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William Cornelio Iii, #A0192661 v. James Hirano

November 6, 2012

WILLIAM CORNELIO III, #A0192661, PLAINTIFF,
v.
JAMES HIRANO, DEBORAH TAYLOR, JOHN DOE, DEFENDANTS.



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

ORDER DISMISSING THIRD AMENDED ) COMPLAINT WITH LEAVE TO AMEND

Before the court is pro se Plaintiff William A. Cornelio, III's, third amended prisoner civil rights complaint ("TAC"). Plaintiff is incarcerated at the Red Rock Correctional Center ("RRCC"), and complains of actions that allegedly occurred at the Maui Community Correctional Center ("MCCC"). The TAC is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1), for failure to state a claim. Because it remains possible that Plaintiff can amend his pleadings, he is once more given 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 fails 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, 678 (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." Iqbal, at 678. "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. 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 681.

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. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

If the court determines that a pleading could 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 court should not, however, advise the litigant 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). Leave to amend should be granted if it appears possible that the plaintiff can correct the complaint's defects. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

II. PLAINTIFF'S CLAIMS

Plaintiff claims that Defendants MCCC Warden James Hirano, MCCC Chief of Security Deborah Taylor, and Adult Correctional Officer ("ACO") John Doe,*fn1 violated the Eighth Amendment by failing to protect him from assault while he was incarcerated at MCCC.

Plaintiff says that "[d]uring all times relevant to this complaint [he] was a protective custody inmate and in need of special housing." TAC, ECF #27 PageID #251. Plaintiff says he was transferred to MCCC on August 4, 2011, and that four months later, on December 5, 2011, he was "deliberately and intentionally rehoused with general population inmates despite him being a protective custody inmate." Id. On December 31, 2011, Plaintiff says that he was assaulted by a general population inmate.

Plaintiff states that Hirano and Taylor "had intimate and personal knowledge of Plaintiff[']s status as a protective custody inmate yet [they] chose to ignore following the policies and procedures of the department of public safety and therefore acted with Deliberate Indifference to Plaintiff['] personal needs." Id. PageId #250. Plaintiff claims that Defendant ACO Pinto "abandoned his post on 12/31/11, and left the inmates of Module-A to fend for themselves." Id. Plaintiff provides no further details regarding Defendants' involvement in his claims.

Plaintiff provided more information in his original and first amended complaints, however.*fn2 Plaintiff said that he was returned to MCCC to participate in a community status work furlough program that is necessary for parole. See First Amended Complaint ("FAC"), ECF #10 at 6. He was charged for speaking with a female inmate, Ashley Akana, on December 6, 2011, the day after he was transferred to MCCC's general population. See Compl., ECF #1 at 10; Second Amended Complaint ("SAC") at 6. Plaintiff was sanctioned until December 31, 2011. That same day, Plaintiff and Akana's husband, inmate Noah Borgman, got into an altercation in Module A, which is a general population area. In the original Complaint and FAC, Plaintiff claimed that Defendants housed Borgman in Module A to provoke a confrontation between them, and that Borgman was ...


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