United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He has filed a fourth
amended complaint. ECF No. 22. For the reasons that follow, the
court must dismiss several claims but should allow some to
Screening Requirements and Standards
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). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint “is frivolous, malicious, or fails to
state a claim upon which relief may be granted, ” or
“seeks monetary relief from a defendant who is immune
from such relief.” Id. § 1915A(b). A pro
se plaintiff, like other litigants, must satisfy the pleading
requirements of Rule 8(a) of the Federal Rules of Civil
Procedure. Rule 8(a)(2) “requires a complaint to
include 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, 554, 562-563 (2007) (citing
Conley v. Gibson, 355 U.S. 41 (1957)). While the
complaint must comply with the “short and plaint
statement” requirements of Rule 8, its allegations must
also include the specificity required by Twombly and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
avoid dismissal for failure to state a claim a complaint must
contain more than “naked assertions, ”
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555-557. In other words,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore,
a claim upon which the court can grant relief must have
facial plausibility. Twombly, 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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S. 89
(2007), and construe the complaint in the light most
favorable to the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236 (1974).
has not stated cognizable claims against defendants Fox,
Zometa, Ballenger, Tabbs, and the Doe defendants.
alleges generally that Fox, the institution's warden,
failed to ensure that grievances were properly processed and
received meaningful review. These allegations lack sufficient
facts to state a claim for relief. Moreover, as the court has
informed plaintiff previously, prisoners lack a
constitutional entitlement to a specific grievance procedure
and thus this claim fails. ECF No. 16 at 3, citing
Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
vaguely alleges that Zometa, who had been assigned to review
staff complaints filed by plaintiff, “improperly denied
Plaintiff procedural due process.” ECF No. 22 at 7.
This claim fails for the same reasons as the claim against
Fox - plaintiff has not provided sufficient facts for the
court to determine how plaintiff's rights were allegedly
violated, and, under Ninth Circuit precedent, plaintiff
cannot pursue a due process claim based on the processing of
his prison grievance.
alleges that Ballenger told him, “I want your daughter
to suck my penis between my legs” and called one of
plaintiff's sisters a “bitch.” Id.
at 6, 13. Plaintiff claims that these statements were made in
retaliation for plaintiff's staff complaints against
Ballenger and other staff. The court has informed plaintiff
twice that such verbal harassment alone does not violate the
Eighth Amendment. ECF No. 10 at 3; ECF No. 16 at 3. The court
has also informed plaintiff that such verbal harassment does
not give rise to a First Amendment retaliation claim. ECF No.
16 at 3, n.1.
alleges that a number of Doe defendants made lewd comments to
him and/or failed to process his inmate grievances properly.
These claims fail because, as previously stated, lewd
comments alone do not violate the Constitution and because
plaintiff lacks a Constitutional entitlement to a specific
lists Tabbs as a defendant but the complaint contains no
allegations against him. Thus, Tabbs must be dismissed.
plaintiff has had several opportunities to state viable
claims against these defendants and has not done so, the
above claims should be dismissed without leave to amend.
See ECF No. 16 at 4 (providing plaintiff with
“one final opportunity” to state
limited purposes of screening under § 1915A, plaintiff
has stated potentially cognizable claims against defendants
Montemayor, Bjorson, Wong, and Lasseter (alleged to be
correctional officers at the California Medical Facility) for
violating his Eighth Amendment rights. Plaintiff alleges that
each of these defendants made egregious statements to him,
either telling plaintiff to kill himself or threatening to
kill plaintiff. While verbal harassment is usually not
sufficient to state an Eighth Amendment claim, the Ninth
Circuit has left open the possibility that comments that are
“unusually gross even for a prison setting” and
are “calculated to and [do] cause . . . psychological
damage” may violate that provision. Keenan ...