(N.D.N.Y. 1995); Forman v. Coughlin, 1994 U.S. Dist. LEXIS 18103, No. 93 Civ. 8412 (LAK), 1994 WL 708150, at *1-2 (S.D.N.Y. Dec. 20, 1994) ("New York has adequate remedies [for deprivation of property claims] via recourse to the New York Court of Claims. The Constitution requires nothing further."). Because New York State provides an adequate post-deprivation remedy for destruction of his property, plaintiff may pursue his claim in state court.
Plaintiff's failure to avail himself of the state procedures does not convert his cause of action into a constitutional due process claim. See Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988) ("Parratt continues, even after Daniels v. Williams, to stand for the proposition that 'section 1983 cannot be made a vehicle for transforming mere civil tort injuries into constitutional injuries.'" Id. (quoting Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987))). Because plaintiff was not deprived of his property without due process of law in that he had an adequate remedy to vindicate his loss, his claim for relief under § 1983 must be dismissed. See Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per curiam).
VIII Verbal Threats
Plaintiff claims that on October 1, 1992, defendants "said and continued to utter words to the effect of 'nigger' and 'coon' We have been waiting on you a very long time, and we are going to kill your 'black ass' when you come out if you do not voluntarily submit to and comply with the strip search procedure." Complaint, at 8-9, P 21.
To the extent plaintiff seeks to assert a claim of verbal abuse, this Court notes that verbal harassment or profanity alone, "unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it might seem," does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983. Del Carpio v. Walker, 1997 U.S. Dist. LEXIS 16173, No. Civ. A. 95 Civ. 1502 (RSP) (GJD), 1997 WL 642543, at *6 (Oct. 15, 1997) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam); Brown v. Croce, 967 F. Supp. 101, 104 (S.D.N.Y. 1997)); see Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996); Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996); Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) ("Although indefensible and unprofessional, verbal threats or abuse are not sufficient to state a constitutional violation cognizable under § 1983."); Beal v. City of New York, 1994 U.S. Dist. LEXIS 5269, No. 92 Civ. 0718 (KMW), 1994 WL 163954, at *6 (S.D.N.Y. Apr. 22, 1994), aff'd, 89 F.3d 826 (2d Cir. 1995); Hurdle v. Ackerhalt, 1993 U.S. Dist. LEXIS 3128, No. 92- Cv-1673, 1993 WL 71370, at *1-2 (N.D.N.Y. Mar. 8, 1993) (allegations of threats and harassment do not rise to the level of a Constitutional violation).
Plaintiff's complaint does not allege that defendants inflicted any physical injury on him in conjunction with their verbal taunts. Rather, plaintiff only asserts that defendants threatened to inflict physical injury. See Complaint, at 8, PP 20-21. In his opposition papers to defendants' summary judgment motion, however, plaintiff claims for the first time that "defendants imposed physical injury and the wanton infliction of pain, physically and psychologically, during the incidents and events of January 12, 1990 and October 1, 1992, including the articulation of racist words before, during and after the fact." Plaintiff's Opposition # 2, at 4, P 8 (emphasis in original); see Plaintiff's Opposition # 1, at 5, P 8 ("defendants brutalized and further tortured and sadistically and maliciously beat me in retaliation because of my litigation endeavors and because I did not voluntarily submit to a strip frisk. They also uttered racial slurs at me."); Plaintiff's Opposition # 3, at 6, P 10 ("the defendants uttered racial slurs at me and visited my person with racial violence and continued to subject me to disparaging remarks such as 'nigger' and 'coon' during these ordeals and episodes of racial violence upon my person and in retaliation against me."). Plaintiff's delay in asserting that he was injured until his response to defendant's argument that verbal threats without injuries are not actionable under § 1983 confirms the implausibility of plaintiff's new claim. See Defendants' Memorandum of Law in Support of their Motion for Summary Judgment Pursuant to R. 56.1, at i. Plaintiff offers no support for these new assertions of injury, and only refers to them in the broadest possible terms.
The analysis does not end there, however. Plaintiff also claims that as a result of defendants' taunts, he was emotionally and psychologically injured. Plaintiff's Opposition # 2, at 4, P 8. Under certain circumstances, the intentional infliction of psychological pain may constitute an Eighth Amendment violation, so long as the pain is not de minimus. See Jermosen v. Coughlin, 1993 U.S. Dist. LEXIS 9283, No. 87 Civ. 6267 (RJW), 1993 WL 267357, at *6 (S.D.N.Y. July 9, 1993), aff'd, 41 F.3d 1501 (2d Cir. 1994). Plaintiff's claim that defendants uttered racial slurs during constitutionally permitted searches does not rise to the level of the malevolent conduct described in Jermosen, where this court found the plaintiff suffered only de minimus psychological harm when correctional officers "approached Jermosen with their nightsticks raised in a threatening position" before conducting a strip frisk. Jermosen, 1993 U.S. Dist. LEXIS 9283, 1993 WL 267357, at *6; see also Show v. Patterson, 955 F. Supp. 182, 192 (S.D.N.Y. 1997) (name-calling and laughing by correctional officers during strip search is de minimus psychological harm). Thus, I find that plaintiff's allegations of any psychological and emotional scars attributable to defendants' conduct to be de minimus under the facts of this case.
Given these circumstances, I find plaintiff's belated assertions of physical and psychological injuries to be insufficient to sustain his claim as a matter of law. See Denton, 504 U.S. at 32 (judges accorded "the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless."). This "court is fully aware that the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation's prisons. The court does not condone this; it merely recognizes that racial slurs do not deprive prisoners of the 'minimal civilized measure of life's necessities,' and thus do not constitute an eighth amendment violation." Morgan v. Ward, 699 F. Supp. 1025 (N.D.N.Y. 1988) (quoting Williams v. Pecchio, 543 F. Supp. 878, 879-80 (W.D.N.Y. 1982) (other citations omitted).
For the foregoing reasons, defendants' motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment dismissing the complaint against the defendants in its entirety.
Dated: New York, New York
February 11, 1998