Barnes v. Banks et al, No. 5:2009cv00102 - Document 9 (S.D. Miss. 2009)

Court Description: MEMORANDUM OPINION dismissing action with prejudice as frivolous. Because this case is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), it will be counted as a "strike" pursuant to 28 U.S.C. § 1915(g). Signed by Honorable David C. Bramlette, III on 9/21/09 (PKM)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION AN'TONIO LONELL BARNES, #73449 VERSUS PLAINTIFF CIVIL ACTION NO. 5:09-cv-102-DCB-MTP JACQUELYN BANKS, GABRIEL WALKER, CONNIE GAINES AND MIKE LOLLIS DEFENDANTS MEMORANDUM OPINION This cause is before the Court, sua sponte, for consideration of dismissal. Plaintiff Barnes, an inmate of the Mississippi Department of Corrections (MDOC), currently incarcerated in the Wilkinson County Correctional Facility, Woodville, Mississippi filed this in forma pauperis Complaint pursuant to 42 U.S.C. § 1983 on June 18, 2009. The named defendants are Jacquelyn Banks, Warden; Gabriel Walker, Assistant Warden; Connie Gains, Assistant Shift Supervisor; and Mike Lollis, Supervisor. Upon liberal review of the Complaint [1], and the Motion to Amend [6], the Court has reached the following conclusions. Background Plaintiff complains that Assistant Warden Walker used racially defamatory language towards the Plaintiff on October 20, 2008. Plaintiff states that he filed a "complaint on sensitive issue" with the Administrative Remedy Program regarding this incident and did not receive a response. Comp. [1], p.6. Plaintiff further states that he believes his grievance was destroyed by prison personnel. Plaintiff alleges that on November 11, 2008, Assistant Shift Supervisor Gaines "made a racially defamatory statement" towards him and others in the dining hall. Comp. [1], p.11. Plaintiff complains that Shift Supervisor Lollis heard the statement and laughed at the remark. Plaintiff alleges that he wrote a letter to Warden Banks regarding this issue to no avail. On July 20, 2009, Plaintiff filed a Motion to Amend [6] wherein he alleges that on July 11, 2009, Assistant Shift Supervisor Gaines directed a racially defamatory statement to him in a boisterous and loud manner. Mot. [6], p.2. As relief in this action, Plaintiff is requesting monetary damages. Comp. [1], p.4. Analysis Title 28 U.S.C. §1915, applies to prisoners proceeding in forma pauperis in this Court. Section 1915(e)(2), provides that "the court shall dismiss the case at any time if the court determines that . . .(B) the action or appeal -- (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." The Court has permitted the Plaintiff to proceed in forma pauperis in this action, thus his Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2). In order to have a viable claim under 42 U.S.C. § 1983 the Plaintiff must allege that he was deprived of a right secured by the Constitution or the laws of the United States and that the person depriving Plaintiff of this right acted under color of any statute of the State. West v. Atkins, 487 U.S. 42, 48 (1988); Resident Council of Allen Parkway Village v. United States Dep't of Hous. & Urban Dev., 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993). For the reasons stated below, the Court has determined that Plaintiff's allegations do not rise to the level of a constitutional deprivation. "[A]s a rule, mere threatening language and gestures of a custodial office[r] do not, 2 even if true, amount to constitutional violations." McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.1983); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir.1993)(stating that allegations of verbal abuse as well as threatening language and gestures on the part of a correctional officer do not rise to the level of a constitutional violation). The Fifth Circuit has further held that an "officer's use of a racial epithet, without harassment or some other conduct that deprives the victim of established rights, does not amount to an equal protection violation." Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.1999), clarified on reh'g on other grounds, 186 F.3d 633 (5th Cir.1999). "Where the conduct at issue consists solely of speech, there is no equal protection violation." Id. Furthermore, a prisoner does not have a constitutional right to a grievance procedure, nor does a prisoner have "a federally protected liberty interest in having [his] grievance resolved to his satisfaction." See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir.2005); see also, Jones v. Livingston, 2005 WL 3618316, at *3 (S.D.Tex. Jan. 6, 2005)("the fact that [supervisory prison official] did not respond to, or denied, plaintiff's grievances does not, alone, state a claim . . . "); Anderson v. Pratt, 2002 WL 1159980, at *3 (N.D.Tex. May 29, 2002)(Warden's review and denial of grievance did not show personal involvement in deprivation of constitutional rights). Since Plaintiff "relies on a legally nonexistent interest, any alleged due process violation arising from the alleged failure to investigate his grievances is indisputably meritless." Geiger, 404 F.3d at 374. Conclusion Liberally construing this Complaint, the Court has determined that the Plaintiff's 3 allegations simply do not rise to the level of a constitutional deprivation. Consequently, this § 1983 action will be dismissed with prejudice as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). Three-strikes Because this case is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), it will be counted as a "strike" pursuant to 28 U.S.C. § 1915(g). If the Plaintiff receives "three strikes" he will be denied IFP status and required to pay the full filing fee to file a civil action or appeal. A Final Judgment in accordance with this Memorandum Opinion will be entered. SO ORDERED AND ADJUDGED this the 21st day of September, 2009. s/David Bramlette UNITED STATES DISTRICT JUDGE 4

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