United States District Court, E.D. California
Allen Hammler, Plaintiff, Pro se, Susanville, CA.
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. By order filed September 11, 2014, plaintiff was directed to file a completed affidavit in support of this request. ECF No. 5. Pursuant to the court's order, plaintiff has submitted the requested documentation. ECF No. 6. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Motion To Proceed IFP
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). See ECF No. 6. 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 trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989);
Franklin, 745 F.2d at 1227.
A complaint must contain more than a " formulaic recitation of the elements of a cause of action; " it must contain factual allegations sufficient to " raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " The pleading must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action."
Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004). " [A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (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."
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404(1969).
Summary of the Complaint
Plaintiff alleges that defendant C. Davis, a prison librarian at High Desert State Prison, harassed plaintiff by repeatedly threatening to take away his " preferred legal user" (" PLU") status if he continued providing legal assistance to other inmates while in the prison library under PLU status. ECF No. 1 at 3, 8-12. Plaintiff further alleges that Davis retaliated against plaintiff for exercising his right of access to the courts when she solicited other inmates to threaten plaintiff. ECF No. 1 at 3, 6-7, 12. Plaintiff alleges that Davis made " slanderous allegations" in front of " the whole [prison] library" and damaged his reputation. ECF No. 1 at 6-7, 11. Plaintiff further alleges that prison officials lost his CDCR 602 appeal forms in which he set forth the above allegations, and prevented him from filing a replacement form. ECF No. 1 at 2. Plaintiff requests that the court remove defendant Davis from her position as librarian at the B-2 prison library and requests " any other redress" the court deems appropriate. ECF No. 1 at 3.
" [V]erbal harassment or abuse . . . [alone] is insufficient to state a constitutional deprivation under 42 U.S.C. 1983." Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (citation and internal quotation omitted). " A mere threat may not state a cause of action" under the Eighth Amendment, even if it is a threat against exercising the right of access to the courts. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam);
see also Corales v. Bennett, 567 F.3d 554, 564-65 (9th Cir. 2009). Verbal harassment intended to humiliate or endanger the inmate, however, may violate the Constitution. See Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998).
Here, plaintiff's allegations that Davis harassed plaintiff by repeatedly threatening to take away his PLU status and soliciting other inmates to threaten him, without more, fails to state a claim for relief. Plaintiff does not allege that Davis' conduct was intended to humiliate him or " [was] calculated to and did cause" harm to plaintiff.
See Keenan, 83 F.3d at ...