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December 7, 2005.

J. WOODFORD, et al., Defendants.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge


Arthur D. Jackson ("Plaintiff"), a California prisoner proceeding pro se and in forma pauperis, filed this civil rights suit under 42 U.S.C. § 1983, alleging that state prison officials ("Defendants") violated his constitutional rights by interfering with his legal mail. Defendants have filed a motion to dismiss one of the claims in the Complaint. Plaintiff has filed an opposition to the motion. The Court finds the issues appropriate for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). After a thorough review, the Court RECOMMENDS that the motion to dismiss be GRANTED.


  Plaintiff is an inmate committed to the custody of the California Department of Corrections ("CDC") who is currently housed at Centinela State Prison. He brought this suit in March 2005; the District Court screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915 A(b) and dismissed it without prejudice for failure to state a claim upon which relief could be granted. [Dkt. No. 5.] Plaintiff thereafter filed a First Amended Complaint ("FAC"), alleging a violation of his First Amendment right of access to the courts and various other constitutional claims stemming from the alleged confiscation of his legal mail. [FAC ¶¶ 17-18.] The District Court screened the FAC and determined that the only claim that survived was a First Amendment claim raised against Defendants J.P. Gonzalez, Sanders, Garcia, Gomez, Zaragosa and G.H. Gonzalez. [Dkt. No. 11.] The District Court dismissed with prejudice Plaintiff's claims against Defendants Woodford, Guirbino, DeGeus and Loera for failure to state a claim, and ordered the remaining Defendants to respond to the FAC. [Id.]

  The remaining Defendants now move to dismiss the FAC to the extent it raises an Eighth Amendment cruel and unusual punishment claim.*fn1 [Defendants' Memorandum of Points & Authorities in Support of Motion to Dismiss First Amended Complaint ("Def. Points & Auth.").] Plaintiff has filed an opposition to the motion, asserting that he "sufficiently alleged facts clearly demonstrating Defendants have and continues [sic] to violate Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment." [Plaintiff's Notice of Opposition to Defendants' Motion to Dismiss Claim Five Alleged in the First Amended Complaint ("Opp.") at 1.]


  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the plaintiff's claims. See Fed.R.Civ.P. 12(b)(6). A claim can be dismissed only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the complaint." Swierkiewicz v. Sorema, 534 U.S. 506, 513 (2002). In deciding a motion to dismiss, the court must accept as true all material allegations in the complaint and must also construe the complaint, and all reasonable inferences drawn therefrom, in the light most favorable to the plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). When the plaintiff is appearing pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). This rule of liberal construction is of particular importance in civil rights cases. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving the complaint liberal construction, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

  To establish a violation of the Eighth Amendment, a prisoner must show that he was deprived of "the minimal civilized measure of life's necessities" by prison officials who acted with "deliberate indifference" to his health or safety. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Under the deliberate indifference standard, liability may be imposed only if the prison official "knows of and disregards an excessive risk to inmate health and safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). The deliberate indifference standard contains both subjective and objective elements; in other words, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." Id.

  Here, the FAC makes only a vague reference to the Eighth Amendment. [FAC ¶ 37.] This reference consists of one paragraph with the heading "Fifth Claim for Relief: Cruel and Unusual Punishment." [Id.] The paragraph does not contain any facts to support an Eighth Amendment claim, but instead states, "Plaintiff incorporates by refarance [sic] and implication the allegations contained in paragraphs 1-25, inclusive." [Id.] As Defendants point out in their motion, nowhere in paragraphs 1-25 does Plaintiff allege any facts relating to an Eighth Amendment violation. [See Def. Points & Auth. at 3-5.] Instead, the allegations pertain to Defendants' interference with Plaintiff's legal mail.*fn2

  The only portion of the FAC that could conceivably relate to an Eighth Amendment claim is a portion of Paragraph 19, wherein Plaintiff describes how several of the Defendants "surrounded Plaintiff in the small room hostilely confronting and threatening Plaintiff with acts of violence" after he complained about his legal mail. [FAC ¶ 19(viii).] This language falls far short of alleging a deprivation of "the minimal civilized measure of life's necessities." Rhodes, 452 U.S. at 347. Plaintiff suggests that he adequately pled an Eighth Amendment claim based on Defendants' alleged "harassment and intimidation tactics." [Opp. at 3.] However, threats and verbal harassment alone are insufficient to support an Eighth Amendment claim. See Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Indeed, as the Ninth Circuit observed, it "trivializes" the Eighth Amendment to suggest that a threat constitutes cruel and unusual punishment. Gaut, 810 F.2d at 925. The fact that Plaintiff alleges the threats were intended to impede his access to the courts does not compel a different result. See id. As the District Court previously concluded, Plaintiff has raised a valid access to the courts claim under the First Amendment. [Dkt. No. 11.] His allegations do not, however, support an Eighth Amendment claim.


  For the above reasons, the Court recommends that the Defendants' Motion to Dismiss be GRANTED and Plaintiff's Eighth Amendment claim be DISMISSED. This report and recommendation of the undersigned Magistrate Judge is submitted pursuant to 28 U.S.C. § 636(b)(1) to the United States District Judge assigned to this case.

  IT IS ORDERED that no later than January 9, 2006 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than January 23, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on ...

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