United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge.
an inmate incarcerated at the Kilby Correctional Facility in
Mt. Meigs, Alabama, files this 42 U.S.C. § 1983 action
against Lieutenant John Hudson. He complains that on December 27,
2016, Defendant Hudson subjected him to verbal abuse and
harassment in response to his (Plaintiff's) efforts to
defend against a disciplinary he received while incarcerated
at the Loxley Work Release Center. Defendant Hudson's
conduct, Plaintiff claims, violated prison administrative
regulations that prohibit prison employees from subjecting
inmates to threatening language. Plaintiff seeks damages and
requests that Defendant Hudson be removed from his position.
Doc. 7. Upon review, the court concludes that dismissal of
this case prior to service of process is appropriate under 28
U.S.C. § 1915(e)(2)(B).
42 U.S.C. § 1983 action, Plaintiff, a state inmate
proceeding pro se, contends that Defendant Hudson,
an officer at the Kilby Correctional Facility, subjected him
to threatening and abusive language at a disciplinary hearing
on December 27, 2016, because Plaintiff sought to challenge
procedural errors on the disciplinary form. Plaintiff alleges
that Defendant Hudson's conduct violated a prison
regulation that directs prison employees to refrain from
using verbally abusive language towards inmates. Plaintiff
informed prison officials about Defendant Hudson's
conduct but states that they “refused to do
anything.” Doc. 7 at 3.
state a viable claim for relief in a 42 U.S.C. § 1983
action, the conduct complained of must have deprived
Plaintiff of rights, privileges or immunities secured by the
Constitution. American Manufacturers Mutual Ins. Co. v.
Sullivan, 526 U.S. 40, 119 S.Ct. 977, 985 (1999);
Parratt v. Taylor, 451 U.S. 527 (1981); Willis
v. University Health Services, Inc., 993 F.2d 837, 840
(11th Cir. 1993). Derogatory, demeaning, profane, threatening
or abusive comments made by an officer to an inmate, no
matter how repugnant or unprofessional, do not rise to the
level of a constitutional violation. See Hernandez v.
Fla. Dep't of Corr., 281 Fed.Appx. 862, 866 (11th
Cir. 2008) (holding that inmate's claim of “verbal
abuse alone is insufficient to state a constitutional
claim”); Edwards v. Gilbert, 867 F.2d 1271,
1274 n.1 (11th Cir. 1989) (mere verbal taunts, despite their
distressing nature, directed at inmate by jailers do not
violate inmate's constitutional rights); Ayala v.
Terhune, 195 F. App'x. 87, 92 (3rd Cir. 2006)
(“[A]llegations of verbal abuse, no matter how
deplorable, do not present actionable claims under §
1983.”); McBride v. Deer, 240 F.3d 1287, 1291
n.3 (10th Cir. 2001) (“[A]cts ... resulting in an
inmate being subjected to nothing more than threats and
verbal taunts do not violate the Eighth Amendment.”);
Sims v. Hickok, 185 F.3d 875 (10th Cir. 1999)
(district court's summary dismissal of inmate's
complaint for failure to state a claim appropriate because
officer's insults and racial slurs did not amount to a
constitutional violation); Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997) (verbal abuse, even if racially
or ethnically motivated, does not give rise to a cause of
action under § 1983); Northington v. Jackson,
973 F.2d 1518, 1524 (10th Cir. 1992) (mere threats, even to
inmate's life, made by guard do not satisfy the objective
component of the Eighth Amendment as verbal threats and
harassment are “necessarily excluded from the cruel and
unusual punishment inquiry....”); Ivey v.
Wilson, 832 F.2d 950, 954-955 (6th Cir. 1987) (verbal
abuse alone does not violate the Eighth Amendment);
O'Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir.
1987) (“alleged verbal threats by jail officials ...
did not rise to the level of a constitutional
violation.”); Gaul v. Sunn, 810 F.2d 923, 925
(9th Cir. 1987) (Eighth Amendment trivialized by assertion
that mere threat constitutes a constitutional wrong);
Purcell v. Coughlin, 790 F.2d 263, 265 (2nd Cir.
1986) (mere name-calling did not violate inmate's
constitutional rights); Collins v. Cundy, 603 F.2d
825, 827 (10th Cir. 1979) (verbal abuse, including threat of
harm, not actionable under § 1983).
fails to state a cognizable claim regarding Defendant
Hudson's use of profane or threatening language. This
claim is, therefore, due to be dismissed under 28 U.S.C.
Violation of Agency Regulations
alleges that Defendant Hudson violated an administrative
regulation against using threatening language towards
inmates. Doc. No. 1 at 3. Infringements of agency rules,
regulations or procedures do not, standing alone, amount to
constitutional violations. See Davis v. Scherer, 468
U.S. 183, 194 (1984) (recognizing that allegations of a
violation of statutory or administrative provisions did not
provide the basis for a claim of violation of a
constitutional right); Magluta v. Samples, 375 F.3d
1269, 1279 n. 7 (11th Cir. 2004) (mere fact governmental
agency's regulations or procedures may have been violated
does not, alone, raise a constitutional issue); Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (claim that
prison officials have not followed their own policies and
procedures does not, without more, amount to a constitutional
violation); United States v. Caceres, 440 U.S. 741,
751-752 (1979) (mere violations of agency regulations do not
raise constitutional questions); Weatherholt v.
Bradley, 316 F. App'x 300, 303 (4th Cir. 2009)
(same); see also Riccio v. Cnty. of Fairfax, 907
F.2d 1459, 1459 (4th Cir. 1990) (holding that if state law
grants more procedural rights than the Constitution requires,
a state's failure to abide by its law is not a federal
violation). Plaintiff's challenge to Defendant
Hudson's alleged violation of an agency regulation does
not rise to the level of a constitutional violation. It,
therefore, provides no basis for relief in this 42 U.S.C.
§ 1983 action and is subject to dismissal under 28
U.S.C. § 1915(e)(2)(B)(ii).
it is the RECOMMENDATION of the Magistrate Judge this case be
DISMISSED with prejudice prior to service of process under 28
U.S.C. § 1915(e)(2)(B)(ii).
that on or before March 16, 2017, Plaintiff may file an
objection. Any objection filed must specifically identify the
factual findings and legal conclusions in the Magistrate
Judge's Recommendation to which Plaintiff objects.
Frivolous, conclusive or general objections will not be
considered by the District Court.
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar a party from a de novo determination by the
District Court of factual findings and legal issues covered
in the report and shall “waive the right to challenge
on appeal the district court's order based on
unobjected-to factual and legal conclusions” except
upon grounds of plain error if necessary in the interests of
justice. 11th Cir. R. 3-1; see Resolution ...