Walker v. Chisman

          ORDER OF SERVICE DOCKET NO. 1

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Keewin 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.

         II. BACKGROUND

         Mr. Walker alleges the following in his complaint:

         Mr. M. 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.

         III. DISCUSSION

         A 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).

         To 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).

         Verbal 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.

         “Within 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.

         IV. CONCLUSION

         1. The complaint, liberally construed, states a cognizable § 1983 claim against Mr. Chisman for retaliation. All other claims are dismissed.

         2. The 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 ...