Davis v. Choppa

Filing 8

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Failure to State a Claim Upon Which Relief Can Be Granted re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 12/17/2014. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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D’ANTON DAVIS,

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Plaintiff,
v.
CHOPPA,

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Defendant.

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1:14-cv-00412-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF THIS
ACTION FOR FAILURE TO STATE A
CLAIM
FOURTEEN-DAY DEADLINE

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Findings and Recommendations

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I.

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Plaintiff D’Anton Davis (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on

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March 24, 2014, is currently before the Court for screening.

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Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at Kern Valley State Prison where the events in the

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complaint are alleged to have occurred. Plaintiff names Correctional Officer John Doe Choppa

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as the sole defendant.

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Plaintiff alleges that Defendant Choppa threatened to physically harm Plaintiff by

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shooting him with the weapon he is allowed to carry in the tower. On September 4, 2012, at

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approximately 9:30 a.m., Defendant Choppa used a racial epithet. Plaintiff was in his cell

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reading and waiting for one of the building’s porters to make his rounds so that Plaintiff could

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have him grab some administrative paperwork out of the office. One of the Hispanic porters

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passed Plaintiff’s cell, so Plaintiff knocked on the door to gain his attention. While the porter

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was making his way back to see what Plaintiff wanted, Defendant Choppa stopped him, looked

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at Plaintiff, smiled, and then told the porter, “(expletive) that don’t do nothing for the Myate.”

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(ECF No. 1, p. 4.) Plaintiff replied, “That’s messed up Choppa.” Defendant Choppa opened
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Plaintiff’s cell door and stated, “You don’t know what that word mean[s] nor what I said.”

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Plaintiff told Defendant Choppa that he “told the Hispanic porter not to do anything for the

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Nigger’s.” (ECF No. 1, p. 4.) Surprised that Plaintiff knew the meaning of the word, Defendant

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Choppa responded that Plaintiff was ignorant and stupid. (Id.) Correctional Officers Hernandez

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and Mata were present when the incident occurred and they told Defendant Choppa that he was

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wrong for saying the racial epithet and he should apologize. Defendant Choppa thought that

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“was funny and stated apologize for what I didn’t do anything wrong.” (Id.) Correctional

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Officers Hernandez and Mata reprimanded Defendant Choppa and told him that he was wrong

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for saying that racial slur and for putting their lives in danger.

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After this incident, on September 5 and 6, Defendant Choppa continued to use derogatory

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and wanton language. When confronted, he would clutch his mini 14 assault rifle, attempting to

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intimidate or threaten Plaintiff.

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Plaintiff requests that Defendant Choppa be removed from his employment and be denied
the right to carry firearms. Plaintiff also seeks monetary damages.

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III.

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Plaintiff alleges that Defendant Choppa made threatening remarks and gestures and used

Discussion

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racial epithets. Such allegations are not sufficient to state a cognizable section 1983 claim. Mere

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verbal harassment or abuse, including the use of racial epithets, does not violate the Constitution

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and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v.

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Ruggiero, 830 F.2d 136, 139 (9th Cir.1987). Threats of bodily harm also do not rise to the level

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of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987).

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Accordingly, the Court finds that Plaintiff has failed to state a claim upon which relief

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can be granted. The Court also finds that the deficiencies in Plaintiff’s complaint cannot be

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cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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IV.

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For the reasons stated, it is HEREBY RECOMMENDED that this action be DISMISSED

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Conclusion and Order

for failure to state a claim upon which relief can be granted.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911,

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2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

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1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

December 17, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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