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Abney v. Jopp

September 18, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff, Allen Abney, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the United States Bureau of Prisons, asserts claims against three individual defendants--Kevin Jopp, Scott Schrader, and Timothy Gunther--arising out of certain incidents that occurred during 2005, while plaintiff was confined at the Batavia Federal Detention Facility ("Batavia"). Plaintiff states that he seeks compensatory and punitive damages, as well as "relocation, release from prison, etc., disciplinary action for [the] officers [involved, including their] termination." Complaint at 7.

Defendants have moved for summary judgment. For the reasons that follow, defendants' motions are granted, and the complaint is dismissed.


At all relevant times, defendant Jopp worked at Batavia as a custody officer. He was employed by Asset Security, a private company that provides certain services at Batavia pursuant to a contract with the federal government. Dkt. #42-3 ¶ 4.*fn1

Plaintiff alleges that he was involved in two brief verbal confrontations with Jopp in late July 2005. He also alleges that Jopp told some other inmates that plaintiff was a "snitch."

Plaintiff alleges that he complained about these matters to defendants Schrader and Gunther, who were respectively employed by the United States Department of Homeland Security as a lieutenant and captain at Batavia. Plaintiff alleges that Schrader and Gunther "impeded the progress of the investigation" into plaintiff's complaints, but that eventually plaintiff was transferred out of Batavia to a different facility. Complaint at 6.

Neither plaintiff's allegations nor the evidence support a claim against any of the defendants.*fn2

First, to the extent that plaintiff seeks compensatory damages, his claims are barred by 42 U.S.C. § 1997e(e), which provides that "[n]o federal civil action may be brought by a prisoner confined to a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." That provision bars recovery of compensatory damages in § 1983 actions, absent some physical injury to the plaintiff. See Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) ("Section 1997e(e) applies to all federal civil actions including claims alleging constitutional violations").

The Second Circuit has held that "Section 1997e(e) does not limit the availability of nominal damages for the violation of a constitutional right or of punitive damages." Id. at 418. The evidence here, however, will not support a claim for such relief.

As to Jopp, the only evidence that plaintiff offers in support of his allegation that Jopp told other inmates that plaintiff was a "snitch" is plaintiff's testimony that three other inmates said to plaintiff that Jopp had made such a statement to them. There is no admissible evidence in the record from those other inmates, however, and plaintiff does not allege that he personally ever heard Jopp call him a snitch. See Watson v. McGinnis, 981 F.Supp. 815, 819 (S.D.N.Y. 1997) ("An essential element of Watson's case is that Officer Ruiz called Watson a snitch. Watson admitted at his deposition that he never heard Officer Ruiz call him a snitch. Watson merely testified that other inmates said that Officer Ruiz had called him a snitch. What other inmates (allegedly) told Watson, however, constitutes hearsay and is therefore inadmissible") (citations omitted).

Second, even if Jopp did refer to plaintiff as a "snitch," that alone does not give rise to an Eighth Amendment claim, based on the record before me. Although courts have recognized that "being labeled a 'snitch' in the prison environment can indeed pose a threat to an inmate's health and safety in violation of the Eighth Amendment," David v. Hill, 401 F.Supp.2d 749, 756 (S.D.Tex. 2005), in general prison officials will not be liable for such actions absent a showing that the inmate suffered actual harm as a result. At the very least, a plaintiff must show that the defendant's actions gave rise to an excessive risk to the inmate's safety. See, e.g., Bouknight v. Shaw, No. 08 Civ. 5187, 2009 WL 969932, at *4 (S.D.N.Y. Apr. 6, 2009) (concluding that plaintiff failed to make out Eighth Amendment claim against officer based on allegation that officer labeled plaintiff a "snitch," where plaintiff "ha[d] not alleged any facts that, if proven, would establish that he ever faced actual or imminent harm," and adding that "[t]he Court is unwilling simply to assume that such a risk existed merely because Officer Rivera spread rumors about him") (internal quotation marks omitted); Green v. City of New York Dep't of Corrections, No. 06 Civ. 4978, 2008 WL 2485402, at *7 (S.D.N.Y. June 19, 2008) ("In the cases cited by Plaintiff in which courts found viable Eighth Amendment claims premised on being labeled a 'snitch,' there were allegations or proffered evidence of actual physical harm") (collecting cases).

Plaintiff has presented no such evidence here. As stated, plaintiff does not allege that he has ever been physically attacked or injured as a result of Jopp's alleged actions. In addition, when asked at his deposition whether any inmates had ever threatened him because of the "snitch" label, plaintiff responded, "Well, I wouldn't say that they actually come out and said it ... ." Dkt. #42 Ex. 1 at 123.

Plaintiff also alleges that he had a verbal altercation with Jopp in which Jopp called plaintiff a "pussy" and accused him of being afraid of "little women."*fn3 Even if plaintiff's allegations are true, however, they do not give rise to a constitutional claim against Jopp. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (verbal harassment is not actionable under ยง 1983) (per curiam); Amaker v. Foley, No. 94-CV-0843, 2003 WL 21383010, at *4 (W.D.N.Y. Feb.13, 2003) ("without more, [inmate's] allegations of ...

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