Lovell v. Spokane County

— 1 — FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Mar 26, 2024 4 SEAN F. MCAVOY, CLERK — 5 — 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON — 8 — — 9 — 10 GEORGE THOMAS LOVELL, JR., No. 2:23-CV-00336-SAB 11 Plaintiff, 12 v. — 13 — 14 SPOKANE COUNTY; SGT. HILL; ORDER DISMISSING ACTION 15 SPOKANE COUNTY JAIL; and 16 UNKNOWN SPOKANE COUNTY 17 CORRECTIONAL OFFICER, 18 Defendants. — 19 — 20 By Order filed January 24, 2024, the Court advised Plaintiff, a resident of 21 Liberty Lake, Washington, of the deficiencies of his civil rights complaint and 22 directed him to amend or voluntarily dismiss within sixty (60) days. ECF No. 6. 23 Plaintiff is proceeding pro se and in forma pauperis. Defendants have not been 24 served. Plaintiff did not comply with the Court’s directive and has filed nothing 25 further in this action. 26 Specifically, the Court found that Plaintiff’s attempt to assert violations of 27 the PREA (Prison Rape Elimination Act) was insufficient to state a claim upon 28 which this Court may grant relief. See Watkins v. Tuolumne Cnty. Jail, 2019 WL 1 95508, at *3 (E.D. Cal. Jan. 3, 2019)(“there is nothing in the PREA to indicate that 2 it created a private right of action, [or that it is otherwise] enforceable under § 3 1983.”); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 4 1990) (as amended) (a complaint fails to state a claim if it lacks a cognizable legal 5 theory). Furthermore, Plaintiff’s claims of verbal harassment were insufficient to 6 state an Eighth Amendment claim. See Blueford v. Prunty, 108 F.3d 251 , 254-55 7 (9th Cir. 1997) (holding that a prison guard who engaged in “vulgar same-sex trash 8 talk” with inmates was entitled to qualified immunity); Keenan v. Hall, 83 F.3d 9 1083, 1092 (9th Cir. 1996) (holding that verbal threats and harassment do not state 10 an Eighth Amendment claim). Finally, Plaintiff failed to present factual allegations 11 supporting a claim of the excessive use of force. Hudson v. McMillian, 503 U.S. 1 , 12 7 (1992); Whitley v. Albers, 475 U.S. 312 , 320–21 (1986); Martinez v. Stanford, — 13 — 323 F.3d 1178, 1184 (9th Cir. 2003). 14 Having granted Plaintiff the opportunity to amend or to voluntarily dismiss 15 his Complaint, the Court must assume that his failure to do so is an abandonment 16 of this litigation. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. For the reasons set forth above and in the Order to Amend or Voluntarily 3|| Dismiss Complaint, ECF No. 6, Plaintiff's Complaint, ECF No. 1, is DISMISSED without prejudice for failure to state a claim upon which relief may be granted 5|| under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2). 2. The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal of this Order would not be taken in good faith. 8 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, 9)| enter judgment, provide copies to Plaintiff at his last known address, and close the file. 11 DATED this 26th day of March 2024. — 12 — — 13 — — 14 — — 15 — Sfukyld Festa 17 Stanley A. Bastian 18 Chief United States District Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — ORDER DISMISSING ACTION -- 3