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Kakatin v. Kiana

United States District Court, D. Hawaii

December 23, 2015

FRANCISCO KAKATIN, #A0259489, Plaintiff,


J. Michael Seabright Chief United States District Judge

Before the court is pro se Plaintiff Francisco Kakatin’s amended complaint. Am. Compl., Doc. No. 7. Plaintiff was incarcerated at the Waiawa Correctional Facility (“WCF”) when he commenced this action but he is now housed at the Oahu Community Correctional Facility. See He names Richard Kiaina, a WCF “staff cook, ” the Hawaii Department of Public Safety, WCF Chief of Security (“COS”) Shawn Ornellas, and Adult Correctional Officer (“ACO”) Lawalawa as Defendants to this suit.[1] Plaintiff broadly alleges Defendant Kiaina discriminated against him because he is African-American and Defendants Lawalawa and Ornellas retaliated against him after he was terminated from his WCF workline position.

Plaintiff’s Amended Complaint is DISMISSED in part pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Specifically, Plaintiff’s discrimination claim as alleged against Defendant Richard Kiaina in Count I states a claim and shall be served. Plaintiff’s retaliation claims against Defendants ACO Lawalawa and CSO Shawn Ornellas in Counts II and III fail to state a claim and are DISMISSED. Defendant Hawaii Department of Public Safety is DISMISSED with prejudice. Plaintiff may file an amended complaint curing the deficiencies identified in Counts II and III, if possible, on or before January 26, 2016.

In the alternative, Plaintiff may notify the court in writing on or before January 26, 2016, that he will stand on his Fourteenth Amendment claim against Defendant Kiaina in Count I. In that event, the court will order the United States Marshal to serve the Amended Complaint on Kiaina, as directed by Plaintiff.


In Count I, Plaintiff states that he was working in the WCF kitchen on August 31, 2014, when his supervisor, WCF cook[2] Kiaina, called him a “nigger, ” in front of inmates Christopher Starks and Tilton Lasua. Am. Compl., Doc. No. 7, PageID #41. Kiaina allegedly told Lasua that Plaintiff should “watch his back, ” because Kiaina was going to fire him. Id. Plaintiff reported this incident to his boss Janice, and to ACO McCalino on September 3, 2014. On or about September 9, 2014, Plaintiff was fired; Janice told him this was for his safety. Id.

In Count II, Plaintiff alleges that three weeks later, on or about October 1, 2014, ACO Lawalawa accused him of breaking a kitchen table, and submitted a disciplinary report to that effect. Id., PageID #42. Plaintiff claims that ACO Lawalawa’s report was retaliatory. Plaintiff asserts that two other inmates broke the table, and claims that Sgt. Maile investigated and submitted a report on October 21, 2014, that supported his innocence. Because Sgt. Maile’s report was allegedly submitted too late, Plaintiff states that Lt. Salderbar discounted and later destroyed it. Plaintiff grieved the disciplinary proceedings that resulted, but COS Ornellas upheld the charges and denied Plaintiff’s grievances. Plaintiff was thereafter reclassified and transferred to the Halawa Correctional Facility (“Halawa”).

In Count III, Plaintiff alleges that COS Ornellas retaliated against him by allowing Lt. Salderbar to destroy Sgt. Maile’s allegedly untimely report, and by forbidding him to work or participate in the choir after he returned to WCF. Id., PageID #43.

Plaintiff seeks compensation, psychiatric care, appointment of counsel to prosecute this suit, and staff training regarding discrimination. Id., PageID #10.


The court must screen all civil actions brought by prisoners proceeding in forma pauperis or seeking redress from a government entity, officer, or employee. 28 U.S.C. §§ 1915(e)(2) & 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) & 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). This does not require detailed factual allegations, but “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)). To state a plausible claim, a plaintiff must plead facts that allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations that are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, the claim may proceed. Id. at 680.

Plausibility “is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (internal quotation marks omitted). A court must “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to “‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. ...

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