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