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Johnson v. Miller

United States District Court, W.D. Arkansas, Fayetteville Division

July 6, 2017




         Plaintiff filed this action pursuant to 42 U.S.C. §1983. He proceeds pro se and in forma pauperis. The case is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act (PLRA). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to screen any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

         I. BACKGROUND

         According to the allegations of the complaint, while Plaintiff was incarcerated in the Benton County Detention Center, he was denied adequate medical care, verbally abused, and excessive force was used against him. Plaintiff alleges that on March 30, 2017, he was pushing the button in his cell to get help for a pain in his “belly” when he started vomiting blood. Deputy Wilkinson called the nurse and she sent him to the hospital. While he was in a booking cell, still vomiting, Plaintiff alleges he banged on the window because it was covered with black cloth to prevent him from seeing out. Plaintiff alleges Deputy Veith came into the cell and asked “what the f--- is your problem.” When Plaintiff told him, Deputy Veith responded that he “did not give a f---“ and said he did not care if Plaintiff was lying on the floor dying. Plaintiff further alleges that Deputy Veith called him stupid and said he would never “amount to nothing.”

         Plaintiff alleges that on the morning of March 31, 2017, he was again vomitting up blood. Nurse Miller and Deputy Kensinger came to his cell. Plaintiff alleges Nurse Miller merely told him he should not have refused his medication, a fact Plaintiff denies, and took no further action. Deputy Kensinger then shut the cell door and Plaintiff states nothing further was done.

         That same day, in the afternoon, Plaintiff alleges Deputy Kensinger cut Plaintiff's hour out of his cell short because he was talking to someone in the next pod. Plaintiff became angry and threw a mop bucket and then went in his cell and shut the door. Deputy Kensinger and other deputies then entered his cell and Plaintiff was told to face the wall and put his hands behind his back. Plaintiff alleges Deputy Kensinger then put his hand and arm up “high on my back, ” almost to his head, and called him a b---- in my ear.”


         Under the PLRA, the Court is obligated to screen the case prior to service of process being issued. 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. § 1915A(b).

         A claim is frivolous if “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In 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 (2007)).


         (A). Verbal Abuse

         To state a claim under § 1983, a plaintiff must allege that the defendant, while acting under color of state law, deprived him of a federal right. West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). Verbal abuse or “[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).

         All claims against Deputy Veith are subject to dismissal and the verbal abuse claims against Deputy Kensinger are also subject to dismissal.

         (B). ...

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