The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel who has
consented to the jurisdiction of the magistrate judge for all
purposes. (Dkt. No. 9.) See 28 U.S.C. § 636(c); Local Rule 305(a).
Pursuant to order filed September 21, 2010 (Dkt. No. 8), this court
found that plaintiff's initial pleading (Dkt. No. 1)*fn1
alleged the same violation of civil rights under 42 U.S.C. §
1983, as those dismissed in Johnson v. Dickinson et al., 2:10-cv-00296
KJM P. The court so informed plaintiff, deferred consideration of his
motions to proceed in forma pauperis and for appointment of counsel,
and accorded plaintiff the opportunity to simply close this case or to
file an amended complaint that stated a cognizable claim. (Id.)
Plaintiff has now filed an amended complaint, making the same allegations, and filed a second motion to
proceed in forma pauperis.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b)(1),(2).
Plaintiff again alleges that he suffered mental anguish as a result of hearing a racist conversation between correctional officers Holland and Shelton, and being the recipient of rude language by Holland. As set forth in the underlying grievance, plaintiff, who is black, sought to intercede in a heated conversation between Holland and Shelton by stating, "That is a personal problem, that is a sickness, you don't need to be telling your business around us inmates." (Dkt. No. 13, at 8.) Holland allegedly stated to plaintiff: "Shut the fuck up, Mother Fucker and get the fuck out of my face." (Id.)
In his grievance, plaintiff sought an apology from Holland, and asked that sensitivity training courses be provided. (Id. at 6.) Informal and first formal level reviews were bypassed. At the second level of review, plaintiff's grievance was partially granted based on the finding that staff had violated California Department of Corrections and Rehabilitation policy. (Id. at 6, 8.) At the director's level (final) review, it was found that "[s]taff misconduct was substantiated and the institution took the appropriate course of action." (Id. at 10.) Plaintiff's requests for more specific personnel actions were found beyond the scope of the appeals process. (Id.)
Plaintiff alleges in this court that the challenged incident violated his Eighth Amendment right to be free from "any punishment which violates civilized standards of humanity and decency." (Amended Complaint, Dkt. No. 13, at 3.) Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, and the costs of suit.
As this court previously concluded, plaintiff's allegations fail to state a claim under Section 1983. While the Eighth Amendment "embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency," Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation and internal quotations omitted), it does not support a claim for verbal harassment, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (neither verbal abuse nor the use of profanity violate the Eighth Amendment); see also Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (making a "mere threat" a "constitutional wrong" "trivializes the eighth amendment"). Emotional injury alone is not actionable. "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e).
Because plaintiff's instant allegations remain identical to those dismissed in Johnson v. Dickinson et al., 2:10-cv-00296 KJM P, and because this court so informed plaintiff and accorded him the opportunity to withdraw this case or to amend his complaint to state a cognizable claim, this action will be dismissed as "frivolous" within the meaning of 28 U.S.C. § 1915A(b)(2)(B)(I). Plaintiff is informed that if such a finding is made in two more of plaintiff's civil rights actions, he will be ineligible to proceed in forma pauperis absent a finding by the court that plaintiff is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).*fn2 Absent such a finding, plaintiff would be required to pay the full filing fee in order to obtain the court's review of his pleading.
In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff's requests for leave to proceed in forma pauperis(Dkt. Nos. 4, 14) are granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the ...