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 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 Dothan, Alabama.
Berry sues Officer Grier alleging the jailer violated his due
process rights and discriminated against him. Doc. 1 at 1.
Berry requests costs associated with evaluation and treatment
of his emotional distress, his release from custody so he may
receive treatment for his emotional distress, and termination
of Officer Grier's employment with the Houston County
Jail. Id. at 2. Upon a review, the court concludes
this case is due to be summarily dismissed under 28 U.S.C.
DISCUSSION A. Claims for Relief
complains Officer Grier violated his Fourteenth Amendment
right to due process by failing “to require the rights
skills as  a correctional officer and [by] discriminat[ing]
 against [him].” Doc. 1 at 1. In response to the
court's directive that he file an amendment to his
complaint specifically describing how Officer Grier acted in
violation of his equal protection rights, Berry's
amendment alleges “mere threats constitute a
constitutional wrong, ” and that he is not the only
inmate at the county jail with a complaint against Officer
Grier for “verbal abuse, racial slurs, derogatory and
threatening statements.” Doc. 5 at 1-2.
extent Berry alleges Officer Grier's conduct in verbally
threatening and harassing violates his right to equal
protection, he is entitled to no relief. To 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). 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) (finding claims of mere disparity of
treatment are insufficient to establish discrimination).
fails to meet his pleading burden as he does not allege
another inmate received more favorable treatment by Officer
Grier, that the inmate was similarly situated to him, and
that the reason for the adverse treatment was based on a
constitutionally impermissible reason. Jones, 279
F.3d at 946-47; Damiano, 785 F.2d at 932-33. In
fact, Berry states Officer Grier subjects other inmates to
the same verbal abuse as the jailer directs towards him. Doc.
5 at 2. Consequently, Berry's claim of discrimination
fails to state a claim on which relief can be granted and is
due to be dismissed. See 28 U.S.C. §
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). 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) (finding 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) (finding 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) (finding
“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) (finding “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) (finding 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) (finding 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) (finding verbal abuse alone is not
violative of the Eighth Amendment); O'Donnell v.
Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (finding
“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)
(finding Eighth Amendment trivialized by assertion that mere
threat constitutes a constitutional wrong); Purcell v.
Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (finding mere
name-calling did not violate inmate's constitutional
rights); Collins v. Cundy, 603 F.2d 825, 827 (10th
Cir. 1979) (finding 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, Berry's allegations of verbal abuse and
threats made by Officer Grier 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).
it is the RECOMMENDATION of the Magistrate Judge this case be
DISMISSED without prejudice prior to service of process under
28 U.S.C. § 1915(e)(2)(B)(ii).
further ORDERED that on or before May 17,
2019, 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. This Recommendation is not a final order
and, therefore, it is not appealable.
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 ...