United States District Court, N.D. California
November 3, 2005.
VINCENT M. LOPEZ, Plaintiff,
CORRECTIONAL OFFICER RANDOW, Defendant.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL
The above-titled action consists of a letter in which
plaintiff, an inmate at Pelican Bay State Prison ("PBSP") alleges
that a PBSP guard, Correctional Officer Randow ("Randow"),
verbally harassed him. By separate order filed concurrently
herewith, plaintiff has been granted leave to proceed in forma
A. Standard of Review
A federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity.
28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable
claims and dismiss any claims that are frivolous, malicious, fail
to state a claim upon which relief may be granted or seek
monetary relief from a defendant who is immune from such relief.
See id. § 1915A(b)(1), (2). Pro se pleadings must, however,
be liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under
§ 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. See
West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff claims that Randow verbally abused him. Specifically,
plaintiff alleges that Randow told him that another PBSP guard
lied when telling plaintiff that plaintiff's mother had not died.
Plaintiff claims that Randow's comments caused him "spiritual
pain." Plaintiff cites no federal law, and this Court is aware of
none, that prohibits Randow's comments. Although 42 U.S.C. § 1983
protects inmates' from violations of their rights under federal
law, allegations of verbal harassment and abuse fail to state a
claim cognizable under § 1983. See Freeman v. Arpaio,
125 F.3d 732, 738 (9th Cir. 1997); see, e.g., Keenan v. Hall,
83 F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th
Cir. 1998) (holding "disrespectful and assaultive comments" by
prison guard insufficient to implicate Eighth Amendment);
Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987)
(holding allegations of vulgar language directed at prisoner
insufficient to state constitutional deprivation under § 1983).
Accordingly, the verbal harassment alleged in this case does not
state a cognizable claim for the violation of any federal law.
In light of the foregoing, the above-entitled action is
DISMISSED for failure to state a cognizable claim for relief.
The Clerk shall close the file.
IT IS SO ORDERED.
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