Opinion
Case No. CV03-526-E-MHW
December 15, 2003
INITIAL REVIEW ORDER
Plaintiff's Complaint was conditionally filed on December 8, 2003. The Court now reviews the Complaint to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e) and 1915A. The Court also reviews Plaintiffs other pending motions. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I. REVIEW OF COMPLAINT
A. BackgroundPlaintiff's allegations arise from Probation Officer Wally Peterson's visit to his home on December 5, 2002. At that time, Plaintiff, who was on probation, was approximately one hour late for his probation meeting with Mr. Peterson. Plaintiff alleges that Mr. Peterson slandered Plaintiff and made derogatory racial remarks in the presence of Plaintiff's friend, Danielle Lattimer. Particularly, Mr. Peterson told Ms. Lattimer that Plaintiff was "slime," that he was very dangerous, and that he was a felon on probation for a violent crime. He also recommended that she "start hanging out with her own kind in the future," which Plaintiff interpreted as a discriminatory statement.
Plaintiff alleges that Peterson's remarks violated his equal protection rights and his right to freedom of association.
B. Applicable Law and Discussion
The Court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915(e) and 1915A. The Court must dismiss a complaint or any portion thereof which states a frivolous or malicious claim, which fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(c)(2)(B); 28 U.S.C. § 1915A.
1. Slanderous Statements
Verbal harassment, abuse and threats, without more, are not sufficient to state a constitutional deprivation under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987). Further, "[t]here is no civil rights action for slander." Hollister v. Tuttle, 210 F.3d 1033, 1036 (9th Cir. 2000) (relying on Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir. 1986) (damage to reputation, standing alone, cannot state a claim for relief under section 1983 because reputation is neither property nor liberty guaranteed against state deprivation without due process of law)). Section 1983 "imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles." Baker v. McCollan, 443 U.S. 137, 146 (1979). Accordingly, Plaintiff has not stated a federal claim with his allegations of slander,
2. Freedom of Association
The United States Supreme Court has identified two types of "freedom of association" interests which are protected by the Constitution: the right "to enter into and maintain certain intimate human relationships," and the "right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. . . ." Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984), The former of these two rights is called the freedom of "intimate association"; the latter, the freedom of "expressive association."
Plaintiff's claim appears to be one of freedom of "intimate association." The Supreme Court noted that the right of "intimate association" clearly extends to one's family members, but it does not extend as far as relationships between employers and employees. Roberts, 468 U.S. at 619-20. Following Roberts, at least one federal district court has determined that the right to associate with a person of the opposite sex in a nonmarital relationship falls somewhere between these two poles, entitling it to an intermediate level of constitutional protection. Weeks v. City of Piano, 1988 WL 84743 at *2 (D. Ill. 1988); Kukla v. Village of Antioch, 647 F. Supp. 799, 806-07 (D.Ill. 1986). In this case, Plaintiff refers to Danielle Lattimer as his "friend"; therefore, this relationship is, at most, entitled to an intermediate level of constitutional protection.
In addition to asserting that a protected relationship is involved, a freedom of association claimant must allege that an injury occurred. In other words, the wrongful action must have "actually affected plaintiff's ability to exercise [his] constitutional rights." Weeks v. City of Piano, 1988 WL 84743 at *2 (D. Ill. 1988) (relying on Laird v. Tatum, 408 U.S. 1 (1972) (requiring an actual present or immediately threatened injury). In Weeks, Plaintiff Brenda Weeks alleged that, after she started dating Piano City Police Officer Leo Rasmusson, who was separated from his wife, other officers began to harass her, trying to cause her to lose her job and force her to leave Piano. In analyzing the injury requirement of a freedom of association claim, the Illinois District Court concluded: "Since Plaintiff has not alleged that Defendants' actions actually impaired her ability to associate with Officer Rasmusson, we do not think that the complaint presently states a claim for violation of Plaintiff's right to associational freedom," 1988 WL 84743 at*2.
Here, Plaintiff asserts that, after Danielle Lattimer heard Mr. Peterson's comment, she "looked at [Plaintiff] with a look of disbelief" and then she told Plaintiff that she would visit him in jail later that day. Plaintiff asserts that he returned her look of disbelief. Plaintiff has not asserted that his association with Ms. Lattimer was actually impaired by Mr. Peterson's comment. Rather, Plaintiff appears to be alleging that he and Ms. Lattimer both disregarded the comment as inappropriate. In fact, Ms. Lattimer openly stated her intention to continue to associate with Plaintiff. Therefore, Plaintiff has failed to allege any injury, and has not stated facts supporting the elements of a freedom of association claim,
3. Equal Protection
The Equal Protection Clause requires that "all persons similarly circumstanced shall be treated alike." F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). However, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v, Texas, 310 U.S. 141, 147(1940). Verbal abuse directed at prisoner's race is not actionable as a constitutional violation in itself, but it may be evidence of intentional discrimination as it relates to other actions. See Freeman v. Arpaio, 125 F.3d 732, 738 n. 6 (9th Cir. 1997).
Here, Plaintiff's equal protection claim rests on his allegation that Mr. Peterson, his probation officer, commented to Plaintiff's friend that she should "start hanging out with her own kind." Plaintiff's claim is distinguishable from the Freeman case because he does not seek a remedy for any allegedly discriminatory wrongdoing other than the verbal abuse. As a result, Plaintiff's equal protection claim is subject to the rule set forth in Oltarzewski v. Ruggiero, that verbal abuse, without more, is insufficient to state a constitutional deprivation under § 1983. 830 F.2d at 139.
C. Conclusion
Plaintiff's claims arise solely from Defendant Peterson's verbal abuse. There is no indication from the Complaint that the verbal abuse deterred Plaintiff from freely associating with Ms. Lattimer. Based upon the foregoing, the Court concludes that Plaintiff has failed to state a claim upon which relief can be granted. The Court will provide Plaintiff with thirty (30) days to take one of the following actions: (1) to submit an amended complaint alleging sufficient facts to state a claim, if any such facts exist, or (2) to submit a "Notice of Voluntary Dismissal" if further facts necessary to state a claim do not exist. Plaintiff's Motion to Proceed in Forma Pauperis and Request for Preliminary Injunction are presently moot.
If Plaintiff chooses to file an amended complaint, it must contain all of his allegations in a single pleading, and cannot rely upon or incorporate by reference prior pleadings. D. Idaho L. Civ. R. 15.1 ("Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, shall reproduce the entire pleading as amended"). Plaintiff shall set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the "Amended Complaint."
II. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff shall have thirty (30) days either to submit an "Amended Complaint" alleging sufficient facts to state a claim or to submit a "Notice of Voluntary Dismissal."
IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion to Proceed in Forma Pauperis (Docket No. l), and his Request for Preliminary Injunction, contained in the Complaint, are presently moot.