United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. Hornsby U.S. Magistrate Judge.
accordance with the standing order of this court, this matter
was referred to the undersigned Magistrate Judge for review,
report and recommendation.
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
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
Plaintiff seeks monetary damages.
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.
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)
Plaintiff's complaint lacks an arguable basis in law and
should be dismissed with prejudice as frivolous.
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).
reasons heretofore stated, the court finds that the IFP
complaint based upon a violation of Plaintiff's ...