United States District Court, M.D. Pennsylvania
October 19, 2005.
ALAN JOSEPH MURILLO, Plaintiff
NICK REMICK, Defendants.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
Alan Joseph Murillo, an inmate presently confined at the
Dauphin County Prison, Harrisburg, Pennsylvania, initiated this
pro se civil rights action pursuant to 42 U.S.C. § 1983.
Along with his complaint, Plaintiff has submitted an application
seeking leave to proceed in forma pauperis.*fn1 For
the reasons outlined below, Murillo's complaint will be dismissed
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Named as Defendant is Nick Remick, who is identified as being a
Treatment Counselor at the Dauphin County Prison. Plaintiff
claims that on August 1, 2005, he was called out of his cell and sent to Counselor Remick's office. Following his
arrival and in the presence of two other inmates, Remick
allegedly asked Plaintiff if he was gay. Murillo admitted that he
had disclosed that he was gay "on numerous different accusions
[sic]" in G-Block. Doc. 1, ¶ IV, p. 2. However, when Plaintiff
refused to disclose more information regarding his lifestyle, the
Defendant purportedly became upset and called him a liar. See
Plaintiff asserts that Remick next told him that if he was gay,
he would have to be transferred to a cell block in the prison
which housed sexual offenders and anger management cases. Later
that same day, Remick, in the presence of other inmates, again
allegedly criticized Plaintiff for being gay. The complaint also
maintains that the Defendant subjected Murillo to additional
threats and verbal harassment regarding his sexual preference and
encouraged other inmates to subject him to similar
mistreatment.*fn2 His final claim is that Remick had him
removed from an institutional close core group program and
transferred to a reclassification program. Plaintiff seeks
injunctive relief and compensatory damages. Discussion
28 U.S.C. § 1915 imposes obligations on prisoners who file
civil actions in federal court and wish to proceed in forma
pauperis under 28 U.S.C. § 1915, e.g., that the full filing
fee ultimately must be paid (at least in a non-habeas suit) §
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines
that (A) the allegation of poverty is untrue; or (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.
When considering a complaint accompanied by a motion to proceed
in forma pauperis, a district court may rule that process
should not be issued if the complaint is malicious, presents an
indisputably meritless legal theory, or is predicated on clearly
baseless factual contentions. Neitzke v. Williams,
490 U.S. 319
, 327-28 (1989); Wilson v. Rackmill, 878 F.2d 772
, 774 (3d
Cir. 1989). Indisputably meritless legal theories are those "in
which either it is readily apparent that the plaintiff's
complaint lacks an arguable basis in law or that the defendants
are clearly entitled to immunity from suit. . . ." Roman v.
Jeffes, 904 F.2d 192
, 194 (3d Cir. 1990) (quoting Sultenfuss v.
Snow, 894 F.2d 1277
, 1278 (11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has added that "the plain meaning of `frivolous' authorizes the
dismissal of in forma pauperis claims that . . . are of
little or no weight, value, or importance, not worthy of serious
consideration, or trivial." Deutsch v. United States,
67 F.3d 1080, 1083 (3d Cir. 1995). It also has been determined that "the
frivolousness determination is a discretionary one," and trial
courts "are in the best position" to determine when an indigent
litigant's complaint is appropriate for summary dismissal.
Denton, 504 U.S. at 33.
A plaintiff, in order to state a viable civil rights claim,
must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of
law, and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States. Groman v. Township of Manalapan, 47 F.3d 628,
638 (3d Cir. 1995); Shaw by Strain v. Strackhouse,
920 F.2d 1135, 1141-42 (3d Cir. 1990).
In the present case Murillo alleges that he was subjected to
verbal harassment and threats by Counselor Remick. Plaintiff also
appears to take issue with Remick's decision to have him
reclassified. As relief, Murillo seeks monetary damages and
requests that Remick be required to undergo sensitivity training
to correct his conduct towards gay inmates. With the exception that he was apparently removed from the Defendant's close core
group program, Murillo was not denied institutional privileges or
admittance to institutional rehabilitative programs. Rather, the
complaint is seeking relief based on Remick's alleged verbal
harassment. With respect to Remick's determination that Plaintiff
should undergo reclassification, it is unclear as to why
reclassification was ordered. Murillo alleges that Remick was
upset that the prisoner was gay. However, Plaintiff also
indicates that the Defendant accused him of being a liar and that
the parties engaged in verbal exchanges during the institutional
close group program. The outcome of the reclassification is
equally unclear. More importantly, Plaintiff does not seek any
relief based upon the reclassification issue. For example, he has
not asked to be returned to the cell block where he was
originally assigned or reinstated to the Defendant's close core
group program. His action seeks relief solely on the basis of the
alleged verbal harassment.
It has been held that the use of words, however violent,
generally cannot constitute an assault actionable under § 1983.
Johnson v. Glick, 481 F.2d 1028, 1033 n. 7 (2d Cir.), cert.
denied, 414 U.S. 1033 (1973); Maclean v. Secor,
876 F. Supp. 695, 698-99 (E.D. Pa. 1995); 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) ("[V]erbal
harassment does not give rise to a constitutional violation
enforceable under § 1983.").
Mere threatening language and gestures of a custodial officer
do not, even if true, amount to constitutional violations.
Fisher v. Woodson, 373 F. Supp. 970, 973 (E.D. Va. 1973); see
also Balliet v. Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.)
("[v]erbal abuse is not a civil rights violation . . ."),
aff'd, 800 F.2d 1130 (3d Cir. 1986) (Mem.).
It has also been held that a constitutional claim based only on
verbal threats will fail regardless of whether it is asserted
under the Eighth Amendment's cruel and unusual punishment clause,
see Prisoners' Legal Ass'n, 822 F. Supp. at 189, or under the
Fifth Amendment's substantive due process clause, see Pittsley
v. Warish, 927 F.2d 3, 7 (1st Cir.), cert. denied,
502 U.S. 879 (1991).
Verbal harassment or threats, with some reinforcing act
accompanying them, however, may state a constitutional claim. For
example, a viable claim has been found if some action taken by
the defendant escalated the threat beyond mere words. See
Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992) (guard put a revolver to the inmate's head and threatened to shoot);
Douglas v. Marino, 684 F. Supp. 395 (D.N.J. 1988) (involving a
prison employee who threatened an inmate with a knife). It has
also been found that verbal harassment can rise to a
constitutional level in a situation where fulfillment of the
threat was conditioned on the inmate's exercising some
constitutionally protected right. Bieros v. Nicola,
860 F. Supp. 226, 233 (E.D. Pa. 1994); see also Prisoners' Legal
Ass'n, 822 F. Supp at 189; Murray, 809 F. Supp. at 384.
Likewise, "defamation is actionable under 42 U.S.C. § 1983 only
if it occurs in the course of or is accompanied by a change or
extinguishment of a right or status guaranteed by state law or
the Constitution." Clark v. Township of Falls, 890 F. 2d 611,
619 (3d Cir. 1989). Accord Siegert v. Gilley, 500 U.S. 226,
233-35 (1991). An inmate does not have a constitutionally
protected interest in his reputation, consequently, claims of
slander may not be entertained under § 1983. See Paul v.
Davis, 424 U.S. 693, 701-02 (1976) (liberty interest requires
more than mere injury to reputation). The Court of Appeals for
the Fourth Circuit in Paine v. Baker, 595 F.2d 197, 201 (4th
Cir.), cert. denied, 444 U.S. 925 (1979), has also held that
a prisoner's disagreement with "evaluations and opinions
regarding him" are insufficient to set forth an actionable
In addition, the United States Supreme Court has held that a federal inmate has "no legitimate statutory or constitutional
entitlement" to any particular custodial classification even if a
new classification would cause that inmate to suffer a "grievous
loss." Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976); James v.
Reno, 39 F. Supp. 2d 37, 40 (D.D.C. 1999) (citation omitted) (a
federal inmate "has no liberty interest in his security
Murillo has not alleged that the verbal harassment was
accompanied by any reinforcing physical act as contemplated under
Northington. Likewise, the purported threats were not premised
on Plaintiff's future engagement in a constitutionally protected
activity. The Plaintiff also has no due process interest in a
certain custodial classification. He has also not alleged that he
was treated differently from other inmates having the same sexual
orientation. Thus, since Murillo did not suffer a change or
denial of a constitutionally protected right or status, his
allegations of verbal abuse and threats by Counselor Remick do
not rise to the level of a viable § 1983 claim. Moreover, any
change in custody classification and institutional placement did
not result in the type of atypical or significant hardship
necessary to establish a constitutional violation under Sandin
v. Conner, 515 U.S. 472, 484 (1995). See James v. Reno,
39 F. Supp. 2d 37, 40 (D.D.C. 1999).
Since Plaintiff's complaint is "based on an indisputably
meritless legal theory," it will be dismissed, without prejudice, as legally frivolous. Wilson, 878 F.2d at 774. Under
the circumstances, this Court is confident that service of
process is not only unwarranted, but would waste the increasingly
scarce judicial resources that § 1915 is designed to preserve.
See Roman, 904 F.2d at 195 n. 3. An appropriate Order will
AND NOW, THEREFORE, THIS 19th DAY OF OCTOBER, 2005, IT IS
HEREBY ORDERED THAT:
1. Plaintiff's motion to proceed in forma
pauperis is construed as a motion to proceed
without full prepayment of fees and costs and the
motion is granted.
2. The complaint is dismissed, without prejudice, as
frivolous, pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).*fn3
3. The Clerk of Court shall close the case.
4. Any appeal taken from this order will be deemed
frivolous, without probable cause, and not taken in
© 1992-2005 VersusLaw Inc.