Thomas Jr. v. Morales

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DERREL L. THOMAS, JR.,

Plaintiff,

v. CASE NO. 8:24-cv-638-SDM-TGW

OFFICER MORALES,

CORPORAL JONES,

Defendants.

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ORDER

Thomas’s complaint alleges that the defendants violated his civil rights during his

pre-trial detention in the Hernando County Detention Center. Thomas moves for leave

to proceed in forma pauperis. (Doc. 2) The Prisoner Litigation Reform Act (“PLRA”)

requires dismissal of an in forma pauperis prisoner’s case “if the allegation of poverty is

untrue” or if the case “is frivolous or malicious, fails to state a claim on which relief

may be granted, or seeks monetary relief against a defendant who is immune from such

relief.” 28 U.S.C. § 1915(e). Although the complaint is entitled to a generous

interpretation, Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), this pro se complaint

lacks merit under this standard.

Thomas alleges that he was in his cell playing cards with his cellmates when

Officer Morales approached the cell, called Thomas, and handcuffed him. While

escorting Thomas to another area, Officer Morales allegedly “grabbed me by my arm

and pushed me into corridor 22” where Thomas was locked inside a “cage.” (Doc. 1 at

6) Thomas alleges that during this process defendants Officer Morales and Corporal

Jones used foul language and verbally threatened Thomas, such as “I’ll have you

handled” and “sign up at my gym and I’ll beat your ass.” Thomas admits that he “was

not physically harmed but [asserts that he was] mentally and emotionally damaged.”

(Doc. 1 at 6) Thomas requests both damages of “$40,000 for my pain and suffering”

and the “impos[ition] of some kind of sanctions and reprimand” for the two officers.

(Doc. 1 at 6) These facts fail to assert a claim actionable under Section 1983.

First, although unprofessional and offensive, neither harassment nor verbal

abuse alone is unconstitutional conduct. “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.”

Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989). Accord Hernandez v. Florida

Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (holding (1) that plaintiff’s

allegations of verbal abuse and threats by prison officials did not state a constitutional

claim because the defendants never carried out the threats and (2) that “verbal abuse

alone is insufficient to state a constitutional claim”). Other circuits have similar

precedent. See, e.g., Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) (holding that

allegations of mere verbal abuse do not present an actionable Section 1983 claim); Ivey

v. Williams, 832 F.2d 950, 955 (6th Cir. 1987) (holding that verbal abuse does not

violate the Eighth Amendment); McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)

(concluding that a prisoner’s allegations about prison staff harassment generally does

not state a constitutional violation); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)

(holding that “disrespectful and assaultive comments,” which allegedly denied prisoner

“peace of mind,” is not an Eighth Amendment violation); Swoboda v. Dubach, 992 F.2d

286, 290 (10th Cir. 1993) (recognizing that officers allegedly threatening to kill an

inmate is not cognizable under Section 1983).

Second, a reprimand is not a form of relief available in a Section 1983 action,

and Thomas cannot recover compensatory damages more than nominal damages

because he sustained no actual injury. A physical injury is required under the Prisoner

Litigation Reform Act, 42 U.S.C. § 1997e(e), which states, “No Federal civil action

may be brought by a prisoner confined in a jail, prison, or other correctional facility,

for mental or emotional injury suffered while in custody without a prior showing of

physical injury . . . .” As explained in Mitchell v. Brown & Williamson Tobacco Corp.,

294 F.3d 1309, 1312–13 (11th Cir. 2002), “[i]n order to avoid dismissal under

§ 1997e(e), a prisoner’s claims for emotional or mental injury must be accompanied by

allegations of physical injuries that are greater than de minimis.” See also Hughes v. Lott,

350 F.3d 1157, 1162 (11th Cir. 2003) (“Section 1997e(e), however, bars any claim

seeking compensatory damages for emotional distress suffered while in custody.”);

Akouri v. Fla. Dep’t of Transp., 408 F.3d 1338, 1342–46 (11th Cir. 2005) (recognizing that

absent any evidence proving compensatory damages, a court is justified in limiting a

plaintiff ’s award of nominal damages to one dollar). Consequently, even if he could

state a claim, Thomas would recover neither of the only two requested forms of relief.

As shown above, Thomas fails to state a claim upon which relief can be granted.

Amendment of the action would prove futile because Thomas can state no valid

Section 1983 claim for relief. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)

(“A district court need not, however, allow an amendment (1) where there has been

undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by

amendments previously allowed; (2) where allowing amendment would cause undue

prejudice to the opposing party; or (3) where amendment would be futile.”).

The complaint (Doc. 1) is DISMISSED under 28 U.S.C. § 1915(e) for failing to

state a claim upon which relief can be granted. The Prisoner Consent Form (Doc. 3),

construed as a motion for leave to proceed in forma pauperis, is DENIED AS MOOT.

The clerk must enter a judgment of dismissal against Thomas and CLOSE this case.

ORDERED in Tampa, Florida, on July 12, 2024.

Adonai

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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