United States District Court, N.D. California
KEEWIN L. WALKER, Plaintiff,
MIKE CHISMAN, Defendant.
ORDER OF SERVICE DOCKET NO. 1
M. CHEN UNITED STATES DISTRICT JUDGE
L. Walker, a prisoner at the Pelican Bay State Prison, filed
this pro se civil rights action under 42 U.S.C.
§ 1983. His complaint is now before the court for review
under 28 U.S.C. § 1915A.
Walker alleges the following in his complaint:
Chisman, the healthcare facility maintenance custodian at
Pelican Bay State Prison, “made a racial statement and
when confronted about it, he began to be verbally
abusive.” Docket No. 1 at 3. Mr. Chisman eventually
falsified a CDCR-128 informational chrono to discredit Mr.
Walker and changed Mr. Walker's work schedule in a way
that affected Mr. Walker's pay as “retaliation for
[Mr. Walker] confronting him about his racist
statement.” Id. On June 26, 2018, Mr. Chisman
“tried to manipulate the system” by meeting with
a supervisor and creating the incorrect impression that Mr.
Walker was not fulfilling his duties as a custodian. During
the meeting, it was exposed that Mr. Chisman falsified a
statement about a June 19, 2018, incident.
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 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. See
Id. at § 1915A(b). Pro se pleadings must
be liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
harassment alone is not actionable 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);
Burton v. Livingston, 791 F.2d 97, 99 (8th Cir.
1986) (“mere words, without more, do not invade a
federally protected right”); cf. Watison v.
Carter, 668 F.3d 1108, 1113 (9th Cir. 2012)
(“‘the exchange of verbal insults between inmates
and guards is a constant, daily ritual observed in this
nation's prisons' of which ‘we do not
approve,' but which do not violate the Eighth
Amendment.”). This is so even if the verbal harassment
is racially motivated. See Hoptowit v. Ray, 682 F.2d
1237, 1252 (9th Cir. 1982) (federal court cannot order guards
to refrain from using racial slurs to harass prisoners);
Burton, 791 F.2d at 101 n.1 (use of racial slurs in
prison does not offend Constitution). The allegation that Mr.
Chisman made a “racial statement” does not state
a claim under § 1983.
the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion
that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate's exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal. Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). Liberally construed, the complaint states a
cognizable claim against Mr. Chisman for retaliation, as the
complaint alleges that Mr. Chisman took several adverse
actions against Mr. Walker in response to Mr. Walker's
complaint about the racial statement Mr. Chisman made.
complaint, liberally construed, states a cognizable §
1983 claim against Mr. Chisman for retaliation. All other
claims are dismissed.
Clerk shall issue a summons and the United States Marshal
shall serve, without prepayment of fees, the summons, a copy
of the complaint, and a copy of all the documents in the case
file upon Mr. M. Chisman, who apparently ...