(PS) Smith v. Sacramento Metro Parole Region Supervisors, No. 2:2011cv03021 - Document 3 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 12/22/2011 ORDERING that plaintiff's 2 request for leave to proceed in forma pauperis is GRANTED. IT IS HEREBY RECOMMENDED that plaintiff's 1 complaint be dismissed without leave to amend; Referred to Judge Morrison C. England; Objections due within fourteen days after being served with these findings and recommendations. (Duong, D)
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(PS) Smith v. Sacramento Metro Parole Region Supervisors Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KENNETH SMITH, Plaintiff, 11 12 13 No. CIV 2:11-cv-3021-MCE-JFM (PS) vs. SACRAMENTO METRO PAROLE REGION SUPERVISORS, ORDER AND 14 Defendant. FINDINGS & RECOMMENDATIONS 15 / 16 Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to and 17 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This 18 proceeding was referred to this court by Local Rule 72-302(c)(21). 19 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is 20 unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in 21 forma pauperis will be granted. 28 U.S.C. § 1915(a). 22 The federal in forma pauperis statute authorizes federal courts to dismiss a case if 23 the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be 24 granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). 26 1 Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in 2 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227- 3 28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. 5 Neitzke, 490 U.S. at 327. 6 A complaint, or portion thereof, should only be dismissed for failure to state a 7 claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set 8 of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & 9 Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer 10 v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a 11 complaint under this standard, the court must accept as true the allegations of the complaint in 12 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 13 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, 14 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 15 Upon review, the court is able to discern that plaintiff brings suit against three 16 supervisors who work at the 1103 North B Street parole office in Sacramento, California. 17 Plaintiff alleges that these supervisors verbally abused plaintiff on March 18, 2010, when he was 18 called into the office due to a broken GPS tracking device. While at the parole office, plaintiff 19 was subjected to “very poor, adusive [sic], profane improper language” by the three supervisors, 20 who accused plaintiff of breaking the GPS tracking device with his hands. It appears plaintiff is 21 also complaining that the supervisors threatened to find plaintiff in violation of his parole. 22 Plaintiff complains of negligence and unprofessional conduct. 23 “Section 1983 imposes civil liability upon an individual who under color of state 24 law subjects or causes, any citizen of the United States to the deprivation of any rights, 25 privileges or immunities secured by the Constitution and laws.” Franklin v. Fox, 312 F.3d 423, 26 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). “To state a claim under § 1983, a plaintiff must 2 1 allege two essential elements: (1) that a right secured by the Constitution or laws of the United 2 States was violated, and (2) that the alleged violation was committed by a person acting under 3 the color of State law.” Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing 4 West v. Atkins, 487 U.S. 42, 48 (1988)); accord Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 5 621, 624 (9th Cir. 1988) (“To make out a cause of action under section 1983, plaintiffs must 6 plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights 7 secured by the Constitution or federal statutes” (citation omitted).). 8 Verbal harassment or abuse alone is not sufficient to state a constitutional 9 deprivation under 42 U.S.C. § 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), 10 and threats do not rise to the level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 11 (9th Cir. 1987). Plaintiff’s complaints of verbal harassment and threats do not give rise to any 12 claims for relief under section 1983. In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s request 13 14 for leave to proceed in forma pauperis is granted; and IT IS HEREBY RECOMMENDED THAT plaintiff’s complaint be dismissed 15 16 without leave to amend. These findings and recommendations are submitted to the United States District 17 18 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 19 days after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 3 1 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 2 that failure to file objections within the specified time may waive the right to appeal the District 3 Court’s order. Martinez v. Ylst, 95 1 F.2d 1153 (9th Cir. 1991). 4 DATED: December 22, 2011. 5 6 7 8 /014;smit3021.ifpgrant 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4