United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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).
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)).
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.
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).
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).
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
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, ...