Joyner v. Fleming et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 12/6/2019. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
KENNETH BRIAN JOYNER,
Plaintiff,
v.
LESLIE J. FLEMING, et al.,
Defendants.
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Civil Action No. 7:16cv00486
MEMORANDUM OPINION
By: Michael F. Urbanski
Chief United States District Judge
Plaintiff Kenneth Brian Joyner, a Virginia inmate proceeding pro se, filed this civil rights
action pursuant to 42 U.S.C. § 1983. On April 30, 2019, defendant Unit Manager Jimmy Collins
filed a motion to dismiss and, on May 1, 2019, the court issued a notice pursuant to Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 2005). See ECF Nos. 77 and 79. The Roseboro notice gave
Joyner twenty-one days to file a response to the motion and advised him that, if he did not respond,
the court would “assume that Plaintiff has lost interest in the case, and/or that Plaintiff agrees with
what the Defendant states in [his] responsive pleading(s).” See ECF No. 79. The notice further
advised Joyner that, if he wished to continue with the case, it was “necessary that Plaintiff respond
in an appropriate fashion,” and that if he failed to file some response within the time allotted, the
court “may dismiss the case for failure to prosecute.” Id. Joyner did not respond to the motion to
dismiss. Therefore, the court will dismiss Joyner’s claims against defendant Unit Manager Jimmy
Collins without prejudice for failure to prosecute.
Moreover, the court notes that Joyner’s amended complaint fails to state a cognizable
federal claim against Unit Manager Jimmy Collins. To state a cause of action under § 1983, a
plaintiff must allege facts indicating that he 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, 48 (1988). Joyner’s
allegations are far too vague and conclusory to state a cognizable federal claim against Collins.
The only times that Jimmy Collins is mentioned in the amended complaint are in the list of
defendants and in the general description of defendants. Joyner states that Collins is “legally
responsible for the day-to-day orderly operations of the VHU [(Grooming Standard Violator
Housing Unit)],” is “well aware of the abuse of process continuously occurring towards [inmates
in] the VHU, yet he insists on taking part in administering the intentional deprivation of property,
lack of equal protection, and abuse of due process,” “continues to demonstrate a nonchalant-sowhat attitude towards any complaints from [Joyner], simply because he is a VHU prisoner with
hair upon his head,” makes comments that suggest that “prisoners who choose to grow their hair
should not have any constitutional rights to due process,” and continues to “personally and
officially refuse and fail to take any corrective actions, [thereby] showing deliberate indifference.”
It is not clear from the amended complaint what “abuse of process” Joyner is referencing. To the
extent Joyner is attempting to raise a supervisory liability claim, it fails. Supervisory liability
under § 1983 may not be predicated only on the theory of respondeat superior. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 663 n.7 (1978). Moreover, a claim that prison staff did not
follow VDOC policies or procedures also does not state a constitutional claim. See United States
v. Caceres, 440 U.S. 741, 752-55 (1978); Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th
Cir. 1990) (holding that if state law grants more procedural rights than the Constitution requires, a
state’s failure to abide by that law is not a federal due process issue). To establish supervisory
liability under § 1983, a plaintiff must show that: (1) the supervisor had actual or constructive
knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable
risk” of constitutional injury to people like the plaintiff; (2) the supervisor’s response to that
knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the
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alleged offensive practices”; and (3) that there was an “affirmative causal link” between the
supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Joyner’s assertions are too vague and conclusory to
establish supervisory liability.
And, finally, to the extent that he complains about statements Collins allegedly made, the
allegations fail to state a claim. Verbal harassment or verbal abuse by prison officials in and of
itself does not state a constitutional deprivation under § 1983. Henslee v. Lewis, 153 F. App’x
178, 180 (4th Cir. 2005) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)); Johnson v.
Laham, 9 F.3d 1543 (4th Cir. 1993). 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 of an
inmate, even to an extent that it causes an inmate fear or emotional anxiety, does not constitute an
invasion of any identified liberty interest. Morrison v. Martin, 755 F. Supp. 683, 687 (E.D.N.C.
1990) (finding that the threatening language of a prison official, even if true, does not amount to
constitutional violation); Keyes v. City of Albany, 594 F. Supp. 1147 (N.D.N.Y. 1984) (“[T]he
use of vile and abusive language [including racial epithets], no matter how abhorrent or
reprehensible, cannot form the basis for a § 1983 claim.”). Accordingly, the court concludes that
Joyner’s amended complaint fails to state a cognizable claim against defendant Jimmy Collins.
6th
ENTER: This ____ day of December, 2019.
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