No. C 02-4120 VRW(PR), (Doc #2)
September 13, 2002
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Santa Clara County Jail, has filed a pro se complaint under 42 U.S.C. § 1983 alleging that he was "forced into a [prison] gang by corrections officers." He seeks $250,000 for "stress emotional trauma suffering from lack of sleep."
Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
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. Balistrei 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 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
Plaintiff's action for damages for mental or emotional injury must be dismissed because there is no showing or indication that he suffered any physical injury. See 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury."). His conclusory allegation that he lost sleep does not compel a different result. See, e.g., Oliver v. Keller, 289 F.3d 623, 627-29 (9th Cir. 2002) (holding that physical injury must be more than de minimis and finding that back and leg pain caused by sitting on the cement floor, undefined injuries from being assaulted by another prisoner, and a painful canker sore were de minimis).
In addition, plaintiff's action must be dismissed for failure to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a). See Porter v. Nussle, 122 S. Ct 983, 992 (2002) (exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong). Although plaintiff alleges that he filed a second grievance, he concedes that "nothing [has] happened."
For the foregoing reasons, plaintiff's 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.