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MACLEAN v. SECOR

February 14, 1995

JOHN ARTHUR MACLEAN
v.
T.J. SECOR and PAT MCNABB



The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 February 14, 1995

 Plaintiff, through appointed counsel, brings this action pursuant to the doctrine announced in the Supreme Court's decision in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), alleging that defendants, two correctional officers at the Federal Correctional Institution ("FCI") -Schuylkill, violated his constitutional rights while he was an inmate there. Specifically, plaintiff alleges that defendants violated his Fifth Amendment and Eighth Amendment rights by verbally threatening him (Counts I & III) and violated his Fifth Amendment rights by confining him to administrative detention for 19 days without a valid reason (Count II). Plaintiff also asserts a claim for intentional infliction of emotional distress based on these allegations (Count IV).

 Before me now is defendants' motion to dismiss or, in the alternative, for summary judgment. Defendants' motion argues both the facial inadequacy of plaintiff's claims and the defendants' qualified immunity from suit on these claims. I will treat this motion as one for summary judgment because I must consider matters outside the pleadings. Fed. R. Civ. P. 12(b). I find that plaintiff's Fifth Amendment and Eighth Amendment claims based on defendants' alleged verbal threats do not raise claims of constitutional magnitude. Accordingly, I will enter summary judgment in favor of defendants on these claims. As to plaintiff's Fifth Amendment claim based on his confinement in administrative detention, I find that plaintiff enjoys a liberty interest in a timely hearing to consider the propriety of his detention but that, as this liberty interest was not clearly established at the time of his confinement, defendants are entitled to qualified immunity. Consequently, I will grant summary judgment for defendants on that claim as well. Finally, I will enter summary judgment for defendants on plaintiff's intentional infliction of emotional distress claim because that claim is governed -- and here defeated -- by the Federal Tort Claims Act.

 I. STATEMENT OF FACTS

 The following facts are either undisputed or drawn from plaintiff's version of events. Plaintiff, now an inmate at the Arizona Department of Corrections, was incarcerated at FCI Schuylkill in Minersville, Pennsylvania, from August 21, 1992, to May 17, 1993. Prior to his incarceration at FCI Schuylkill, plaintiff was an inmate at FCI Tucson, in Arizona, but was transferred to FCI Schuylkill when his personal security was jeopardized by the circulation among the FCI Tucson population of an article in "People" magazine identifying plaintiff as the notorious "Gentle Rapist."

 On February 11, 1993, plaintiff was called into the office of defendant Pat McNabb, a Captain at FCI Schuylkill. There, plaintiff was accused of having violated federal Bureau of Prisons ("BOP") regulations by writing a letter to a female prison staff member that addressed her as "Goldilocks," and was interrogated about that alleged rules violation. Defendant T.J. Secor, a Lieutenant at FCI Schuylkill, was present in McNabb's office when plaintiff was thus confronted. After being accused of having written the "Goldilocks" letter, plaintiff alleges that he was verbally threatened and abused by McNabb and Secor, who told him, in effect, that because he was a known sex offender he need fear for his physical safety for the duration of his incarceration anywhere within the federal BOP system. As alleged by plaintiff, McNabb told plaintiff, "Everyone here knows all about you and what a piece of s--- you are, a real scumbag." Pl.'s Resp. to Defs.' Mot. for Summ. J. at 3. Secor is alleged to have added, "We've got prisons for scum like you and we're going to see to it you're sent to Lewisburg or ELReno [sic] or someplace where pieces of s--- like you belong. I'm going to see to it that you are taken care of." Id. at 3-4. *fn1"

 At the end of this altercation in McNabb's office, Secor handcuffed plaintiff and placed him in administrative detention pending an investigation into the "Goldilocks" incident. According to plaintiff, Secor at this point admitted to plaintiff that there was no valid reason for confining plaintiff to administrative detention, declaring, "I [Secor] don't even have a 'shot' [prison parlance for an incident report] for this piece of s/--, but I'll come up with something." Id. at 8 n.11. Four days later, on February 15, Secor filed an incident report charging plaintiff with "Making a Sexual Proposal to Staff/Female," a violation of BOP regulations. Thereafter, the matter was referred to the prison's Unit Disciplinary Committee ("UDC") for an initial hearing pursuant to BOP regulations. After the hearing, the UDC expunged the incident report filed against plaintiff because the report had not been authored by the prison official who witnessed the alleged violation. On March 1, 1993, some 19 calendar days after being placed in administrative detention, plaintiff was released back into the general prison population at FCI Schuylkill. On May 17, 1993, plaintiff was transferred to FCI Raybrook, New York, because his safety at FCI Schuylkill had been jeopardized by circulation there of the same "People" magazine article that had resulted in his transfer from FCI Tucson.

 * * * * *

 Plaintiff instituted this suit by filing his original complaint pro se. Defendants responded with their first motion to dismiss or, in the alternative, for summary judgment. Because I believed plaintiff might have meritorious claims, I appointed counsel for him. Through appointed counsel, plaintiff filed an amended complaint, to which defendants responded with the instant motion. This motion has now been fully briefed and is ready for adjudication.

 II. DISCUSSION

 Based on the foregoing facts, plaintiff asserts what boil down to the following three claims against defendants: (i) defendants' verbal threats to plaintiff's physical security violated his Fifth Amendment due process rights and constituted cruel and unusual punishment in violation of his Eighth Amendment rights (Counts I & III); (ii) defendants, by confining plaintiff to administrative detention for no valid reason for 19 days, violated plaintiff's Fifth Amendment due process rights (Count II); and (iii) defendants' actions in threatening and improperly confining plaintiff constitute the tort of intentional infliction of emotional distress (Count IV). I address these claims seriatim. Because there is no dispute of material fact about any of these claims, summary judgment is proper here. Fed. R. Civ. P. 56(c).

 A. Verbal Threats

 It is well established that verbal harassment or threats of the sort detailed above will not, without some reinforcing act accompanying them, state a constitutional claim. See Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) ("Mean harassment . . . is insufficient to state a constitutional deprivation."); Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) ("Verbal harassment does not give rise to a constitutional violation enforceable under § 1983."); Collins v. Cundy, 603 F.2d 825, 826 (10th Cir. 1979) (allegations that sheriff laughed at prisoner and threatened to hang him did not state claim for constitutional violation); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (allegations of vulgarity did not state constitutional claim). *fn2" A constitutional claim based only on verbal threats will fail, moreover, whether it is asserted under the Eighth Amendment's ban on cruel and unusual punishment or under the Fifth Amendment's substantive due process clause. See Prisoners' Legal Ass'n, 822 F. Supp. at 189 (cruel and unusual punishment theory); Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.) (substantive due process theory), cert. denied, 502 U.S. 879, 112 S. Ct. 226, 116 L. Ed. 2d 183 (1991).

 Plaintiff appears to concede in his papers that "mere" verbal threats do not state a constitutional claim. Rather, he contends that his special status as a known sex offender converted defendants' verbal threats against him into something actionable. Plaintiff, however, has cited no authority that carves out a distinction for sex offenders or any other class of convicts, and I have been unable to locate any. Furthermore, at least one court has held that an inmate's particular vulnerability to verbal harassment could not be considered a sufficient basis for overlooking the established doctrine rejecting constitutional claims based solely on such harassment. See Murray v. Woodburn, 809 F. Supp. at 384 (examining whether, "given [plaintiff's] vulnerabilities, provoking him [with laughter] to punch a prison official in the nose and then using the incident as a basis for committing him stated a claim against a prison official," and finding that it did not). If ...


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