Washington v. California Department of Corrections & Rehabilitation et al

Filing 11

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Robert M. Illman on 5/6/22. (rmilc1, COURT STAFF) (Filed on 5/6/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY WASHINGTON,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 22-cv-02454-RMI
ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION, et
al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint under 42 U.S.C.
§ 1983. He has been granted leave to proceed in forma pauperis.
DISCUSSION

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1. Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity, or from an officer or employee of a governmental entity. 28

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U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any

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claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or

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seek monetary relief from a defendant who is immune from such relief. Id. at § 1915A(b)(1), (2).

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Further, it should be noted that pleadings submitted by pro se parties must be liberally construed.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” While specific facts are not necessary, the

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statement needs to give the defendant fair notice of the nature of the claim and the grounds upon

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which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Although a plaintiff need not include

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detailed factual allegations in a complaint, the complaint must do more than recite elements of a

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cause of action and state conclusions; rather, a plaintiff must state factual allegations sufficient to

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raise the entitlement to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007). A complaint must proffer “enough facts to state a claim to relief that is

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plausible on its face.” Id. at 570. The Supreme Court recently explained this standard: “[w]hile

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legal conclusions can provide the framework of a complaint, they must be supported by factual

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allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their

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veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft

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v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

United States District Court
Northern District of California

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged deprivation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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2. Legal Claims

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Plaintiff alleges that the defendant failed to protect him from an assault by other inmates

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and verbally harassed him. The Eighth Amendment requires that prison officials take reasonable

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measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In

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particular, prison officials have a duty to protect prisoners from violence at the hands of other

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prisoners. Id. at 833; Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413

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F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates from attacks by

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other inmates or from dangerous conditions at the prison violates the Eighth Amendment when:

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(1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is,

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subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison

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official is deliberately indifferent if he or she knows of, and disregards, an excessive risk to inmate

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health or safety by failing to take reasonable steps to abate it. Id. at 837.

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Allegations in a pro se complaint sufficient to raise an inference that the named prison

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officials knew that plaintiff faced a substantial risk of serious harm and disregarded that risk by

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failing to take reasonable measures to abate it state a failure-to-protect claim. See Hearns, 413
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F.3d at 1041-42 (citing Farmer, 511 U.S. at 847).
Allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C.

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§ 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part on other

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grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); see, e.g., Keenan v. Hall, 83

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F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and

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assaultive comments by prison guard not enough to implicate the Eighth Amendment);

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Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at prisoner

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does not state constitutional claim). This is so even if the verbal harassment is racially motivated.

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See Hoptowit v. Ray, 682 F.2d 1237, 1252 (9th Cir. 1982) (federal court cannot order guards to

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United States District Court
Northern District of California

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refrain from using racial slurs to harass prisoners).
Plaintiff alleges that Defendant Sergeant Howard told other inmates that he was a sensitive

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needs yard inmate in need of protective custody. Plaintiff was released to the general population

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yard on July 22, 2021, where he was immediately assaulted and injured by three or more other

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inmates. This is sufficient to proceed with a claim against Howard.

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Plaintiff also alleges that Defendant Howard harassed him using unprofessional and

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disrespectful language. Pursuant to the legal standards set forth above, this fails to state a claim.

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The complaint is dismissed with leave to amend. Plaintiff should either present more allegations

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regarding the harassment or not include this claim.

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Plaintiff also identifies the prison and the Correctional Peace Officers Association union as

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Defendants, but does not include any specific allegations linking them to the constitutional

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deprivation. In an amended complaint, Plaintiff should either present more allegations or not

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include them.

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CONCLUSION

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1. The Complaint is DISMISSED with leave to amend in accordance with the standards

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set forth above. The amended complaint must be filed within twenty-eight (28) days of the date

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this order is filed, and must include the caption and civil case number used in this order and the

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words “AMENDED COMPLAINT” on the first page. Because an amended complaint completely

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replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See
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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material

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from the original Complaint by reference. Failure to amend within the designated time will result

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in dismissal of this case.

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2. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing a separate paper with the clerk, headered “Notice of

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Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so

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may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: May 6, 2022

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ROBERT M. ILLMAN
United States Magistrate Judge

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