UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION
ROBERT SANDERS, ) ) Plaintiff, ) ) VS. ) No. 20-2129-JDT-cgc ) MS. HARRIS, ) ) Defendant. )
ORDER DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On February 24, 2020, Plaintiff Robert Sanders, who is presently incarcerated at the Shelby County Criminal Justice Center (Jail) in Memphis, Tennessee, filed a pro se civil complaint and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court issued an order on February 25, 2020, directing Plaintiff to either pay the entire $400 filing fee or submit a copy of his inmate trust account in accordance with the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) Plaintiff responded by paying the filing fee on March 23, 2020. (ECF No. 5.) The motion to proceed in forma pauperis is DENIED as moot. Sanders sues Defendant Ms. Harris, a Correctional Officer at the Jail. He alleges that on May 31, 2018, Harris was sitting at her desk making notes and talking with another inmate; Sanders was standing at the door laughing at what they were saying. (ECF No. 1 at PageID 2.) Harris allegedly “blurted out saying I don’t know you laughing at Sanders you know I don’t like you anyways[,] why you driving and shooting people that’s a coward move.” (Id.) Sanders alleges that Harris was wrong for commenting on his case because “that[] is against my case because my case shouldn’t discuss amongst nobody but my lawyer.” (Id.) He alleges her comment violated his rights under the Fourteenth Amendment, causing him embarrassment and stress and putting him in danger so that he feared for his safety. (Id. at PageID 3.) The relief sought is not specified. The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaintC (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B). In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint’s “well- pleaded” factual allegations as true and then determines whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth,” and legal conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3. “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”
(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))). Sanders’s complaint is filed on the form used for commencing actions pursuant to 42 U.S.C. § 1983, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the “Constitution and laws” of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). As an apparent pretrial detainee, Plaintiff’s right to be protected stems from the Fourteenth Amendment, but that right is analogous to the right provided to convicted prisoners under the Eighth Amendment. See Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005). To state a claim under the Eighth Amendment, a plaintiff must satisfy an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, “a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). That is, a prisoner must show that he “is incarcerated under conditions posing a substantial risk of serious harm.” Id. The subjective component of an Eighth Amendment violation requires a prisoner to demonstrate that the official acted with the requisite intent; that is, that he had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson v. Seiter, 501 U.S. 294, 297, 302-03 (1991). Thus, “the prison official must know[ ] of and disregard[ ] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837-38. The allegation that Harris commented on Sanders’s pending case in the hearing of other
people in the pod does not satisfy the objective component of an Eighth Amendment violation. Verbal comments, even if harassing and abusive, do not violate the Eighth Amendment no matter how “shameful and utterly unprofessional.” Johnson v.
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION
ROBERT SANDERS, ) ) Plaintiff, ) ) VS. ) No. 20-2129-JDT-cgc ) MS. HARRIS, ) ) Defendant. )
ORDER DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On February 24, 2020, Plaintiff Robert Sanders, who is presently incarcerated at the Shelby County Criminal Justice Center (Jail) in Memphis, Tennessee, filed a pro se civil complaint and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court issued an order on February 25, 2020, directing Plaintiff to either pay the entire $400 filing fee or submit a copy of his inmate trust account in accordance with the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) Plaintiff responded by paying the filing fee on March 23, 2020. (ECF No. 5.) The motion to proceed in forma pauperis is DENIED as moot. Sanders sues Defendant Ms. Harris, a Correctional Officer at the Jail. He alleges that on May 31, 2018, Harris was sitting at her desk making notes and talking with another inmate; Sanders was standing at the door laughing at what they were saying. (ECF No. 1 at PageID 2.) Harris allegedly “blurted out saying I don’t know you laughing at Sanders you know I don’t like you anyways[,] why you driving and shooting people that’s a coward move.” (Id.) Sanders alleges that Harris was wrong for commenting on his case because “that[] is against my case because my case shouldn’t discuss amongst nobody but my lawyer.” (Id.) He alleges her comment violated his rights under the Fourteenth Amendment, causing him embarrassment and stress and putting him in danger so that he feared for his safety. (Id. at PageID 3.) The relief sought is not specified. The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaintC (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B). In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint’s “well- pleaded” factual allegations as true and then determines whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth,” and legal conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3. “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”
(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))). Sanders’s complaint is filed on the form used for commencing actions pursuant to 42 U.S.C. § 1983, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the “Constitution and laws” of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). As an apparent pretrial detainee, Plaintiff’s right to be protected stems from the Fourteenth Amendment, but that right is analogous to the right provided to convicted prisoners under the Eighth Amendment. See Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005). To state a claim under the Eighth Amendment, a plaintiff must satisfy an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, “a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). That is, a prisoner must show that he “is incarcerated under conditions posing a substantial risk of serious harm.” Id. The subjective component of an Eighth Amendment violation requires a prisoner to demonstrate that the official acted with the requisite intent; that is, that he had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson v. Seiter, 501 U.S. 294, 297, 302-03 (1991). Thus, “the prison official must know[ ] of and disregard[ ] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837-38. The allegation that Harris commented on Sanders’s pending case in the hearing of other
people in the pod does not satisfy the objective component of an Eighth Amendment violation. Verbal comments, even if harassing and abusive, do not violate the Eighth Amendment no matter how “shameful and utterly unprofessional.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 545-46 (6th Cir. 2004) (affirming dismissal for failure to state a claim where plaintiff’s allegations included continuous insulting remarks by guard); see also Morrison v. Greenwald, No. 3:09-CV- 009, 2010 WL 1253962, at *9 (S.D. Ohio Feb. 24, 2010), report and recommendation adopted, 2010 WL 1253958 (S.D. Ohio Mar. 23, 2010) (“The Constitution does not protect inmates (or anyone else) from gross insults by public officials, including prison guards.”). Even a guard’s verbal threat of assault does not violate a prisoner’s constitutional rights. Miller v. Wertanen, 109
F. App’x 64, 65 (6th Cir. 2004). Just as the Constitution “does not mandate comfortable prisons,” Wilson, 501 U.S. at 298, it does not mandate polite prison guards or officials. “Derogatory or abusive language and conduct do not give rise to a claim under § 1983.” Meadows v. Gibson, 855 F. Supp. 223, 225 (W.D. Tenn. 1994) (citing Paul v. Davis, 424 U.S. 693 (1976)). Accordingly, Sanders has failed to allege the objective component of an Eighth Amendment claim. Even if Harris’s comment could satisfy the objective component of an Eighth Amendment violation, Sanders has not satisfied the subjective component. To establish the subjective component, Sanders must show that Harris acted with “deliberate indifference” to a substantial risk that he would suffer serious harm. Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Helling v. McKinney, 509 U.S. 25, 32 (1993). “[D]eliberate indifference describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. Thus, “the prison official must know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837-38. Sanders does not allege that Harris knew her comment would pose an excessive risk to his safety and yet disregarded that risk.
Furthermore, Sanders does not contend that he suffered any actual harm because of Harris’s alleged comment, asserting only that he was embarrassed and stressed. While he alleges he was afraid for his life, he does not explain how Harris’s statement endangered him and does not allege that he was actually threatened or attacked by anyone as a result. Therefore, Sanders does not state a claim for an Eighth Amendment violation. Sanders’s allegation that Harris’s comment was “against his case” because his case should only be discussed with his lawyer does not state a constitutional violation. He does not allege that Harris interfered with the lawyer-client relationship in any way or that his criminal proceeding has been adversely affected by her comment.
For all of the foregoing reasons, Sanders’s complaint is subject to dismissal in its entirety for failure to state a claim. The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013); see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”). Leave to amend is not required where a deficiency cannot be cured. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”). In this case, the Court concludes that leave to amend is not warranted. In conclusion, this case is DISMISSED with prejudice in its entirety for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend is DENIED.
Pursuant to 28 U.S.C. §1915(a)(3) and Federal Rule of Appellate Procedure 24(a), the Court must also consider whether an appeal by Sanders in this case would be taken in good faith. The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The same considerations that lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an appeal would not be taken in good faith. Therefore, it is CERTIFIED that any appeal in this matter by Sanders would not be taken in good faith. The Court also must address the assessment of the $505 appellate filing fee if Sanders nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good faith does not affect an indigent prisoner plaintiff’s ability to pay the filing fee using the PLRA’s
installment procedures, 28 U.S.C. §§ 1915(a)-(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the PLRA. Therefore, Sanders is instructed that if he files a notice of appeal and wishes to use the installment method for paying the appellate filing fee, he must comply with the PLRA and McGore by filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust account statement for the last six months. For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Sanders, this is the first dismissal of one of his cases as frivolous or for failure to state a claim. This “strike” shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). The Clerk is directed to prepare a judgment. IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE