                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 2 2004
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 CURTIS V. MOORE,

               Plaintiff - Appellant,                     No. 04-6140
          v.                                            (W.D. Oklahoma)
 RONNIE MORRIS, Head of                           (D.C. No. CIV-03-1754-M)
 Operations, Atoka Highway &
 Maintenance; OKLAHOMA STATE
 DEPARTMENT OF
 TRANSPORTATION,

               Defendants - Appellees.


                             ORDER AND JUDGMENT *



Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See F ED . R.

A PP . P. 34(f); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted

without oral argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
                                  I.     Background

      Pursuant to 42 U.S.C. § 1983 and proceeding in forma pauperis, Plaintiff-

Appellant pro se Curtis V. Moore filed a complaint against Defendants-Appellees

Ronnie Morris and the Oklahoma Department of Transportation (ODOT). Mr.

Moore alleged that the conditions of his confinement violated his Eighth

Amendment rights. According to the complaint, while Mr. Morris was

supervising Mr. Moore on a prison transportation work-crew, he referred to Mr.

Moore with a racial epithet. The magistrate judge recommended that the district

court dismiss the case because Mr. Moore sought relief from the ODOT, an

immune defendant, and because he failed to state a claim upon which relief could

be granted. The district court considered Mr. Moore’s timely objections to the

magistrate judge’s report and recommendation and agreed with the magistrate

judge in all respects.

      Our jurisdiction arises under 28 U.S.C. § 1291. Although Mr. Moore failed

to exhaust his administrative remedies, we affirm the district court’s sua sponte

dismissal because his complaint seeks monetary relief from a defendant who is

immune and otherwise fails to state a claim upon which relief may be granted.

                                   II.    Analysis

      We review de novo both the district court’s decision to dismiss Mr.

Moore’s claims as barred under the Eleventh Amendment,     see Robinson v.


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Kansas , 295 F.3d 1183, 1188 (10th Cir. 2002), and the district court’s order

dismissing his case for failure to state a claim,   see Perkins v. Kansas Dep’t of

Corr. , 165 F.3d 803, 806 (10th Cir. 1999).

       The magistrate judge concluded that Mr. Moore’s claim for monetary

damages against ODOT were barred by the Eleventh Amendment and should be

dismissed upon initial review. We agree with the district court’s adoption of this

analysis with respect to Mr. Moore’s claim for damages against ODOT.         See

Sturdevant v. Paulsen , 218 F.3d 1160, 1164 (10th Cir. 2000) (holding that the

Eleventh Amendment bars claims for damages against entities that are

instrumentalities or arms of a state). We thus affirm the dismissal of Mr. Moore’s

claims for damages against the ODOT.

       Mr. Moore’s sole complaint against Mr. Morris is that Mr. Morris verbally

abused him with a racial epithet. If the alleged conduct occurred, it is

inexcusable and offensive; it does not, however, amount to a constitutional

violation, as the Magistrate Judge noted.       See Report and Recommendation at 6

(citations omitted). Perhaps situations exist in which verbal abuse might amount

to cruel and unusual punishment, but this matter does not present such a situation.

See McBride v. Deer , 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (“[A]cts or

omissions resulting in an inmate being subjected to nothing more than threats and

verbal taunts do not violate the Eighth Amendment.”);      Collins v. Cundy , 603 F.2d


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825, 827 (10th Cir. 1979) (holding that a sheriff’s threats to hang a prisoner were

insufficient to state constitutional deprivation under § 1983). Similarly, Mr.

Moore’s allegation that the verbal abuse caused him embarrassment and emotional

injury in the form of pain, suffering, mental stress, and depression does not

constitute an actionable claim. Mental or emotional stress, without physical

injury, is insufficient to state a § 1983 claim based on conditions of confinement.

See 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of physical injury.”);

Thompson v. Gibson , 289 F.3d 1218, 1222 (10th Cir. 2002) (“As to [plaintiff’s]

claim for emotional distress, no § 1983 action can be brought unless the plaintiff

has suffered physical injury in addition to mental and emotional harms.”) (citing

42 U.S.C. § 1997e(e)). We therefore also affirm the district court as to Mr.

Moore’s claims against Mr. Morris.

      Finally, because Mr. Moore has appealed the district court’s dismissal to

this court and we hereby affirm, the district court’s dismissal counts as a “prior

occasion” or “strike” for purposes of 28 U.S.C. § 1915(g).     See Jennings v.

Natrona County Det. Ctr. Med. Facility    , 175 F.3d 775, 780 (10th Cir. 1999) (“A

district court dismissal under 28 U.S.C. § 1915(e)(2)(B) does not count as a strike

until after the litigant has exhausted or waived his opportunity to appeal. . . . If


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we affirm a district court dismissal under 28 U.S.C. § 1915(e)(2)(B), the district

court dismissal then counts as a single strike.”).

                                  III.   Conclusion

      For the foregoing reasons, we AFFIRM the district court in all respects.

Mr. Moore’s motion to proceed without prepayment of the filing fee is granted; he

is obligated to continue making payments until the entire fee has been paid.

Because this Order and Judgment disposes of Mr. Moore’s appeal in its entirety,

we DENY all outstanding motions.



                                                Entered for the Court,

                                                Robert H. Henry
                                                Circuit Judge




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