United States District Court, D. Hawaii
ORDER DISMISSING AMENDED COMPLAINT AND
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE
the court is pro se Plaintiff Robert Keaupuni Low, Jr.'s,
first amended complaint (“FAC”). ECF No. 5. Low
asserts that Defendant David Bartolotti, a Maui Community
Correctional Center (“MCCC”) officer, violated
his constitutional rights when Bartolotti allegedly made
derogatory comments to him over the MCCC loudspeaker in early
following reasons, the FAC is dismissed for failure to state
a claim pursuant to 28 U.S.C. §§ 1915(e)(2) &
1915A(a-b). Because Low has had two opportunities to set
forth a colorable claim and has been unable to do so, and it
is clear that further amendment is futile, this dismissal is
with prejudice. The Clerk is directed to terminate this
court is required to conduct a pre-Answer screening of all
prisoners' pleadings pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(a). The court must dismiss a claim or
complaint that is frivolous, malicious, fails to state a
claim for relief, or seeks damages from defendants who are
immune from suit. See Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).
under §§ 1915(e)(2) and 1915A(b) involves the same
standard of review as that used under Federal Rule of Civil
Procedure 12(b)(6). Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012) (screening under §
1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d
1113, 1121 (9th Cir. 2012) (screening under § 1915A).
Under Rule 12(b)(6), a complaint must “contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. The “mere
possibility of misconduct” or an “unadorned, the
defendant-unlawfully-harmed me accusation” falls short
of meeting this plausibility standard. Id. at
678-79; see also Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009).
litigants' pleadings must be liberally construed and all
doubts should be resolved in their favor. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations
omitted). Leave to amend must be granted if it appears the
plaintiff can correct the defects in the complaint.
Lopez, 203 F.3d at 1130. If the complaint cannot be
saved by amendment, dismissal without leave to amend is
appropriate. Sylvia Landfield Tr. v. City of L.A.,
729 F.3d 1189, 1196 (9th Cir. 2013).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988). Additionally, a
plaintiff must allege that he suffered a specific injury as a
result of a particular defendant's conduct and an
affirmative link between the injury and the violation of his
rights. See Monell v. Dep't of Soc. Servs., 436
U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S. 362,
371-72, 377 (1976).
says that on February 29 and March 30, 2016, while he was a
pretrial detainee at MCCC, ACO Bartolotti announced over the
intercom, “Low swing, low, . . . in a derogatory
degrading tone . . .it's time for your anal probe,
” to call Low to the medical unit. FAC, ECF No. 5,
PageID #34-35. Low identifies openly as a homosexual and
alleges that Bartolotti's comments discriminated against
him on the basis of his sexual orientation in violation of
the Equal Protection Clause of the Fourteenth
says he suffered “anxiety attacks, paranoia, psychosis,
nightmares, depression, ” after Bartolotti made these
comments and is now heavily medicated and unable to maintain
a prison job. Id., PageId. #35. He
seeks damages only.
of verbal harassment standing alone fail to state a colorable
constitutional claim under § 1983. See Freeman v.
Arpaio, 125 F.3d 732, 738 (9th Cir. 1997), abrogated
on other grounds by Shakur v. Schriro, 514 F.3d 878,
884-85 (9th Cir. 2008); Oltarzewski v. Ruggiero, 830
F.2d 136, 139 (9th Cir. 1987) (holding that prison
guard's use of “vulgar language” toward a
prisoner did not violate the Constitution); see
e.g., Austin v. Terhune, 367 F.3d 1167, 1171-72
(9th Cir. 2004) (dismissing allegations of “mere verbal
sexual harassment” under the Eighth Amendment);