IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

KEVIN JAMES KOHUTE §

 

VS. § CIVIL ACTION NO. 1:24-CV-22

KAITLYN BRAQUET §

 REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kevin James Kohute, proceeding pro se and in forma pauperis, filed this civil rights

action pursuant to 42 U.S.C. § 1983 against Kaitlyn Braquet. The defendant is employed at the

Beaumont Transitional Center halfway house where Plaintiff was residing.

This action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for

findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Background

While he was residing at the Beaumont Transitional Center, Plaintiff alleges he discovered

his credit card had a credit of $18,541.50 that had been deposited to the account from the Social

Security Administration. Plaintiff alleges he was unsure why he had the credit because his Social

Security benefits should have been suspended while he was in jail, so he gave the card to Miss

Butler. Next, Plaintiff alleges he was given a “lethal and dangerous MHMR injection from

Spindletop” byan unidentified individual. Finally, Plaintiff contends that Defendant verballyabused

and harassed him.

Standard of Review

An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e) if it: 

(1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3) seeks

monetary relief from a defendant who is immune from such relief.

A complaint, containing as it does both factual allegations and legal conclusions, is frivolous

if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). A complaint lacks an arguable basis

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in law if it is based on an indisputablymeritless legal theory. See Siglar v. Hightower, 112 F.3d 191,

193 (5th Cir. 1997). A complaint lacks an arguable basis in fact if, after providing the plaintiff the

opportunity to present additional facts when necessary, the facts alleged are clearlybaseless. Denton

v. Hernandez, 504 U.S. 25, 32 (1992).

A complaint does not need detailed factual allegations, but the plaintiff must allege sufficient

facts to show more than a speculative right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). Dismissal for failure to state a claim is appropriate if the complaint does not include

enough facts to state a claim that is plausible on its face. Id. at 570. Conclusory allegations and a

formulaic recitation of the elements of a cause of action will not suffice to prevent dismissal for

failure to state a claim. Id. at 555. The plaintiff must plead facts that allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). 

Analysis

Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color

of state law, causes another to be deprived of a federally protected constitutional right. Gomez v.

Toledo, 446 U.S. 635, 640 (1980); Phillips v. Monroe Cnty., 311 F.3d 369, 373 (5th Cir. 2002). 

Section 1983 provides:

Everyperson who, under color of any statute, ordinance, regulation, custom or usage,

of any state . . . subjects, or causes to be subjected, any citizen of the United States

or any other person within the jurisdiction thereof to the deprivation of any rights,

privileges or immunities secured by the Constitution and laws shall be liable to the

party injured . . . . 

42 U.S.C. § 1983. 

Personal Involvement

To successfully plead a cause of action in a civil rights case, Plaintiff must enunciate a set

of facts that illustrate the defendants’ participation in the alleged wrong. Jacquez v. Procunier, 801

F.2d 789, 793 (5th Cir. 1986). Plaintiff does not allege facts demonstrating that Defendant was

personallyinvolved in anything to do with Plaintiff’s Social Securitybenefits, confiscating his credit

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card, or giving him an injection. Thus, those claims are frivolous and fail to state a claim. Plaintiff

alleges Defendant was personallyinvolved in making harassing or threatening comments to Plaintiff. 

Verbal threats and abuse do not amount to a constitutional violation. Calhoun v. Hargrove, 312 F.3d

730, 733 (5th Cir. 2002); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983); see also Walter

v. Perkins, No. 20-30547, 2021 WL 5458110 at *1 (Nov. 22, 2021) (unpublished) (holding that

allegations of threats and “promises of violence” are insufficient to state a claim of retaliation or a

violation of the Eighth Amendment). Therefore, this claim is also frivolous and fails to state a claim

upon which relief may be granted.

Recommendation

This civil rights action should be dismissed pursuant to 28 U.S.C. § 1915(e) as frivolous and

for failure to state a claim upon which relief may be granted. 

Objections

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings of facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72. 

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 1st day of May, 2024.

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