are “‘totally without penological justification.’” Rhodes v. Chapman, 452 U.S. 337,

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346 (1981) (internal citations omitted). However, “[n]ot every unpleasant experience a prisoner
might endure while incarcerated constitutes cruel and unusual punishment within the meaning of
the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
Here, the allegations made by Plaintiff about Defendant’s alleged taunts, threats, and
name-calling simply do not rise to the level of an Eighth Amendment violation. The Sixth
Circuit has held that harassing or degrading language by a prison official, although
unprofessional and despicable, does not amount to a constitutional tort. 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 at 954-55; see also Searcy v. Gardner,
Civil No. 3:07-0361, 2008 WL 400424, at *4 (M.D. Tenn. Feb. 11, 2008) (“A claim under 42
U.S.C. § 1983 cannot be based on mere threats, abusive language, racial slurs, or verbal
harassment by prison officials.”).
Although Plaintiff alleges that he feels he was physically assaulted when Defendant
jumped at him from less than two feet away, such behavior does not rise to the level of a
constitutional violation any more than the verbal taunts Defendant allegedly made. See Johnson,
357 F.3d at 545-46 (holding allegations of, for example, a guard who “continuously bangs and
kicks [the plaintiff’s] cell door, throws his food trays through the bottom slot of his cell door so
hard that the top flies off, makes aggravating remarks to him, makes insulting remarks about his
hair being too long, growls and snarls through his window, smears his window to prevent him
from seeing out of it, behaves in a racially prejudicial manner toward him and jerks and pulls
him unnecessarily hard when escorting him from his cell” does not establish Eighth Amendment

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violation); see also McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (holding mere
threatening language and gestures not a constitutional violation). Consequently, Plaintiff fails to
state an Eighth Amendment claim.
Due-process claim
Plaintiff alleges that there should be a procedure for “dealing between officers and
inmates.” He continues, “It is ludicrous that this behavior is allowed to go on in a facility since
the inmates have no means of protecting themselves against such instances. I have the right to
feel safe and not to be threatened.”
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 (E.D. Mo. 1986); O’Bryan v. Cnty. of Saganaw,
437 F. Supp. 582, 601 (E.D. Mich. 1977). Additionally, the Sixth Circuit has held that there is
no constitutionally-protected due process right to an effective prison grievance procedure, if the
prison does offer such a procedure. See Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir.
2003) (citing cases). Thus, Plaintiff has not alleged a due-process violation.

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III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss Plaintiff’s claims.
Date:

June 3, 2013

cc:

Plaintiff, pro se
Defendant
4414.009

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