United States District Court, N.D. California
March 11, 2004.
TOMMY HOWARD, Plaintiff(s),
E. BROOKS, et al., Defendant(s)
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Alameda County Jail, Santa Rita Facility,
has filed a pro se complaint for damages under 42 U.S.C. § 1983 alleging
that his parole agent violated his constitutional rights by threatening
to kill him.
Plaintiff specifically alleges that on or about December 15, 2003,
during his monthly visit to the parole office, Parole Agent E. Brooks
told him, "You're to[o] fucking old to be caught up in the parole system.
I'm gonna save the state some money when I put a bullet [in] your black
ass." When plaintiff reported Brooks to Unit Supervisor B. Wallace,
Wallace laughed and told him to get out of his office.
Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which
prisoners seek redress from a governmental entity or officer or employee
of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify
claims or dismiss the complaint, or any portion of the complaint, if the
complaint "is frivolous, malicious, or fails to state a claim upon which
relief may be granted," or "seeks monetary relief from a defendant who is
immune from such relief." Id. § 1915A(b). Pro se pleadings must be
liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696,
699 (9th Cir 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the Constitution or laws
of the United States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law. West v
Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Although regrettable, plaintiffs allegations fail to state a claim for
damages under § 1983 because the threat and harassment he alleges did not
amount to constitutional violations. See Gaut v. Sunn, 810 F.2d 923, 925
(9th Cir 1987) (mere threat does not constitute constitutional wrong);
Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir 1981)
(harassment not cognizable under § 1983).
For the foregoing reasons, plaintiffs request to proceed in forma
pauperis (doc # 2) is DENIED and the complaint is DISMISSED.
The Clerk shall close the file and terminate all pending motions as
moot. No fee is due.
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