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Ausborn v. Nicholls

United States District Court, D. South Carolina, Greenville Division

August 14, 2018

Jerry Lee Ausborn, Jr., Plaintiff,
v.
Crystal Nicholls, Defendant.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE

         The plaintiff, proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983.

         On July 26, 2018, the undersigned filed an order informing the plaintiff that his complaint contained deficiencies which could subject it to summary dismissal (doc. 7). The plaintiff was directed to file an amended complaint curing the deficiencies for review for possible service of process (Id.). The plaintiff failed to file an amended complaint. Accordingly, the undersigned recommends summary dismissal of the complaint for the reasons listed below and for failing to comply with an order of the court.

         BACKGROUND

         The plaintiff is a pretrial detainee at the Cherokee County Detention Center (“CCD”). He alleges that Officer Crystal Nicholls at the CCD directed a racial slur towards him (Id. at 4). Specifically, the plaintiff claims that the defendant called him a “porch monkey” in front of the entire dormitory, humiliating him (Id.). The plaintiff alleges this incident caused him to suffer anxiety, sleep deprivation, and “PTSD” (Id. at 6). The plaintiff sues the defendant in her individual and official capacity and seeks monetary damages.

         DISCUSSION

         The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2)that the alleged violation was committed by a person acting under the color of state law. West v. Aktins, 487 U.S. 42, 48 (1988).

         The plaintiff's allegation that the defendant directed a racial slur towards him does not state a constitutional claim. “[M]ere threats or verbal abuse, without more, do not state a cognizable claim under § 1983.” Wilson v. McKeller, 254 Fed.Appx. 960, 961 (4th Cir. 2007) (involving a racial slur); See Martin v. Harrison County Sheriff's Dept., 2006 WL 3760132, at *3 (N.D.W.Va. Dec. 15, 2006 (stating that racial epithets do not themselves implicate constitutional rights and cannot, on their own, form the basis of a constitutional claim); see also Morrison v. Martin, 755 F.Supp. 683, 687 (E.D. N.C. ) (“The law is clear that [m]ere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations.”), aff'd, 917 F.2d 1302 (4th Cir. 1990). As such, the plaintiff fails to state a claim against the defendant.

         RECOMMENDATION

         By order issued July 26, 2018, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (stating that district court should, “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)).

         The plaintiff's attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report and Recommendation

          The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the ...


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