Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)

MEMORANDUM^** 

James Cello-Whitney, Jr., a Washington state prisoner, appeals pro se the district court's orders dismissing his amended 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(d), and imposing a standing order requiring him to meet certain filing requirements for any subsequently filed pro se and in forma pauperis civil rights or habeas corpus actions in the Western District of Washington.¹  We review de novo, Jackson, 885 F.2d at 640, and 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 Cello-Whitney an opportunity to amend his original complaint and instructed him that he needed to include specific facts to support his conclusory allegations. Cello-Whitney's amended complaint alleges that Corrections Officer King deprived him of his fourth, eighth, and fourteenth amendment rights by (1) physically assaulting him, (2) fabricating an administrative disciplinary report, and (3) abusing his administrative discretion.

The district court properly dismissed Cello-Whitney's amended complaint without leave to amend because his claims lack an arguable basis in law or fact. See Neitzke, 109 S. Ct. at 1831. The bare allegation that King physically assaulted Cello-Whitney 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").

Moreover, neither of Cello-Whitney's complaints contains any facts to support his vague and conclusory allegation that King abused his administrative discretion. Therefore, 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.

Finally, the district court did not err by imposing a standing order requiring Cello-Whitney to meet certain filing requirements for any subsequently filed pro se and in forma pauperis civil rights or habeas corpus actions in the Western District of Washington. The record indicates that Cello-Whitney has abused the privilege of proceeding in forma pauperis, and has burdened the courts with claims that are both numerous and meritless. See Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990).

AFFIRMED.