Grasty v. Milburn

• Court: District Court, N.D. Texas
• Decided: February 16, 2022
• Docket: 2:18-cv-00185
• Status: Unknown

Opinion

HS. DESiia REO” L NORTHERN DISTRICE OF TEXAS IN THE UNITED STATES DISTRICT COURT 7 yp Spy UE □□□□ FOR THE NORTHERN DISTRICT OF TEXA Tome AMARILLO DIVISION | | FEB 16 2022 | —CLERK.US. DISERIE COURT STEVEN GRASTY, § | Ab. | TDCJ-CID No. 01938145, § eee § Plaintiff, § § V. § 2:18-CV-185-Z-BR § WARDEN NFN MILBURN ef al., § § Defendants. § MEMORANDUM OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT Before the Court is Plaintiff's civil rights complaint brought pursuant to 42 U.S.C.§ 1983 against the above-referenced Defendants (ECF No. 3) (“Complaint”), filed October 1, 2018. Plaintiff filed suit pro se while a prisoner incarcerated in the Texas Department of Criminal Justice (“TDCJ”), Correctional Institutions Division. Plaintiff was granted permission to proceed in forma pauperis. For the reasons discussed herein, the Court DISMISSES Plaintiff's Complaint WITH PREJUDICE. FACTUAL BACKGROUND On an unknown date in March 2018, Defendant Zapata allegedly used racially provocative language when addressing the Plaintiff. ECF No. 3 at 4. Plaintiff claims that — as a result of this provocation — he received a disciplinary case resulting in the revocation or denial of his parole/release from custody. /d. Plaintiff requests only that his parole be restored and his negative character reference, presumably contained in his parole hearing packet, be removed. /d.

LEGAL STANDARD When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous,! malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A, 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C.§ 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (Sth Cir. 1991).* ANALYSIS A claim of verbal abuse and harassment is not cognizable in a federal civil rights action. See Jane Doe 5 v. City of Haltom City, 106 F. App’x. 906, 908 (Sth Cir. 2004) (“Verbal sexual harassment does not violate a detainee or inmate’s constitutional rights.”); Calhoun v. Hargrove, 312 F.3d 730, 734 (Sth Cir. 2002) (“[C]laims of verbal abuse are not actionable under § 1983.”); Siglar v. Hightower, 112 F.3d 191, 193 (Sth Cir. 1997) (“It is clear that verbal abuse by a prison guard does not give rise to a cause of action under § 1983.”); Bender v. Brumley, | F.3d 271, 274 n.4 (5th Cir. 1993) (“Mere allegations of verbal abuse do not present actionable claims under

A claim is frivolous if it lacks an arguable basis in law or in fact. Booker v. Koonce, 2 F.3d 114, 115 (Sth Cir. 1993). 2 Green vs. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) (“Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.”). Dismissals may also be based on adequately identified or authenticated records. Banuelos v. McFarland, 41 F.3d 232, 234 (Sth Cir. 1995).

§ 1983”). A claim of injury solely to reputation is insufficient to establish liability under § 1983. See, e.g., Paul v. David, 424 U.S. 693, 711-12 (1976) (concluding that damage to reputation alone does not implicate a “liberty” or “property” interest sufficient to invoke due process protections under § 1983); Cinel v. Connick, 15 F.3d 1338, 1343 (Sth Cir. 1994) (same); Oliver v. Collins, 904 F.2d 278, 281 (Sth Cir. 1990) (finding that injury to reputation as a result of libel or slander in a false prison report does not give rise to § 1983 liability); West v. Scott, No. 2:15-CV-0224, 2015 WL 6460046, *5 (N.D. Tex. Oct. 23, 2015) (same). Allegations of verbal threats or other derogatory remarks — even racial slurs — are not actionable constitutional violations. Robertson v. Plano City, 70 F.3d 21, 24 (Sth Cir. 1995). Accordingly, Plaintiff's claim that Defendant Zapata used racial slurs to taunt him into some behavior that resulted in a revocation of his parole is frivolous. Plaintiff's requested relief regarding injury caused to Plaintiffs reputation is also without arguable basis in law. Thus, the Court DISMISSES the claim as frivolous. The Court also DISMISSES Plaintiff's claims against Defendant Milburn. In § 1983 suits, liability of government officials for the unconstitutional conduct of their subordinates may not rest solely upon a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Roberts v. City of Shreveport, 397 F.3d 287, 292 (Sth Cir. 2005) (“Under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.”). Thus, supervisory officials are not subject to vicarious liability under § 1983 for the acts or omissions of their subordinates. Mouille v. City of Live Oak, 977 F.2d 924, 929 (Sth Cir. 1992). Absent direct personal participation in the alleged constitutional violation, a plaintiff must prove that each individual defendant either implemented an unconstitutional policy that directly resulted in injury to the plaintiff or failed to properly train a subordinate employee. See

Porter v. Epps, 659 F.3d 440, 446 (Sth Cir. 2011); Thompkins v. Belt, 828 F.2d 298, 303-04 (Sth Cir. 1987). Here, Plaintiff fails to allege any involvement by Defendant Milbern in the alleged racial provocation or revocation of his parole. CONCLUSION For the reasons set forth above and pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2) and 42 U.S.C. § 1997e(a), the Court ORDERS Plaintiff's Complaint filed pursuant to 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE as frivolous. SO ORDERED. February & 2022 Cnuadf M HEW J. AACSMARYK TED STATES DISTRICT JUDGE