United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se with an action brought
pursuant to 42 U.S.C. § 1983, seeks leave to proceed in
forma pauperis (ECF No. 3).
Application to Proceed In Forma Pauperis
applications (ECF No. 2) makes the showing required by 28
U.S.C. § 1915(a)(1) and (2). Accordingly, by separate
order, the court directs the agency having custody of
plaintiff to collect and forward the appropriate monthly
payments for the filing fee as set forth in 28 U.S.C. §
1915(b)(1) and (2).
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 where 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).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
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, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, in order to survive dismissal for failure
to state a claim, 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.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure,
1216 (3d ed. 2004)).
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 (2009) (quoting Bell Atl. Corp., 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.” Id. (citing
Bell Atl. Corp., 550 U.S. at 556). 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. Trs., 425 U.S. 738, 740 (1976),
as well as 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).
a prisoner at Mule Creek State Prison, alleges that
correctional officers Nelson and Norlie have made verbal,
sexual harassing comments to him. ECF No. 1 at 3. On March 1,
2017, plaintiff was urinating when defendant Nelson allegedly
approached him, looked at his exposed genitalia, and told him
to “put that away.” Id. Later that day,
defendant Norlie allegedly appeared at plaintiff's cell
door, looked at plaintiff's crotch area, and repeated
“put that away.” Id. That night, shortly
after midnight, plaintiff was again urinating when Norlie
allegedly repeated “put that away.” Id.
characterizes his claim as sounding in equal protection, but
he has failed to identify similarly situated individuals who
were treated differently. See Buchanan v. Maine, 469
F.3d 158, 178 (1st Cir. 2006) (“Plaintiffs claiming an
equal protection violation must first identify and relate
specific instances where persons situated similarly in
all relevant aspects were treated differently.”)
(internal quotation marks and citation omitted). Even if the
court construes plaintiff's allegations as an Eighth
Amendment claim, the defendants' actions do not rise to
the level of a constitutional violation. Allegations of
verbal harassment generally do not state a viable claim under
section 1983. See Oltarzewski v. Ruggiero, 830 F.2d
136, 139 (9th Cir. 1987). To state a viable claim for verbal
harassment, a prisoner must show that the offending comments
were “gross even for a prison setting and were
calculated to and did cause him psychological damage.”
Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996).
This is true even where the verbal harassment is of a sexual
nature. Austin v. Terhune, 367 F.3d 1167, 1171 (9th
Cir. 2004) (holding that “the Eighth Amendment's
protections do not necessarily extend to mere verbal sexual
harassment.”). Here, plaintiff has not alleged facts
which establish that defendants' comments were gross even
for a prison setting or that the comments caused him
Leave to Amend
may choose to file an amended complaint which states a
cognizable claim. Any amended complaint must identify as a
defendant only persons who personally participated in a
substantial way in depriving him 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 ...