1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL BARKARRI FOSTER, Case No. 21-cv-02956-WHO (PR)

Plaintiff, 8 ORDER OF DISMISSAL v. 9

10 SPROUSE, Defendant. 11

12 13 INTRODUCTION 14 Plaintiff Michael Barkarri Foster alleges that Pelican Bay prison guard Sprouse 15 threatened his life in 2020. His initial complaint lacked the necessary detail, such as what 16 words were allegedly used and in what context, that could make it actionable under 42

. He amended the complaint and provided greater detail, showing that 18 Sprouse acted threateningly and inappropriately, but the allegations are insufficient to state 19 a claim under § 1983. Accordingly, this federal civil rights action is DISMISSED. 20 STANDARD OF REVIEW 21 A federal court must conduct a preliminary screening in any case in which a 22 prisoner seeks redress from a governmental entity or officer or employee of a 23 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 24 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 25 upon which relief may be granted or seek monetary relief from a defendant who is immune 26 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 27 See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 1 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 2 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 3 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “A claim has facial 4 plausibility when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.”

(quoting 6 Twombly,

). Furthermore, a court “is not required to accept legal 7 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 8 be drawn from the facts alleged.” Clegg v. Cult Awareness Network,

, 754-55 9 (9th Cir. 1994). 10 To state a claim under

, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins,

(1988). 14 DISCUSSION 15 In the original complaint, Foster alleged that at Pelican Bay State Prison “[a]round 16 2-27-2020 and 2-28-2020, (C.O[.] Sprouse) threatened my life, and I fear that he will 17 follow through with it.” (Compl., Dkt. No. 1 at 3.) 18 In the amended complaint, Foster alleges Sprouse was irritated with him because 19 Foster “would not pull my state[-]issued pants up to how he see[]s fit.” (Am. Compl., Dkt. 20 No. 16 at 3.) Foster alleges Sprouse shouted “that he’s been working here at this prison for 21 30 years[] [and] he will bury me out here.” (Id. at 2.) Another prison guard, Sergeant 22 Guess, told Foster to “take it home” and write a grievance, and that he would do the same. 23 (Id. at 3.) Foster alleges Sprouse then walked to within a foot of him and again 24 “aggressively” said, “Turn around while I’m talking to you. I’ve been working here for 30 25 years, I will bury yo[ur] ass out here.” (Id.) Guess said to Sprouse, “[D]on’t tell the next 26 man you’ll bury his ass out here.” (Id.) Sprouse then “put his finger” in Guess’s face and 27 said, “[D]on’t you inter[r]upt me while I[’m] talking to a[n] inmate.” (Id.) Guess walked 1 Foster alleges that since that day he was punched twice by unnamed correctional officers, 2 stabbed twice (on the same day) by unnamed staff, and threatened many times by “others.” 3 (Id.) 4 Generally speaking, neither disrespectful, insulting, and vulgar language, nor verbal 5 harassment, are actionable under section 1983. See Freeman v. Arpaio,

, 738 6 (9th Cir. 1997). However, verbal harassment intended to humiliate or endanger an inmate 7 may, on the other hand, violate the Constitution. A cognizable claim for verbal harassment 8 may succeed if the offending comments were “gross even for a prison setting and were 9 calculated to and did cause [plaintiff] psychological damage.” Keenan v. Hall,

1083, 1092 (9th Cir. 1996), amended by

(9th Cir. 1998); cf. Burton v. 11 Livingston,

(8th Cir. 1986) (finding Eighth Amendment claim under the 12 alleged extreme circumstance that a correctional officer “pointed a lethal weapon at the 13 prisoner, cocked it, and threatened him with instant death . . . immediately after the 14 prisoner had given testimony against another guard in a § 1983 action . . . [and] [t]he death 15 threat was accompanied by racial epithets which strongly suggest that the prisoner would 16 have been treated differently had he not been black”). 17 Sprouse’s alleged statements do not rise to the level of being “gross even for a 18 prison setting.” While aggressive and obviously inappropriate, they do not pose the sort of 19 extreme circumstances that constitute a violation of the Eighth Amendment. As the Ninth 20 Circuit held in Keenan, “disrespectful and assaultive comments” were not sufficient to 21 state a claim for relief. 83 F.3d at 1092. 22 Only extreme circumstances will constitute an Eighth Amendment violation. For 23 example, in Burton, an Eighth Amendment claim was stated on allegations that a 24 correctional officer “pointed a lethal weapon at the prisoner, cocked it, and threatened him 25 with instant death . . . immediately after the prisoner had given testimony against another 26 guard in a § 1983 action . . . [and] [t]he death threat was accompanied by racial epithets 27 which strongly suggest that the prisoner would have been treated differently had he not 1 Foster also indicates that at some point after the incident, he was punched, stabbed 2 || and threatened by other staff members. He does not link that conduct to Sprouse or 3 || anything related to the incident. Indeed, he indicates that an apparently superior officer 4 || (Sergeant Guess) intervened and Sprouse then directed his ire at Guess rather than Foster. 5 || Because Foster’s allegations are insufficient, this federal civil rights action will be 6 || dismissed. 7 CONCLUSION 8 This federal civil rights action is DISMISSED for failure to state a claim for relief. 9 || The Clerk shall enter judgment in favor of defendant, and close the file. 10 IT IS SO ORDERED. 11 || Dated: April 6, 2022 . 12 . LLIAM H. ORRICK 13 United States District Judge

© 15 16

17

Z 18 19 20 21 22 23 24 25 26 27 28