United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis.
He seeks relief pursuant to 42 U.S.C. § 1983. On
November 18, 2016, the court screened plaintiff's
complaint as the court is required to do under 28 U.S.C.
§ 1915A(a) and dismissed with leave to amend. Plaintiff
has now filed an amended complaint.
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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (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.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
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 Hosp. Trustees, 425 U.S.
738, 740 (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 (1969).
amended complaint, plaintiff alleges that on or around August
8, 2014, he was placed in administrative segregation at
Folsom State Prison after prison officials received a
telephone call indicating plaintiff's life was in danger.
plaintiff's transfer to High Desert State Prison on
September 9, 2015, plaintiff was interviewed by defendant
Grether. Plaintiff informed Grether that housing plaintiff in
general population would put plaintiff's life in danger.
Despite plaintiff's warning, Grether placed plaintiff in
general population. Plaintiff does not indicate that Grether
was aware of the specifics of the threat against plaintiff,
nor does plaintiff elaborate on the nature of the threat.
general population, plaintiff informed defendant Aguilera
that plaintiff was on a “hit list.” Initially,
defendant Aguilera did nothing to help plaintiff, although,
later that day, plaintiff was removed by Aguilera from
general population and placed in a holding cage. While in the
holding cage, defendant Davis called plaintiff names, such as
allegations are essentially the same as those presented in
his original complaint. In response to those allegations, the
court found as follows:
In his complaint, plaintiff asserts he informed defendants
Grether, Aguilera and another unidentified officer that if he
were to be housed in general population, plaintiff would be
attacked. Plaintiff alleges these defendants ignored
plaintiff's warning and plaintiff was placed in general
population anyway. However, plaintiff does not allege that he
was attacked or injured in any other way as a result of the
actions of any these defendants. Plaintiff also alleges
defendant Davis called plaintiff names while plaintiff was in
a holding cell. Plaintiff seeks monetary damages.
Because verbal harassment generally does not rise to the
level of a violation of the Constitution, Oltarzewski v.
Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) and
plaintiff fails to otherwise allege any actionable injury,
plaintiff's complaint must be dismissed. The court will,
however, grant plaintiff leave to file an amended complaint
in order to cure the deficiencies in his pleadings.
Plaintiff is informed that the Eighth Amendment forbids cruel
and unusual punishment against prisoners. Cruel and unusual
punishment is properly alleged when a plaintiff points to
facts indicating he was injured as a result of at least
deliberate indifference by a prison official to a substantial
risk of serious physical harm. Farmer v. Brennan,
511 U.S. 825, 828 (1994).
the court's screening order concerning plaintiff's
original complaint, plaintiff did not cure the deficiencies
in his pleadings. First, plaintiff fails to point to facts
suggesting he was subjected to a substantial risk of serious
physical harm as a result of his brief stay in general
population at High Desert on the day he was transferred
there. Second, as the court indicated in the original
screening order, name-calling does not generally violate the
Constitution. Finally, plaintiff again fails to indicate how
he was injured by the actions of any defendant.
these reasons, plaintiff's amended complaint should be
dismissed for failure to state a claim upon which relief can
be granted. Considering the information provided to plaintiff
upon the dismissal of his original complaint and
plaintiff's failure to state a claim upon which relief
can be granted ...