Pennebaker v. Sacramento County Sheriff, et al.

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 1/16/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis 3 is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs complaint 1 is DISMISSED with leave to file an amended complaint within 30 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT MARSHALL PENNEBAKER,

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No. 2:14-cv-2147 AC

Plaintiff,
v.

ORDER

SACRAMENTO COUNTY SHERIFF
FREE-STAFF “MS. KATHY” COOK IN
KITCHEN,
Defendant.

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Plaintiff is a county inmate proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis. This proceeding was

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referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has

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consented to the jurisdiction of the magistrate judge. ECF No. 6.

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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 U.S.C.

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§§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month’s income credited to plaintiff’s inmate trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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I. SCREENING STANDARD
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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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. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient

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for the pleading to contain a statement of facts that “merely creates a suspicion” that the pleader

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might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure § 1216, pp. 235–35 (3d ed. 2004)). Rather, the complaint “must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court “must accept as true all of the
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factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing

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Twombly, 550 U.S. at 555 56), construe those allegations in the light most favorable to the

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plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.

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2010) (citing Twombly, 550 U.S. 544), cert. denied, 131 S. Ct. 3055 (2011), and resolve all

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doubts in the plaintiff's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010) (citing Hospital

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Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)).

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II. THE COMPLAINT

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Plaintiff alleges that on June 24, 2014, the following interaction took place between him
and “Ms. Kathy,” a cook in the kitchen, who is a member of the “free-staff”:
I was entering the kitchen to find my Direct Supervisor “Carlito.” I
was asked by “Ms. Kathy,” where the fuck are you going? I stated
“I’m going to speak to my boss Carlito.” She said “Every cook in
here is your boss, so take your black ass up out my kitchen.”

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ECF No. 1 at 3. Plaintiff alleges that “she has done it again since then 2 times.” Id. Plaintiff also

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alleges that he reported the matter to “her supervisor,” who said he had spoken to her. Id., at 2.

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“Yet, she still uses racial connotations talking to me.” Id.

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III. LEGAL STANDARDS
To state a valid claim under 42 U.S.C. § 1983, “the complaint must allege facts which, if

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true, would show that the defendants, while acting under color of State law, subjected the plaintiff

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to the deprivation of a constitutional right.” Padilla v. Lynch, 398 F.2d 481, 482 (9th Cir. 1968).

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Further, plaintiff must allege that he suffered a specific injury as a result of specific conduct of a

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defendant and show an affirmative link between the injury and the conduct of that defendant.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (“plaintiff must allege

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with at least some degree of particularity overt acts which defendants engaged in that support the

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plaintiff's claim”) (internal quotation marks omitted).

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IV. ANALYSIS
Under controlling Ninth Circuit law, racial slurs and other verbal abuse uttered by state
actors – standing alone – do not violate a prisoner’s constitutional rights.
As for being subjected to abusive language directed at his religious
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and ethnic background, “‘[v]erbal harassment or abuse ... is not
sufficient to state a constitutional deprivation under 42 U.S.C.
§ 1983.’” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th
Cir. 1987) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th
Cir. 1979)). We hold, therefore, that Freeman fails to raise a
genuine issue as to a constitutional violation on the basis of the
alleged abusive epithets.

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Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (footnote omitted); Burton v. Foulk, 2014

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WL 1794463, at *5 (E.D. Cal. 2014) (Drozd, M.J.) (“[P]laintiff alleges that the defendants

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subjected him to racial slurs, threats and verbal abuse. However, verbal harassment or abuse

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alone is not sufficient to state a cognizable claim under § 1983”) (citing Oltarzewski, 830 F.2d

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at 139); Hinton v. Brandon, 2013 WL 497020, at *2 (E.D. Cal. 2013) (Claire, M.J.) (“allegations

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of verbal harassment are not cognizable under § 1983”) (citing Rutledge v. Arizona Bd. of

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Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719

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(1983)).

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Specifically, verbal harassment, standing alone, does not violate the Eighth Amendment

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proscription against cruel and unusual punishment. Keenan v. Hall, 83 F.3d 1083, 1092 (9th

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Cir. 1996) (“verbal harassment generally does not violate the Eighth Amendment,” especially

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where there was no evidence “that these comments were unusually gross even for a prison

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setting”). Moreover, such harassment, standing alone, does not violate the Fourteenth

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Amendment’s requirement of equal protection under the law. Accord, Freeman, 125 F.3d at 738

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& 738 n.6 (“[a]lthough not itself rising to the level of a constitutional violation, prison officials’

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use of abusive language directed at an inmate’s religion may be evidence that prison officials

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acted in an intentionally discriminatory manner,” but the verbal abuse alone is “not sufficient to

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state a constitutional violation”).

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The question before this court is not whether the alleged verbal abuse of prisoners,

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including the use of racially charged language, should or should not occur in county jails. The

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only question here is whether such alleged conduct by county jail employees violates any “rights,

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privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C.

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§ 1983. According to the law of the Ninth Circuit, by which this court is bound, it does not.

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The complaint will therefore be dismissed, but plaintiff will be granted leave to amend.
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V. AMENDMENT
If plaintiff chooses to amend the complaint – and he is not obligated to do so – he must

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demonstrate how the conditions complained of have resulted in a deprivation of his constitutional

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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in

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specific terms how each defendant is involved in the deprivation of rights. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

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Furthermore, vague and conclusory allegations of official participation in civil rights violations

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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff's amended complaint complete. An amended complaint be complete in itself

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without reference to any prior pleading. E.D. Cal. R. 220. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Lacey v. Maricopa County, 693 F.3d

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896, 927 (9th Cir. 2012) (“the general rule is that an amended complaint super[s]edes the original

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complaint and renders it without legal effect . . .”). Once plaintiff files an amended complaint,

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the original pleading no longer serves any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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VI. CONCLUSION

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 3), is GRANTED.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Sheriff of Sacramento County, filed concurrently herewith.

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3. Plaintiff’s complaint (ECF No. 1), is DISMISSED for the reasons stated above, with
leave to file an amended complaint.
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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “First Amended Complaint”; plaintiff must file an original

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and two copies of the amended complaint; failure to file an amended complaint in accordance

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with this order will result in a recommendation that this action be dismissed.

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DATED: January 16, 2015

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