McGaha v. Tillford et al

Filing 16

ORDER ADOPTING 11 Report and Recommendations; this Court dismisses the above-captioned action without prejudice and without issuance of process. Signed by Honorable Richard M Gergel on 3/23/2011. (mbro, )

rN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLrNAiSOr. CLERK'. i'~. ~Y., 5r~N, SC ) ) )
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R,C~ VE'

Marshall Dewitt McGaha, # 155836, alk/a Marshall D. McGaha, Jr., l7kJa Marshall Dewitt McGaha, # 928, Plaintiff, vs. Mr. Tillford, e!. aI., Defendants.

Civil Action No. 6:m~-&\ll'-~CA /I:

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ORDER

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Plaintiff brought this action pursuant to 42 U .S.C. § 1983. Plaintiff is proceeding
in formapallperis as provided by 28 U.S.C. § 1915. As a result, this matter was referred

to a Magistrate Judge for pre-trial proceedings. The Magistrate Judge has made a report and recommendation that this matter be dismissed without prejudice and without issuance
of process. The Plaintiff has objected. After a de novo review, thi s Court adopts the

recommendation of the Magistrate Judge.
Analysis The magistrate judge makes only a recommendation to this Court. The

recommendation has no presumptive weight, and respons ibility for making a final

determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.C!. 549, 46 L.Ed.2d 483 (1976). This Court is charged with making a de novo

detennination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate." 28 U.S.C. § 636(bXI). This
Court may also "receive further evidence or recommit the matter to the magistrate with

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instructions." [d.

In the absence of specific objections to the Report and

Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983). Here, there is no basis for a finding of diversity jurisdiction over this complaint. The diversity statute, 28 U.S.C. § 1332(a), requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). This court has no diversity jurisdiction because all panies in the above-captioned case are residents of the State of South Carolina. Hence, complete diversity of parties is absent in the above-captioned case, and diversity jurisdiction is, therefore,lacking. Moreover, it is clear that the essential allegations of the comp laint are insufficient
to show that the case is one "arising under the Constitution, laws, or treaties of the United

States." 28 U. S.c. § 1331. That is, the complaint does not state a claim cognizable under this Court ' s " federal question" jurisdiction. It is well settled that "the use of vile and abusive language is never a basis for a civil rights action." Grandstaffv. City of Borger, 767 F.2d 161 (5th Cir. 1985) (there is no federal constitutional right to be free from emotional di stress, psycho logica l stress, or mental angui sh, and, hence, there is no liability under § 1983 regarding such claims). While the all eged statements, if made, might be construed as inappropriate, mere threats or verbal abuse, without more, does not state a cognizab le claim under § 1983. See Northington v. Jackson, 973 F .2d 1518, 1524 (10th Cir. 1992) (citing Collins v. Cundy, 603 F.2d 825, 827 ( 10th Cir. 1979»; see also

Carler v. Morris, 164 F.3d 21 5, 219 n.3 (4th Cir. 1999) (racial epithets, while deplorable
and unprofessional , do not rise to the level ofa Constitutional violation).

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The plaintiff also cannot recover damages for "punitive, emotional, mental" distress. See Grandstaff, 767 F.2d 161 (there is no federal constitutional right to be free from emotional di stress, psychological stress, or mental anguish, and , hence, there is no liability under § 1983 regarding such claims). Plaintiff's allegations relating to his being placed in a 5x5 cell also must fail as a matter of law. Federal Courts are required to accord great consideration to a correctional system 's need to maintain order, discipline, and control. Wolff Y. McDonell, 418 U.S. 539, 558-562 (I974). There is no constitutional right for a state or federal prisoner to be housed in a particular institution, at a particular custody le vel, or in a particular portion or unit ofa correctional institution. See Olim v. Wakinekona , 461 U.S. 238 ( 1983), and Ange v. Paderick, 52 1 F.2d 1066 (4th CiT. 1975), Thus, the placement and assignment of inmates into part icular institutions or units by state or federal corrections departments are discretionary functions and are not subject to review unless state or federal law places limitations on official discretion. Hayes (4th CiT. 1984). Conclusion Based on the above, this Court dismisses the above-captioned action without prej ud ice and without issuance of process. AND IT IS SO ORDERED.
Y.

Thompson, 726 F.2d 1015, 1016-1017 & n.1

United States District Court Judge MaTch<3 , 20 11 Charleston, South Carolina

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