United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
cause of action is pending before the court on a 42 U.S.C.
§ 1983 complaint filed by Joshua Berry, an indigent
inmate incarcerated in the Houston County Jail. In this
complaint, Berry alleges that Officer Grier called him a
homosexual and threatened his safety and the safety of his
family. Doc. 1 at 1-2. Berry requests that Officer Grier be
subjected to criminal prosecution for his derogatory and
threatening statements. Doc. 1 at 2.
thorough review of the complaint, the court concludes that
this case is due to be summarily dismissed pursuant to the
provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and
Claim for Relief
complains that Officer Grier has spoken to him in a
humiliating and threatening manner. Doc. 1 at 1-2. This claim
provides no basis for relief in the instant case.
state a viable claim for relief 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, 119 S.Ct. 977, 985, 143 L.Ed.2d
130 (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 and,
therefore, provide no basis for relief in a' 1983 action.
Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th
Cir. 1989) (holding 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. App'x 87, 92
(3rd Cir. 2006) (holding that mere “allegations 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) (court
held that “acts . . . 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) (appellate court
deemed 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); Ivey v. Wilson, 832 F.2d
950, 954-55 (6th Cir. 1987) (holding that verbal abuse alone
is not violative of the Eighth Amendment); O'Donnell
v. Berry, 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) (holding that the Eighth Amendment is
trivialized by assertion that mere threat constitutes a
constitutional wrong); Purcell v. Coughlin, 790 F.2d
263, 265 (2nd Cir. 1986) (holding that mere name-calling did
not violate inmate's constitutional rights); Collins
v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (concluding
that mere verbal abuse, including threat of harm, is not
actionable under' 1983).
light of the foregoing, it is clear that Berry's
challenge to the manner in which Officer Grier has spoken to
him is not a cognizable claim and, thus, this case is due to
be summarily dismissed in accordance with the directives of
28 U.S.C. § 1915(e)(2)(B)(ii).
Request for Criminal Prosecution
as Berry seeks to have state criminal charges brought against
the defendant, he is due no relief from this court. A
“private citizen lacks a judicially cognizable interest
in the prosecution or non-prosecution of another.”
Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973);
Nelson v. Skehan, 386 Fed.Appx. 783, 786 (10th Cir.
2010) (holding that a plaintiff has no constitutional right
to have a defendant prosecuted); Napier v. Baron,
198 F.3d 246, 1999 WL 1045169, *1 (6th Cir. 1999) (appellate
court determined that “the district court properly
dismissed [Plaintiff's] complaint as frivolous . . .
[because] contrary to [Plaintiff's] belief, he does not
have a constitutional right to have a particular person
criminally charged and prosecuted.”); see also
Rockefeller v. United States Court of Appeals Office for
Tenth Circuit Judges, 248 F.Supp.2d 17, 23 (D.D.C 2003)
(finding that criminal statutes “do not convey a
private right of action.”); Gipson v.
Callahan, 18 F.Supp.2d 662, 668 (W.D.Tex 1997) (finding
that although “Title 18 U.S.C. § 242 makes it a
crime to willfully deprive persons under color of law of
their rights under the Constitution or laws of the United
States[, ] [t]he statute does not create a private cause of
action.”) (citing Powers v. Karen, 768 F.Supp.
46, 51 (E.D.N.Y. 1991), aff'd, 963 F.2d 1552
(2nd Cir. 1992) and Dugar v. Coughlin, 613 F.Supp.
849, 852 n.1 (S.D.N.Y. 1985)); Risley v. Hawk, 918
F.Supp. 18, 21 (D.D.C. 1996), aff'd, 108 F.3d
1396 (D.C. Cir. 1997) (finding that no private right of
action exists under federal criminal statute addressing
conspiracies to deprive an individual of his constitutional
rights). Consequently, any request for criminal prosecution
of the defendant alleges violation of a legal interest which
clearly does not exist and this request for relief is
therefore due to be dismissed under 28 U.S.C. §
it is the RECOMMENDATION of the Magistrate Judge that this
case be dismissed with prejudice prior to service of process
pursuant to the provisions of 28 U.S.C. §
1915(e)(2)(B)(i) and (ii).
before April 12, 2019 the plaintiff may file
objections to the Recommendation. The plaintiff must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;