Powell v. Cleveland County Detention Center et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Honorable David L. Russell on 3/11/13. (ns)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
MARTEZ TERRAIL POWELL,
Plaintiff,
v.
CLEVELAND COUNTY JUSTICE
CENTER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIV-13-120-R

ORDER
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging violation of his civil
rights with regard to his detention at the Cleveland County Detention Center. Pursuant to 28
U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate Judge Gary M.
Purcell for preliminary review. On February 13, 2013, Judge Purcell issued a Report and
Recommendation wherein he recommended that the petition be dismissed upon filing
pursuant to 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B). The matter is currently before the
Court on Petitioner's February 19, 2013 letter, which the Court construes as an objection to
the Report and Recommendation. Having considered Plaintiff's objection, the Court finds
as follows.1
Plaintiff filed this action alleging he has suffered mental and emotional distress as a
result of derogatory racial terms used by other detainees at the jail to address Plaintiff and

1

Plaintiff has also sent a letter on February 28, 2013 seeking forms to appeal Judge Purcell's decision.
Therein, however, Plaintiff does not indicate any additional basis for objecting to the Report and
Recommendation. Since that date he has not filed anything with the Court.

his cellmate. Plaintiff asserts that the staff of the detention center have failed to stop the
verbal abuse. Judge Purcell reviewed Plaintiff's allegations, including allegations contained
in a February 11, 2003 letter to the Court, and concluded that Plaintiff had failed to state a
claim for violation of his constitutional rights. Judge Purcell noted that Plaintiff, as a pretrial
detainee, is afforded protection by the Fourteenth Amendment under the standards
established for Eighth Amendment claims pressed by persons incarcerated following
conviction. He further noted that Plaintiff had failed to allege that he was incarcerated under
conditions posting a substantial risk of serious harm, or that jail officials were deliberately
indifferent to his health or safety.
In his objection Plaintiff contends that Judge Purcell erroneously concluded that he
lacks a claim. He contends he was put into segregation when he responded physically to
someone using a racial slur against him. Plaintiff's contention that he retaliated physically
against someone because that person used a racial slur does not support his Fourteenth
Amendment claim.
Having reviewed the Report and Recommendation and the objection thereto, the Court
finds no basis in the objection for rejecting or modifying the Report and Recommendation
in any manner. As noted, Plaintiff's allegations are insufficient to state a claim. See Collins
v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (verbal abuse alone is not actionable under §
1983); see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987) (same) (quoting
Collins, 603 F.2d at 827); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987) (use of
derogatory racial epithets does not violate Fourteenth Amendment); Black Spotted Horse v.
2

Else, 767 F.2d 516, 517 (8th Cir.1985) (use of racial slurs only violates Fourteenth
Amendment if coupled with physical force or other egregious conduct).
The only other issue raised by any of Plaintiff's filings is his allegation that detainees
are forced to urinate in the shower. This allegation is similarly not sufficient to state a claim
for the violation of his constitutional rights.
Accordingly, the Report and Recommendation is hereby ADOPTED IN ITS
ENTIRETY, and this action is DISMISSED WITHOUT PREJUDICE for failing to state a
claim.
IT IS SO ORDERED this 11th day of March, 2013.

3