United States District Court, M.D. Alabama, Eastern Division
LATOYA M. JACKSON, Plaintiff,
OFFICER SULLIVAN, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
case is before the court on a 42 U.S.C. § 1983 complaint
filed by Latoya M. Jackson, an indigent county inmate,
against Officer Sullivan, an employee of the Valley Police
Department. Doc. 1 at 1. In this case, Jackson complains that
Officer Sullivan made racially derogatory comments in his
presence. He names Sullivan, the City of Valley and
the Valley Police Department as defendants. Jackson seeks a
declaratory judgment, injunctive relief and monetary damages
for the alleged violations of his constitutional rights. Doc.
1 at 2.
thorough review of the complaint, the court concludes that
this case is due to be dismissed prior to service of process
in accordance with the provisions of 28 U.S.C. §
1915(e)(2)(B)(i) and (ii).
The Valley Police Department
Jackson names the Valley Police Department as a defendant,
this department is not a legal entity subject to suit or
liability. See Ex parte Dixon, 55 So.3d 1171, 1172
n.1 (Ala. 2010) (“Generally, the departments and
subordinate entities of municipalities, counties, and towns
that are not separate legal entities or bodies do not have
the capacity to sue or be sued in the absence of specific
statutory authority.”). Clay-Brown v. City of
Decatur, 2013 WL 832315, *2 (N.D. Ala. Feb. 28, 2013
(“Under Alabama law, only a municipality itself has the
capacity to sue and be sued, as opposed to agencies,
departments or divisions of the municipality.”). Thus,
the court finds that the claims presented against the Valley
Police Department are subject to summary dismissal as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) since this
defendant is not a suable entity. Howard v. City of
Demopolis, 984 F.Supp.2d 1245, 1253 (S.D. Ala. 2013)
(noting previous determination “that police departments
are not a proper legal entity capable of being sued.”);
Manning v. Mason, 2011 WL 1832539, *3 (M.D. Ala. May
13, 2011) (citations omitted) (finding “that a law
enforcement department is not a legal entity capable of being
sued. Accordingly, as it is not subject to suit,
Plaintiffs' claims against [the] Enterprise Police
Department are due to be dismissed with prejudice.”);
Blunt v. Tomlinson, 2009 WL 921093, *4 (S.D. Ala.
Apr. 1, 2009) (“In Alabama, a city's police
department is not a suable entity or a proper party under
state law or for § 1983 purposes.”); Johnson
v. Andalusia Police Dept., 633 F.Supp.2d 1289, 1301
(M.D. Ala. 2009) (finding that Plaintiff's “claims
against the Andalusia Police Department must fail because
police departments are generally not considered legal
entities subject to suit.”).
Racially Derogatory Language
asserts that on August 17, 2018 during his transport to the
Chambers County Detention Facility, defendant Sullivan used
“racially motivated comments and epithets”
towards him “[a]s part of a race-baiting tactic to
elicit a response[.]” Doc. 1 at 1. Jackson explains he
eventually responded to Sullivan by making disparaging
remarks about Sullivan and Sullivan's wife and then
stating: “If I had the chance I would kick off in his
ass.” Doc. 1-1 at 3. Jackson advises this exchange
resulted in an additional charge against him for
“making terroristic threats toward a police
officer.” Doc. 1 at 1.
state a claim for relief which is cognizable in a 42 U.S.C.
§ 1983 action, the conduct complained of must have
deprived the plaintiff of rights, privileges or immunities
secured by the Constitution. American Manufacturers
Mutual Ins. Co. v. Sullivan, 526 U.S. 40 (1999);
Parratt v. Taylor, 451 U.S. 527 (1981). Derogatory,
demeaning, racially charged, 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 and, therefore, provide no basis for
relief in a § 1983 action. See Edwards v.
Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989)
(noting that mere verbal taunts or threats, despite their
distressing nature, directed at an inmate by jailers do not
violate the inmate's constitutional rights); Ayala v.
Terhune, 195 Fed.Appx. 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)
(holding that 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) (holding
that 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) (holding that mere threats, even to inmate's
life, made by guard do not satisfy the objective component of
the Eighth Amendment as threats and harassment are
“necessarily excluded from the cruel and unusual
punishment inquiry[.]”); O'Donnell v.
Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (holding that
“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); Collins v.
Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (verbal abuse,
including threat of harm, not actionable under § 1983).
Consequently, the claim presented by Jackson challenging
defendant Sullivan's use of racially insensitive and
demeaning language does not implicate any violation of the
Constitution. Jackson's claim against Sullivan and the
City of Valley are subject to summary dismissal in accordance
with the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii).
it is the RECOMMENDATION of the Magistrate Judge that this
case be DISMISSED with prejudice prior to service of process
pursuant to the directives of 28 U.S.C. §
1915(e)(2)(B)(i) and (ii).
before September 25, 2018, the parties may
file objections to this Recommendation. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which the objection is
made. Frivolous, conclusive, or general objections to the
Recommendation will not be considered.
to file written objections to the Magistrate Judge's
findings and recommendations in accordance with the
provisions of 28 U.S.C. § 636(b)(1) shall bar a party
from a de novo determination by the District Court of legal
and factual issues covered in the Recommendation and waives
the right of the party to challenge on appeal the District
Court's order based on unobjected-to factual and legal
conclusions accepted or adopted by the District Court except
upon grounds of plain error or manifest injustice. 11th Cir.