Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ousley v. Kelley

United States District Court, E.D. Arkansas, Northern Division

November 28, 2017

WHITLEY OUSLEY, ADC #713051 PLAINTIFF
v.
WENDY KELLEY, Director, Arkansas Department of Correction, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         The following Recommended Disposition ("Recommendation") has been sent to United States District Kristine G. Baker. Any party may file written objections to this Recommendation. Objections must be specific and include the factual or legal basis for disagreeing with the Recommendation. An objection to a factual finding must specifically identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         An original and one copy of the objections must be received by the Clerk of this Court within fourteen (14) days of this Recommendation. If no objections are filed, Judge Baker can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.

         I. Introduction

         Plaintiff Whitley Ousley ("Ousley") is a prisoner in the McPherson Unit of the Arkansas Department of Correction. She has filed a pro se § 1983 Substituted Complaint alleging that Defendant Corporal Larry Kersey ("Kersey") violated her constitutional rights.[1] Doc. 7. Before Ousley may proceed with this action, the Court must screen her allegations.[2]

         II. Discussion

         On December 16, 2016, Ousley, who is African American, was sitting beside a Caucasian prisoner in the dining hall at the McPherson Unit. Doc. 7. Kersey was supervising the dining hall. During the meal, a Caucasian prisoner asked Kersey for permission to move to another table because she claimed there was not enough "elbow room" by Ousley. Id. at 7. Kersey granted her request. Soon thereafter, Ousley complained to Kersey: "Do you see that I feel that's racist." Id. Kersey allegedly responded: "I'm not racist. I have a black dog and a colored T.V." Ousley contends that Kersey's comment was a violation of her constitutional right to be free from racial discrimination.

         To state a viable racial discrimination claim, Ousley must plead facts demonstrating that Kersey intentionally treated her differently than similarly situated prisoners due to her race. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815 (8th Cir. 2008); Lewis v. Jacks, 486 F.3d 1025 (8th Cir. 2007). Ousley has not pled any facts suggesting that Kersey intended to racially discriminate against her when he allowed a Caucasian prisoner to move to another table based on her racially neutral allegation that there was not enough "elbow room" beside Ousley.

         Further, the Eighth Circuit has clarified that: “Verbal abuse by correctional officials, even the use of reprehensible racially derogatory language, is not by itself unconstitutional race discrimination unless it is pervasive or severe enough to amount to racial harassment.” Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007); Blades v. Schuetzle, 302 F.3d 801, 805 (8th Cir. 2002). Ousley has not pled any facts suggesting that she was subjected to pervasive or severe racial harassment. Thus, the Court concludes that Kersey's isolated comment, although offensive and unprofessional, does not rise to the level of a constitutional violation.

         III. Conclusion

         IT IS THEREFORE RECOMMENDED THAT:

         1. The Substituted Complaint be DISMISSED, WITHOUT PREJUDICE, for failing to states a claim upon which relief may be granted.

         2. Dismissal be counted as a "STRIKE, " pursuant to 28 U.S.C. § 1915(g).

         3. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.