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Ferdinand Malinay v. Volunteer Legal Services

August 27, 2012

FERDINAND MALINAY,
HG-BMK #A0125634, PLAINTIFF,
v.
VOLUNTEER LEGAL SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Helen Gillmor United States District Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e) and § 1915A(b)

Before the court is pro se Plaintiff Ferdinand Malinay's first amended complaint ("FAC") brought pursuant to 42 U.S.C. § 1983. Plaintiff is a prisoner confined at the Halawa Correctional Facility ("HCF"). Plaintiff names the State of Hawaii, the Department of Public Safety, the Oahu Community Correctional Center, the Hawaii Department of Health, the Hawaii State Hospital and individuals employed by the State as Defendants. For the following reasons, the FAC is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).

I. STATUTORY SCREENING

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 any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2).

A complaint may be dismissed for failure to state a claim if it (1) lacks a cognizable legal theory; or (2) contains 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 claim is factually frivolous if its allegations are bizarre, irrational, or incredible. Edwards v. Snyder, 478 F.3d 827, 829--30 (7th Cir. 2007); see Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002) ("Usually suits are dismissed as frivolous because there is absolutely no legal basis for the plaintiff's claim. Sometimes, however, a suit is dismissed because the facts alleged in the complaint are so . . . 'delusional' . . . that they're unbelievable[.]"); see also Neitzke v. Williams, 490 U.S. 319, 327 (1989) (a claim is factually frivolous if it is "clearly baseless"); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (explaining that "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or wholly incredible.")

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. 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). If an action is frivolous, however, the court has discretion to dismiss where the deficiencies cannot be cured by amendment. Broughton v. Cutter Lab., 622 F.2d 458, 460 (1980) (citing Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979)). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

II. DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

A. Plaintiff's Claims

The FAC is as difficult to comprehend as was the original Complaint. It is rambling, incoherent, and contains insufficient explanatory facts or details to help the court clearly understand what Plaintiff's claims entail. Although the court has struggled to liberally read the FAC so as to do it justice, it finds that the FAC is, for the most part, nonsensical and nearly impossible to understand.

The FAC is written in a stream-of-conscious format from which it is barely possible to glean Plaintiff's narrative or specific allegations. It appears that Plaintiff was written up by a Captain Mao and Sergeant Lalotaa for fighting with another inmate. It is unclear where or when this happened. Plaintiff seems to concede that he fought with another inmate, claiming that it is not his fault if inmates are allowed to keep too many belongings in their cells and make their cells stink. Plaintiff says everyone lies.

Plaintiff next turns his focus on the Hawaii State Hospital and the Hawaii Department of Health. Plaintiff appears to have spent three to seven years at the State Hospital while being evaluated for fitness to stand trial. There is no indication in the FAC when exactly he was confined at the State Hospital and when he was transferred to HCF. Plaintiff says he's been hearing voices since 1997, and that he was tortured for seven years by the side effects from medications he received. At one point, Plaintiff appears to challenge an August 2007, determination that he was unfit to proceed in state criminal No. 05-1-0101, but then refers to the sentence he allegedly received in this case, apparently a five to ten year term consecutive to any other charges he has.*fn1 ...


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