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Reeder v. T. Rodriguez

United States District Court, E.D. Louisiana

September 27, 2018

ROBERT REEDER
v.
T. RODRIGUEZ ET AL.

         SECTION “B” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Robert Reeder was a prisoner incarcerated in the Jefferson Parish Correctional Center (“JPCC”) in Gretna, Louisiana, at the time he filed this lawsuit. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against Correctional Officer T. Rodriguez and JPCC.

         Reeder's full allegations are as follows:

On 5-31-18, upon receiving my Ramadan tray I noticed I didn't get my juice and I asked Dept. Rodriguez to call the Kitchen for my juice. He opened up the door of the pod and grabbed his penis and sais "the only thing your (sic) going to get to drink is my dick." Minutes later D. Johnson came to give Rodriguez a break and [Rodriguez] told Johnson not to let offender Reeder suck your dick for juice. And I asked what Rodriguez said and Johnson stated that Rodriguez said "don't let Reeder suck your dick for juice." This demonstrates sexual harassment, sexual assault, sexual misconduct, cruel and unusual punishment, verbal abuse, malfeasance and violation of my United States and Louisiana constitutional rights.

         Record Doc. No.1 at p. 7 (Attachment to ¶ IV of Complaint). Reeder seeks a preliminary injunction, transfer from JPCC, criminal prosecution of Rodriguez, $200, 000 in damages and payment of his medical fees, court costs, and filing fees. Id. at p. 5, ¶ V.

         Although the court provided Reeder with an opportunity to expand upon and explain his claims, Record Doc. No. 4, he has failed to do so. Mail directed to Reeder at JPCC recently has been returned to the court as undeliverable. Record Doc. Nos. 9 and 10. However, Reeder has not advised the court that he has been released, as directed in Record Doc. No. 1 at p. 5, ¶ VI(2), or that his address has changed, as required by Local Rules 11.1 and 41.3.1.

         A prisoner's pro se complaint for alleged civil rights violations must be screened by the court as soon as practicable after docketing, regardless whether it also has been filed in forma pauperis. 28 U.S.C. § 1915A(a); Thompson v. Hicks, 213 Fed.Appx. 939, 942 (11th Cir. 2007); Lewis v. Estes, 242 F.3d 375, 2000 WL 1673382, at *1 (8th Cir. 2006); Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004); Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998); Lewis v. Sec'y, DOC, No. 2:10-CV-547-FTM-29, 2013 WL 5288989, at *2 (M.D. Fla. Sept. 19, 2013), aff'd, 589 Fed.Appx. 950 (11th Cir. 2014). After review in the screening process, the court must “identify cognizable claims or dismiss the complaint” if it or portions of it are frivolous or fail to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Lewis, 589 Fed.Appx. at 952; Thompson, 213 Fed.Appx. at 942; Shakur, 391 F.3d at 113; Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999).

         “A federal court may dismiss a claim in forma pauperis ‘if satisfied that the action is frivolous or malicious.'” Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as amended). A complaint is frivolous “if it lacks an arguable basis in law or fact.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). The law “‘accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'” Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         “‘A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'” Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). “When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not.” Moore, 976 F.2d at 269. A prisoner's in forma pauperis complaint that fails to state a claim may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).

         In this case, plaintiff's verbal and sexual harassment claims against defendants must be dismissed under 28 U.S.C. § 1915(e) and 42 U.S.C. § 1997e(c)(1), either as frivolous, because his claims lack an arguable basis in law, or under Rule 12(b)(6).

         Crude, unprofessional, or harassing remarks, even verbal threats by prison staff to an inmate, do not rise to the level of a constitutional violation. Field v. Corr. Corp., 364 Fed.Appx. 927, 930 (5th Cir. 2010) (citing Robertson v. Plano City, 70 F.3d 21, 24 (5th Cir. 1995)); Matthews v. Graham, 235 F.3d 1339, 2000 WL 1672660, at *1 (5th Cir. 2000) (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)); see Brand v. Hamilton, No. 3:10CV377 LAC MD, 2010 WL 4955400 (N.D. Fla. Dec. 1, 2010) (pretrial detainee's claim that officer verbally threatened him with physical assault not cognizable under Section 1983) (citing McFadden, 713 F.2d at 146; Evans v. City of Zebulon, 351 F.3d 485, 495-96 (11th Cir. 2003), vacated, 364 F.3d 1298 (11th Cir. 2004), rehearing en banc granted on other grounds sub nom. Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005); Bender v. Brumley, 1 F.3d 271, 274 (5th Cir. 1993)) (additional citations omitted).

         In Robertson, the Fifth Circuit noted that “in the Eighth Amendment context, ‘mere threatening language or gestures of a custodial officer do not, even if true, amount to constitutional violations.'” Robertson, 70 F.3d at 24 (citation omitted); accord Watson v. Winborn, No. 02-10984, 67 Fed.Appx. 241, 241 (5th Cir. 2003); Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002). “Claims of hurt feelings, humiliation, and other heartfelt, yet objectively trivial indignities, are not of Constitutional moment . . . .” Jackson v. Liberty Cty., 960 F.Supp. 360, 363 (E.D. Tex. 1994). “Verbal harassment and abusive language, while unprofessional and inexcusable, are simply not sufficient to state a constitutional claim under 42 U.S.C. § 1983.” Slagel v. Shell Oil Ref., 811 F.Supp. 378, 382 (C.D. Ill. 1993), aff'd, 23 F.3d 410 (7th Cir. 1994) (quotation and citation omitted). In this case, Reeder's allegations of verbal abuse by Custodial Officer Rodriguez do not rise to the level of a constitutional violation.

         As to sexual harassment or assault, the Fifth Circuit has recognized that “sexual assaults against inmates by prison guards without lasting physical injury may be actionable under the Eighth Amendment as acts which are offensive to human dignity.” Copeland v. Nunan, 250 F.3d 743, 2001 WL 274738, at *2 (5th Cir. 2001) (quotation omitted) (citing Hudson, 503 U.S. at 9-10; Whitley, 475 U.S. at 327; Schwenk v. Hartford, 204 F.3d 1187, ...


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