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Devine v. Cumberland County Jail

United States District Court, D. Maine

August 15, 2019

YOSAF DEVINE, Plaintiff,
v.
CUMBERLAND COUNTY JAIL, et al., Defendants

          RECOMMENDED DECISION AFTER REVIEW OF COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e), 1915A

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         In this 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.)

         Plaintiff 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).

         Following a review of the complaint, I recommend the Court dismiss the matter.

         Standard of Review

         When a 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).

         In 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).

         When 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 claim”).

         Background Facts [1]

         Plaintiff 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.)

         Discussion

         Plaintiff 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 grievance/complaint process.

         Plaintiff's 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 laws.'”

         In short, a review of Plaintiff's complaint reveals that Plaintiff has failed to allege facts that would ...


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