Larkin v. Still

Filing 9

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 06/18/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 6/18/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District
Court

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JETHRO L. LARKIN II,

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Plaintiff,

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ORDER OF DISMISSAL

v.
TANA STILL,
Defendant.
/

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No. C-12-2482 TEH (PR)

Plaintiff, a California state prisoner incarcerated at

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California Correctional Institution in Tehachapi, California,

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commenced this action when he filed a 7-page letter with the Court

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on May 16, 2012 wherein he complained generally of missing property

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(Doc. #1 at 2, 4), retaliation for exercising his rights (id. at 5),

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and interference with his legal mail (id. at 5).

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act on informal letters, documents, narratives, requests, etc.

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Consequently, on the same day the letter was filed, the Clerk

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notified Plaintiff that he not filed a complaint and mailed to

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Plaintiff the Court's form complaint for prisoner civil rights

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actions under 42 U.S.C. § 1983.

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Doc. #2.

The Court cannot

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On June 4, 2012, Plaintiff filed a formal complaint.

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Doc. #4.

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that was not raised in his initial letter, and names as a defendant

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a correctional officer that was not referenced in his initial

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letter.

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correctional officer Tana Still interfered with Plaintiff’s attempts

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to complete his in forma pauperis application and caused Plaintiff

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wrong and harm through her words and actions.

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Plaintiff seeks a letter of apology from defendant, general damages

In this formal complaint, Plaintiff raises a new claim

Specifically, Plaintiff alleges that on February 22, 2012,

Doc. #4 at 5-7, 14.

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of $275,000.00, compensatory damages of $500,000.00, and punitive

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damages of $1,250,000.00.

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Id. at 14.

This formal complaint is the operative complaint, and

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therefore the Court must assume that Plaintiff no longer seeks

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relief for the claims raised in his initial letter, which arose from

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distinct and unrelated incidents, and were asserted against a

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variety of different defendants.

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joining multiple claims and multiple defendants in a single action.

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See Fed. R. Civ. P. 18(a) (“A party asserting a claim, counterclaim,

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crossclaim, or third-party claim may join, as independent or

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alternative claims, as many claims as it has against an opposing

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party.”), 20(a)(2) (multiple parties may be joined as defendants in

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one action only “if any right to relief is asserted against them

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jointly, severally, or in the alternative with respect to or arising

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out of the same transaction, occurrence, or series of transactions

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or occurrences; and any question of law or fact common to all

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defendants will arise in the action.”).

Federal joinder rules prohibit

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If Plaintiff wishes to seek

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relief for the issues raised in his initial letter, he must file a

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new complaint doing so that complies with the federal rules.

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The Court has reviewed Plaintiff’s complaint and, for the

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reasons set forth below, Plaintiff’s complaint is DISMISSED with

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prejudice for failure to state a claim.

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for leave to proceed in forma pauperis will be addressed in a

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separate order.

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Petitioner’s application

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Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity or

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officer or employee of a governmental entity.

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The court must identify cognizable claims or dismiss the complaint,

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or any portion of the complaint, if the complaint “is frivolous,

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malicious, or 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

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from such relief.”

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litigants, however, must be liberally construed.

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627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police

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

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Id. § 1915A(b).

28 U.S.C. § 1915A(a).

Pleadings filed by pro se
Hebbe v. Pliler,

To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements:

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Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the

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color of state law.

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(1) that a right secured by the

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

Plaintiff complains that on February 22, 2012, defendant
interfered with Plaintiff’s attempts to complete his in forma

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pauperis application and caused Plaintiff wrong and harm through her

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words and actions.

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under § 1983.

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Plaintiff fails to state a claim for relief

The record contradicts Plaintiff’s claim that defendant

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prevented him from filing his in forma pauperis application;

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Plaintiff filed a complete in forma pauperis application on June 4,

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2012 and June 6, 2012.

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Doc. ## 5 and 7.

Additionally, allegations of verbal harassment and abuse
fail to state a claim cognizable under 42 U.S.C. § 1983.

See

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Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in

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part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85

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(9th Cir. 2008); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),

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amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive

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comments by prison guard not enough to implicate 8th Amendment);

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Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)

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(directing vulgar language at prisoner does not state constitutional

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claim).

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II

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For the reasons set forth above, Plaintiff’s complaint is

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DISMISSED with prejudice for failure to state a claim.

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shall deny all pending motions as moot and close the file.

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The clerk

IT IS SO ORDERED.

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DATED

06/18/2012
THELTON E. HENDERSON
United States District Judge

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