United States District Court, D. Maine
RECOMMENDED DECISION AFTER REVIEW OF COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e), 1915A
C. NIVISON U.S. MAGISTRATE JUDGE
action, Plaintiff, alleges that while he was an inmate at the
Cumberland County Jail, Defendant Corbin made offensive
comments to him and that Defendant Pike failed to process
properly a grievance he filed based on Defendant Corbin's
comments. (Complaint, ECF No. 1.)
filed an application to proceed in forma pauperis (ECF No.
2), which application the Court granted. (ECF No. 4.) In
accordance with the in forma pauperis statute, a preliminary
review of Plaintiff's complaint is appropriate. 28 U.S.C.
§ 1915(e)(2). Additionally, Plaintiff's complaint is
subject to screening “before docketing, if feasible or
… as soon as practicable after docketing, ”
because he is “a prisoner seek[ing] redress from a
governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a).
a review of the complaint, I recommend the Court dismiss the
party is proceeding in forma pauperis, “the court shall
dismiss the case at any time if the court determines, ”
inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua
sponte prior to the issuance of process, so as to spare
prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
addition to the review contemplated by § 1915,
Plaintiff's complaint is subject to screening under the
Prison Litigation Reform Act because Plaintiff is currently
incarcerated and seeks redress from governmental entities and
officers. See 28 U.S.C. § 1915A(a), (c). The
§ 1915A screening requires courts to “identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint (1) is frivolous, malicious,
or fails to state a claim …; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b).
considering whether a complaint states a claim for which
relief may be granted, courts must assume the truth of all
well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A
complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “The relevant question ... in assessing
plausibility is not whether the complaint makes any
particular factual allegations but, rather, whether
‘the complaint warrant[s] dismissal because it failed
in toto to render plaintiffs' entitlement to
relief plausible.'” Rodríguez-Reyes v.
Molina- Rodríguez, 711 F.3d 49, 55 (1st Cir.
2013) (quoting Twombly, 550 U.S. at 569 n. 14).
Although a pro se plaintiff's complaint is subject to
“less stringent standards than formal pleadings drafted
by lawyers, ” Haines v. Kerner, 404 U.S. 519,
520 (1972), the complaint may not consist entirely of
“conclusory allegations that merely parrot the relevant
legal standard, ” Young v. Wells Fargo, N.A.,
717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v.
Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining
that the liberal standard applied to the pleadings of pro se
plaintiffs “is not to say that pro se plaintiffs are
not required to plead basic facts sufficient to state a
alleges that while he was working as a trustee in the kitchen
at the jail, his supervisor, Defendant Corbin, evidently an
employee of the jail or the county, made racially offensive
comments to him on two occasions. (Complaint at 3, Attachment
at 1.) Following the second incident, on October 8, 2018,
Plaintiff filed a grievance regarding Defendant Corbin's
comments. Defendant Pike reviewed Plaintiff's grievance,
spoke with Defendant Corbin, and on October 1, 2018, on the
grievance form, advised Plaintiff that he (Defendant Pike)
would “get with [Plaintiff] and [Defendant Corbin] next
week to discuss in person and make sure you have no
issues.” (Attachment at 1.) Plaintiff alleges that
Defendant Pike failed to follow up with Plaintiff or
Defendant Corbin. (Complaint at 3.)
asserts Defendants have not administered the applicable
grievance proceedings properly. A prisoner, however, does not
have a constitutional right to a particular prison grievance
procedure, or even a right to file a prison grievance;
rather, the Due Process Clause entitles prisoners to
predeprivation process whenever the state subjects them to an
“atypical and significant hardship … in relation
to the ordinary incidents of prison life.” Sandin
v. Conner, 515 U.S. 472, 484 (1995); see also Flick
v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam)
(“[T]he prisoner's right to petition the government
for redress is the right of access to the courts, which is
not compromised by the prison's refusal to entertain his
grievance.”); Charriez v. Sec'y, Florida
Dep't of Corr., 596 Fed.Appx. 890, 895 (11th Cir.
2015) (unpublished) (“Because the prison grievance
procedure does not create a protected liberty interest,
Charriez does not have a federal constitutional right within
that administrative-grievance procedure.”); Von
Hallcy v. Clements, 519 Fed.Appx. 521, 523 (10th Cir.
2013) (unpublished) (“Von Hallcy cannot state a due
process claim based on allegations of an ineffective
grievance reporting system.”); Brown v.
Graham, 470 Fed.Appx. 11, 13 (2d Cir. 2012)
(“Brown's argument that he has a
federally-protected liberty interest in the state's
compliance with its own prison grievance procedures is
meritless.”); Butler v. Brown, 58 Fed.Appx.
712 (9th Cir. 2003) (“[A] prisoner has no
constitutional right to prison grievance procedures.”);
Young v. Gundy, 30 Fed.Appx. 568, 569 - 70 (6th Cir.
2002) (unpublished) (“[T]here is no inherent
constitutional right to an effective prison grievance
procedure.”). Because prison grievance procedures are
not mandated or governed by the Constitution or other federal
law, Plaintiff has not and cannot assert an actionable
federal claim based on Defendants' administration of the
allegations regarding Defendant Corbin's offensive
comments also do not support a federal claim. “The
First Circuit has established that ‘[f]ear or emotional
injury which results solely from verbal harassment or idle
threats is generally not sufficient to constitute an invasion
of an identified liberty interest.'” Badger v.
Correct Care Sols., No. 1:15-CV-00517-JAW, 2016 WL
1430013, at *4, 2016 U.S. Dist. LEXIS 48130, at *6 (D. Me.
Apr. 11, 2016) (quoting Pittsley v. Warish, 927 F.2d
3, 7 (1st Cir. 1991), abrogated on other grounds,
Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010)).
See also Siglar v. Hightower, 112 F.3d 191, 193 (5th
Cir. 1997) (“It is clear that verbal abuse by a prison
guard does not give rise to a cause of action under §
1983.”). As the Court in Lapomarda v.
Skibinski, 2009 WL 4884500, No. 9-377-P-H, at *3 n.2 (D.
Me. Dec. 10, 2009) (quoting DeWalt v. Carter, 224
F.3d 607, 612 (7th Cir. 2000)) explained, “‘[t]he
use of racially derogatory language, while unprofessional and
deplorable, does not violate the Constitution. Standing
alone, simple verbal harassment does not constitute cruel and
unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the
short, a review of Plaintiff's complaint reveals that
Plaintiff has failed to allege facts that would ...