Austin v. Tyler et al
Filing
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ORDER Dismissing Complaint Without Leave To Amend. Signed by JUDGE J. MICHAEL SEABRIGHT on 11/22/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,
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)
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Plaintiff,
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vs.
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CORRECTIONAL OFFICER
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SEARGENT TYLER,
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Defendant.
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_____________________________ )
CIV. NO. 11-00692 JMS/KSC
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND
Before the court is pro se Plaintiff Gerald Lewis Austin’s prisoner
civil rights complaint. Plaintiff, incarcerated at the Halawa Correctional Facility
(“HCF”), names Adult Correctional Officer (“ACO”) Sergeant Tyler as the only
defendant in this case,1 alleging that Tyler violated his constitutional rights by
calling Plaintiff a “dumb ass.”
Plaintiff’s Complaint is DISMISSED for failure to state a claim,
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).
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Although Plaintiff “names” two others in the Complaint’s caption, he clarifies within
the Complaint that these individuals were witnesses to Tyler’s actions, not participants.
I. 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 cause of action, supported by mere conclusory statements, do not
suffice.” 129 S. Ct. at 1949.
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“[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.” 129 S. Ct. at
1949. “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.
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. Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000).
II. DISCUSSION
Plaintiff alleges that on an unknown date, “Tyler called inmate Gerald
Lewis Austin a ‘dumb ass’ real loud while I was sealing up my legal mail and for
no reason at all.” ECF No. 1, Compl. at 5. Plaintiff states that he immediately
filed a grievance regarding Tyler’s comment, and then commenced this action.
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Plaintiff claims Tyler frightened him and he seeks $1 million for his pain and
suffering.
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, 830 F.2d 136, 139 (9th Cir. 1987)
(holding that vulgar language does not arise 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.”).
Tyler’s mild name calling on one occasion, while perhaps distressing,
does not arise to the level of a constitutional violation. As a result, Plaintiff fails to
state a claim regarding Tyler’s alleged remark, and his Complaint is DISMISSED
for failure to state a claim.
B. Leave to Amend
Although a pro se litigant is ordinarily given leave to amend his or her
complaint, here it is “absolutely clear that the deficiencies of the complaint could
not be cured by amendment.” Lopez, 203 F.3d at 1137. Plaintiff bases his entire
action on the proposition that he was referred to as a “dumb ass” by Tyler. There
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is no other legal basis for a claim under these facts. And dismissal here is “not
caused by insufficient allegations of factual content,” such that “no potential
amendments would change the outcome.” Mirmehdi v. United States of America,
--- F.3d ----, 2011 WL 5222884, at *6 (9th Cir. Nov. 3, 2011). In short, further
amendment would be futile. Accordingly, the dismissal is without leave to amend.
IV. CONCLUSION
The Complaint is DISMISSED for failure to state a claim, and
may be counted as a strike pursuant to 28 U.S.C. § 1915(g).
The Clerk of Court is directed to close this file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 22, 2011.
/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Austin v. Tyler, Civ. No. 11-00692 JMS/KSC; Order Dismissing Complaint Without Leave to
Amend ; psas/ Screening/dmp/ 2011/Austin 11-692 jms (dsm ftsc)
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