The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION
Before the court is pro se Plaintiff Barbie-Jane Hillen's first amended prisoner civil rights complaint ("FAC") brought pursuant to 42 U.S.C. § 1983. Hillen is now incarcerated at the Women's Community Correctional Center ("WCCC"), but complains of an incident that allegedly occurred when she was being transported from the Oahu Community Correctional Center ("OCCC") to the state court. Hillen claims Defendants OCCC Adult Correctional Officers ("ACOs") Jeff Liilii and G. Miller violated her constitutional rights when they failed to protect her from tripping as she got out of a prison vehicle while in restraints.
The FAC is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for Hillen's failure to state a claim. Because Hillen was given leave to amend her original Complaint and was unable to do so, the present dismissal is without leave to amend.
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 is required to dismiss a prisoner's complaint or portion thereof 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 Atlantic 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 construe those facts in the light most favorable to the plaintiff. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Hebbe, 627 F.3d at 342 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Leave to amend should be granted if it is possible that the plaintiff can correct the complaint's defects. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The court should not, however, advise the litigant on how to cure the defects.
This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies).
The FAC alleges three claims for relief, although all relate to Liilii and Miller's alleged deliberate indifference to her safety. Hillen says that, while shackled, she tripped when getting out of a prison van. Hillen complains that LiiLii and Miller negligently failed to help her down the van's stairs. Hillen claims she was embarrassed and is experiencing ongoing pain. See FAC, ECF #9 at 5-.7 She alleges that Liilii and Miller made fun of her after she fell, and that their negligence, thoughtlessness, and unprofessional behavior violated the Eighth Amendment. In what appears to be a concession that she was treated for her injuries, Hillen's FAC omits the claim for failure to provide medical treatment that was part of the original pleading. Hillen still complains that she received no "further medical assistance," after her court proceedings had concluded and while she waited to be taken back to WCCC.*fn1
"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, ...