IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

DERMAIN DATORIO TERRY PLAINTIFF #163201

v. No: 4:23-cv-01076 KGB-PSH

MIKE KNODEL DEFENDANT

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact. DISPOSITION Plaintiff Dermain Datorio Terry, an inmate at the Dallas County Detention Center, filed a pro se complaint on November 15, 2023 (Doc. No. 2-1). His application to proceed in forma pauperis has been granted (Doc. No. 3). The Court has reviewed Terry’s complaint and finds that he does not describe facts sufficient to state a claim upon which relief may be granted. I. Screening Standard Federal law requires courts to screen prisoner complaints. 28 U.S.C. § 1915A,

1915(e)(2). Claims that are legally frivolous or malicious; that fail to state a claim for relief; or that seek money from a defendant who is immune from paying damages should be dismissed before the defendants are served. 28 U.S.C. § 1915A,

1915(e)(2). Although a complaint requires only a short and plain statement of the claim showing that the pleader is entitled to relief, the factual allegations set forth therein must be sufficient to raise the right to relief above the speculative level. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v. Twombly,

(2007) (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .”). While construed liberally, a pro se

complaint must contain enough facts to state a claim to relief that is plausible on its face, not merely conceivable. II. Analysis To state a claim under

, a plaintiff must allege that the

conduct of a defendant acting under color of state law deprived him of a right, privilege, or immunity secured by the United States Constitution or by federal law.

. Terry alleges that Dallas County Sheriff Mike Knodel made a

post on Facebook threatening to switch out inmates’ cushioned mats with yoga mats and to feed them nothing but rice and beans. Terry claims that Knodel’s threats were intended to punish him. He does not allege that either of these threats were carried

out or otherwise complain about the conditions in the Dallas County Detention Center. Insults or threats generally do not rise to the level of a constitutional violation. See Hopson v. Fredericksen,

(8th Cir. 1992).1

Accordingly, Terry has not described a viable constitutional claim, and his complaint should be dismissed without prejudice for failure to state a claim upon which relief may be granted. III. Conclusion

For the reasons stated herein, it is recommended that: 1. Terry’s claims be dismissed without prejudice for failure to state a claim upon which relief may be granted.

2. Dismissal of this action count as a “strike” within the meaning of

(g). 3. The Court certify, pursuant to

(a)(3), that an in forma pauperis appeal from the order adopting this recommendation would not be taken in

good faith.

1 See also McDowell v. Jones,

(8th Cir. 1993) (inmate’s allegations of verbal harassment were not actionable under § 1983); O’Donnell v. Thomas,

, 790 (8th Cir. 1987) (verbal threats and abuse by jail officials insufficient to state a constitutional violation). SO RECOMMENDED this 21st day of November, 2023.

be UNITED STATES MAGISTRATE JUDGE