Bell v. Lee et al

Filing 3

ORDER OF DISMISSAL WITH LEAVE TO AMEND (Illston, Susan) (Filed on 8/26/2014) (Additional attachment(s) added on 8/26/2014: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VINCENT KEITH BELL,

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United States District Court
For the Northern District of California

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No. C 13-5820 SI (pr)

Plaintiff,

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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KEN LEE, Deputy; et al.,

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Defendants.

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/
INTRODUCTION

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Vincent Keith Bell, an inmate at the San Francisco County Jail, filed a pro se civil rights

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action under 42 U.S.C. § 1983 complaining of conditions of confinement at the jail. His

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complaint is now before the court for review under 28 U.S.C. § 1915A.

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DISCUSSION
A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. See id.

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at § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

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

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).
In his complaint, Bell alleges that several deputies and officers at the San Francisco

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County Jail in San Bruno used excessive force on him on September 22, 2013. He alleges that

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officer Ken Lee (#2131), lieutenant Krol, officer Gatman, officer De los Reyes (#2016), and

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officer Herrion beat him up. They also forced Bell – who had one leg amputated – to hop on one

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his remaining leg for a long distance. He further alleges that he was put in the safety cell, where

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United States District Court
For the Northern District of California

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he was "tortured" at the direction of lieutenant Krol. He further alleges that other officers helped

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lieutenant Krol retaliate against him, although he does not allege what prompted the retaliation

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or sufficiently describe the allegedly retaliatory acts.

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The complaint states a cognizable claim against defendants Lee, Krol, Gatman, De los
Reyes and Herrion for the use of excessive force on September 22, 2013.

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The complaint provides insufficient information for the court to determine that a claim

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is stated based on the allegation that Bell was subjected to torture in the safety cell. His

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allegations suggest that the "torture" may have been verbal taunting by some people and physical

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abuse by others. Bell must file an amended complaint to further describe this claim. Bell must

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allege who tortured him and describe what each person did to "torture" him. Verbal harassment

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alone is not actionable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th

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Cir. 1997), overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th

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Cir. 2008); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub

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nom. Kush v. Rutledge, 460 U.S. 719 (1983); see, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th

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Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by

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prison guard not enough to implicate 8th Amendment); Oltarzewski v. Ruggiero, 830 F.2d 136,

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139 (9th Cir. 1987) (directing vulgar language at prisoner does not state constitutional claim);

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Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) ("mere words, without more, do not invade

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a federally protected right").
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Bell's retaliation claim also is deficient. "Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that

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such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005) (footnote omitted). Bell's allegations fail to state a claim for retaliation

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because he does not identify what conduct he engaged in that prompted the alleged retaliation,

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does not adequately identify the adverse action, and does not allege that it chilled his exercise

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of his First Amendment rights. If Bell wishes to pursue this claim, he needs to identify the

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United States District Court
For the Northern District of California

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particular defendant(s) for this claim, allege facts showing what he did that prompted the alleged

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retaliation, allege facts showing what each defendant did or failed to do that amounted to

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retaliation, and allege that such actions chilled the exercise of his First Amendment rights.

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CONCLUSION

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Plaintiff's complaint is dismissed with leave to amend. Plaintiff must file an amended

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complaint no later than September 26, 2014, and must include the caption and civil case number

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used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff is

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cautioned that his amended complaint must be a complete statement of his claims, and therefore

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he should repeat his excessive force claim, as well as cure the deficiencies in his torture and

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retaliation claims. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

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If plaintiff does not file an amended complaint by the deadline, only his excessive force claim

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will go forward and the other claims will be dismissed.

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IT IS SO ORDERED.
Dated: August 26, 2014

_______________________
SUSAN ILLSTON
United States District Judge

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