Redsun v. Gibson et al

Filing 7

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 4/14/2016. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
BEN-U ELI REDSUN,
Plaintiff,

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v.
MR. GIBSON, et al.,
Defendants.

Civil Action No. 7:15cv00490
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Ben-U Eli Redsun, a Virginia inmate proceeding pro se, filed a civil rights action
pursuant to 42 U.S.C. § 1983, seeking damages against Counsellor Gibson and Red Onion State
Prison. Having reviewed the complaint, I conclude that Redsun has not stated a claim upon
which relief may be granted and, therefore, will dismiss the complaint without prejudice
pursuant to 28 U.S.C. § 1915A(b)(1).
Redsun alleges that Gibson refused to allow Redsun to make an “emergency phone call”
to Redsun’s family.

He also alleges that Gibson “used rhetoric and propaganda during

conversations” so that inmates “would think that [Redsun is] rejected by [his] family for reasons
of an ‘unspoken’ crime, leading to risks to safety/life/etc.” Specifically, Gibson allegedly “spoke
loudly” asking, “what did you do to cause your family to block your calls?” and stating “Mr.
Younce said that he wonders why you should be allowed a phone call when you’re banned from
the phone.”

Redsun alleges that Gibson knew that other inmates were listening to the

conversation at their cell doors. Redsun argues that by not elaborating as to why Redsun was on
phone restriction, Gibson put Redun’s life and safety at risk and created “an atmosphere of
hatred by other inmates.”
To state a claim for relief under § 1983, a plaintiff must allege facts indicating that
plaintiff has been deprived of rights guaranteed by the Constitution or laws of the United States

and that this deprivation resulted from conduct committed by a person acting under color of state
law. West v. Atkins, 487 U.S. 42 (1988). As Red Onion State Prison is not a “person” subject to
suit under § 1983, Redsun cannot maintain this action against the defendant prison. See McCoy
v. Chesapeake Corr. Ctr., 788 F. Supp. 890 (E.D. Va. 1992).
In addition, Redsun’s allegations against Gibson fail to state a cognizable § 1983 claim.
First, “[t]here is no constitutional or federal statutory right to use a telephone while in prison.”
United States v. Alkire, No. 95-7885, 1996 U.S. App. LEXIS 7021, at *1, 1996 WL 166400, at
*1 (4th Cir. Apr. 10, 1996).
Further, to the extent Redsun is alleging that Gibson verbally harassed or verbally abused
him, the claim fails. The Constitution does not “protect against all intrusions on one’s peace of
mind.” Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991). Verbal harassment or idle threats to an
inmate, even to an extent that it causes an inmate fear or emotional anxiety, do not constitute an
invasion of any identified liberty interest. See Henslee v. Lewis, 153 F. App’x 178, 180 (4th Cir.
2005) (verbal harassment or verbal abuse by prison officials in and of itself does not state a
constitutional deprivation under § 1983).
Finally, to the extent Redsun is alleging that Gibson failed to protect him from other
inmates, the claim fails. The Eighth Amendment imposes a duty on prison officials to take
reasonable measures to guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832
(1994); Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). More specifically, it imposes a duty on
prison officials “to protect prisoners from violence at the hands of other prisoners.” Farmer, 511
U.S. at 833; Odom v. South Carolina Dep't of Corr., 349 F.3d 765 (4th Cir. 2003). Prison
officials who are deliberately indifferent to “specific known risks of such harm,” violate an
inmate’s Eighth Amendment right to be free from physical harm inflicted by other inmates.

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Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987) (citing Davis v. Zahradnick, 600 F.2d 458,
460 (4th Cir. 1979)). A prisoner can bring an Eighth Amendment claim to challenge harm that is
certain or very likely in the future, even if the harm has not yet materialized. See Helling v.
McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment protects against future harm to
inmates is not a novel proposition . . . . It would be odd to deny an injunction to inmates who
plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet
had happened to them.”); Woodhous v. Com. of Va., 487 F.2d 889, 890 (4th Cir. 1973) (“A
prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably
protected from constant threat of violence and sexual assault by his fellow inmates, and he need
not wait until he is actually assaulted to obtain relief.”). In this case, Redsun’s allegations are far
too vague and conclusory to demonstrate that he is incarcerated under conditions posing a known
risk of harm that is certain or very likely in the future. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007) (a plaintiff must assert factual allegations that raise a right to relief that is “plausible
on its face,” not one that is speculative or merely “conceivable”). Further, Redsun has not
demonstrated that Gibson was deliberately indifferent to a known safety risk. See Farmer, 511
U.S. at 837.
Based on the foregoing, I conclude that Redsun has failed to state a § 1983 claim upon
which relief may be granted and, therefore, will dismiss his complaint without prejudice.
14th
ENTER: This ____ day of April, 2015.

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