United States District Court, W.D. Virginia, Roanoke Division
Brandon Luke Herron, Pro Se Plaintiff.
P. Jones, United States District Judge.
Brandon Luke Herron, a state inmate proceeding pro se, has
filed a civil rights action under 42 U.S.C. § 1983,
alleging that he has been held for weeks in segregated
confinement without a Bible. After review of the record, I
conclude that this action must be summarily dismissed for
failure to state any claim actionable under § 1983 and
that Herron's separate motions seeking interlocutory
injunctive relief must be dismissed as moot.
is confined at the Southwest Virginia Regional Jail Authority
(“SWVRJA”) jail located in Haysi, Virginia. His
Complaint, signed and dated on January 15, 2019, provides few
details. He states that he was “put on strip
cell” on December 8, 2018, “for saying that [he]
would stab the Major.” Compl. 2, ECF No. 1. In that
cell, he is not allowed to have his Bible. Herron also
complains that according to state prison policy, after thirty
days on strip cell, he should have had a fifteen-day rest
break. As relief in this case, Herron wants “to be took
off of strip cell or moved to another SWVRJA Jail.”
also moves for interlocutory injunctive relief:
“I'm in fear for my life due to all of this.
I've been told by 3 Co's now that will hurt me if I
file this 1983 form, so please order that I be moved to a
different SWVRJA Jail so I don't get hurt by any of these
CO's.” Mot. TRO 1, ECF No. 4. In a similar motion
filed a few weeks later, Herron states that he needs to
“be moved to another jail . . . due to threats made at
me by staff at this jail. I'm in fear for my life and
have ask[ed] to be moved, and they are den[y]ing me the right
to move.” Mot. Prelim. Inj. 1, ECF No. 9.
dismiss any action or claim filed by a prisoner against
governmental officials if I find that the action or claim is
frivolous, malicious, or fails to state a claim on which
relief may be granted. 28 U.S.C. § 1915A(b)(1). Section
1983 permits an aggrieved party to file a civil action
against a person for actions taken under color of state law
that violated his constitutional rights. See Cooper v.
Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). To state a
claim, the plaintiff's “[f]actual allegations must
be enough to raise a right to relief above the speculative
level, ” to one that is “plausible on its face,
” rather than merely “conceivable.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
defendants Herron names in the heading of the Complaint are
Captain McCoy and Major Jonny Billiter. The allegations in
the claims section of Herron's Complaint do not mention
either of these individuals or describe any action that
either of them took, personally, that violated Herron's
rights or harmed him in any way. Thus, the Complaint does not
state any § 1983 claim against McCoy or Billiter.
See, e.g., Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th
Cir. 1977) (finding that under § 1983,
“[l]iability will only lie where it is affirmatively
shown that the official charged acted personally in the
deprivation of the plaintiff['s] rights”) (internal
quotation marks and citations omitted). Moreover,
Herron's submissions do not state sufficient facts for an
actionable § 1983 claim against anyone.
the Complaint does not state any violation of the Free
Exercise Clause of the First Amendment. Specifically, Herron
does not indicate how his inability to possess his Bible for
a few weeks has substantially burdened his practice of
sincere, religious beliefs - a showing he must make for a
free exercise claim. See Thomas v. Review Bd. of Ind.
Emp't Sec. Div., 450 U.S. 707, 718 (1981) (defining
substantial burden as one that “put[s] substantial
pressure on an adherent to modify his behavior and to violate
Herron does not demonstrate how temporary strip cell
confinement itself has caused him any harm or otherwise
violated any constitutionally protected right. See, e.g.,
Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that
disciplinary segregation was not the type of atypical,
significant deprivation required to create a protected
liberty interest for due process purposes); Shakka v.
Smith, 71 F.3d 162, 166 (4th Cir. 1995) (holding that
Eighth Amendment claim requires showing that challenged
prison conditions caused plaintiff serious physical or
emotional harm). Moreover, jail officials' alleged
violation of a state regulation about strip cell breaks does
not present any federal constitutional claim. See Riccio
v. Cty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990)
(holding that if state law grants more procedural rights than
Constitution requires, state's failure to abide by that
law is not federal due process issue). Thus, Herron has
stated no § 1983 claim about strip cell status.
Herron has no § 1983 claim based merely on officers'
verbal threats. Allegations of verbal abuse and harassment by
guards, without more, do not state any constitutional claim.
Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir.
2005) (unpublished) (citing Collins v. Cundy, 603
F.2d 825, 827 (10th Cir. 1979)).
stated reasons, I find that this action must be summarily
dismissed without prejudice, pursuant to § 1915A(b)(1),
for failure to state a claim upon which relief can be
granted. As such, I will also dismiss Herron's motions
for interlocutory injunctive relief as moot. Dismissal of the
§ 1983 action without prejudice leaves Herron free to
refile one or more of his claims in a new and separate civil
rights action, provided he can overcome the noted
separate Final Order will be entered herewith.