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Erwin Arthur Wilhelm Kudoba, Jr., #A1042165 v. David Sayurin

July 11, 2012

ERWIN ARTHUR WILHELM KUDOBA, JR., #A1042165, PLAINTIFF,
v.
DAVID SAYURIN, IRENE REVILLA, DWAYNE KOJIMA, TUI FAATEA, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT

Before the court is pro se Plaintiff Erwin Kudoba Jr.'s first amended prisoner civil rights complaint ("FAC"). Plaintiff complains of events that allegedly occurred at the Waiawa Correctional Facility ("WCF"). Plaintiff names WCF Lieutenant David Sayurin, Head Nurse Irene Revilla, Substance Abuse Counselor Dwayne Kojima, and Adult Correctional Officer ("ACO") Tui Faatea as defendants in their individual and official capacities (collectively, "Defendants").

For the following reasons, the FAC is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim. Because Plaintiff can possibly cure the deficiencies in the FAC, he is again granted leave to amend.

I. STATUTORY SCREENING

The court must screen all civil actions brought by prisoners that relate to prison conditions and/or seek redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint in full or in part if its claims are legally frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1).

A complaint may be dismissed for failure to state a claim for (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

The court must construe a pro se complaint liberally, accept all allegations of material fact as true and in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defects of his or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

II. PLAINTIFF'S CLAIMS

Plaintiff claims that, because he reported that WCF ACO Macalino had "stolen" empty cans that the inmates collected, Macalino's partner, Defendant Faatea, threatened Plaintiff and his family. Plaintiff says that he feared for his life, and to secure a transfer to the Halawa Correctional Facility ("HCF"), he pretended to hang himself. While Plaintiff was feigning unconsciousness, Plaintiff claims that Defendants Faatea and ACO Marco Valencia planted a weapon or unauthorized instrument under his mattress.

Plaintiff was charged with three misconduct violations on November 30, 2011: (1) possession of a weapon or dangerous instrument; (2) possession of an unauthorized tool; and (3) malingering or feigning illness. Defendants Sayurin, Kojima, and Revilla comprised the adjustment hearing committee. Plaintiff claims that they denied him the right to call witnesses at the hearing.

Plaintiff seeks injunctive relief only in the form of a reprimand to all Defendants and reinstatement to a minimum custody facility and participation in a work furlough program or immediate early release.*fn1

III. DISCUSSION

"To sustain an action under section 1983, a plaintiff must show '(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'" Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded on other grounds, ...


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