United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge.
Jerome Hawthorne, a Virginia inmate proceeding pro se, filed
a civil rights complaint pursuant to 42 U.S.C. § 1983.
Plaintiff names numerous staff of the Red Onion State Prison
("ROSP") as defendants: Warden Barksdale, Assistant
Warden Hamilton, Unit Manager Duncan, Lt. Gilbert, Sgt.
Messer, and Officers Gentry and Ramsey. This matter is before
me for screening pursuant to 28 U.S.C. § 1915A. After
reviewing Plaintiffs submissions, I dismiss the complaint
without prejudice for failing to state a claim upon which
relief may be granted.
complains that inmates put their urine and feces in the
ventilation system and that he is forced to breathe in foul
smells. Plaintiff concludes that, as a result, he suffers
"physical and mental harm of anguish and mental distress
- imminent danger and irreparable harm." Plaintiff
further complains that Sgt. Messer and Officers Gentry and
Ramsey refused to escort him to outside recreation "on
the first shift." Plaintiff again concludes that this
omission causes "mental distress and mental anguish and
physical harm to a mental and physical sickness." Also,
Plaintiff complains that Officers Gentry and Ramsey harass
him and threaten him. Plaintiff alleges in a sentence
fragment that he experiences these issues because he filed a
dismiss an action or claim filed by an inmate if I determine
that the action or claim is frivolous or fails to state a
claim on which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2), 1915A(b)(1); 42 U.S.C. §
1997e(c). The first standard includes claims based upon
"an indisputably meritless legal theory, "
"claims of infringement of a legal interest which
clearly does not exist, " or claims where the
"factual contentions are clearly baseless."
Neitzke v. Williams, 490 U.S. 319, 327 (1989). The
second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
accepting a plaintiff s factual allegations as true. A
complaint needs "a short and plain statement of the
claim showing that the pleader is entitled to relief and
sufficient "[f]actual allegations ... to raise a right
to relief above the speculative level" Bell Atl.
Corp. v. Twomblv. 550 U.S. 544, 555 (2007) (internal
quotation marks omitted). A plaintiffs basis for relief
"requires more than labels and conclusions ...."
Id. Therefore, a plaintiff must "allege facts
sufficient to state all the elements of [the]
claim."Bass v. E.I. Dupont de Nemours &
Co.. 324 F.3d 761, 765 (4th Cir. 2003).
fails to state a claim upon which relief may be granted.
Plaintiff does not allege facts involving any defendants but
Sgt. Messer and Officers Gentry and Ramsey. For these
defendants, Plaintiff complains about not receiving
recreation and being threatened. Plaintiff fails to describe,
beyond mere labels and conclusions, the deprivation of a
basic human need and consequent physical harm. See,
e.g., Strickler v. Waters. 989 F.2d 1375, 1379
(4th Cir. 1993). Furthermore, verbal abuse or harassment does
not rise to the level of an Eighth Amendment violation. See
Collins v. Cundv. 603 F.2d 825, 827 (10th Cir.
1979), cited favorably in Moody v. Grove,
885 F.2d 865 (4th Cir. 1989) (table) (unpublished) (stating
as a general rule that verbal abuse of inmates by guards,
without more, does not state a constitutional claim);
see, e.g., Pittsley v. Warish, 927 F.2d 3, 7 (1st
Cir. 1991); Emmons v. McLaughlin. 874 F.2d 351, 354
(6th Cir. 1989); Martin v. Sargent. 780 F.2d 1334,
1338 (8th Cir. 1985) (calling an inmate an obscene name did
not violate constitutional rights); Lamar v. Steele,
698 F.2d 1286 (5th Cir. 1983); Keves v. City of
Albany. 594 F.Supp. 1147 (N.D.N.Y. 1984). Plaintiff
cannot proceed against defendants on respondeat superior
alone, and he fails to describe a defendant's act or
omission that violated a federal right. See, e.g.,
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
663 n.7 (1978); West v. Atkins, 487 U.S. 42, 48
(1988). Accordingly, the complaint fails to state a claim
upon which relief may be granted.
foregoing reasons, I dismiss the complaint without prejudice
for failing to state a claim upon which relief may be
 Determining whether a complaint states
a plausible claim for relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal.556 U.S. 662, 678-79 (2009). Thus, a court
screening a complaint under Rule 12(b)(6) can identify
pleadings that are not entitled to an assumption of truth
because they consist of no more than labels and conclusions.
Id. Although I liberally construe pro se complaints,
Haines v. Kerner. 404 U.S. 519, 520-21 (1972), I do
not act as an inmate's advocate, sua sponte
developing statutory and constitutional claims not clearly
raised in a complaint. See Brock v. Carroll. 107
F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring);
Beaudett v. City of Hampton,775 F.2d 1274, 1278