United States District Court, D. New Hampshire
Talley, pro se
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
the court is a complaint (Doc. No. 1) and complaint addendum
(Doc. No. 7) filed by federal prisoner Louis Talley, pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) . This matter is before
the undersigned magistrate judge for preliminary review to
determine, among other things, whether Talley has stated any
claim upon which relief may be granted. See 28
U.S.C. § l9l5A(a); LR 4.3(d) (1) .
court reviews complaints filed by pro se incarcerated
plaintiffs to determine, among other things, whether
plaintiff has asserted any claim upon which relief might be
granted. See 28 U.S.C. § l9l5A(a); LR
4.3(d)(1). In determining whether a pro se pleading states a
claim, the court construes the pleading liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding
any legal conclusions, the court considers whether the
factual content in the pleading and inferences reasonably
drawn therefrom, taken as true, state a claim to relief.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st
Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
14, 2016, Talley, who is African-American, was incarcerated
at the Federal Correctional Institution, Berlin, New
Hampshire ("FCI-Berlin"),  On that day, FCI-Berlin
Corrections Officer J. Starkey went to plaintiff's cell
to pick up the dinner trays used by Talley and his cellmate,
Mr. Johnson, who is also African-American. When Johnson
attempted to give Starkey "Common Fare" trays,
Starkey refused to take them, and began to verbally harass
Johnson. Johnson then walked away, and Talley offered Starkey
their regular dinner trays through the door slot, and asked
Starkey why he had harassed Johnson over the other trays.
asserts that Starkey then "[a]ngrily . . .
snatched" the trays, almost slamming Talley's hand
in the door slot. Compl. at 10. Talley claims that when
Starkey was leaving, he called plaintiff and his cellmate
"the two nigger monkey boys, " and began to imitate
a monkey, scratching himself under his arms and imitating
monkey sounds. Id.
alleges that Starkey discriminated against him, in violation
of Talley's Fifth Amendment Equal Protection rights, by
engaging in racially derogatory verbal harassment of Talley
on June 14, 2016. The Equal Protection Clause protects
individuals from government conduct that subjects them to
adverse treatment, as compared with those similarly situated,
where the adverse treatment was motivated by racially
discriminatory intent. See Rios-Collin v.
Toledo-Davila, 641 F.3d 1, 4 (1st Cir. 2011). "The
use of racially derogatory language, while unprofessional and
deplorable, does not violate the Constitution."
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000).
"Standing alone, simple verbal harassment does not . . .
deny a prisoner equal protection of the laws."
Id. (footnote omitted); see also Williams v.
Bramer, 180 F.3d 699, 706 (5th Cir. 1999) ("[A]n
officer's use of a racial epithet, without harassment or
some other conduct that deprives the victim of established
rights, does not amount to an equal protection violation. . .
. Where the conduct at issue consists solely of speech, there
is no equal protection violation."); Carter v.
Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999);
McCormack v. Town of Whitman, Civil Action No.
10-10461-PBS, 2013 U.S. Dist. LEXIS 38637, at *34, 2011 WL
1187093, at *11 (D. Mass. Mar. 20, 2013).
as true, Talley's allegations describe behavior by
Starkey that is both unprofessional and reprehensible, but
the allegations do not describe any action by the defendant
that violated Talley's equal protection rights.
Starkey's actions, as described, amount to no more than
verbal harassment. Accordingly, Talley has failed to state an
actionable equal protection claim against Starkey, and the
complaint should be dismissed.
the foregoing reasons, the District Judge should dismiss the
complaint in its entirety. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt
of this notice. See Fed.R.Civ.P. 72(b)(2). The
fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the ...