UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 18, 2009
ANTONIO CANDELARIO, PLAINTIFF,
L. SILVA, DEFENDANT.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (Doc. 12) OBJECTIONS, IF ANY, DUE WITHIN THIRTY (30) DAYS
Findings and Recommendations Following Screening of Amended Complaint
I. Screening Requirement
Plaintiff Antonio Candelario ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 27, 2009. On May 8, 2009, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. On May 13, 2009, Plaintiff filed a first amended complaint.
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
II. Summary of Plaintiff's Amended Complaint
Plaintiff names Correctional Officer L. Silva as the sole defendant. Plaintiff alleges that defendant Silva came to his cell and "threatend [sic] to assault me with a promise". Verbal harassment or abuse alone is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Plaintiff fails to state a cognizable claim.
Plaintiff also alleges "deliberate indifference" and requests that violence upon prison inmates by correctional officers be stopped. Plaintiff has not alleged any facts to support a claim that defendant knew of and disregarded an excessive risk to Plaintiff.*fn1 Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994). Plaintiff's allegation, without more, fails to state a cognizable claim.
III. Conclusion and Recommendation
Plaintiff's amended complaint fails to state any claims against Defendant Silva under section 1983. The Court notes that the allegations in Plaintiff's amended complaint are nearly identical to those alleged in his original complaint, which was dismissed for failure to state a claim. (Docs. 1, 12.) Plaintiff was provided with an opportunity to amend but has been unable to cure the deficiencies identified. Therefore, the Court HEREBY RECOMMENDS dismissal of this action, with prejudice, for failure to state any claims upon which relief may be granted under section 1983.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.