Orr v. MTC et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 35 Report and Recommendations - IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE; FURTHER ORDERED that the dismissal is a "STRIKE" pursuant to 28 U.S.C. § 1915(g). A Final Judgement dismissing the action with prejudice will follow in accordance with Federal Rule of Civil Procedure 58. Signed by Honorable David C. Bramlette, III on 5/31/2017 (ND)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DEWAYNE ORR, #K4961
CIVIL ACTION NO. 5:16-cv-38-DCB-MTP
CAPTIAN ELLA SCOTT;
WARDEN JODY BRADLEY;
ORDER ADOPTING REPORT AND RECOMMENDATIONS
This cause is before the Court on Magistrate Judge Michael T.
carefully reviewed the Report and Recommendation, the Plaintiff’s
letter response thereto, and applicable statutory and case law,
the Court finds that the Plaintiff’s claims should be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because he has failed to
state any claim upon which relief may be granted.
Plaintiff Dewayne Orr (“Orr”) filed a complaint on May 11,
2016, while incarcerated at the Wilkinson County Correctional
Facility (“WCCF”). See Complaint (docket entry 1). On the same
day, the Plaintiff filed a Motion for Leave to Proceed In Forma
Pauperis. See Motion (docket entry 2). The Motion was granted by
Magistrate Judge Parker on June 22, 2016. See Order (docket entry
5). The Plaintiff’s claims and relief sought were clarified and
amended by his sworn testimony at the Spears1 hearing.
The issue is whether or not the Plaintiff was in violation of
rules promulgated by prison authorities by being in possession of
a cell phone. According to Plaintiff, on March 28, 2016, he called
his brother from a wall phone in the prison and instructed him to
call and text a doctor for reasons irrelevant to the issue now
before the court. However, Plaintiff claims that this doctor
informed the prison staff that it was Plaintiff who placed the
On the next day, prison staff investigator Michael Jaynes
accompanied by three other prison employees: Ella Scott, Warden
Bradley, and Gabriel Walker. Jaynes allegedly called the cell phone
number from which the doctor received the calls and
Plaintiff to listen to the voicemail introduction. Jaynes asserted
that it was Plaintiff’s voice on the voicemail introduction. Jaynes
accused Plaintiff of personally calling and texting the doctor
from the cell phone. Plaintiff denies having a cell phone and
alleges that, in response to his denial, Jaynes searched Plaintiff,
“got in his face,” yelled derogatory terms, and demanded to know
the location of the phone. See Complaint (docket entry 1).
v. McCotter, 766 F.2d 179 (5th Cir. 1985).
Plaintiff asserts that: (1) he did not have a cell phone;
and, (2) Defendants Ella Scott, Warden Bradley, and Gabriel Walker
should have intervened to stop the alleged mistreatment. Plaintiff
states that he suffered no physical harm, incurred no damages from
the incident, and was not assaulted by Jaynes.
II. Magistrate Judge’s Recommendation
Magistrate Judge Parker entered his Report and Recommendation
on February 27, 2017, wherein he considers Plaintiff’s claims and
recommends that Plaintiff has failed to state any claims and that
plaintiff’s claims should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). See Report and Recommendations (docket entry
35). Moreover, the Magistrate Judge recommends that this action be
dismissed with prejudice, and that the dismissal count as a
“strike” pursuant to 28 U.S.C. § 1915(g). Id.
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2),
applies to prisoner proceedings in forma pauperis.2 In considering
whether a plaintiff has stated a claim on which relief may be
granted, the “court accepts ‘all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.’” Martin
K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467
The Court shall dismiss the case at any time if the Court determines that
. . . “(B) the action or appeal: (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or, (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
(5th Cir. 2004)(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999)). However, the Court may not accept legal conclusions
as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id.
A plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Id. at 555 (citations and footnote omitted). “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 678. “This
standard ‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of’ the necessary
claims or elements.” In re S. Scrap Material Co., 541 F.3d 584,
587 (5th Cir. 2008)(quoting Twombly, 550 U.S. at 556).
insufficient to state a claim. The Magistrate Judge indicates,
“[i]t is clear that verbal abuse by a prison guard does not give
rise to a cause of action under § 1983.” Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997) (citing Bender v. Brumley, 1 F.3d
271, 274 n.4 (5th Cir. 1993)). “[M]ere threatening language and
gestures of a custodial officer do not, even if true, amount to
constitutional violations.” McFadden v. Lucas, 713 F.2d 143, 146
(5th Cir. 1983), cert. denied, 464 U.S. 998 (1983). Plaintiff
alleges Jaynes was less than cordial during the encounter. However,
the Magistrate Judge concludes that under the facts as alleged by
Plaintiff at the hearing, none of the defendants violated his
should be dismissed. See Barnes v. Banks, Civ. No. 5:09-CV-102DCB-MTP,
racially defamatory language towards the Plaintiff under 28 U.S.C.
§ 1915 for failure to state a claim and assigning Plaintiff a
The Court has carefully considered the Plaintiff’s claims, as
well as the Magistrate Judge’s Report and Recommendation, and
therefore agrees that the Plaintiff has failed to state any claim
and that his claims should be dismissed with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). Furthermore, the dismissal shall
count as a “strike” pursuant to 28 U.S.C. § 1915(g). The Court has
As mentioned above, Plaintiff claims he suffered no physical injury. To the
extent that Plaintiff is claiming he suffered emotional damages from the
incident, that claim is barred by the physical injury requirement of 42
U.S.C. § 1997e(e).
taken notice of Plaintiff’s letter requesting to dismiss the civil
case. The letter is in agreement with Magistrate Judge Parker’s
IT IS HEREBY ORDERED that Magistrate Judge Parker’s Report
and Recommendation is ADOPTED as the findings and conclusions of
FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE;
FURTHER ORDERED that the dismissal is a “STRIKE” pursuant to
28 U.S.C. § 1915(g).
A Final Judgement dismissing the action with prejudice will
follow in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED, this the 31st day of May, 2017.
/s/ David Bramlette___________
UNITED STATES DISTRICT JUDGE
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