Howard v. Brooks

Full title: TOMMY HOWARD, Plaintiff(s), vs. E. BROOKS, et al., Defendant(s)

Court: United States District Court, N.D. California

Date published: Mar 11, 2004

No. C 04-0918 VRW (PR) (Doc #2) (N.D. Cal. Mar. 11, 2004)

Opinion

No. C 04-0918 VRW (PR) (Doc #2)

March 11, 2004

ORDER OF DISMISSAL

VAUGHN WALKER, District Judge

Plaintiff, a prisoner at the Alameda County Jail, Santa Rita Facility, has filed a pro se complaint for damages under 42 U.S.C. § 1983 alleging that his parole agent violated his constitutional rights by threatening to kill him.

Plaintiff specifically alleges that on or about December 15, 2003, during his monthly visit to the parole office, Parole Agent E. Brooks told him, "You're to[o] fucking old to be caught up in the parole system. I'm gonna save the state some money when I put a bullet [in] your black ass." When plaintiff reported Brooks to Unit Supervisor B. Wallace, Wallace laughed and told him to get out of his office.

Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir 1990).

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. West v Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

Although regrettable, plaintiffs allegations fail to state a claim for damages under § 1983 because the threat and harassment he alleges did not amount to constitutional violations. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir 1987) (mere threat does not constitute constitutional wrong);Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir 1981) (harassment not cognizable under § 1983).

CONCLUSION

For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED.

The Clerk shall close the file and terminate all pending motions as moot. No fee is due.

SO ORDERED.