(PC)Morris v. Jennings et al, No. 2:2013cv01134 - Document 13 (E.D. Cal. 2014)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 06/12/14 ORDERING that this case be randomly assigned to a district court judge. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDINGS that petitioner's verbal harassment claim raised in his first amended complaint be dismissed with prejudice for failure to state a claim upon which relief may be granted. Referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M)

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(PC)Morris v. Jennings et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEON E. MORRIS, 12 Plaintiff, 13 14 No. 2:13-cv-01134 AC P v. ORDER AND FINDINGS & RECOMMENDATIONS JENNINGS, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 17 18 pursuant to 42 U.S.C. § 1983. By order filed November 8, 2013, plaintiff’s complaint was 19 dismissed with leave to file an amended complaint. ECF No. 10. Plaintiff has filed a first 20 amended complaint. ECF No. 11. By separate order, this court dismissed plaintiff’s Eighth 21 Amendment and retaliation claims alleged in the first amended complaint, but granted plaintiff 22 one additional opportunity to amend those claims. The instant order shall address plaintiff’s 23 verbal harassment claim. 24 I. 25 Screening Requirement The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 27 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 28 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 1 Dockets.Justia.com 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989); Franklin, 745 F.2d at 1227. 10 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 11 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 12 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 13 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 14 However, in order to survive dismissal for failure to state a claim a complaint must contain more 15 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 16 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 127 S. 17 Ct. at 1965. In reviewing a complaint under this standard, the court must accept as true the 18 allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 19 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and 20 resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 21 II. 22 Allegations in First Amended Complaint The gravamen of the first amended complaint is plaintiff’s contention that numerous 23 prison guards served him food under unsanitary conditions between September 2007 through 24 June 2010. ECF No. 11 at 3-4. With respect to the verbal harassment claim, plaintiff alleges that 25 when he reminded the prison guards that they were supposed to wear hairnets while serving food 26 he was “ignored, cussed out, [or] talked real bad too….” ECF No. 11 at 5. 27 //// 28 //// 2 1 2 III. Analysis In this court’s order of November 8, 2013, plaintiff was advised that verbal harassment or 3 abuse alone is not sufficient to state an Eighth Amendment violation under 42 U.S.C. § 1983. See 4 Oltarzewski v.Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Plaintiff once again alleges that 5 guards used profane and derogatory words when responding to his complaints about their failure 6 to wear hairnets or to properly cover the food they were serving. Accordingly, plaintiff has failed 7 to cure the deficiency previously identified by the court with respect to this claim. See Lopez v. 8 Smith, 203 F.3d 1122, 1130 (9th Cir.2000); Noll v. Carlson, 809 F.2d 1446, 1448–49 (9th Cir. 9 1987). Based on the record in this case, the undersigned recommends that further leave to amend 10 is not warranted. Therefore, the undersigned finds that plaintiff has failed to state a cognizable 11 claim for relief under § 1983 for verbal harassment and recommends that this claim be dismissed 12 with prejudice. 13 14 Therefore, IT IS HEREBY ORDERED that this case be randomly assigned to a district court judge. 15 IT IS FURTHER RECOMMENDED that petitioner’s verbal harassment claim raised in 16 his first amended complaint be dismissed with prejudice for failure to state a claim upon which 17 relief may be granted. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be served and filed within fourteen days after service of the objections. The 24 parties are advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 DATED: June 12, 2014 27 28 3

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