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Vicente v. Takayama

United States District Court, D. Hawaii

October 4, 2016

DWIGHT J. VICENTE, Plaintiff,
v.
LINDA CHU TAKAYAMA, DIRECTOR OF LABOR AND INDUSTRIAL RELATIONS, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          DERRICK R. WATSON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On 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.

         DISCUSSION

         I. The First Amended Complaint Is Dismissed With Leave to Amend

         A. Standard of Review

         The 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 to prisoners”).

         Because 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).

         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. The First Amended Complaint Fails To State A Claim For Relief

         The 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 or ...

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