Nicholas v. Ada County et al

Filing 7

MEMORANDUM DECISION AND ORDER - In accordance with the Memorandum Decision set forth above, NOW THEREFORE IT IS HEREBY ORDERED, that the Initial Review Order(Dkt. 6 ) is hereby ADOPTED as the decision of this Court. IT IS FURTHER ORDERED, that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-iii). IT IS FURTHER ORDERED, that Plaintiffs Application for Leave to Proceed in Forma Pauperis (Dkt. 1 ) is DENIED as MOOT. IT IS FURTHER ORDERED, that the Clerk close this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOSEPH JOHNSON NICHOLAS, II,
Plaintiff,

Case No. 1:17-CV-00289-BLW

v.

MEMORANDUM DECISION
AND ORDER

ADA COUNTY, et. al.
Defendants.

INTRODUCTION
The Court has before it Plaintiff’s application to proceed without payment of fees.
For the reasons explained below, the Court will deny the application and dismiss this
case.
ANALYSIS
The Court is required to screen complaints brought by litigants who seek in forma
pauperis status.

See 28 U.S.C. § 1915(e)(2).

Plaintiff’s Complaint, or a portion

thereof, will be dismissed if it: (1) is frivolous or malicious; (2) fails to state a claim upon
which relief can be granted; or (3) seeks monetary relief from a defendant who is immune
from such relief.

See 28 U.S.C. § 1915(e)(2)(B)(i-iii).

To state a claim upon which

relief can be granted, plaintiff’s Complaint must include facts sufficient to show a
plausible claim for relief.

See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).

Memorandum Decision & Order - 1

During

this initial review, courts generally construe pro se pleadings liberally, giving pro se
plaintiffs the benefit of any doubt.

See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). Additionally, if amending the complaint would remedy the deficiencies,
plaintiffs should be notified and provided an opportunity to amend.

See Jackson v.

Carey, 353 F.3d 750, 758 (9th Cir. 2003).
Plaintiff alleges a violation of his civil rights pursuant to 42 U.S.C. § 1983, as well
as a violation of Article I, § 1 of the Idaho Constitution. According to the Complaint,
while Plaintiff was an inmate at the Ada County Jail, Officer Carson called him a
“n****r” and a “monkey” in front of other inmates. Although Plaintiff obtained a formal
apology from Officer Carson after filing an Inmate Grievance, the inmates who witnessed
Officer Carson’s use of racial epithets began mimicking their use. Plaintiff further alleges
that no action was taken against such inmates, who continued to use racial epithets
against Plaintiff for the duration of his incarceration.
Plaintiff has failed to state a claim upon which relief can be granted. Magistrate
Judge Dale conducted a thorough review, and in a well-written decision recommended
that the action be dismissed.

See Initial Review Order (Dkt. No. 6). The Court adopts

that decision as its own. These facts, while deplorable, do not rise to the level of a
cognizable violation of Plaintiff’s’ constitutional rights. Verbal harassment alone is
insufficient to state a constitutional violation under § 1983, thus the Plaintiff has not
asserted a claim subject to the Court’s jurisdiction, nor can he plausibly do so.
ORDER
Memorandum Decision & Order - 2

In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Initial Review Order
(Dkt. 6) is hereby ADOPTED as the decision of this Court.
IT IS FURTHER ORDERED, that this action be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i-iii).
IT IS FURTHER ORDERED, that Plaintiff’s Application for Leave to Proceed in
Forma Pauperis is DENIED as MOOT.
IT IS FURTHER ORDERED, that the Clerk close this case.

DATED: October 10, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order - 3