Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Low v. Bartolotti

United States District Court, D. Hawaii

September 12, 2018

ROBERT KEAUPUNI LOW, JR., #A4024278, Plaintiff,
v.
DAVID BARTOLOTTI, Defendant.

          ORDER DISMISSING AMENDED COMPLAINT AND ACTION

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE

         Before 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 2016.

         For the 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 action.

         I. STATUTORY SCREENING

         The 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).

         Screening 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).

         Pro se 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).

         II. DISCUSSION

         To 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).

         A. Low's Claims[1]

         Low 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 Amendment.[2]

         Low 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.[3] Id., PageId. #35. He seeks damages only.

         B. Verbal Harrassment

         Allegations 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); ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.