1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MICHAEL RODRIGUEZ, 11 Case No. 19-06755 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND 13
14 KELLY, et al., 15 Defendants. 16
17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against a nurse at Salinas Valley State Prison (“SVSP”) 20 where is currently incarcerated. (Docket No. 1, “Compl.”) Plaintiff’s motion for leave to 21 proceed in forma pauperis shall be addressed in a separate order. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that Defendant Nurse Kelly failed to provide him with his 10 medication at 5:00 p.m. on May 12, 2019, when he asked her to return in ten minutes and 11 failed to do so. (Compl. at 3.) When he asked for his medication later that night at 8:00 12 p.m., Defendant “went into a loud tirade stating, ‘You wetbacks… think whatever you 13 want you can get it at your time… I should report you to I.C.E. and have you deported to 14 Mexico, where you won’t receive any medication… I’m not giving you your meds. Your 15 a faggot anways… I don’t need to deal with your kind [sic].’” (Id. at 4.) Plaintiff did not 16 receive his medication that day. (Id.) Plaintiff claims that the next day, on May 13, 2019, 17 Defendant again denied him health care when she did not give him his medication as 18 requested. (Id.) Plaintiff claims Defendant’s words indicate “bigotry,” “racial profiling,” 19 “racial bias and discrimination,” and “sexual (gender) discrimination.” (Id.) Plaintiff 20 claims Defendant’s actions constitute racial discrimination, sex discrimination, and denial 21 of medical treatment. (Id. at 3.) Plaintiff seeks damages. (Id.) 22 Plaintiff’s allegations are insufficient to state a cognizable claim. With respect to 23 Defendant’s alleged comments on May 12, 2019, allegations of verbal harassment and 24 abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 25 F.3d 732, 738 (9th Cir. 1997) overruled in part on other grounds by Shakur v. Schriro, 514 26 F.3d 878, 884-85 (9th Cir. 2008); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 1 Livingston, 791 F.2d 97, 99 (8th Cir. 1986) (“mere words, without more, do not invade a 2 federally protected right”); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) 3 (prisoner does not have cause of action under § 1983 for being called obscene name by 4 prison employee); Batton v. North Carolina, 501 F. Supp. 1173, 1180 (E.D.N.C. 1980) 5 (mere verbal abuse by prison officials does not state claim under § 1983). This is so even 6 if the verbal harassment is racially motivated. See Hoptowit v. Ray, 682 F.2d 1237, 1252 7 (9th Cir. 1982) (federal court cannot order guards to refrain from using racial slurs to 8 harass prisoners); Burton, 791 F.2d at 101 n.1 (use of racial slurs in prison does not offend 9 Constitution). But harassment coupled with conduct implicating the Eighth Amendment's 10 proscription against cruel and unusual punishment may indeed present a claim cognizable 11 under § 1983. See Hudson v. Palmer, 468 U.S. 517, 528-30 (1984) (malicious cell 12 searches and calculated harassment unrelated to prison needs may implicate 8th 13 Amendment’s protection against cruel and unusual punishment); Franklin v. Oregon, 662 14 F.2d 1337, 1344 (9th Cir. 1981) (harassment with regards to medical problems cognizable 15 if it constitutes deliberate indifference). Accordingly, Plaintiff fails to state any claim 16 against Defendant Kelly based solely on her abusive words to him on May 12, 2019. 17 Rather, he must connect her words with conduct implicating the Eighth Amendment in 18 order to state a claim. Id. 19 However, Plaintiff’s allegations are also insufficient to state a claim under the 20 Eighth Amendment. Deliberate indifference to serious medical needs violates the Eighth 21 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 22 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 23 overruled in part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 24 1136 (9th Cir. 1997) (en banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A 25 determination of “deliberate indifference” involves an examination of two elements: the 26 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 1 to treat a prisoner’s condition could result in further significant injury or the “unnecessary 2 and wanton infliction of pain.” McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 3 104). A prison official is deliberately indifferent if he knows that a prisoner faces a 4 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 5 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not 6 only “be aware of facts from which the inference could be drawn that a substantial risk of 7 serious harm exists,” but he “must also draw the inference.” Id. If a prison official should 8 have been aware of the risk, but was not, then the official has not violated the Eighth 9 Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 10 1188 (9th Cir. 2002). Here, Plaintiff fails to explain what the medication was for to 11 establish that he had a serious medical need to satisfy the first element for an Eighth 12 Amendment claim. Farmer, 511 U.S. at 837.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MICHAEL RODRIGUEZ, 11 Case No. 19-06755 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND 13
14 KELLY, et al., 15 Defendants. 16
17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against a nurse at Salinas Valley State Prison (“SVSP”) 20 where is currently incarcerated. (Docket No. 1, “Compl.”) Plaintiff’s motion for leave to 21 proceed in forma pauperis shall be addressed in a separate order. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff claims that Defendant Nurse Kelly failed to provide him with his 10 medication at 5:00 p.m. on May 12, 2019, when he asked her to return in ten minutes and 11 failed to do so. (Compl. at 3.) When he asked for his medication later that night at 8:00 12 p.m., Defendant “went into a loud tirade stating, ‘You wetbacks… think whatever you 13 want you can get it at your time… I should report you to I.C.E. and have you deported to 14 Mexico, where you won’t receive any medication… I’m not giving you your meds. Your 15 a faggot anways… I don’t need to deal with your kind [sic].’” (Id. at 4.) Plaintiff did not 16 receive his medication that day. (Id.) Plaintiff claims that the next day, on May 13, 2019, 17 Defendant again denied him health care when she did not give him his medication as 18 requested. (Id.) Plaintiff claims Defendant’s words indicate “bigotry,” “racial profiling,” 19 “racial bias and discrimination,” and “sexual (gender) discrimination.” (Id.) Plaintiff 20 claims Defendant’s actions constitute racial discrimination, sex discrimination, and denial 21 of medical treatment. (Id. at 3.) Plaintiff seeks damages. (Id.) 22 Plaintiff’s allegations are insufficient to state a cognizable claim. With respect to 23 Defendant’s alleged comments on May 12, 2019, allegations of verbal harassment and 24 abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See Freeman v. Arpaio, 125 25 F.3d 732, 738 (9th Cir. 1997) overruled in part on other grounds by Shakur v. Schriro, 514 26 F.3d 878, 884-85 (9th Cir. 2008); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 1 Livingston, 791 F.2d 97, 99 (8th Cir. 1986) (“mere words, without more, do not invade a 2 federally protected right”); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) 3 (prisoner does not have cause of action under § 1983 for being called obscene name by 4 prison employee); Batton v. North Carolina, 501 F. Supp. 1173, 1180 (E.D.N.C. 1980) 5 (mere verbal abuse by prison officials does not state claim under § 1983). This is so even 6 if the verbal harassment is racially motivated. See Hoptowit v. Ray, 682 F.2d 1237, 1252 7 (9th Cir. 1982) (federal court cannot order guards to refrain from using racial slurs to 8 harass prisoners); Burton, 791 F.2d at 101 n.1 (use of racial slurs in prison does not offend 9 Constitution). But harassment coupled with conduct implicating the Eighth Amendment's 10 proscription against cruel and unusual punishment may indeed present a claim cognizable 11 under § 1983. See Hudson v. Palmer, 468 U.S. 517, 528-30 (1984) (malicious cell 12 searches and calculated harassment unrelated to prison needs may implicate 8th 13 Amendment’s protection against cruel and unusual punishment); Franklin v. Oregon, 662 14 F.2d 1337, 1344 (9th Cir. 1981) (harassment with regards to medical problems cognizable 15 if it constitutes deliberate indifference). Accordingly, Plaintiff fails to state any claim 16 against Defendant Kelly based solely on her abusive words to him on May 12, 2019. 17 Rather, he must connect her words with conduct implicating the Eighth Amendment in 18 order to state a claim. Id. 19 However, Plaintiff’s allegations are also insufficient to state a claim under the 20 Eighth Amendment. Deliberate indifference to serious medical needs violates the Eighth 21 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 22 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 23 overruled in part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 24 1136 (9th Cir. 1997) (en banc); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A 25 determination of “deliberate indifference” involves an examination of two elements: the 26 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 1 to treat a prisoner’s condition could result in further significant injury or the “unnecessary 2 and wanton infliction of pain.” McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 3 104). A prison official is deliberately indifferent if he knows that a prisoner faces a 4 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 5 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not 6 only “be aware of facts from which the inference could be drawn that a substantial risk of 7 serious harm exists,” but he “must also draw the inference.” Id. If a prison official should 8 have been aware of the risk, but was not, then the official has not violated the Eighth 9 Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 10 1188 (9th Cir. 2002). Here, Plaintiff fails to explain what the medication was for to 11 establish that he had a serious medical need to satisfy the first element for an Eighth 12 Amendment claim. Farmer, 511 U.S. at 837. Secondly, he fails to allege that Defendant 13 was aware that Plaintiff faced a substantial risk of serious harm without his medication and 14 disregarded that risk by failing to provide him with that medication for two days to 15 establish the second element. Id. Plaintiff shall be afforded an opportunity to file an 16 amended complaint to state sufficient facts to support an Eighth Amendment claim. 17 In preparing an amended complaint, Plaintiff should keep the following principles 18 in mind. Liability may be imposed on an individual defendant under § 1983 only if 19 Plaintiff can show that the defendant proximately caused the deprivation of a federally 20 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 21 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 22 constitutional right within the meaning of section 1983 if he does an affirmative act, 23 participates in another’s affirmative act or omits to perform an act which he is legally 24 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 25 F.2d at 633. Accordingly, Plaintiff must allege sufficient facts describing each named 26 defendant’s actions or failure to act that caused the violation of his Eighth Amendment 1 CONCLUSION 2 For the reasons state above, the Court orders as follows: 3 The complaint is DISMISSED with leave to amend. Within twenty-eight (28) 4 || days from the date this order is filed, Plaintiff shall file an amended complaint using the 5 |} court’s form complaint. The amended complaint must include the caption and civil case 6 || number used in this order, i.e., Case No. C 19-06755 BLF (PR), and the words 7 || “AMENDED COMPLAINT” on the first page. Plaintiff must answer all the questions on 8 || the form in order for the action to proceed. Plaintiff is reminded that the amended 9 || complaint supersedes the original, and Plaintiff may not make references to the original 10 || complaint. Claims not included in the amended complaint are no longer claims and 11 || defendants not named in an amended complaint are no longer defendants. See Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 13 Failure to respond in accordance with this order by filing an amended S 14 || complaint in the time provided will result in the dismissal of this action without 3 15 || prejudice and without further notice to Plaintiff. a 16 The Clerk shall terminate “Salinas Valley State Prison” as a party to this action as 3 17 || Plaintiff merely named the prison to indicate Defendant Kelly’s place of employment and 18 || not as a separate defendant in this action. (Compl. at 2.) 19 The Clerk shall include two copies of the court’s form complaint with a copy of this 20 order to Plaintiff. 21 IT IS SO ORDERED. Dated: February 7, 2020 he oN hh h once 53 BETH LABSON FREEMAN United States District Judge 24 25 |! pRO-SEIBLPCR 19\06755Rodsguer, dt 26 27