Austin v. Padilla

Filing 7

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION 5 . ~ "Plaintiff's First Amended Complaint is DISMISSED without leave to amend because further amendment is futile. This 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 a strike pursuant to 28 U.S.C. § 1915(g). All pending motions are DENIED." ~ Signed by JUDGE DAVID ALAN EZRA on 12/19/2011. (afc) 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 will be served by first class mail on December 20, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,
Plaintiff,
vs.
CORRECTIONAL OFFICER
PADILLA,
Defendant.
____________________________

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CIV. NO. 11-00693 DAE-BMK

ORDER DISMISSING FIRST
AMENDED COMPLAINT AND
ACTION

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION
Before the court is pro se Plaintiff Gerald Lewis Austin’s first
amended prisoner civil rights complaint (“FAC”). Plaintiff is incarcerated at the
Halawa Correctional Facility (“HCF”), and names Adult Correctional Officer
(“ACO”) Padilla as the only defendant in this case.1 Plaintiff alleges that Padilla
violated his constitutional rights when he verbally threatened Plaintiff on four
occasions.
Plaintiff’s original Complaint was dismissed for failure to state a
claim with leave granted to amend. See 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1); ECF #2. Because Plaintiff’s FAC fails to cure the enumerated
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Plaintiff mentions ACOs Acoma and Wong in the FAC, but clarifies that
they are witnesses to Padilla’s actions, not participants.

deficiencies in his original Complaint, and further leave to amend appears futile,
the FAC and this action are DISMISSED with prejudice, for failure to state a
claim.
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
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elements of a cause of action, supported by mere conclusory statements, do not
suffice.” 129 S. Ct. at 1949.
“[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).
Although 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), an amended complaint that fails to cure the
deficiencies in the original pleading may be dismissed with prejudice. See Chodos
v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has

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already granted a plaintiff leave to amend, its discretion in deciding subsequent
motions to amend is ‘particularly broad.’”) (citation omitted).
II. DISCUSSION
The FAC is identical to the original Complaint, except that Plaintiff
now attaches various documents to the pleading supporting his in forma pauperis
request2 and showing his attempts to file criminal charges against Padilla and
another ACO. In the FAC, Plaintiff again alleges that, on or about June 21, 22, 23,
and 28, 2011, ACO Padilla verbally threatened him by stating he would “pound
[Austin] out.” See FAC, ECF 5 at 5, Count I. Plaintiff apparently was told to leave
the dining hall and missed breakfast on at least one day. Id. at 15. The FAC makes
clear, as did the original Complaint, that Padilla did not assault Plaintiff.
A.

Padilla’s Statements
As the court informed Plaintiff in the November 28, 2011 Order

Dismissing Complaint, ECF #2, verbal harassment or abuse 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

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Plaintiff’s in forma pauperis application was granted on November 30,
2011, two weeks before filing the FAC. ECF #3.
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that “disrespectful and assaultive comments” do 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.”). 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).
Padilla’s comment that he would “pound [Plaintiff] out,” and single
written expletive expressing that he did not care if Plaintiff missed breakfast, are
insufficient to state a claim under the Eighth Amendment. See FAC, ECF #4 at 5.
These statements are unlikely to have caused, and Plaintiff does not allege, any
actual psychological harm. Plaintiff fails to state a claim regarding Padilla’s
alleged verbal harassment or threats.
B.

Missed Breakfast
Plaintiff claims that, because of Padilla’s alleged threats, he missed

breakfast. The documents he attaches to the FAC show that, when Padilla yelled at
Plaintiff on June 21, 2011, he told Plaintiff to leave the dining hall. If this
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happened on all four days alleged in Count I, although Plaintiff does not clarify
this, Plaintiff missed, at most, four breakfasts.
Adequate food is a basic human need protected by the Eighth
Amendment. Keenan, 83 F.3d at 1091. The Eighth Amendment, however, only
requires that prisoners receive food that is adequate to maintain health. See
LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). The Ninth Circuit found
that a prisoner who was denied sixteen meals in twenty-three days alleged a
sufficiently serious deprivation to implicate the Eighth Amendment. Foster v.
Runnels, 554 F.3d 807, 812-13 (9th Cir. 2009). In Foster, the plaintiff alleged that
he lost weight and suffered headaches and dizziness as a result of inadequate
nutrition. Id. at 813 n.2. The appellate court observed that the record contained no
evidence of the nutritional value of each meal, and thus there was no evidence that
one meal per day provided enough nutrition to sustain the inmate for an entire day.
Because all inferences must be drawn in the inmate’s favor, the Ninth Circuit
presumed that the meals Foster received were inadequate to maintain health and
that he suffered a cognizable harm under the Eighth Amendment. Id.
In contrast, here, Plaintiff alleges that he may have missed breakfast
on four days in June 2011, because of Padilla’s threats. Plaintiff does not allege
that the missing breakfasts caused him to suffer physical ill effects, or that he was
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denied other meals on those days, or denied breakfast more than the four times
alleged. As noted in the order dismissing the original Complaint, Plaintiff's
allegations are insufficient to give rise to the inference that he is not receiving or
did not receive sufficient food to maintain his health. Plaintiff does not allege a
deprivation of constitutional magnitude. Foster, 554 F.3d at 813 n.2; LeMaire, 12
F.3d at 1456. Plaintiff fails to state a plausible claim that the missed breakfast
violated his constitutional rights.
III. 28 U.S.C. § 1915(g)
Plaintiff’s original Complaint was dismissed for failure to state a
claim and Plaintiff was given leave to file an amended complaint to correct the
deficiencies identified in that pleading. Because Plaintiff’s First Amended
Complaint fails to cure the defects in his original Complaint, and it is clear that he
cannot do so, it is DISMISSED with prejudice. Plaintiff is notified that this
dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C.
§ 1915(g).
Under the 3-strikes provision, a prisoner may not bring a civil action
or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the
prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was
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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g); see also Andrews v. King, 398 F.3d
1113, 1116 n.1 (9th Cir. 2005).
IV. CONCLUSION
Plaintiff’s First Amended Complaint is DISMISSED without leave to
amend because further amendment is futile. This 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 a strike pursuant to 28 U.S.C.
§ 1915(g). All pending motions are DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 19, 2011.

_____________________________
David Alan Ezra
United States District Judge

Austin v. Padilla, Civ. No. 11-00693 DAE-BMK; Order Dismissing First Amended Complaint and Action ; psas/
Screening/dmp/ 2011/Austin 11-693 DAE (dsm FAC & act ftsc [threats no brfst])

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