ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(e) & 1915A
J. Michael Seabright United States District Judge
Before the court is pro se Plaintiff Grant Earl Hatcher’s prisoner civil rights complaint brought pursuant to 42 U.S.C. § 1983. When he filed this action, Plaintiff was incarcerated at the Waiawa Correctional Facility (“WCF”), but has now been transferred to the Oahu Community Correctional Center (“OCCC”). Plaintiff is proceeding in forma pauperis.
Plaintiff complains that WCF Warden Scott Harrington; Chief of Security (“COS”) Sean Ornellas; “PREA/OSSA” liaison Teresa Miike; Adult Correctional Officers (“ACO”s) Lieutenant Antone Fountain; Sergeant Glenn Filhower; Gino Qurantes; “S.A.S. IV” Norman Yamaoka; and Department of Public Safety (“DPS”) Director Ted Sakai violated his civil rights by failing to follow Prison Rape Elimination Act of 2003 (“PREA”) guidelines and procedures, as set forth in 42 U.S.C. §§ 15602-15609, after he reported a sexual harassment incident at the prison. See Compl., Doc. No. 1.
The court DISMISSES Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A, for failure to state a cognizable claim for relief. Plaintiff is granted leave to amend to correct the Complaint’s deficiencies as detailed below, on or before March 5, 2015.
Plaintiff claims that, on or about June 20, 2014, Yamaoka violated the PREA when he exposed his genitals, touched himself, and said “Phallus, ” while Plaintiff and he were alone in Yamaoka’s office at WCF. Compl., Doc. No. 1, Count VIII, PageID #16. Plaintiff reported the incident to WCF officials and the Honolulu Police Department (“HPD”) the same day. Plaintiff broadly alleges that Harrington, Ornellas, Miike, Fountain, Filhower, Qurantes, and Sakai negligently, fraudulently, and with intent to inflict emotional distress, violated the PREA after he reported the incident, by (1) failing to seal Yamaoka’s office, computer, and files for the collection of evidence; (2) denying Plaintiff’s grievance requesting copies of the PREA investigative report; (3) failing to prevent Yamaoka from reentering WCF; and (4) encouraging DPS employees to ignore PREA guidelines. See generally, Compl., Doc. No. 1.
Specifically, Plaintiff alleges that ACOs Filhower and Fountain violated the PREA when they negligently and fraudulently misled and hindered the HPD’s investigation by telling HPD Officer Nolan Chang that WCF would conduct an internal investigation of the incident and document their findings with HPD. Id., Counts I, III, PageID #9, 11. Plaintiff concludes this suggested to Chang that HPD need not investigate.
Plaintiff next alleges that Defendants Harrington, Miike, Ornellas, Fountain, and Filhower violated the PREA when they negligently failed to seal Yamaoka’s office to preserve evidence of the incident. Id., Counts II, V, PageID #10, 13.
Plaintiff alleges that Harrington fraudulently violated the PREA when he denied Plaintiff’s grievance requesting copies of the ongoing PREA investigation. Id., Count IV, PageID #12.
Plaintiff claims that Harrington, Miike, Ornellas, Fountain, and Filhower negligently violated the PREA by allowing Yamaoka to reenter WCF unsupervised to retrieve his personal property on or about June 23, 2014, in violation of a “cease and desist” order. Id., Counts VI, VII, IX, PageID #14, 15, 17. Plaintiff alleges Defendants did this in retaliation for his reporting the incident and with intent to inflict emotional distress.
Plaintiff alleges Yamaoka violated the PREA when he exposed himself to Plaintiff and made a lewd remark. Id., Count VIII.
Plaintiff states that ACO Qurantes told him that Yamaoka was stopped at the WCF gate several weeks before the June 20, 2014 incident, when bullets were found in Yamaoka’s car. Id., Count IX, PageID #17. Qurantes allegedly taunted Plaintiff, saying that, since Plaintiff was unarmed, he “would have to run faster than [Yamaoka].” Id. Plaintiff alleges Qurantes’ joke violated the PREA with intent to inflict emotional distress.
Finally, Plaintiff states that DPS Director Sakai issued a letter on or about July 10, 2014, that is included in the DPS Administration Policy and Procedures Manual, (“PPM”) regarding DPS’s newly adopted PREA-compliant procedures. See http://dps.hawaii.gov/policies PPM ADM.08.08, eff. July 18, 2014. Plaintiff asserts that Sakai’s letter stated, “My only comment is that 14 states are refusing to follow P.R.E.A. Guidelines because they are cumbersome and impact unreasonably the Corrections System.” Id., Count X, PageID #18. He alleges this statement fraudulently encouraged the other Defendants to ignore PREA guidelines, causing Plaintiff “extreme distress.” Id.
Plaintiff names all Defendants in their individual and official capacities and seeks compensatory and injunctive relief granting him parole.
II. LEGAL STANDARD
The court must screen all civil actions brought by prisoners relating to prison conditions or seeking redress from a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). Complaints or claims that are frivolous, malicious, fail to state a claim, or seek relief from a defendant who is immune from such relief must be dismissed. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint that lacks a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a claim. 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). “[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)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. 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.
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 the plaintiff can correct the defects of his or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
“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, 556 U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.
A. Immunities and Injunctive Relief
Defendants named in their official capacities are not persons subject to suit under § 1983. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989); Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007). Further, “[t]he Eleventh Amendment bars suits against a state or its agencies, regardless of the relief sought, unless the state unequivocally consents to a waiver of its immunity.” Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005) (quoting Yakama Indian Nation v. Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999)), abrogated on other grounds by Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010). The only exception is “for prospective declaratory and injunctive relief against state officers, sued in their official capacities, to ...