(PC) Dicey v. Joksch, et al, No. 2:2012cv01709 - Document 8 (E.D. Cal. 2012)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/16/2012 ORDERING that plaintiff's 6 request to proceed IFP is GRANTED; plaintiff to pay the $350.00 filing fee with an initial partial filing fee in accordance with the concurrent CDC order; and the Clerk to assign a district judge to this action; and RECOMMENDING that plaintiff's complaint be dismissed without leave to amend. Assigned and Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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(PC) Dicey v. Joksch, et al Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BERLAN LYNELL DICEY, Plaintiff, 11 12 vs. 13 No. 2:12-cv-1709 JFM (PC) C. JOKSCH, et al., ORDER AND Defendants. 14 FINDINGS & RECOMMENDATIONS / 15 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 16 17 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 18 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 19 § 636(b)(1). 20 21 22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 23 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee 24 in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will 25 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 26 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly 1 Dockets.Justia.com 1 payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust 2 account. These payments will be forwarded by the appropriate agency to the Clerk of the Court 3 each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 4 U.S.C. § 1915(b)(2). 5 The court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 8 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may 9 be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 10 11 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either in law or in 12 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227- 13 28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. 15 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however 16 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 17 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and 19 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. 22 Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a 23 complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it 24 must contain factual allegations sufficient “to raise a right to relief above the speculative level.” 25 Bell Atlantic, id. However, “[s]pecific facts are not necessary; the statement [of facts] need only 26 ‘“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’” 2 1 Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, 2 in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this 3 standard, the court must accept as true the allegations of the complaint in question, Erickson, id., 4 and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 5 U.S. 232, 236 (1974). 6 In the complaint filed June 27, 2012, plaintiff claims defendant Officers Joksch 7 and Gordon were unprofessional on June 25, 2008 when they swore at and threatened plaintiff 8 over an incident concerning plaintiff’s legal mail. On review, the court finds that plaintiff’s 9 allegations do not state a claim on which relief could be granted. Verbal harassment or abuse 10 alone is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983, Oltarzewski 11 v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the level of a 12 constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). The complaint should 13 be thus dismissed. Moreover, plaintiff does not allege that either of these defendants physically 14 15 assaulted him and the exhibits1 attached in support of the complaint do not set any additional 16 facts that would support such a claim. Therefore, because “it appears beyond doubt that the 17 plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” 18 Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir. 1989) (citing Conley v. Gibson, 355 19 U.S. 41, 45-56 (1957)), leave to amend should be denied. Schreiber Dist. v. Serv-Well Furniture 20 Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th 21 Cir. 1962)). 22 In accordance with the above, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 24 25 26 1 A “court may consider material that the plaintiff properly submitted as part of the complaint . . .” and that is incorporated by reference. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); Fed. R. Civ. P. 10(c). 3 1 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 2 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 3 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 4 Director of the California Department of Corrections and Rehabilitation filed concurrently 5 herewith; 6 3. The Clerk of the Court is directed to assign a district judge to this action; and 7 IT IS HEREBY RECOMMENDED that plaintiff’s complaint be dismissed 8 9 without leave to amend. These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: October 16, 2012. 18 19 20 21 /014;dice1709.14new 22 23 24 25 26 4
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