United States District Court, D. Hawaii
DWIGHT J. VICENTE, Plaintiff,
LINDA CHU TAKAYAMA, DIRECTOR OF LABOR AND INDUSTRIAL RELATIONS, et al., Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
DERRICK R. WATSON UNITED STATES DISTRICT JUDGE
October 3, 2016, Plaintiff Dwight J. Vicente, proceeding pro
se, filed a First Amended Complaint against state employees
of the Department of Labor and Industrial Relations
Disability Compensation Division, a worker's compensation
benefits insurer, a healthcare provider, the Governor of the
State of Hawaii, and the United States Congress, alleging
violations of federal law pursuant to 42 U.S.C. § 1983.
The First Amended Complaint suffers from the same
deficiencies as Vicente's original Complaint, previously
identified in the Court's September 12, 2016 Order
granting his in forma pauperis (“IFP”)
Application and dismissing the Complaint with leave to Amend.
Dkt. No. 6. Because Vicente again fails to state a claim for
relief or establish any basis for this Court's subject
matter jurisdiction, the Court DISMISSES the First Amended
Complaint pursuant to 28 U.S.C. § 1915(e) and once more
GRANTS Vicente leave to file an amended complaint by no later
than October 31, 2016.
The First Amended Complaint Is Dismissed With Leave to
Standard of Review
Court subjects each civil action commenced pursuant to
Section 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
Vicente 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 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.”).
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.
The First Amended Complaint Fails To State A Claim For
First Amended Complaint, like the original Complaint,
attempts to assert a Section 1983 claim for violation of
Vicente's Fourteenth Amendment right to due process.
Vicente includes the following new allegations:
9. Plaintiff injured his mid and low back on 5-3-87 while
working at Life Center of Hilo. On 5-6-87 plaintiff filed his
workman's compensation claim on 5-6-87. Plaintiff went
for treatment at Hilo medical center in May 1987, and was
seen by the Doctor's physician assistant which failed to
do anything to treat Plaintiff.
10. On 5-15-87 Plaintiff was seen by Michael Pestrella, D.C.,
being the treating physician, who was later proven to be a
drug addict. Defendants failed to conduct [a] proper
investigation into Physician[s] such as Mr. Pestrella. . .
This caused Plaintiff to suffer punishment without due
process, since the Defendant State of Hawaii has failed to
ensure that any and all treating physicians go through a
background check, and drug testing. This caused Plaintiff to
be punished. Defendants have an obligation to insure that
Plaintiff does not suffer punishment, or retaliation.
11. . . . Plaintiff filed a complaint with Regulated
Industries and call[ed] the police department concerning drug
activities by Mr. Pestrella. Based on Plaintiff exercising
his right to file a complaint and that Mr. Pestrella was not
happy, Mr. Pestrella on 5-26-88 contacted insurance carrier
to have Plaintiff do a MMPI. This was in retaliation for
Plaintiff calling the police and filing complaints.
* * * *
16. Defendant Department of Regulated Industries - Consumer
Affairs, failed to investigate and they give Mr. Pestrella
the license. On April 1988 [I] filed the complaint with
Defendant Department Of Labor and Industrial Relations,
Disability Compensation Division, since they do drug testing