United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATIONS
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on Magistrate Judge Michael T.
Parker's Report and Recommendation (docket entry 35) .
Having carefully reviewed the Report and Recommendation, the
Plaintiff's letter response thereto, and applicable
statutory and case law, the Court finds that the
Plaintiff's claims should be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) because he has failed to
state any claim upon which relief may be granted.
Dewayne Orr ("Orr") filed a complaint on May 11,
2016, while incarcerated at the Wilkinson County Correctional
Facility ("WCCF") . See Complaint (docket
entry 1) . On the same day, the Plaintiff filed a Motion for
Leave to Proceed In. Forma Pauperis. See
Motion (docket entry 2). The Motion was granted by Magistrate
Judge Parker on June 22, 2016. See Order (docket
entry 5). The Plaintiff's claims and relief sought were
clarified and amended by his sworn testimony at the
issue is whether or not the Plaintiff was in violation of
rules promulgated by prison authorities by being in
possession of a cell phone. According to Plaintiff, on March
28, 2016, he called his brother from a wall phone in the
prison and instructed him to call and text a doctor for
reasons irrelevant to the issue now before the court.
However, Plaintiff claims that this doctor informed the
prison staff that it was Plaintiff who placed the call.
next day, prison staff investigator Michael Jaynes
(“Jaynes”) called Plaintiff into his office.
Jaynes was accompanied by three other prison employees: Ella
Scott, Warden Bradley, and Gabriel Walker. Jaynes allegedly
called the cell phone number from which the doctor received
the calls and allowed Plaintiff to listen to the voicemail
introduction. Jaynes asserted that it was Plaintiff's
voice on the voicemail introduction. Jaynes accused Plaintiff
of personally calling and texting the doctor from the cell
phone. Plaintiff denies having a cell phone and alleges that,
in response to his denial, Jaynes searched Plaintiff,
“got in his face, ” yelled derogatory terms, and
demanded to know the location of the phone. See Complaint
(docket entry 1).
asserts that: (1) he did not have a cell phone; and, (2)
Defendants Ella Scott, Warden Bradley, and Gabriel Walker
should have intervened to stop the alleged mistreatment.
Plaintiff states that he suffered no physical harm, incurred
no damages from the incident, and was not assaulted by
Magistrate Judge's Recommendation
Judge Parker entered his Report and Recommendation on
February 27, 2017, wherein he considers Plaintiff's
claims and recommends that Plaintiff has failed to state any
claims and that they should be dismissed. He further
recommends that the plaintiff's claims should be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See
Report and Recommendations (docket entry 35). Moreover, the
Magistrate Judge recommends that this action be dismissed
with prejudice, and that the dismissal count as a
“strike” pursuant to 28 U.S.C. § 1915(g).
Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2),
applies to prisoner proceedings in forma pauperis. In
considering whether a plaintiff has stated a claim on which
relief may be granted, the “court accepts ‘all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.'” Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)(quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999)). However, the Court may not
accept legal conclusions as true. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id.
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550
U.S. at 570. “Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of' the
necessary claims or elements.” In re S. Scrap
Material Co., 541 F.3d 584, 587 (5th Cir. 2008)(quoting
Twombly, 550 U.S. at 556).
mere verbal abuse and threatening gestures are insufficient
to state a claim. The Magistrate Judge indicates, “[i]t
is clear that verbal abuse by a prison guard does not give
rise to a cause of action under § 1983.”
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997) (citing Bender v. Brumley, 1 F.3d 271, 274 n.4
(5th Cir. 1993)). “[M]ere threatening language and
gestures of a custodial officer do not, even if true, amount
to constitutional violations.” McFadden v.
Lucas, 713 F.2d 143, 146 (5th Cir. 1983), cert.
denied, 464 U.S. 998 (1983). Plaintiff alleges Jaynes
was less than cordial during the encounter. However, the
Magistrate Judge concludes that under the facts as alleged by
Plaintiff at the hearing, none of the defendants violated his
constitutional or federal statutory rights, and these claims
should be dismissed. See Barnes v. Banks, Civ. No.
5:09-CV-102-DCB-MTP, 2009 WL 3152891, at *1 (S.D.Miss. Sept.
24, 2009)(dismissing § 1983 complaint claiming that
officer used racially defamatory language towards the
Plaintiff under 28 U.S.C. § 1915 for failure to state a
claim and assigning Plaintiff a strike).
Court has carefully considered the Plaintiff's claims, as
well as the Magistrate Judge's Report and Recommendation,
and therefore agrees that the Plaintiff has failed to state
any claim and that his claims should be dismissed with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Furthermore, the dismissal shall count as a
“strike” pursuant to 28 U.S.C. § 1915(g).
The Court has taken notice of Plaintiff's ...