Abram v. McKillip
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: On the court's own motion, Abram shall have 30 days from the date of this Memorandum and Order to file an amended complaint that seeks relief from defendants who are not immune from such re lief and that states a claim upon which relief may be granted. Failure to sufficiently amend his Complaint will result in dismissal of this action as frivolous and for failure to state a claim. The clerk's office is directed to set a pro se case management deadline in this case using the following text: December 19, 2014: Check for amended complaint. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EDDIE E. ABRAM,
This matter represents one of 18 cases filed by Plaintiff Eddie Abram on May
22, 2014, concerning prison conditions at Tecumseh State Correctional Institution
(“TSCI”) in Tecumseh, Nebraska. This court has given Abram leave to proceed in
forma pauperis in this matter. (Filing No. 8.) The court now conducts an initial
review of Abram’s Complaint (Filing No. 1) to determine whether summary dismissal
is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Abram is incarcerated at the Lincoln Correctional Center in Lincoln, Nebraska.
However, he was incarcerated at TSCI when he filed this action. He named TSCI
guard Corporal McKillip as a defendant in this matter. Abram alleged that on
October 3, 2013, McKillip made Abram beg for shampoo on shower day. Abram
alleged McKillip’s actions “were unprofessional and rude.” (Filing No. 1 at CM/ECF
pp. 4-5.) As relief, Abram seeks money damages in the amount of $10,000. (Filing
No. 1 at CM/ECF p. 6.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
Pro se plaintiffs must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“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.”). Regardless of whether a plaintiff is represented or is
appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to state
a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro
se plaintiff’s allegations must be construed liberally. Burke v. North Dakota Dep’t
of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To
state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by federal statute, and also
must show that the alleged deprivation was caused by conduct of a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993).
III. DISCUSSION OF CLAIMS
The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., Id.; Nevels
v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not bar
damages claims against state officials acting in their personal capacities, nor does it
bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state
employee defendants acting in their official capacity.
Abram has sued a state employee and seeks only monetary relief. To the extent
he seeks to sue McKillip in his official capacity, the Eleventh Amendment bars claims
for damages by private parties against employees of a state sued in their official
In addition, Abram has not stated a constitutional claim upon which relief may
be granted. He alleged that McKillip made him beg for shampoo on shower day.
However, verbal harassment, absent physical injury, is not a constitutional violation
cognizable under Section 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.
1986) (per curiam); see also Franks v. Fridley, No. 13-0561-WS-N, 2014 WL
3540574, at *5 (S.D. Al. July 17, 2014) (“Inappropriate, derogatory, demeaning,
profane, threatening or abusive comments made by a correctional official to an
inmate, no matter how repugnant or unprofessional, do not rise to the level of a
constitutional violation.”) (collecting cases).
In addition, conditions of confinement constitute cruel and unusual punishment
only where those conditions result in a serious deprivation of “the minimal civilized
measure of life’s necessities” under contemporary standards of decency. Rhodes v.
Chapman, 452 U.S. 337, 347 (1981). To prevail on a conditions of confinement
claim, a plaintiff must show: (1) that the prison conditions pose a substantial risk of
harm; and (2) that the prison official was deliberately indifferent to that risk. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Abram has made no such allegations here.
Even when this Complaint is read in conjunction with other Complaints filed
by Abram in this court against McKillip,1Abram’s allegations fail to state an Eighth
Amendment claim against McKillip upon which relief may be granted because taunts,
threats, name calling, and the use of offensive language do not state a claim of
constitutional dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)
(inmate’s claims of general harassment and of verbal harassment were not actionable
under § 1983); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal
threats and abuse by jail officials did not rise to the level of a constitutional
As pled, Abram’s allegations are frivolous and his Complaint fails to state a
claim upon which relief can be granted. On the court’s own motion, the court will
provide Abram 30 days in which to file an amended complaint that states a claim
upon which relief may be granted against Defendants. Failure to sufficiently amend
his Complaint will result in dismissal of this action as frivolous and for failure to state
IT IS THEREFORE ORDERED that:
See Case Nos. 4:14-cv-03107-JFB-PRSE (alleging that on November 28,
2013, McKillip called Abram an obscene name); 4:14-cv-03109-JFB-PRSE (alleging
that on October 11, 2013, McKillip “made the comment he had his chance to do
something to [Abram] 4 yrs. ago”); 4:14-cv-03110-JFB-PRSE (alleging that on
November 27, 2013, McKillip did not ask Abram if he wanted to go outside “for
yard”); 4:14-cv-03111-JFB-PRSE (alleging that on November 15, 2013, McKillip
told Abram he knew Abram was in prison for molesting children);
4:14-cv-03112-JFB-PRSE (alleging that on November 7, 2013, McKillip said Abram
was in prison for having sexual relations with his sisters and nieces);
4:14-cv-03113-JFB-PRSE (alleging that on November 27, 2013, McKillip called
Abram a child molester); and 4:14-cv-03114-JFB-PRSE (alleging that on October 3,
2013, McKillip asked Abram why he did not fight him on a previous occasion).
On the court’s own motion, Abram shall have 30 days from the date of
this Memorandum and Order to file an amended complaint that seeks relief from
defendants who are not immune from such relief and that states a claim upon which
relief may be granted. Failure to sufficiently amend his Complaint will result in
dismissal of this action as frivolous and for failure to state a claim.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: December 19, 2014: Check for amended
DATED this 17th day of November, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?