Morrison v. Martin

• Decision Date: 16 August 1990
• Docket Number: No. 89-461-CRT-F.,89-461-CRT-F.
• Citation: 755 F. Supp. 683
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Kenneth MORRISON, Plaintiff, v. Jim MARTIN, et al., Defendants.

755 F. Supp. 683

Kenneth MORRISON, Plaintiff, v. Jim MARTIN, et al., Defendants.

No. 89-461-CRT-F.

United States District Court, E.D. North Carolina, Raleigh Division.

August 16, 1990.

COPYRIGHT MATERIAL OMITTED

Kenneth Morrison, pro se.

Jane Ray Garvey, State of N.C. Dept. of Justice, Raleigh, N.C., for defendants.

ORDER

JAMES C. FOX, Chief Judge.

Kenneth Morrison (Morrison) is a former law enforcement and correctional officer who is now a prisoner in the custody of the North Carolina Department of Correction. He has filed and is pursuing this action pro se, having declined the services of North Carolina Prisoner Legal Services. He complains of various incidents of alleged physical mistreatment while at Central Prison and Odom Correctional Institution. He also accuses the staff at Odom, Central Prison and Caledonia of emitting voices into his head while applying pressure to cause headaches and also applying presumably remote "stinging impulses" to his body resulting in various embarrassing bodily functions. He states that he has been denied meals and mattresses on occasion and that on one occasion legal materials were removed and withheld from him for nineteen days. Defendants have moved for summary judgment. Morrison has responded thereto, and the matter is ripe for deposition.

At the outset, the court notes that the complaint does not state whether the defendants are sued in their official capacities or individually. In any event, this court is without jurisdiction over a civil rights suit against state officials in their official capacities. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). To the extent Morrison attempts to assert such a claim, this action is DISMISSED.

More significantly, Morrison's non-force allegations do not constitute cognizable claims.

Morrison complains of the noise around him. Apparently some is external ("tapping sound," "constant sound waves") and some results from voices in his head, allegedly placed there by staff members. He complains of sleep disturbance.

As to the external "tapping noises" and the like, the court perceives that no constitutional imperative has been transgressed, even were Morrison's contentions accepted on face value.¹

To the extent that Morrison accuses correctional personnel of placing voices in his head to ask about his court case and emitting constant sound waves, the court takes judicial notice that impossible contentions cannot be true. Cohen v. United States, 129 F.2d 733, 736 (8th Cir.1942).

Where the facts testified to are opposed to all natural laws and common experience, that it is inconceivable that any such thing could have occurred, courts will refuse to believe it, on the ground that they will take judicial notice of its incredibility.

Black v. Berea, 137 Ohio St. 611, 19 Ohio Ops. 427, 32 N.E.2d 1, 132 A.L.R. 1391 (1941). See also, 30 Am.Jur.2d: Evidence 1086. The court disregards such testimony as inherently improbable. Urban Redevelopment Corporation v. C.I.R., 294 F.2d 328 (4th Cir.1961).

The United States Supreme Court recently had occasion to opine as to the legal sufficiency of inherently impossible allegations in construing the authority of federal courts under 28 U.S.C. 1915.

Section 1915 accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit ... and claims of infringement of a legal interest which clearly does not exist.... Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.

Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989).

The court views this approach to inherently incredible inmate allegations to be available at any stage of litigation, including the evaluation of a motion for dismissal or summary judgment. The court is not precluded from the use of common sense in dealing with preposterous contentions, whether made pro se or otherwise.

Morrison also makes generalized allegations that he has missed meals from time to time and that he occasionally has not had a mattress. These contentions contain no information as to location, date or circumstances. Such vague and generalized claims do not support an action based on 42 U.S.C. 1983.

In order for a constitutional deprivation to be shown, the conditions of confinement must be "shocking to the conscience" and lasting for a substantial period of time, Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 860-61 (4th Cir. 1975), so that conditions amount to "punishment." Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

The court is not empowered to act unless deprivations are of constitutional dimensions. Highly undesirable conditions supply no predicate for a cognizable claim. Minns v. Simpson, 391 F.Supp. 1156 (W.D. Va.1975), aff'd, 537 F.2d 77 (4th Cir.1976); Preast v. Cox, 628 F.2d 292 (4th Cir.1980); Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972).

Morrison's contention fails to state a claim for relief.² Further, it would appear that whatever meals Morrison may have missed were by his own choice during periods when this fixation came to the fore.

Morrison complains of being cursed while at Southern Correctional Center. Words by themselves do not state a constitutional claim, without regard to their nature. Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979); Jones v. Superintendent, 370 F.Supp. 488, 491 (W.D.Va.1974); Zeno v. Cropper, 650 F.Supp. 138 (S.D.N. Y.1986); Keyes v. City of Albany, 594 F.Supp. 1147 (N.D.N.Y.1984); Gaut v. Sunn, 810 F.2d 923 (9th Cir.1987); Mann v. Smith, 796 F.2d 79, 85 (5th Cir.1986). The subjection of a prisoner to verbal abuse or profanity does not arise to the level of a constitutional deprivation. Collins v. Haga, 373 F.Supp. 923 (W.D.Va. 1974); Morris v. Sheffer, aff'd, 519 F.2d 1399 (4th Cir.1975).

The law is clear that "mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations." Coyle v. Hughs 436 F.Supp. 591, 593 (W.D.Okla.1977) (citing Fisher v. Woodson, 373 F.Supp. 970 (E.D. Va.1973)); Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989).

Morrison was denied contact visits for a period while on administrative segregation at Southern Correctional Center pending a custody review, a normal practice for persons on that custody status. The period during which these restrictions existed was a result of Morrison's refusal to cooperate with the normal classification process and expedite his assignment to a facility at which these privileges could be extended.

There is no constitutional entitlement to contact visitation for the limited period of time involved in this matter. Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984); Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975). Moreover, reasonable administrative response to institutional considerations may further justify restricting privileges. The standard for review of prison regulations affecting inmates is whether it is reasonably related to a legitimate institutional objective. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Given Morrison's self-confessed refusal to cooperate with the diagnostic and intake procedures at Southern and his pending custody review, the denial of contact visits, done pursuant to policy, was a legitimate administrative decision.

Morrison also complains that various appeals materials were removed from his cell for a period of nineteen days. He also states that he was not allowed to keep his Bibles.

Morrison has not shown harm caused by the alleged seizure of these vaguely identified items and his claim is therefore barred under Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987). There can be no constitutionally based recovery in the absence of actual injury or specific harm to the inmate from the alleged deprivation of access. Hudson v. Robinson, 678 F.2d 462 (3d Cir.1982); Cookish v. Cunningham, 787 F.2d 1 (1st Cir.1986); At the very least, the complaining prisoner must allege some quantum of detriment caused by the challenged conduct of the authorities resulting in the interruption or delay of litigation. Hossman v. Spradlin, 812 F.2d 1019, 1021 (7th Cir.1987).

Moreover, any materials which were removed from Morrison's possession on March 20, 1989, were taken because he had been placed on suicide watch and for his own protection. Some delay in their return was occasioned by the plaintiff's refusal to sign the property receipt as required. Nevertheless, these materials were returned on April 7, 1989.

The deference due to facility administrators in the establishment of policies reasonably related to legitimate governmental objectives is a principle well established in the law. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Crowe v. Leek, 540 F.2d 740 (4th Cir.1976); Ross v. Blackledge, 477 F.2d 616, 618 (4th Cir.1973); Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 859 (4th Cir. 1975).

That legal or other materials were denied Morrison for a brief period while confined to suicide watch (particularly in light of the absence of any harm occasioned thereby) does not constitute a cognizable constitutional claim.

Morrison's allegations of use of force, while more troublesome, are subject to summary judgment. Morrison contends that the staff at Central Prison subjected him to daily "stinging" and "humiliating impulses"...