The opinion of the court was delivered by: NITA STORMES, Magistrate Judge
REPORT AND RECOMMENDATION RE: MOTION TO DISMISS
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
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 ...