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Lonnell Reginald Wideman v. Neil Abercrombie

March 5, 2013

LONNELL REGINALD WIDEMAN,
PLAINTIFF,
v.
NEIL ABERCROMBIE, TED SAKAI, PHYLLIS HIRONAKA, MICHAEL TOWN, DAVID FUJISHIRO, JOYCE HOSHIJO, TOMMY JOHNSON, BERT MASUOKA, KEVIN REGO, CHARLES SIZEMORE, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915A & 1915

Plaintiff Lonnell Reginald Wideman, a prisoner at the Saguaro Correctional Center ("SCC"), in Eloy, Arizona, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff complains that Defendants*fn1 improperly charged him with parole violations, revoked his parole, illegally extended his parole revocation term, and allowed his criminal history to be published. Plaintiff also claims that he was attacked by another inmate while he was still imprisoned in Hawaii.

Plaintiff's Complaint is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1) and § 1915(e)(2). Plaintiff is given leave to amend, as discussed and limited below.

I. BACKGROUND

Plaintiff was arrested on May 18, 2012, for having allegedly failed to notify parole officer Fujishiro, regarding three separate contacts that Plaintiff had with law enforcement. Plaintiff was not arrested or charged during these police contacts, but was nonetheless required to notify the HPA of any such contact as a condition of his parole. Fujishiro gave Plaintiff notice of the charges on May 21, 2012, but Plaintiff complains that he was never afforded a preliminary hearing regarding the alleged parole violations.

Approximately two months later, on July 16, 2012, Plaintiff appeared before HPA Board Members Masuoka, Town, and Hoshijo at his parole revocation hearing. Plaintiff was represented by Deputy Public Defender Hironaka. HPA Officer Rego acted as prosecutor, and HPA Officer Fujishiro testified. Plaintiff was found to have failed to notify his parole officer of contacts with law enforcement and was sentenced to a seven-year parole revocation term. Plaintiff complains that HPA Defendants relied on inaccurate information, caused or allowed his criminal information to be published, and denied him the right to present allegedly exculpatory evidence at the revocation hearing. He further alleges that Deputy Public Defender Hironaka provided ineffective assistance of counsel.

Plaintiff also alleges that, on November 9, 2012, he was attacked by an unidentified inmate at HCF. Plaintiff does not say that any Defendant was personally involved in this incident. On January 16, 2012, Plaintiff was transferred to Arizona.

Plaintiff claims that Defendants violated his rights under the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and under the Hawaii constitution, before, during, and after his parole revocation hearing.

II. LEGAL STANDARD

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 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 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.

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 Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010) (stating that "we continue to construe pro se filings liberally"). Leave to amend should be granted unless it appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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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