Austin #634729 v. Kutchie et al
Filing
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OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
ROBERT AUSTIN,
Plaintiff,
v.
Case No. 2:18-cv-87
Honorable Janet T. Neff
UNKNOWN KUTCHIE et al.,
Defendants.
____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the
Court is required to dismiss any prisoner action brought under federal law if the complaint is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C.
§ 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,
404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim.
Discussion
I.
Factual allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Marquette Branch Prison (MBP) in Marquette, Marquette County, Michigan. The
events about which he complains occurred at that facility. Plaintiff sues Corrections Officer
Unknown Kutchie, Sergeant Unknown Defoe, Unknown Parties Corrections Officers, and
Unknown Party Sergeant.
Plaintiff alleges that on the afternoon of December 3, 2017, Plaintiff was in the
segregation cage on the yard at MBP. Plaintiff states that Defendants Kutchie, Defoe, and
Unknown Corrections Officers harassed Plaintiff by showing him a banana, asking him if he was
hungry, and making monkey sounds. After subjecting Plaintiff to this racially degrading conduct,
Defendants tossed the banana on top of the cage as if he was an animal. Plaintiff states that this
conduct violated his constitutional rights and seeks both damages and injunctive relief.
II.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at
679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
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‘show[n]’ – that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Plaintiff claims that Defendants subjected him to racial slurs and taunts. The use
of harassing or degrading language by a prison official, although unprofessional and deplorable,
does not rise to constitutional dimensions. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir.
1987); see also Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (harassment and verbal
abuse do not constitute the type of infliction of pain that the Eighth Amendment prohibits); Violett
v. Reynolds, No. 02-6366, 2003 WL 22097827, at *3 (6th Cir. Sept. 5, 2003) (verbal abuse and
harassment do not constitute punishment that would support an Eighth Amendment claim);
Thaddeus-X v. Langley, No. 96-1282, 1997 WL 205604, at *1 (6th Cir. Apr. 24, 1997) (verbal
harassment is insufficient to state a claim); Murray v. U.S. Bureau of Prisons, No. 95-5204, 1997
WL 34677, at *3 (6th Cir. Jan. 28, 1997) (“Although we do not condone the alleged statements,
the Eighth Amendment does not afford us the power to correct every action, statement or attitude
of a prison official with which we might disagree.”); Clark v. Turner, No. 96-3265, 1996 WL
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721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment and idle threats are generally not
sufficient to constitute an invasion of an inmate’s constitutional rights.”); Brown v. Toombs, No.
92-1756, 1993 WL 11882 (6th Cir. Jan. 21, 1993) (“Brown’s allegation that a corrections officer
used derogatory language and insulting racial epithets is insufficient to support his claim under the
Eighth Amendment.”). Accordingly, Plaintiff fails to state an Eighth Amendment claim against
Defendants arising from their alleged verbal abuse.
Nor do Plaintiff’s allegations constitute a violation of the Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to
any person within its jurisdiction the equal protection of the laws,” which is essentially a direction
that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). However, in the absence of
meaningful harm or an accompanying violation of rights, verbal harassment and intimidation are
not sufficient to state a claim. See Jones v. Porter, No. 99–1326, 2000 WL 572059, at *2 (6th Cir.
May 1, 2000) (“Jones’s Fourteenth Amendment equal protection claim is without merit, as a prison
official’s verbal harassment or idle threats do not rise to a constitutional level.”); Clark v. Turner,
No. 96–3265, 1996 WL 721798, at *2 (6th Cir. Dec.13, 1996) (“Verbal harassment or idle threats
are generally not sufficient to constitute an invasion of an inmate's constitutional rights.”); see also
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000) (“Standing alone, simple verbal harassment
does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest
or deny a prisoner equal protection of the laws.”); Oltarzewski v. Ruggiero, 830 F.2d 136, 139
(9th Cir.1987) (holding that verbal harassment and abuse do not state a claim under § 1983). In
this case, Plaintiff does not allege any meaningful injury or accompanying violation of rights that
would give rise to an equal protection claim.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28
U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.
Dated:
October 9, 2018
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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