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Grindling v. Shibao

United States District Court, D. Hawaii

September 29, 2016

GILBERT SHIBAO, et al., Defendants.


          Derrick R. Watson, United States District Judge


         On August 18, 2016, Plaintiff Chris Grindling, proceeding pro se, filed a First Amended Complaint against defendant correctional officers[1] at an institution at which Grindling was formerly incarcerated, alleging violations of federal law pursuant to 42 U.S.C. § 1983. He also submitted a fully executed Application to Proceed In Forma Pauperis (“IFP Application”), as directed by the Court's August 8, 2016 Order dismissing his original Complaint. On August, 29, 2016, Grindling filed a Motion for Service by U.S. Marshal (“Motion for Service”).[2]

         Because the First Amended Complaint fails to state a claim with respect to Grindling's conspiracy and grievance-based allegations, the Court DISMISSES those portions of the First Amended Complaint with leave to amend pursuant to 28 U.S.C. § 1915(e). As discussed more fully below, Grindling is once again GRANTED leave to file an amended complaint by no later than October 28, 2016. Further, the Court finds that, liberally construed, the First Amended Complaint states a Section 1983 claim for violation of Grindling's Eighth Amendment rights, and, accordingly, the Motion for Service is GRANTED, with instructions below. The IFP Application is also GRANTED.


         I. Grindling's IFP Application Is Granted

         Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates he is unable to pay. See 28 U.S.C. § 1915(a)(1). “An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (The affidavit must “state the facts as to affiant's poverty with some particularity, definiteness and certainty.”) (internal quotation omitted).

         When reviewing an application filed pursuant to § 1915(a), “[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). While Section 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must nonetheless show that he is “unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a).

         Here, the IFP Application indicates that Grindling is not employed and lists income in the form of $340 in food stamps and $340 in cash per month. Grindling's debts include $4, 700 in district court traffic fines. Based on the IFP Application, Grindling's income falls below the poverty threshold identified by the Department of Health and Human Services (“HHS”) 2016 Poverty Guidelines. See 2016 HHS Poverty Guidelines, available at Accordingly, the Court finds that Grindling has made the required showing under Section 1915 to proceed without prepayment of fees, and GRANTS his IFP Application.

         II. Grindling's First Amended Complaint Is Dismissed In Part

         A. Standard of Review

         The Court subjects each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and can order the dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).

         Because Grindling is appearing pro se, the Court liberally construes the First Amended Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). The Court notes that, although he is proceeding pro se, Grindling is familiar with the federal court filing system, and initiated the instant case along with three other civil actions on the same day.[3]Prior to the simultaneous filing of those four actions, Grindling has filed at least fifteen actions in the federal courts.[4]

         Nevertheless, the Court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted[.]” A Rule 12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet that the court must accept as true all of the allegations contained in the complaint “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”).

         “A claim has facial plausibility 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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the Court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief as required by Rule 8. Id. at 679.

         B. Claims In The First Amended Complaint

         The First Amended Complaint alleges that defendants were correctional officers at “MCCC” during the period of Grindling's incarceration there. He alleges violations of his Eighth and First Amendment rights as a result of a conspiracy by defendants to both deny him food and prevent him from reporting their misconduct through the institution's grievance process. Although he appears to allege facts that would support an Eighth Amendment claim against some of the defendants, he fails to state a claim under the First Amendment or sufficiently allege a conspiracy.

         1. Eighth Amendment

         Grindling alleges that he was intentionally denied food and basic necessities during his incarceration at MCCC:

2. Correctional officers' duty is to report any evidence of malnutrition. The kitchen does not see the meals served to me ever.
3. Shibao, Sam Fong, Shook, Gazman, Faleafine all ACO's who deliberately denied me food failed to report others who also were denying me food. They would write me up for complaining of them starving me [] they would give me trays that did not have all the required items to sustain me. This denial of food took place whenever I lost access to store order food my weight would drop to dangerous levels when I could buy food my mom sent me maximum allowed.
4. All food is provided by ACOs. They serve all meals. They pass out all commissary. They can take away access to commissary. The kitchen and medical have no control of the actual food I am given. The ACOs know how much food I am given.

FAC at 2. With respect to particular defendants and time periods, Grindling ...

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