United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
an inmate incarcerated at the Houston County Jail in Dothan,
Alabama, files this 42 U.S.C. § 1983 action against
Sheriff Donald Valenza, Commander Brazier, and Lieutenants
King and Moore. He complains Defendants King and Moore
subject him and other inmates to threats and abusive
language. Plaintiff requests trial by jury, an investigation
into his allegations, and damages. Doc. 1. Upon review, the
court concludes that dismissal of this case prior to service
of process is appropriate under 28 U.S.C. §
alleges that on December 17, 2018, and January 17, 2018,
Defendant Brazier granted inmates' request that chairs be
provided for the inmate church service. Plaintiff indicates
the request was made because he and two other inmates have
physical disabilities. Plaintiff complains, however, that
Defendant King stated “f**k them let them stand
up.” On a different occasion, Plaintiff alleges
Defendant Moore would not let inmates go to the room to sit
down. On March 5, 2019, Plaintiff complains
Defendant King walked into the trustee dorm swearing and
locked the dorm down for no reason. Both Defendants King and
Moore, Plaintiff claims, abuse their authority by being
verbally abusive to inmates and by threatening them with
lockdowns. Doc. 1 at 1, 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 (1999); Parratt v.
Taylor, 451 U.S. 527 (1981); Willis v. University
Health Services, Inc., 993 F.2d 837, 840 (11th Cir.
1993). Generally, allegations that an officer made
derogatory, demeaning, profane, threatening, or abusive
comments 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. App'x. 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 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)
(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); Ivey v. Wilson, 832 F.2d
950, 954-955 (6th Cir. 1987) (verbal abuse alone is not
violative of 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 (2dd 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). This is true even for threats
of violence, if such threats do not result in actual physical
contact or are otherwise carried out, even when threats are
without apparent justification. Hernandez, 281 Fed.
App'x. at 866; Simms v. Reiner, 419 F.Supp. 468,
474 (N.D. Ill. 1976). Under these principles, Plaintiff's
allegations of verbal abuse and threats made by Defendants
King and Moore are insufficient to state a constitutional
claim. This claim is, therefore, due to be dismissed under 28
U.S.C. § 1915(e)(2)(B)(ii).
alleges Defendant King discriminated against inmates in the
Houston County Jail and their right to worship. Doc. 1 at 3.
Plaintiff's allegation of discrimination is generalized
and vague, and he provides no facts to support this claim.
See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th
Cir. 1984) (“In civil rights actions, . . . a complaint
will be dismissed as insufficient where the allegations it
contains are vague and conclusory.”). Doc. 1 at 3.
establish a claim of discrimination cognizable under the
Equal Protection Clause, “a prisoner must demonstrate
that (1) he is similarly situated to other prisoners who
received more favorable treatment; and (2) the state engaged
in invidious discrimination against him based on race,
religion, national origin, or some other constitutionally
protected basis. Jones v. Ray, 279 F.3d 944, 946-47
(11th Cir. 2001); Damiano v. Florida Parole and Prob.
Comm'n, 785 F.2d 929, 932-33 (11th Cir.
1986).” Sweet v. Secretary, Department of
Corrections, 467 F.3d 1311, 1318-1319 (11th Cir. 2006).
“[O]fficial action will not be held unconstitutional
solely because it results in a . . . disproportionate impact.
. . . [An allegation] of ... discriminatory intent or purpose
[related to a constitutionally protected interest] is
required to [set forth] a violation of the Equal Protection
Clause.” Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252,
264-265 (1977). “‘Discriminatory purpose' . .
. implies more than intent as volition or intent as awareness
of consequences. It implies that the decision maker . . .
selected . . . a particular course of action at least in part
‘because of,' not merely ‘in spite of,'
its adverse effects upon an identifiable group.”
Personnel Administrator of Massachusetts v. Feeney,
442 U.S. 256, 279 (1979) (footnote and citation omitted);
see also Hernandez v. New York, 500 U.S. 352, 359
(1991). Mere differential treatment of similarly situated
inmates, without more, fails to allege a violation of the
Equal Protection Clause. E & T Realty Company v.
Strickland, 830 F.2d 1107 (11th Cir. 1987);
McKleskey v. Kemp, 481 U.S. 279, 292 (1987) (claims
of mere disparity of treatment are insufficient to establish
fails to meet his pleading burden as he does not allege
Defendant King subjected him to any adverse treatment based
on some constitutionally impermissible reason; rather, he
simply makes the conclusory assertion that Defendant King
discriminates against him and other inmates and their right
to worship. Consequently, Plaintiff's claim of
discrimination does not rise to the level of an equal
protection violation and, therefore, provides no basis for
relief in this § 1983 action. See 28 U.S.C.
names Sheriff Valenza and Commander Brazier as defendants but
asserts no allegations against them. To the extent Plaintiff
seeks to hold them liable under respondeat
superior, a § 1983 action will not support a
claim under this theory. See Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009) (doctrine of respondeat
superior is inapplicable to § 1983 actions). The
Iqbal Court clarified that a government official
sued in his/her individual capacity for alleged
constitutionally tortious behavior cannot be held liable on a
respondeat superior theory or based on some general
connection to allegedly responsible individuals or actions.
Id. at 676-777 (“Government officials may not
be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior .
. . [A] plaintiff must plead that each Government-official
defendant, through the official's own actions, has
violated the Constitution . . . [P]urpose rather than
knowledge is required to impose [constitutional] liability on
. . . an official charged with violations arising from his or
her superintendent responsibilities”); Monell v.
Dep't of Social Servs., 436 U.S. 658, 691-95 (1978)
(doctrine of respondeat superior is inapplicable to
§ 1983 actions); Belcher v. City of Foley, 30
F.3d 1390, 1396 (11th Cir. 1994) (42 U.S.C. § 1983 does
not allow a plaintiff to hold supervisory officials liable
for the actions of their subordinates under either a theory
of respondeat superior or vicarious liability);
see also Cottone v. Jenne, 326 F.3d 1352, 1360 (11th
Cir. 2003) (finding a supervisory official is liable only if
he “personally participate[d] in the alleged
unconstitutional conduct or [if] there is a causal connection
between [his] actions ... and the alleged constitutional
deprivation.”). Based on this standard, Plaintiff has
done nothing to affirmatively link Defendants Valenza and
Brazier to a violation of his constitutional rights. To the
extent Plaintiff seeks to hold them liable under § 1983
as, respectively, a Sheriff and commander of the jail,
without more, is insufficient. Accordingly, this action
against Defendants Valenza and Brazier is due to be
dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii).
it is the RECOMMENDATION of the Magistrate Judge this case be
DISMISSED without prejudice prior to service of process ...