Trowell v. Theodarakis

          INITIAL REVIEW ORDER

          Michael P. Shea United States District Judge

         The plaintiff, Freddie Trowell, was incarcerated at the MacDougall-Walker Correctional Institution (“MacDougall-Walker”) when he initiated this action, but now resides in Bridgeport, Connecticut. He has filed a civil rights complaint against Correctional Officer Theodarakis.

         I. Legal Standard

         Pursuant to 28 U.S.C. § 1915A(b), the court must review prisoner civil complaints against governmental actors and “dismiss ... any portion of [a] complaint [that] is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or that “seeks monetary relief from a defendant who is immune from such relief.” Id. This standard of review is applicable when an inmate is proceeding in forma pauperis as well as when an inmate has paid the filing fee. See Carr v. Dvorin, 171 F.3d 115 (2d Cir. 1999) (per curiam).

         Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a plaintiff need not include detailed allegations, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). A complaint that includes only “‘labels and conclusions,' ‘a formulaic recitation of the elements of a cause of action' or ‘naked assertion[s]' devoid of ‘further factual enhancement, '” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts have an obligation to interpret “a pro se complaint liberally, ” the complaint must still include sufficient factual allegations to meet the standard of facial plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations omitted).

         II. Factual Allegations

         On November 8, 2017, during recreation at MacDougall-Walker, the plaintiff entered another inmate's cell to speak with him. See Compl., ECF No. 1, at 4. At some point during the plaintiff's conversation with the inmate, Correctional Officer Theodarakis directed the plaintiff to move away from the cell door. See Id. The plaintiff obeyed the order and stepped back from the door. Correctional Officer Theodarakis then yelled at the plaintiff, called him a “faggot” and “quere ass, ” and again directed the plaintiff to step back from the cell door. See Id. Correctional Officer Theodarakis warned the plaintiff that any further failure to step back from the cell door would result in an order directing him to return to his own cell. See Id. In the margin on page five of the complaint, the plaintiff refers to an inmate, Samuel Davis #79895, who allegedly witnessed what occurred on November 8, 2017. There are no further allegations with regard to this incident.

         The plaintiff mentions that on another previous occasion, Correctional Officer Theodarakis had verbally harassed him in a similar manner. See Id. After that incident, the plaintiff filed a complaint with MacDougall-Walker prison officials about Correctional Officer Theodarakis's verbal harassment. See id.

         III. Discussion

         The plaintiff claims that Officer Theodarakis verbally harassed and discriminated against him on two occasions. He seeks declaratory and injunctive relief and monetary damages.

         A. Verbal Harassment

         The plaintiff alleges that Officer Theodarakis yelled at him and called him names pertaining to his sexual orientation. He contends that this conduct constituted discrimination and verbal harassment in violation of his rights under the Constitution and laws of the United States. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. Although the Constitution does not require “comfortable” prison conditions, the Eighth Amendment imposes certain duties on prison officials, to provide for inmates' basic human needs including: “adequate food, clothing, shelter, [] medical care, and . . . safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (internal quotation marks and citations omitted).

         To state a deliberate indifference to health or safety claim or a conditions claim under the Eighth Amendment, an inmate must demonstrate both an objective and a subjective element. To meet the objective element, an inmate must allege that he was incarcerated under conditions that resulted in a “sufficiently serious” deprivation, such as the denial of a “life[] necessit[y]” or a “substantial risk of serious harm.” Id. at 834 (internal quotation marks and citations omitted). To meet the subjective element, an inmate must allege that the defendant prison officials possessed culpable intent, that is, the officials knew that he faced a substantial risk to his health or safety and disregarded that risk by failing to take corrective action. See Id. at 834, 837.

         It is well-settled that verbal harassment and threats do not rise to the level of a constitutional violation. See Cole v. Fischer, 379 Fed.Appx. 40, 43 (2d Cir. 2010) (“Verbal harassment, standing alone, does not amount to a constitutional deprivation.”); Cuoco v. Moritsugu,222 F.3d 99, 109 (2d Cir. 2000) (noting that “rudeness and name-calling does not rise to the level of a constitutional violation”); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (Verbal harassment and name calling, absent physical injury, are not constitutional violations cognizable under § 1983); Cotz v. Mastroeni, 476 F.Supp.2d 332, 372 (S.D.N.Y. 2007) (holding that ...