United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS DISTRICT JUDGE
a civil rights action filed Plaintiff Charles McNabb under
the provisions of 42 U.S.C. § 1983. Plaintiff proceeds
pro se and in forma pauperis. He is
incarcerated in the Benton County Detention Center (BCDC).
Prison Litigation Reform Act (PLRA) modified the IFP statute,
28 U.S.C. § 1915, to require the Court to screen
complaints for dismissal under § 1915(e)(2)(B). The
Court must dismiss a complaint, or any portion of it, if it
contains claims that: (a) are frivolous or malicious; (b)
fail to state a claim upon which relief may be granted; or
(c) seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
to the allegations of the Complaint (Doc. 1), on July 23,
2016, Deputy Johnson was on the top tier of the pod when he
turned off his radio, took off his microphone, and told
Plaintiff to go to the public restroom. Plaintiff alleges he
felt threatened and intimidated. He does not allege that
Deputy Johnson struck him or in any other way physically
injured him. Plaintiff alleges that he submitted a grievance
about Deputy Johnson's conduct; and, the next day, Deputy
Johnson came to his cell door and "just shook his head
and came back to my cell 20 mins. later and stated that
'if you have a problem with me say it to my
alleges that after he filed the grievance against Deputy
Johnson, Lieutenant Holt "said that Deputy Johnson did
not break any rules." He asserts that Lieutenant Holt
refused to talk to him and would not let him file charges
against Deputy Johnson.
with respect to the John and/or Jane Doe nurses and doctors,
Plaintiff alleges that on July 10, 2016, they refused to give
him the insomnia medicine his family brought to the jail for
him. He states that not having the medication has interfered
with his sleep. Additionally, Plaintiff alleges that on
August 7, 2016, the doctor, without consulting Plaintiffs
private doctor, changed Plaintiffs bi-polar medication from
twice a day to once a day. Plaintiff asserts that this
resulted in "messing with my mental disorder an[d]
causing me to have mental episodes because of it."
the PLRA, the Court is obligated to screen a case prior to
service of process being issued. A claim is frivolous when it
"lacks an arguable basis either in law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim fails to state a claim upon which relief may be granted
if it does not allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, the
Court bears in mind that when "evaluating whether a
pro se plaintiff has asserted sufficient facts to
state a claim, we hold 'a pro se complaint,
however inartfully pleaded, ... to less stringent standards
than formal pleadings drafted by lawyers.'"
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)
(quoting Erickson v. Pardus, 551 U.S. 89, 94
respect to Deputy Johnson, while the conduct alleged was
certainly unprofessional, Plaintiff makes no allegation that
he was physically attacked or injured. In the context of a
§ 1983 case, "[v]erbal threats do not constitute a
constitutional violation." Martin v. Sargent,
780 F.2d 1334, 1339 (8th Cir. 1985). Similarly, taunts, name
calling, and the use of offensive language does not state a
claim of constitutional dimension. McDowell v.
Jones, 990 F.2d 433, 434 (8th Cir. 1993) (inmate's
claims of general harassment and of verbal harassment were
not actionable under § 1983); O'Donnell v.
Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal
threats and abuse by jail officials did not rise to the level
of a constitutional violation); Martin, 780 F.2d at
1338-1339 (being called an obscene name and threatened with
adverse consequences unless he cut his hair and shaved does
not state a claim of constitutional dimension); Black
Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985)
(use of racially offensive language in dealing with a
prisoner does not, by itself, state a claim); cf. Burton
v. Livingston, 791 F.2d 97, 100-101 (8th Cir. 1986)
(claim was stated where the prisoner alleged "that a
prison guard, without provocation, and for the apparent
purpose of retaliating against the prisoner's exercise of
his rights in petitioning a federal court for redress,
terrorized him with threats of death").
respect to Lieutenant Holt, no claim of constitutional
dimension has been stated. First, no constitutional claim is
stated based on her alleged failure to properly respond to or
process his grievance. "Inmates do not have a
constitutionally protected right to a grievance procedure.
Because a ... grievance procedure does not confer any
substantive right upon prison inmates, a prison
official's failure to comply with the . . . grievance
procedure is not actionable under § 1983."
Ashann-Ra v. Commonwealth of Virginia, 112 F.Supp.2d
559, 569 (W.D. Va. 2000) (citations omitted); see also
Lombolt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002)
(denial of grievances does not state a substantive
constitutional claim); Buckley v. Barlow, 997 F.2d
494, 495 (8th Cir. 1993) ("no constitutional right was
violated by the defendants' failure, if any, to process
all of the grievances [Plaintiff] submitted for
consideration"); Adams v. Rice, 40 F.3d 72, 74
(4th Cir. 1994) (inmates have no constitutional right to
grievance procedure); Blagman v. White, 112
F.Supp.2d 534 (E.D. Va. 2000) (inmate has no constitutional
entitlement to grievance procedure), aff'd, 3
Fed.Appx. 23 (4th Cir. 2001).
prison inmates have a constitutional right to petition the
government for redress through a right of access to the
courts." Blagman, 112 F.Supp.2d at 542 (citing
Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). A
jail's "refusal to entertain such grievances does
not compromise the inmate's constitutional rights, as
access to the courts would still be available."
Id. (citation omitted). "[A]ny alleged due
process violation arising from the alleged failure to
investigate his grievances is indisputably meritless."
Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
to the extent Plaintiffs claims are based on the refusal of
Lieutenant Holt to bring criminal charges against Deputy
Johnson, the claims fail. A private citizen has no right to
institute criminal prosecution. See Diamond v.
Charles, 476 U.S. 54, 64-65 (1986); In re
Kaminski, 960 F.2d 1062, 1064 (D.C. Cir. 1992) (private
party lacks judicially cognizable interest in prosecution of
another person); Lopez v. Robinson, 914 F.2d 486,
494 (4th Cir. 1990); Cok v. Cosentino, 876 F.2d 1, 2
(1st Cir. 1989).