The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER DENYING DEFENDANT JOHNSTON'S MOTION TO DISMISS
Pro se Plaintiff Joseph C. Pitts brought this prisoner civil rights action under 42 U.S.C. § 1983 against several Oahu Community Correctional Center ("OCCC") officials and employees. See ECF No. 1. The court screened the Complaint, determined that it stated cognizable due process claims against Defendants Bill Rushing, Denise Johnston, and Ted Jackson ("Defendants") in their individual capacities, and directed them to file a responsive pleading.*fn1 ECF No. 9.
Before the court is Johnston's Motion to Dismiss Plaintiff's Complaint.*fn2 ECF No. 23. Johnston argues that Plaintiff's Complaint does not state a due process claim and that she is entitled to qualified immunity. Plaintiff has filed his Opposition to the Motion and Johnston has filed a Reply. ECF Nos. 32 & 36. Pursuant to Local Rule 7.2(d) of the Local Rules of Practice for the District of Hawaii and Federal Rule of Civil Procedure 78(b), the Court elects to decide this matter without a hearing. Johnston's Motion is DENIED as detailed below.
The facts as alleged in the Complaint are as follows. On April 13, 2009, Plaintiff was charged with threatening a correctional officer while he was a pre-trial detainee at OCCC.*fn3 Compl., ECF No. 1 ¶ 6. He was given a written copy of the charge and more than twenty-four hours notice of the hearing date. Id. ¶¶ 7, 10. Plaintiff was told that he could request witnesses in his defense at the adjustment committee hearing. Id. ¶¶ 8-9. At the hearing on April 23, 2009, however, Defendants, who composed the adjustment committee, allegedly refused to call Plaintiff's witnesses. Id. ¶¶ 11-13. Plaintiff says that Committee Chair Rushing told that him he would speak to Plaintiff's witnesses before deciding the charges, but Plaintiff claims that Rushing never did so. Id. ¶¶ 14-15. Defendants found Plaintiff guilty and sanctioned him to sixty days in segregation, allegedly in solitary confinement.*fn4 Id. ¶¶ 17-19. Plaintiff further alleges that the adjustment committee's formal decision contained no "justifiable reason" why they found him guilty. Id. ¶¶ 20-22. Plaintiff claims that he appealed, but says that the prison lost his appeal. Id. ¶¶ 23-29. Plaintiff claims that Defendants' failure to allow him to call witnesses, adequately document the evidence they relied on to find him guilty, and properly handle his grievances, violated his constitutional rights to due process.
On May 19, 2011, this court screened Plaintiff's Complaint pursuant to 28 U.S.C. §§ 1915A(b)(1)-(2) and 1915(e)(2), and found that Plaintiff sufficiently stated a claim for the denial of the procedural protections required for pretrial detainees as set forth in Wolff v. McDonnell, 418 U.S. 539, 556 (1974). See ECF No. 9 at 4 ("If proven, [Plaintiff] has stated a claim for the denial of due process during his [adjustment committee] hearing."). The Complaint was directed to be served on Defendants.
The DPS accepted waiver of service on behalf of Johnston on September 7, 2011, and Johnston filed this Motion to Dismiss on November 7, 2011. ECF No. 18 & No. 23.
A motion to dismiss for failure to state claim is governed by Federal Rule of Civil Procedure 12(b)(6), and tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of the complaint, or any claim within it, may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). "When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555--56 (2007)).
A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. A claim is plausible if the facts pleaded allow the court to make the reasonable inference that the defendant is liable. Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009).
"Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (internal quotation omitted). Further, courts must "continue to construe pro se filings liberally," especially where the plaintiff is a pro se prisoner in a civil rights action. Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010). If a pleading can be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
The standard of review on a motion to dismiss under Rule 12(b)(6) is identical to that under 28 U.S.C. § 1915A(b). Therefore, after the court has screened a prisoner complaint pursuant to § 1915A(b), a Rule 12(b)(6) motion to dismiss will normally only be granted if the defendants can convince the court that reconsideration is appropriate.*fn5 Reconsideration is appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006).
Johnston argues that (1) the Fifth Amendment does not apply because Plaintiff is a state prisoner complaining of acts done by state officials; (2) Plaintiff has no protected liberty or property interest in remaining free from segregation for sixty days, thus he cannot state a due process claim relating to his ...