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Whitlow v. Ramsey

United States District Court, W.D. Arkansas, Hot Springs Division

June 13, 2018

ANTONIO WHITLOW PLAINTIFF
v.
MELINDA RAMSEY (Doctor, ORCU)) DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         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

         Plaintiff filed his Complaint and Amended Complaints in the Eastern District of Arkansas in January of 2018. (ECF Nos. 1, 2, 3). On January 23, 2018, the case was transferred to this District. (ECF No. 4). On January 25, 2018, Plaintiff was directed to file an in forma pauperis application and an Amended Complaint. (ECF Nos. 7, 8). Plaintiff filed his Amended Complaint and his portion of the IFP application on February 2, 2018. (ECF Nos. 9, 10). After several orders, (ECF Nos. 14, 15, 17), the inmate certificate portion of the IFP application was completed by the Arkansas Department of Correction (ADC) and filed on April 11, 2018. (ECF No. 18).

         Plaintiff alleges that Defendant Ramsey, a psychologist for the ADC Ouachita River Correctional Unit (ORCU), harassed him while he was incarcerated in the RPU Unit[1] at ORCU. (ECF No. 9). He alleges that he made it quite clear to Defendant Ramsey that he did not wish to participate in “the program” at RPU, and that it was his right to refuse to participate. (ECF No. 9 at 5, 6). Despite this, Plaintiff alleges Defendant Ramsey engaged in voyeurism, [2] and harassment, including sexual harassment, against him. (ECF No. 9 at 4-6).

         Plaintiff alleges Defendant Ramsey committed these acts during her thrice-weekly rounds when she came to his one-person cell in RPU to speak with him while he was naked. (ECF No. 9 at 4). He alleges she engaged in voyeurism when she gave “sexual eye contact” to his penis, despite him telling her that it was inappropriate for her to speak to a naked man. (ECF No. 9 at 4). Plaintiff alleges that she flirted with him by stating “I don't mind speaking with you” and “your [sic] very tall.” Plaintiff alleges this constituted sexual harassment. (ECF No. 9 at 5). Plaintiff also alleges that he told her that he refused to talk or participate in the program, but she told him it was her job to check on him. Plaintiff alleges this constituted harassment, and she was doing it to disturb him during his court appeal. (ECF No. 9 at 6).

         Plaintiff proceeds against Defendant Ramsey in her personal capacity for all claims. (ECF No. 9 at 4-6). He seeks compensatory and punitive damages. (ECF No. 9 at 7).

         II. LEGAL STANDARD

         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: (1) are frivolous, malicious, or fail to state a claim upon which relief may be granted; or, (2) seeks 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)). Even a pro se Plaintiff must allege specific facts sufficient to support a claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

         III. ANALYSIS

         Plaintiff's allegations of voyeurism[3] and sexual harassment are frivolous. Sexual abuse or harassment of an inmate can violate the Eighth Amendment if the alleged abuse or harassment caused “pain” and, “as a subjective matter, . . . the prison official in question acted with a sufficiently culpable state of mind.” See Berry v. Oswalt, 143 F.3d 1127, 1131-33 (8th Cir. 1998) (repeated non-routine pat-downs and subsequent rape of female inmate by male prison guard violated Eighth Amendment); but see Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (consensual physical relationship between inmate and prison official did not cause pain, despite the official's supervisory status).

         Plaintiff allegations provide no support for a claim of sexual harassment. Instead, his allegations indicate only that Defendant Ramsey came to his cell during her medical rounds and attempted to engage him in conversation as part of her job as a psychologist. That Plaintiff happened to be naked in the cell, and told her he did not wish to talk or participate in “the program, ” ...


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