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Walker v. Tucker

United States District Court, W.D. Louisiana, Shreveport Division

May 31, 2019

D'ANGELO MALIK WALKER
v.
JACOB TUCKER

          Hicks Chief Judge.

          REPORT AND RECOMMENDATION

          Mark L. Hornsby U.S. Magistrate Judge.

         In accordance with the standing order of this court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.

         STATEMENT OF CLAIM

         Before the court is a civil rights complaint filed in forma pauperis by pro se plaintiff D'Angelo Malik Walker, (“Plaintiff”), pursuant to 42 U.S.C. § 1983. This complaint was filed in his court on February 25, 2019. Plaintiff is currently incarcerated at the Catahoula Correctional Center, but claims his civil rights were violated while incarcerated at the Caddo Correctional Center in Shreveport, Louisiana. Plaintiff names Jacob Tucker as defendant.

         Plaintiff claims that on December 1, 2018, Deputy Mejia placed him in lockdown. He claims that after he was placed in lockdown, Deputy Jacob Tucker sexually harassed him. He claims Tucker told him that “now that [you're] in lockdown I can finally jack off to you.” He claims Tucker then grabbed his penis through his pants and shook it as he laughed and smiled.

         Accordingly, Plaintiff seeks monetary damages.

         LAW AND ANALYSIS

         The Eighth Amendment prohibition of cruel and unusual punishment proscribes wanton infliction of unnecessary pain upon a prisoner by prison officials. An Eighth Amendment claim has two required components. See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991). First, the deprivation alleged must be sufficiently serious. See id., 111 S.Ct. at 2324. "[O]nly those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave" to constitute cruel and unusual punishment. Id., 111 S.Ct. at 2324 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399 (1981)). Second, the prison official must have acted with a sufficiently culpable state of mind. See id. at 305, 111 S.Ct. at 2328; Farmer, 511 U.S. at 838, 114 S.Ct. at 1979. In prison condition of confinement cases, that state of mind is deliberate indifference, which the Supreme Court defined as knowing of and disregarding an excessive risk to inmate health or safety. See id., 114 S.Ct. at 1979.

         Plaintiff has failed to satisfy the first prong of the test. Defendant's verbal sexual harassment and gestures are not sufficiently serious and pervasive to permit redress under the constitution. Plaintiff's exposure to verbal sexual harassment and gestures does not present an actionable claim under Section 1983. See Jane Doe 5 v. City of Haltom City, 2004 WL 1777253 (5th Cir.2004)(unpubl.); Bender v. Brumley, 1 F.3d 271, 274 (5th Cir.1993); Cooper v. Caddo Corr. Ctr., CIV A 06-0009-P, 2007 WL 471185, (W.D. La. Jan. 11, 2007)

         Accordingly, Plaintiff's complaint lacks an arguable basis in law and should be dismissed with prejudice as frivolous.

         CONCLUSION

         Because Plaintiff filed this proceeding in forma pauperis ("IFP"), if this court finds Plaintiff's complaint to be frivolous, it may dismiss the complaint as such at any time, before or after service of process, and before or after answers have been filed. See 28 U.S.C. § 1915(e); Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986); Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). District courts are vested with extremely broad discretion in making a determination of whether an IFP proceeding is frivolous and may dismiss a claim as frivolous if the IFP complaint lacks an arguable basis either in law or in fact. See Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995); Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989).

         For the reasons heretofore stated, the court finds that the IFP complaint based upon a violation of Plaintiff's ...


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