“mere words, without more, do not 14 invade a federally protected right”
How later courts described this case
- “mere words, without more, do not 14 invade a federally protected right”
- disrespectful and assaultive comments by prison guard not 11 enough to implicate 8th Amendment
- mere verbal abuse by prison officials does not state claim under § 1983
- directing vulgar language at prisoner does not state constitutional claim
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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JAMES R. KNOWLES, Case No. 21-01222 EJD (PR)
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Plaintiff,
ORDER OF DISMISSAL
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v.
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14 CHRIS GOODNIGHT, et al.,
15 Defendants.
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18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42
19 U.S.C. § 1983 against medical officials at the Napa State Hospital (“NHS”). On June 30,
20 2021, the Court dismissed the complaint with leave to amend for Plaintiff to correct
21 several deficiencies in the pleading. Dkt. No. 8. Plaintiff filed an amended complaint.
22 Dkt. No. 9. For the reasons discussed below, the amended complaint is dismissed with
23 leave to amend.
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25 DISCUSSION
26 A. Standard of Review
27 A federal court must conduct a preliminary screening in any case in which a
1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any
2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim
3 upon which relief may be granted or seek monetary relief from a defendant who is immune
4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally
5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
7 elements: (1) that a right secured by the Constitution or laws of the United States was
8 violated, and (2) that the alleged violation was committed by a person acting under the
9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
10 B. Plaintiff’s Claims
11 In the original complaint, Plaintiff claimed that he was sexually harassed by
12 Defendant Gwyn Coulie (P.M. Shift Lead on Unit T-12) at NHS for months from August
13 2019 to the present day, and that Defendants Coulie, Chris Goodnight, Dr. Lee Wei, Dr.
14 Nathaniel Chapman, and Mike Thompson conspired to cover up her actions for months
15 thereafter. Dkt. No. 1 at 6. Plaintiff claimed Defendants said he would take legal action
16 against them, Defendants threatened to and did take adverse actions against him during a
17 conference meeting on January 12, 2021, including adjusting his medication and disciplinary
18 measures. Id. at 7-8. Plaintiff claimed their actions violated his rights under the First
19 Amendment because they conspired to “[quiet him] because [he] was going to file lawsuit for
20 Defendants covering up Gwyn[] Coulie[’s] sexual harassment.” Id. at 5.
21 In an initial review of the complaint, the Court construed the allegations as
22 attempting to state a retaliation claim but found the allegations were deficient. Dkt. No. 8
23 at 2-3. The Court dismissed the retaliation claim with leave to amend. Id. at 3. The Court
24 also advised Plaintiff that he could not proceed with a conspiracy claim against Defendants
25 unless he first established an underlying constitutional violation and a meeting of the
26 minds. Id. The Court found a cognizable claim against Defendant Coulie for sexual
1 if he wished to pursue it. Id. at 4. Lastly, Plaintiff was advised that he must have
2 exhausted all claims raised in this action before he could proceed. Id. at 5.
3 In the amended complaint, Plaintiff again names Defendants Chris Goodnight,
4 Nathaniel Chapman, and Mike Thompson, as in the original complaint, and includes two
5 new Defendants: Dane B. Morley and Dominic Hamilton. Dkt. No. 9 at 2. He does not
6 include Defendants Lee Wei and Gwyn Coulie from the original complaint. Accordingly,
7 Defendants Wei and Coulie are no longer parties to this action, and the claims against them
8 are no longer a part of this action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
9 Cir.1992).
10 Plaintiff has failed to correct the deficiencies from the original complaint. Plaintiff
11 again attempts to assert a retaliation claim and conspiracy claim against Defendants
12 Goodnight, Chapman, Thompson, and Morley for their actions on January 12, 2021, but
13 this time for filing a grievance against newly named Defendant Nurse Dominic Hamilton.
14 Dkt. No. 9 at 4. Plaintiff has already been advised of the following legal standard for
15 stating a retaliation claim. Id. at 2-3. “Within the prison context, a viable claim of First
16 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took
17 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct,
18 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and
19 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v.
20 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). As before, Plaintiff’s
21 allegations are sufficient to satisfy the first three elements based on the allegations that
22 Defendants placed him in segregation because he filed a grievance against Defendant
23 Hamilton. Dkt. No. 9 at 6. However, as in the original complaint, there are no allegations
24 regarding the last two elements, i.e., that Defendants’ conduct chilled the exercise of
25 Plaintiff’s First Amendment rights and did not reasonably advance a legitimate
26 correctional goal. The conspiracy claim is also deficient because there is no underlying
1 banc). Plaintiff was already afforded one opportunity to amend, and the Court finds no
2 good cause to grant him another opportunity based on the same event, i.e., the January 12,
3 2021 conference meeting. Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003)
4 (district court’s discretion to deny leave to amend particularly broad where plaintiff has
5 previously filed an amended complaint); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
6 1992). Accordingly, the retaliation and conspiracy claims must be dismissed for failure to
7 state a claim.
8 With regards to Defendant Hamilton, Plaintiff claims that she “assaulted and
9 battered” him while taking his blood pressure on December 22, 2020. Dkt. No. 9 at 4.
10 Specifically, Plaintiff claims Defendant Hamilton “pushed [him] back into the chair” while
11 attempting to take his blood pressure as he explained “what treatment he takes.” Id.
12 Plaintiff claims she was argumentative and belligerent, and that he felt scared and upset.
13 Id. at 4-5. Plaintiff also claims that Defendant Hamilton is frequently unreasonable, rude,
14 disrespectful, and talks behind his back. Id. at 7. These allegations, even if true, are
15 insufficient to state a claim under § 1983. Assuming that Plaintiff is entitled to at least the
16 same protections as a pretrial detainee against excessive force under the Fourteenth
17 Amendment, he must show only that the “force purposely or knowingly used against him
18 was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
19 Here, the only force Plaintiff alleges is being pushed back into the chair when he was not
20 being cooperative. A non-exhaustive list of considerations that may bear on the
21 reasonableness of the force used include “the relationship between the need for the use of
22 force and the amount of force used; the extent of the plaintiff's injury; any effort made by
23 the officer to temper or to limit the amount of force; the severity of the security problem at
24 issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively
25 resisting.” Kingsley, 576 U.S. at 397. In light of the fact that Plaintiff is receiving
26 treatment at the NSH for a mental illness, it cannot be said that Defendant Hamilton used
1 check while he was being uncooperative. Nor does Plaintiff allege any physical injury
2 from being pushed back into his chair to indicate that it was in any way excessive.
3 Accordingly, Plaintiff fails to state a claim of excessive force against Defendant Hamilton.
4 With regard to the rest of Defendant Hamilton’s alleged behavior, allegations of
5 verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See
6 Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part on other grounds
7 by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Rutledge v. Arizona Bd. of
8 Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub nom. Kush v. Rutledge, 460 U.S.
9 719 (1983); see, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended 135
10 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by prison guard not
11 enough to implicate 8th Amendment); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th
12 Cir. 1987) (directing vulgar language at prisoner does not state constitutional claim);
13 Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) (“mere words, without more, do not
14 invade a federally protected right”); Batton v. North Carolina, 501 F. Supp. 1173, 1180
15 (E.D.N.C. 1980) (mere verbal abuse by prison officials does not state claim under § 1983).
16 Accordingly, Plaintiff fails to state a claim for relief based on Defendant Hamilton’s verbal
17 abuse.
18 Lastly, Plaintiff clearly indicates that he did not exhaust any of the claims raised in
19 the amended complaint. Dkt. No. 9 at 2. Plaintiff has already been advised that he must
20 exhaust administrative remedies before filing suit. Dkt. No. 8 at 5. The Prison Litigation
21 Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), amended 42
22 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison
23 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in
24 any jail, prison, or other correctional facility until such administrative remedies as are
25 available are exhausted.” 42 U.S.C. § 1997e(a). In the amended complaint, Plaintiff states
26 that he is “still trying to contact them for response” with regards to the NSH’s grievance
1 to exhaust administrative remedies before filing suit. See Albino v. Baca, 747 F.3d 1162,
2 1166 (9th Cir. 2014) (en banc). However, because the amended complaint fails to state
3 || any cognizable claim, exhaustion would be futile.
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5 CONCLUSION
6 For the foregoing reasons, the amended complaint is DISMISSED with prejudice
7 || for failure to state a claim for which relief can be granted.
8 IT IS SO ORDERED. aD
9 || Dated: 11/24/2021 tee * TC
EDWARD J. DAVILA
10 United States District Judge
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