United States District Court, D. Hawaii
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1)
Helen Gillmor United States District Judge
Before the court is pro se Plaintiff Tyson Kyle Prim’s Second Amended Complaint (“SAC”). Doc. No. 12. Plaintiff names the Hawaii Department of Public Safety (“DPS”), and Oahu Community Correctional Center (“OCCC”) Case Manager and Adjustment Committee Member Monica Pule as Defendants, in their individual and official capacities.
Plaintiff alleges DPS and Pule violated his constitutional rights to due process pursuant to a disciplinary proceeding that resulted in his transfer to a higher security prison. Plaintiff also complains that Pule’s failure to provide him with a prison tort claim form, required to challenge the loss of property, violated his constitutional rights.
The SAC is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim. Because Plaintiff has had three opportunities to correct the deficiencies his claims and is unable to do so, this dismissal is with prejudice. The Clerk is DIRECTED to terminate this action.
On October 9, 2015, the court screened and dismissed Plaintiff’s original Complaint. Order, Doc. No. 6. The October 9, 2015 Order dismissed (1) the State of Hawaii and the DPS with prejudice as immune from suit; (2) the Complaint in full for its failure to comply with Rule 8 of the Federal Rules of Civil Procedure’s pleading requirements; and (3) Plaintiff’s claim that Defendants violated his rights to due process during a disciplinary hearing following a positive drug test, for failure to state a cognizable claim. Id., PageID #31-35. The court granted leave to amend.
On October 30, 2015, Plaintiff filed a first amended complaint (“FAC”). Doc. No. 10. Although Plaintiff provided additional details, he still failed to allege facts that would allow the court to infer that any Defendant had violated his constitutional rights to due process. In short, Plaintiff alleged no protected liberty interest, therefore, he alleged no deprivation of due process.
On December 15, 2015, the court dismissed the FAC for Plaintiff’s failure to state a cognizable claim and granted him a final opportunity to amend his claims. Doc. No. 10. Plaintiff was notified that, if he was unable to cure the deficiencies in his claims a third time, this action would be dismissed. Id., PageID #82.
Plaintiff filed the SAC on December 31, 2015. Doc. No. 12. The SAC contains less detail than the FAC, but is sufficient to allow the court to understand Plaintiff’s allegations. Plaintiff states that he was charged with a misconduct on February 24, 2015, for a positive drug urinalysis. Plaintiff asserts that, because he had not used drugs since 2010, someone negligently mishandled or intentionally tampered with his urine sample.
Pule was a member of the Adjustment Committee that found Plaintiff guilty. Plaintiff alleges that Pule failed to “look at the facts of misconduct & made excuses.” Id., PageID #90. Plaintiff sets forth no other facts regarding the hearing. Plaintiff was thereafter transferred to Halawa at a higher classification level, and he has now been transferred to SCC in Arizona. He alleges the guilty finding resulted in the loss of his freedom, prison job, and property.
Plaintiff grieved the test results and the Adjustment Committee’s guilty decision. He nonetheless claims that Pule and the DPS deprived him “of an opportunity to aggrieve the conditions of my confinement. Due to the lack of policies & procedures training.” Id. Plaintiff also claims that Pule failed to provide him with a form he required to challenge the loss of his property during his transfer or segregation.
II. STATUTORY SCREENING
Federal courts must screen all cases in which prisoners seek redress from a governmental entity, officer, or employee, or seek to proceed without prepayment of the civil filing fees. See 28 U.S.C. §§ 1915(b)(2) and 1915(A)(a). The court must identify cognizable claims, and dismiss claims that are frivolous, 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. Id. at §§ 1915(b)(2) and 1915A(b).
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 ...