Olivares v. Hefner et al, No. 2:2018cv00198 - Document 8 (N.D. Tex. 2022)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT: The Court ORDERS Plaintiff's Complaint filed pursuant to 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE as frivolous. (Ordered by Judge Matthew J. Kacsmaryk on 2/16/2022) (awc)

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Olivares v. Hefner et al Doc. 8 Case 2:18-cv-00198-Z-BR Document 8 Filed 02/16/22 IN THE UNITED STATES DISTRJCT CO FOR THE NORTHERN DISTRJCT OF TE AMARJLLO DIVISION RUDY OLIVARES, TDCJ-CID No. 01483336, Plaintiff, V. J. HEFNER et al., Defendants. § § § § § § § § § § Page 1 of 3 PageID 34 U.S. DISTRICT COURT RTI IERN DISTRICT OF TEXAS FILED S [ FEB I 6 2022 J CLERK, U.S. DISTRICT COCRT By...,..,.r--,.;---,----. )cp11ty 2:18-CV-198-Z-BR MEMORANDUM OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT Before the Court is Plaintiffs civil rights complaint brought pursuant to 42 U.S.C. § 1983 against the above-referenced Defendants(ECF No. 3) ("Complaint"), filed October 17, 2018. Plaintiff filed suit pro se while a prisoner incarcerated in the Texas Department of Criminal Justice ("TDCJ"), Correctional Institutions Division. Plaintiff was granted permission to proceed informa pauperis. For the reasons discussed herein, the Court DISMISSES Plaintiffs Complaint WITH PREJUDICE. FACTUAL BACKGROUND On July 19, 2018, Plaintiff alleges he was leaving the chow hall when Defendants began sexually harassing him through verbal abuse. ECF No. 3 at 4. Plaintiff claims he was called "a big lower private part of a woman's [body]" as he passed Defendants. Id. at 6. Plaintiff alleges this placed him in danger of an assault from either officers or other inmates. Id. Dockets.Justia.com Case 2:18-cv-00198-Z-BR Document 8 Filed 02/16/22 Page 2 of 3 PageID 35 LEGAL STANDA.RD When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, 1 malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A, 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(l). A Spears hearing need not be conducted for every prose complaint. Wilson v. Barrientos, 926 F.2d 480,483 n.4 (5th Cir. 1991).2 ANALYSIS A claim of verbal abuse and harassment is simply not cognizable in a federal civil rights action. See Jane Doe 5 v. City of Haltom City, 106 F. App'sx. 906, 908 (5th Cir. 2004) ("Verbal sexual harassment does not violate a detainee or inmate's constitutional rights."); Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) ("[C]laims of verbal abuse are not actionable under § 1983."); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) ("It is clear that verbal abuse by a prison guard does not give rise to a cause of action under§ 1983."); Bender v. Brumley, 1 F.3d 271,274 n.4 (5th Cir. 1993) ("Mere allegations of verbal abuse do not present actionable claims 1 A claim is frivolous ifit lacks an arguable basis in law or in fact. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). Green vs. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire."). Dismissals may also be based on adequately identified or authenticated records. Banuelos v. McFarland, 41 F.3d 232,234 (5th Cir. 1995). 2 2 Case 2:18-cv-00198-Z-BR Document 8 Filed 02/16/22 Page 3 of 3 PageID 36 under§ 1983."). A claim of injury solely to reputation is insufficient to establish liability under § 1983. See, e.g. , Paul v. David, 424 U.S. 693, 711-12 (1976) (concluding that damage to reputation alone does not implicate a "liberty" or "property" interest sufficient to invoke due process protections under§ 1983); Cine/ v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (same); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) (finding that injury to reputation as a result of libel or slander in a false prison report does not give rise to § 1983 liability); West v. Scott, No. 2:15-CV-0224, 2015 WL 6460046, *5 (N.D. Tex. Oct. 23, 2015) (same). Plaintiffs claim that Defendants used derogatory sexual phrases to taunt and threaten him dqes not state a constitutional claim and is without arguable basis in law. Thus, the Court DISMISSES Plaintiff's claim WITH PREJUDICE. CONCLUSION For the reasons set forth above and pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2) and 42 UjS.C. § 1997e(a), the Court ORDERS Plaintiff's Complaint filed pursuant to 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE as frivolous. SO ORDERED. February Jl, 2022 ISTRICT JUDGE 3

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