Talley v. Starkey

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Louis Talley
v. Civil No. 17-cv-85-SM
Officer J. Starkey
REPORT AND RECOMMENDATION
Before 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.
§ 1915A(a); LR 4.3(d)(1).
Standard
The 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. § 1915A(a); LR 4.3(d)(1). In determining whether a
Case 1:17-cv-00085-SM Document 8 Filed 08/17/17 Page 1 of 5

2
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, 678 (2009)).
Background
On June 14, 2016, Talley, who is African-American, was
incarcerated at the Federal Correctional Institution, Berlin,
New Hampshire (“FCI-Berlin”).1 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.
1Talley is presently incarcerated at the United States
Penitentiary, Canaan in Pennsylvania.
Case 1:17-cv-00085-SM Document 8 Filed 08/17/17 Page 2 of 5

3
Talley 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.
Discussion
Talley 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, 2016.2 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 Ríos–Collin v. Toledo–Dávila, 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
2Talley has invoked the Fourteenth Amendment as the source
of his right to equal protection of the laws. Because Talley is
a federal prisoner, his equal protection claim arises under the
Fifth Amendment.
Case 1:17-cv-00085-SM Document 8 Filed 08/17/17 Page 3 of 5

4
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).
Taken 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.
Case 1:17-cv-00085-SM Document 8 Filed 08/17/17 Page 4 of 5

5
Conclusion
For 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 district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ. P.
72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 17, 2017
cc: Louis Talley, pro se
Case 1:17-cv-00085-SM Document 8 Filed 08/17/17 Page 5 of 5