Abram v. McKillip

Filing 15

MEMORANDUM AND ORDER 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 Defendant who is not immune from such relief and that states a claim up on which relief can 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: February 16, 2015: Check for amended complaint. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EDDIE E. ABRAM,
Plaintiff,
v.
MCKILLIP, Cpl.,
Defendant.

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4:14CV3114

MEMORANDUM
AND ORDER

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 set forth the following
allegations in his Complaint:
On 10/3/13 Cpl. McKillip asked me remember when you were going
back to LCC and you didn’t have any restraints why didn’t you fight me
then I was going back to LCC Mental Health Unit. I think Cpl. McKillip
actions were agressive because he is trying to get me to fight him.
(Filing No. 1 at CM/ECF p. 4.)

As relief, Abram seeks money damages in the amount of $10,000. (Id. at
CM/ECF p. 6.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of
it 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. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).

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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
capacities.
In addition, Abram has not stated a constitutional claim upon which relief may
be granted. 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
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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 can 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
See Case Nos. 4:14-cv-03107-JFB-PRSE (alleging that on November 28, 2013,
McKillip called Abram an obscene name); 4:14-cv-03108-JFB-PRSE (alleging that on
October 3, 2013, McKillip made Abram beg for shampoo); 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, which was a lie);
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); and
4:14-cv-03113-JFB-PRSE (alleging that on November 27, 2013, McKillip called
Abram a child molester).
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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 violation).
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 can be granted against Defendant. Failure to sufficiently amend his
Complaint will result in dismissal of this action as frivolous and for failure to state a
claim.
IT IS THEREFORE ORDERED that:
1.
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
Defendant who is not immune from such relief and that states a claim upon which
relief can be granted. Failure to sufficiently amend his Complaint will result in
dismissal of this action as frivolous and for failure to state a claim.
2.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: February 16, 2015: Check for amended complaint.
DATED this 13th day of January, 2015.
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.

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