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”
How later courts described this case
- 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”
- “It is clear that verbal abuse by a prison guard does not give rise to a cause of action under § 1983.”
- “Brown’s argument that he has a federally- protected liberty interest in the state’s compliance with its own prison grievance procedures is meritless.”
- “[A] prisoner has no constitutional right to prison grievance procedures.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
YOSAF DEVINE, )
)
Plaintiff, )
)
v. ) 2:19-cv-00323-JDL
)
CUMBERLAND COUNTY JAIL, )
et al., )
)
Defendants )
RECOMMENDED DECISION AFTER REVIEW OF COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e), 1915A
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 FACTS1
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
1 The facts set forth herein are derived from Plaintiff’s complaint and the Cumberland County Jail inmate
grievance form filed with the complaint (ECF Nos. 1 & 1-1.). Plaintiff named the Cumberland County Jail
as a party to this action, as well as Defendants Corbin and Pike. While the jail facility is not a proper
defendant, see Collins v. Kennebec County Jail, 2012 WL 4326191, at *3 (D. Me. May 31, 2012) (“The
Kennebec County Jail is not a governmental entity or a proper party defendant to this lawsuit. It is a
building.”), the Court can reasonably construe the complaint to assert claims against Cumberland County.
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 F.
App’x 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 F.
App’x 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 F. App’x 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 F. App’x 712 (9th Cir. 2003) (“[A] prisoner has no
constitutional right to prison grievance procedures.”); Young v. Gundy, 30 F. App’x 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 support an actionable federal claim.
CONCLUSION
Based on the foregoing analysis, after a review pursuant to 28 U.S.C. § 1915(e)(2)
and 28 U.S.C. § 1915A(a), I recommend the Court dismiss the matter.
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 15th day of August, 2019.