The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER DISMISSING FIRST
AMENDED COMPLAINT AND
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.*fn1 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 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.
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.
"[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 already granted a plaintiff leave to amend, its discretion in deciding subsequent motions to amend is 'particularly broad.'") (citation omitted).
The FAC is identical to the original Complaint, except that Plaintiff now attaches various documents to the pleading supporting his in forma pauperis request*fn2 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.
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 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. ...