Unpublished Disposition, 902 F.2d 1579 (9th Cir. 1990)

MEMORANDUM^** 

Louis Butler O'Neal, a California state prisoner, appeals pro se the district court's dismissal of his third amended 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d).¹  O'Neal contends that prison guard Williams deprived him of his fourth, eighth, and fourteenth amendment rights by (1) failing to allow him to receive an eye examination, (2) pushing him into a wall, (3) verbally threatening him, and (4) searching him. We review de novo, Jackson, 885 F.2d at 640, and we affirm.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. Generally, before dismissing a complaint, the district court must give a pro se plaintiff notice of its deficiencies and an opportunity to amend. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Here, the district court gave O'Neal three opportunities to amend his original complaint. Each time, the district court instructed O'Neal that he needed to amend his complaint to state how the defendant's acts had violated his federal constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The district court also informed O'Neal that vague and conclusory allegations were insufficient to state a section 1983 claim. See Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

The district court correctly dismissed O'Neal's third amended complaint without leave to amend because each of his claims lacks an arguable basis in law or fact. See Neitzke, 109 S. Ct. at 1831. First, the bare allegation that Williams failed to allow O'Neal to see an eye doctor does not rise to the level of deliberate indifference to his serious medical needs in violation of the eighth amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

Second, the allegation that Williams pushed O'Neal into a wall does not constitute a deprivation of liberty without due process of law in violation of the fourteenth amendment. See Gaut v. Sunn, 810 F.2d 923, 924-25 (9th Cir. 1987) (prison beatings which "shock the conscience" are actionable under section 1983; complaint must allege intentional, unjustified, unprovoked and brutal conduct by prison guards). Moreover, an isolated incident in which a prison guard uses force against a prisoner does not constitute cruel and unusual punishment in violation of the eighth amendment. See Hoptowit v. Ray, 682 F.2d 1237, 1249-50 (9th Cir. 1982) (a pattern or practice of physical brutality and harassment by prison guards constitutes cruel and unusual punishment); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973) ("not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights").

Third, mere verbal threats by prison guards do not constitute eighth amendment violations. See Gaut, 810 F.2d at 925.

Finally, not one of O'Neal's four complaints contains any facts to support his vague and conclusory allegation that Williams improperly searched him. Therefore, because O'Neal has not been able to amend his complaint to show an improper search, we conclude that this claim has no arguable basis in law or fact, and the district court properly dismissed it. See Neitzke, 109 S. Ct. at 1831.

AFFIRMED.²