United States District Court, D. Oregon
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.
formerly an inmate at the Eastern Oregon Correctional
Institution (EOCI), brings this civil rights action pursuant
to 42 U.S.C. § 1983. On June 29, 2018, this Court
dismissed Plaintiffs Complaint for failure to state a claim.
Currently before the Court is Plaintiffs Amended Complaint
(ECF No. 9). For the reasons set forth below, this Court
dismisses Plaintiffs Amended Complaint for failure to state a
brings this action against EOCI Superintendent Amsberry,
Captain Walker, Counselor Keys, and correctional officers
Kammerzell and Turner. Plaintiff alleges that
"some" of the Defendants verbally harassed him by
making sexual comments. Pl's Am. Compl. at 1.
Additionally, Plaintiffs grievances and complaints allegedly
"took months more than usual to be investigated, [and]
in-person complaints were dismissed, rebuked, ignored and
retaliated against." Id. Defendant Walker
allegedly told Plaintiff that "sexual and racial
harassment did not fit the criteria for [the] Prison Rape
Elimination Act [PREA] and to 'stop wasting his
time.'" Id. at 2. Defendant Keys allegedly
retaliated against him "in a very unprofessional manner
[by] yell[ing] and scream[ing] at him." Id.
Plaintiff concludes that the "racial and sexual
bullying" violated his Eighth Amendment right to be free
from cruel and unusual punishment. Id.
Court must dismiss an action initiated by a prisoner seeking
redress from a governmental entity or officer or employee, if
the Court determines that the action (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b).
order to state a claim, a plaintiff must allege facts which,
when accepted as true, give rise to a plausible inference
that the defendants violated the plaintiff s constitutional
rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969
(9th Cir. 2009). "A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a
cause of action will not do." Iqbal, 556 U.S.
at 678 (internal quotations omitted). Plaintiff is proceeding
pro se, and therefore this Court construes the
pleadings liberally and affords Plaintiff the benefit of any
doubt. Erickson v. Pardus, 551 U.S. 89, 94(2007).
Court previously advised Plaintiff that in order to state an
Eighth Amendment claim for sexual harassment he must allege
facts to support a reasonable inference that Defendants
subjected him to conduct that was harmful enough to be
"offensive to human dignity" and completely devoid
of penological justification. Order (ECF NO. 8) at 3
(citing Wood v. Beauclair, 692 F.3d 1041, 1050-51
(9th Cir. 2012)). Allegations of mere verbal harassment will
not suffice. Id. (citing Austin v. Terhune, 367 F.3d
1167, 1171-72 (9th Cir. 2004)). This Court also advised
Plaintiff that in order to state a First Amendment claim for
retaliation, he must allege facts giving rise to a reasonable
inference that Defendants took adverse action against him
because of his protected conduct, the adverse action chilled
the exercise of his constitutional rights, and the action did
not reasonably advance a legitimate correctional goal.
Id. at 3-4 (citing Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005)).
allegation in his Amended Complaint that some Defendants made
crude and sexual remarks to him fails to state a claim
because verbal harassment does not give rise to an Eighth
Amendment violation. See Austin, 367 F.3d at
1171-72. Further, Plaintiffs allegation that "many
people such as Counselor Ms. Keys" retaliated against
him by "yell[ing] and scream[ing] at him" fails to
allege facts sufficient to support a reasonable inference
that Defendants took adverse action against him in response
to his protected conduct, and that their actions were of a
nature that chilled the exercise of his First Amendment
rights. See Rhodes, 408 F.3d at 567-68.
allegation that correctional officials delayed responding to
his complaints and grievances fails to state a claim because
he does not allege that any of the Defendants were personally
involved and, in any event, Plaintiff does not have a
constitutional right to a particular grievance process.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989) (holding that in order to state a claim, a plaintiff
must allege facts giving rise to a reasonable inference that
the defendants were personally involved in the alleged
constitutional violation); Ramirez v. Galaza, 334
F.3d 850, 860 (9th Cir. 2003) (holding that prisoners have no
constitutional right to a particular grievance procedure).
Finally, Plaintiff has failed to allege how Walker's
statements that verbal harassment is not covered by PREA
violated his constitutional rights.
on the foregoing, this Court DISMISSES Plaintiffs Amended
Complaint (ECF No. 9) for failure to state a claim. Because
it is apparent that the deficiencies of the Amended Complaint
cannot be cured by amendment, the dismissal is with
prejudice. This Court revokes Plaintiffs informa pauperis status because ...