United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
J. VADAS United States Magistrate Judge.
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. He has been granted leave to
proceed in forma pauperis. (Doc. 5.)
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). In its review the court must identify any
cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” “Specific facts are not
necessary; the statement need only “‘give the
defendant fair notice of what the . . . . claim is and the
grounds upon which it rests.'”” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
Although in order to state a claim a complaint “does
not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer “enough facts to state a claim
to relief that is plausible on its face.” Id.
at 570. The United States Supreme Court has recently
explained the “plausible on its face” standard of
Twombly: “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged deprivation was committed by a
person acting under the color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988).
states that a correctional officer threatened and
disrespected him. Allegations of verbal harassment and abuse
fail to state a claim cognizable under 42 U.S.C. § 1983.
See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.
1997) overruled in part on other grounds by Shakur v.
Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008);
see, e.g., Keenan v. Hall, 83 F.3d
1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir.
1998) (disrespectful and assaultive comments by prison guard
not enough to implicate 8th Amendment); Oltarzewski v.
Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing
vulgar language at prisoner does not state constitutional
claim); Burton v. Livingston, 791 F.2d 97, 99 (8th
Cir. 1986) (“mere words, without more, do not invade a
federally protected right”).
of mere threats also are not cognizable under § 1983.
See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)
(mere threat does not constitute constitutional wrong, nor do
allegations that naked threat was for purpose of denying
access to courts compel contrary result). However, a death
threat made when the party has both the opportunity to carry
out the threat and evidences the intent to do so does state a
cognizable claim. See Burton, 791 F.2d at 100-01
(drawing gun and terrorizing prisoner with threats of death
while using racially offensive language presents cognizable
a § 1983 or a Bivens action - where masters do
not answer for the torts of their servants - the term
‘supervisory liability' is a misnomer. Absent
vicarious liability, each Government official, his or her
title notwithstanding, is only liable for his or her own
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009). A supervisor may be liable under section 1983
upon a showing of (1) personal involvement in the
constitutional deprivation or (2) a sufficient causal
connection between the supervisor's wrongful conduct and
the constitutional violation. Henry A. v. Willden,
678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). A plaintiff
must also show that the supervisor had the requisite state of
mind to establish liability, which turns on the requirement
of the particular claim - and, more specifically, on the
state of mind required by the particular claim - not on a
generally applicable concept of supervisory liability.
Oregon State University Student Alliance v. Ray, 699
F.3d 1053, 1071 (9th Cir. 2012).
contends that among other things, defendant Captain Arnold
stated, “Fuck you Adams, you're a piece of shit you
fucking bitch.” Complaint at 5. Captain Arnold later
stated “If you write a fucking a 602 on me, I'll
fucking execute you myself by putting my foot in your
ass.” Id. Plaintiff seeks money damages and
for Captain Arnold to be fired or demoted. Plaintiff also
names as defendants several supervisors who he states are
complaint is dismissed with leave to amend in light of the
legal standards set forth above. Plaintiff's allegations
fail to state a claim because verbal harassment does not
state a cognizable claim under 42 U.S.C. § 1983 and the
threat did not rise to the level discussed in
Burton. Nor does plaintiff present sufficient