United States District Court, E.D. Michigan, Southern Division
JOSEPH D. FLOWERS-BEY, #297460, Plaintiff,
OFFICER GIBBONS, et al., Defendants.
OPINION AND ORDER SUMMARILY DISMISSING COMPLAINT AND
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING
V. PARKER U.S. DISTRICT JUDGE
prisoner Joseph D. Flowers-Bey (“Plaintiff”) has
filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983. Plaintiff, an inmate at the G. Robert
Cotton Correctional Facility in Jackson, Michigan, alleges
that corrections officers are verbally harassing and
threatening him in retaliation for filing a PREA (Prison Rape
Elimination Act) complaint against a fellow officer and
filing other grievances. He also asserts that the corrections
officers are engaged in a conspiracy against him. Plaintiff
names over 20 current and former corrections officers as
defendants in this action. He requests that charges be
brought and disciplinary action be taken against the
corrections officers and he seeks monetary damages The Court
has granted Plaintiff leave to proceed without prepayment of
the filing fee for this action. See 28 U.S.C. §
reviewed Plaintiff's Complaint, the Court now dismisses
it pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1) for failure to state a claim upon which relief
may be granted under 42 U.S.C. § 1983. The Court
therefore is denying as moot Plaintiff's subsequently
filed motion for temporary restraining order. The Court also
concludes that an appeal cannot be taken in good faith.
the Prison Litigation Reform Act of 1996
(“PLRA”), the Court is required to sua
sponte dismiss an in forma pauperis complaint
before service on a defendant if it determines that the
action is frivolous or malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief against
a defendant who is immune from such relief. See 42
U.S.C. § 1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). The
Court is similarly required to dismiss a complaint seeking
redress against government entities, officers, and employees
which it finds to be frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
See 28 U.S.C. § 1915A. A complaint is frivolous
if it lacks an arguable basis either in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
pro se civil rights complaint is to be construed
liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Nonetheless, Federal Rule of Civil Procedure 8(a)
requires that a complaint set forth “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” as well as “a demand for the relief
sought.” Fed.R.Civ.P. 8(a)(2), (3). The purpose of this
rule is to “give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957) and Fed.R.Civ.P. 8(a)(2)).
this notice pleading standard does not require detailed
factual allegations, it does require more than the bare
assertion of legal conclusions. Twombly, 550 U.S. at
555. Rule 8 “demands more than an unadorned, the
defendant-unlawfully-harmed me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). “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).” Twombly, 550 U.S. at 555-56 (citations
and footnote omitted).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) he or she was deprived of a right, privilege,
or immunity secured by the federal Constitution or laws of
the United States; and (2) the deprivation was caused by a
person acting under color of state law. Flagg Bros. v.
Brooks, 436 U.S. 149, 155-57 (1978); Harris v.
Circleville, 583 F.3d 356, 364 (6th Cir. 2009);
Brock v. McWherter, 94 F.3d 242, 244 (6th Cir.
1996). Additionally, a plaintiff must allege that the
deprivation of his or her rights was intentional.
Davidson v. Cannon, 474 U.S. 344, 348 (1986);
Daniels v. Williams, 474 U.S. 327, 333-36 (1986).
Complaint is subject to summary dismissal. Plaintiff alleges
that corrections officers are verbally harassing and
threatening him. Allegations of verbal harassment and threats
are insufficient to state a civil rights claim under §
1983, however. Ivey v. Wilson, 832 F.2d 950, 954-55
(6th Cir. 1987); see also Wingo v. Tenn. Dep't of
Corr., 499 Fed.Appx. 453, 455 (6th Cir. 2012)
(“Verbal harassment or idle threats by a state actor do
not create a constitutional violation and are insufficient to
support a section 1983 claim for relief.”);
Montgomery v. Harper, No. 5:14-CV-P38-R, 2014 WL
4104163, *2 (W.D. Ky. Aug. 19, 2014) (“[H]arassing or
degrading language by a prison official, while unprofessional
and despicable, does not amount to a constitutional
violation.”). Even verbal threats by a corrections
officer to assault an inmate do not violate an inmate's
constitutional rights. Miller v. Wertanen, 109
Fed.Appx. 64, 65 (6th Cir. 2004). Plaintiff's allegations
of verbal harassment thus fail to state a claim upon which
relief may be granted under § 1983.
further asserts that the corrections officers are verbally
harassing and threatening him in retaliation for filing a
PREA complaint against a fellow officer and for filing other
grievances. To state a retaliation claim, a plaintiff must
allege: (1) that he engaged in protected conduct, (2) that an
adverse action was taken against him that would “deter
a person of ordinary firmness from continuing to engage in
that conduct, ” and (3) that the adverse action was
motivated by the protected conduct. Thaddeus-X v.
Blatter, 175 F.3d 378, 395 (6th Cir. 1999) (en banc).
The plaintiff bears the burden of proof on all three
elements. Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977); Smith v.
Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001). Plaintiff
does not meet these standards as he fails to allege facts
which show adverse action.
threats and abuse made in retaliation for filing grievances
are not actionable. Carney v. Craven, 40 Fed.Appx.
48, 50 (6th Cir. 2002). Verbal abuse does not constitute an
adverse action sufficient to maintain a claim of unlawful
retaliation. See Taylor v. City of Falmouth, 187
Fed.Appx. 596, 600 (6th Cir. 2006); Jackson v. Huss,
No. 1:14-cv-426, 2015 WL 5691026, *10 (W.D. Mich. Sept. 28,
2015) (order adopting report and recommendation). Plaintiff
thus fails to state a retaliation claim in his Complaint.
also alleges that the corrections officers are engaged in a
conspiracy against him. To state a conspiracy claim under
§ 1983, a plaintiff must show: (1) a single plan, (2)
that the alleged co-conspirator shared in the general
conspiratorial objective, and (3) that an overt act was
committed in furtherance of the conspiracy that deprived the
plaintiff of his civil rights. Hooks v. Hooks, 771
F.2d 935, 943-44 (6th Cir. 1985); see also Memphis, TN
Area Local v. City of Memphis, 361 F.3d 898, 905 (6th
Cir. 2004). A plaintiff must plead the conspiracy with some
specificity. Plaintiff's conspiracy claim is vague and
conclusory. For example, he fails to allege facts showing
overt acts that deprived him of his civil rights. Conclusory
allegations are insufficient to state a claim under §
1983. Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 555-57; Crawford-El v. Britton, 523 U.S.
574, 588 (1998); Moldowan v. City of Warren, 578
F.3d 351, 390-91 (6th Cir. 2009). Conclusory ...