Austin v. Lau
Filing
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ORDER DENYING MOTION TO AMEND COMPLAINT AND DISMISSING ACTION 8 ; 9 ; 11 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/30/11. (" Austin's Motion to File Amended Complaint is DENIED. Austin's action is DISMISSED with prejudice for failure to state a claim. See 28 U.S.C. § 1915(e) (2)(b) & 1915A(b)(1). This dismissal may be counted as strike pursuant to 28 U.S.C. § 1915(g). All pending motions are DENIED.") (emt, )C ERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Gerald Lewis Austin served by first class mail at the address of record on November 30, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,
Plaintiff,
vs.
CORRECTIONAL OFFICER LAU,
Defendant.
____________________________
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CIV. NO. 11-00672 SOM-KSC
ORDER DENYING MOTION TO AMEND
COMPLAINT AND DISMISSING ACTION
ORDER DENYING MOTION TO AMEND COMPLAINT AND DISMISSING ACTION
On November 11, 2011, this court dismissed pro se
Plaintiff Gerald Lewis Austin’s prisoner civil rights complaint
for its failure to state a cognizable claim.
ECF #4.
Austin was
given leave to amend his claims to cure the Complaint’s pleading
deficiencies.
Austin is incarcerated at the Halawa Correctional
Facility (“HCF”).
Before the court is Austin’s Motion to Amend
Complaint (“Motion”) and proposed first amended complaint
(“FAC”).
See ECF #8 & 14.
The FAC again names Correctional
Officer Lau (“Lau”) in his individual and official capacities,
alleging that Lau threatened him in violation of the Eighth
Amendment.1
Austin’s Motion is DENIED and this action is DISMISSED
for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)
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Although Austin also names others in the FAC’s caption, he
prefaces their names with “Witness,” and makes clear that they
are witnesses to his allegations against Lau, not perpetrators.
and 1915(A)(b)(1).
Because amendment is futile, this dismissal
is with prejudice.
All pending motions are DENIED.
II. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.
28 U.S.C. § 1915A(a).
The court must
dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed as a matter of law for
failure to state a claim for (1) lack of a cognizable legal
theory; or (2) insufficient facts under a cognizable legal
theory.
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699
(9th Cir. 1990).
To state a claim, a pleading must contain a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
While Rule 8
does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct.
1937, 1949 (2009).
“Threadbare recitals of the elements of a
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cause of action, supported by mere conclusory statements, do not
suffice.”
Id.
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id.
“Determining whether a complaint
states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”
Id. at 1950.
Thus, although a
plaintiff’s specific factual allegations may be consistent with a
constitutional claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.
Id. at
1951.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
Leave to
amend should be granted if it appears at all possible that the
plaintiff can correct the defects of his or her complaint.
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
//
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Lopez
III.
DISCUSSION
“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”
Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)
(citation omitted); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
A.
The FAC Fails to State A Claim
There is little discernible difference between the
original Complaint and the FAC, except that Austin now seeks a
billion dollars instead of a million dollars.
Austin still
claims that, on or about July 12, 2011, Lau threatened to “bounce
[Austin’s] head up and down Mainstreet,” threw Austin’s
identification card on the floor, swore at Austin, and told him
to go back to his cell.
FAC, ECF #14 at 5.
Austin says he was
frightened that Lau would “actually assault” him.
Id.
As the court informed Austin in the November 8, 2011,
Order dismissing his original Complaint, verbal harassment or
abuse, even the use of racial epithets, does not rise to the
level of a constitutional deprivation.
Freeman v. Arpaio, 125
F.3d 732, 738 (9th Cir. 1997), abrogated on other grounds by
Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008); Oltarzewski v.
Ruggiero, 880 F.2d 136, 139 (9th Cir. 1987) (holding that
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“disrespectful and assaultive comments” do not rise to a
constitutional violation).
Even a threat of harm is insufficient
to establish a constitutional wrong.
See Gaut v. Sunn, 810 F.2d
923, 925 (9th Cir. 1987) (“[I]t trivializes the eighth amendment
to believe a threat constitutes a constitutional wrong.”).
Unless the verbal harassment was “calculated to and did cause
. . . psychological damage,” it does not state a claim under the
Eighth Amendment.
Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.
1996) (comments that denied inmate “peace of mind” but were not
alleged to be “unusually gross even for a prison setting” do not
state a claim) (emphasis added), amended by 135 F.3d 1318 (9th
Cir. 1998).
Austin’s claim amounts to no more than verbal
harassment; it does not rise to the level of psychological harm.
While Austin says that he was frightened that Lau would assault
him, it is implausible that, in the context of a prison, Lau’s
alleged one-time threats caused Austin serious or longlasting
psychological harm.
DENIED.
Austin’s Motion to Amend the Complaint is
Because further amendment is obviously futile, this
action is DISMISSED with prejudice.
B.
Austin’s Motion for Supplemental Pleading
Austin also submits a “supplemental pleading” that
appears to be a handwritten copy of parts of the Federal Rules of
Civil Procedure, this court’s Order dismissing his original
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Complaint, and possibly Corpus Juris Secundum.
Although unclear,
it appears that Austin believes that his original Complaint was
dismissed solely because he submitted the incorrect in forma
pauperis [“IFP”] application.
To clarify, the court denied
Austin’s first IFP request because it was not on the proper form
and consequently, lacked his signed consent to collection of fees
from his prison trust account.
Austin’s original Complaint was
dismissed because it failed to state a cognizable claim for a
violation of the Constitution or laws of the United States.
IV.
CONCLUSION
Austin’s Motion to File Amended Complaint is DENIED.
Austin’s action is DISMISSED with prejudice for failure to state
a claim.
See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).
This
dismissal may be counted as strike pursuant to 28 U.S.C.
§ 1915(g).
All pending motions are DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 30, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Austin v. Lau, Civ. No. 11-00672 SOM-KSC, Order Denying Motion to Amend Complaint and
Dismissing Action; psas/Screening/dmp/ 2011/Austin 11-672 SOM (final dsm ftsc)
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