The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Pending before the court is "Appellant's Informal Brief," completed on a form provided by the Ninth Circuit Court of Appeals. This case was originally filed as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in the United States District Court for the Northern District of California. The case was transferred to this court for screening based on venue considerations. Plaintiff also requests leave to proceed in forma pauperis and seeks appointment of counsel.
Review of plaintiff's brief indicates that plaintiff seeks to challenge the April 2010 dismissal of his civil rights action in Johnson v. Dickinson et al., 2:10-cv-00296 KJM P. In that action, the court found that plaintiff's complaint, which challenged a prison guard's verbal harassment, failed to state a claim under the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff's request to proceed in forma pauperis was nonetheless granted, as is required, see 28 U.S.C. § 1915, and plaintiff proceeds to make monthly payments from his prison trust account until the statutory filing fee of $350.00 is paid in full. Plaintiff's request for appointment of counsel was denied. (Id., Dkt. No. 7.)
In the present action, plaintiff alleges that prison guards verbally abuse and harass African-American inmates, causing mental anguish and embarrassment, and that the Warden at plaintiff's place of incarceration, the California Medical Facility, fails to protect prisoners from this conduct. This court discerns no significant difference between this case and plaintiff's dismissed case. As the former magistrate judge explained (id. at 3):
[A] guard's verbal harassment or insults do not state a claim: to find that harassment, without physical injury, states a claim would trivialize the Constitution. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987); Spicer v. Collins, 9 F. Supp. 2d 673, 683 (E.D. Tex. 1998) (citing cases).
See also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (neither verbal abuse nor the use of profanity violate the Eighth Amendment).
Given the similarity of the two cases filed by plaintiff, and the fact that plaintiff is still paying the filing fee in the first case, the court will give plaintiff the opportunity to withdraw this case without payment of another filing fee. If plaintiff chooses to pursue the instant action, he must, within thirty days of the filing date of this order, file an amended complaint on the form provided with this order. If plaintiff files an amended complaint, this court will then review and process plaintiff's application to proceed in forma pauperis.*fn1 If plaintiff chooses not to pursue this action, he need file nothing more; at the end of thirty days, the court will close this case.
Should plaintiff seek to amend his complaint, he is informed of the following requirements.
Any amended complaint must show that the federal court has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if his allegations are true. It must contain a request for particular relief. Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation). "Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability. A supervisor may be liable [only] if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989) (citations omitted).
The allegations must be set forth in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).
The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (noting that "nearly all of the circuits have now disapproved any heightened pleading standard in cases other than those governed by Rule 9(b)"); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff's claims must be set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim."); Fed. R. Civ. P. 8. While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Id.(citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id.at 1950.
An amended complaint must be complete in itself without reference to any prior pleading. Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an ...