United States District Court, D. Oregon
ORDER TO DISMISS
MICHAEL W. MOSMAN UNITED STATESDISTRICT JUDGE
an inmate at the Multnomah County Inverness Jail, brings this
civil rights action pursuant to 42 U.S.C. § 1983. In a
separate Order, the Court granted Plaintiff leave to proceed
in forma pauperis. However, for the reasons set
forth below, Plaintiff's Complaint is dismissed for
failure to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915(e) (2) .
makes a variety of allegations in this case. She alleges that
on May 5, 2018, a sheriff's deputy pointed a gun at her
"while he was in the gun securing closet."
Complaint (#2), p. 6. She claims she was the victim of verbal
harassment by jail staff. She also asserts that on June 3,
2018, she was attacked by a female inmate and injured when
deputies attempted to intervene. Finally, she alleges that
she is not receiving mail under an alias, and that Defendants
Mains and Swanson have opened her legal mail from the Court.
to 28 U.S.C. § l9l5A(a), the Court is required to screen
prisoner complaints seeking relief against a governmental
entity, officer, or employee and must dismiss a complaint if
the action is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §§
1915(e)(2)(B) and l9l5A(b). In order to state a claim,
Plaintiff's Complaint must contain sufficient factual
matter which, when accepted as true, gives rise to a
plausible inference that defendants violated plaintiff's
constitutional rights. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009); Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 556-57 (2007). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 129 S.Ct.
for failure to state a claim is proper if it appears beyond
doubt that Plaintiff can prove no set of facts in support of
his claims that would entitle him to relief. Ortez v.
Washington County, 88 F.3d 804, 806 (9th Cir. 1996);
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993). Because Plaintiff is proceeding pro
ser the Court construes his pleadings
liberally and affords him the benefit of any doubt.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Ortez, 88 F.3d at 806.
initial matter, Plaintiff fails to plead the violation of any
federal right. A plaintiff wishing to bring a cause of action
pursuant to 42 U.S.C. § 1983 must demonstrate compliance
with the following factors: (1) a violation of rights
protected by the Constitution or created by federal statute;
(2) proximately caused; (3) by conduct of a person; (4)
acting under color of state law. Crumpton v. Gates,
947 F.2d 1418, 1420 (9th Cir. 1991) . Plaintiff makes no
allegation that any Defendant violated any right secured by
the Constitution or federal statute.
alleges that Defendant Lemons pointed a gun at her while he
was in the "gun securing closet" and she was
awaiting transport on May 5, 2018. Complaint (#2), p. 6. The
Court construes this as an Eighth Amendment claim. Jail
officials are required to take reasonable measures to protect
the safety of inmates. Farmer v. Brennan, 511 U.S.
825, 832 (1994). The Ninth Circuit has held that threats of
bodily injury by guards against an inmate fail to state a
cause of action. Gaut v. Sunn, 810 F.2d 923, 925
(9th Cir. 1987) (per curiam) (it "trivializes the eighth
amendment to believe a threat constitutes a constitutional
wrong."). Although the Tenth Circuit has concluded that
the act of pointing a gun at an inmate and threatening to
shoot states a valid claim for pleading purposes,
Northington v. Jackson, 973 F.2d 1518, 1523
(10th Cir. 1992), those facts exceed what
Plaintiff alleges here. Plaintiff has not alleged that Lemons
threatened to shoot her, or that he otherwise displayed
deliberate indifference to the threat of serious harm or
injury as required by the Eighth and Fourteenth Amendments.
Berg v. Kincheloe, 7 94 F.2d 457, 4 60 (9th Cir.
s allegation that she was the victim of verbal sexual
harassment by Jail staff members also fails to state a claim
upon which relief can be granted. Austin v. Terhune,
367 F.3d 1167, 1171-72 (9th Cir. 2004); Oltarzerski v.
Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).
next alleges that although she was on "walk alone"
status, Defendant Lopez allowed another female inmate out of
her room while Plaintiff was on her walk. According to
Plaintiff, the other inmate attacked her, placing her in a
choke hold. Defendant Lopez used a taser on the attacking
inmate once, and when he tried to use the taser on her again,
he accidentally hit the Plaintiff's right side. Because
nothing in Plaintiff's allegations suggests Defendant
Lopez was deliberately indifferent to her safety, she fails
to state an Eighth Amendment claim for pleading purposes.
also alleges that Defendants Mains and Swanson opened her
legal mail from the U.S. District Court outside of her
presence. The Court construes this as a First Amendment
claim. Because incoming mail from the courts is not
considered "legal mail," Plaintiff fails to state a
claim. See Keenan v. Hall, 83 F.3d 1083, 1094 (9th
Cir.1996), amended by 135 F.3d 1318 (9th Cir. 1998).
Even if Plaintiff's mail constituted "legal
mail," she would still be unable to state a claim
because the action she describes falls more into the category
of negligence than a systemic issue implicating the
Constitution. See Stevenson v. Koskey, 877 F.2d
1435, 1441 (9th Cir. 1989) (guard's opening of
legal mail was perhaps negligence, but did not amount to a
Plaintiff faults Defendants for not delivering her mail to
her when that mail is addressed to an alias name she uses
that is not her name of record at the Jail. This is one of
the many decisions firmly within the discretion of jail
administrators in which Courts do not interfere. If Plaintiff
wishes to receive her mail, she must use her institutional
name as she has apparently ...