Judge Barbara Kahn
In May and August 2009, Arringtonwho is black underwent unsuccessful surgeries, performed by defendant Dolph, at a Veterans Affairs hospital. In addition to medical malpractice, Arrington alleged Dolph’s use of profanity at his second operation created a hostile environment, and violated his civil rights. District court dismissed, without prejudice, Arrington’s pro se amended complaint stating claims under 42 USC §1983 and Title VII of the Civil Rights Act. All defendants were federal employees or governmental entities not subject to liability under §1983. Even construing his claims as asserting causes of action under Bivens v. Six Unknown Named Agents, the court found Arrington’s claims did not amount to constitutional violations. Under White v. Wackenhut Sec. Contractors, words alone, no matter how inappropriate and reprehensible, do not rise to the level of a constitutional violation. Also, because Arrington is not incarcerated, he cannot allege that any defect in his medical care violated his Eighth Amendment rights. In an abundance of caution the court granted Arrington leave to amend his complaint to state his claims under the Federal Tort Claims Act.
