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Slavick v. Lalotoa

United States District Court, D. Hawaii

November 22, 2016

CHRIS SLAVICK, #A07658819, Plaintiff,
v.
JOHN LALOTOA, Defendant.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(E)(2) & 1915A(A)

          Derrick K. Watson United States District Judge.

         Before the Court is pro se Plaintiff Chris Slavick's prisoner civil rights Complaint. ECF No. 1. Slavick names Halawa Correctional Facility (“HCF”) Sergeant John Lalotoa in his individual and official capacities as the only Defendant.[1] Slavick seeks relief under 42 U.S.C. § 1983 and the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12182 et seq.

         For the following reasons, the Complaint is DISMISSED for failure to state a cognizable claim for relief. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Slavick is granted leave to amend to correct the deficiencies discussed below, on or before December 30, 2016.

         I. LEGAL STANDARD

         The Court must screen all prisoner civil actions seeking redress from a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). Complaints or claims that are frivolous, malicious, fail to state a claim, or seek relief from an immune defendant must be dismissed. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). During screening, the Court sets conclusory factual allegations aside, accepts non-conclusory factual allegations as true, and determines whether these allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility does not mean “probability, ” but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

         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). 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 679; Twombly, 550 U.S. at 555.

         Courts must construe pro se pleadings liberally “to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The district court “should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam)). Further, the Court should provide the pro se litigant with notice of the complaint's deficiencies “to ensure that the litigant uses the opportunity to amend effectively.” Akhtar, 698 F.3d at 1212 (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). If “it is clear that the complaint could not be saved by any amendment, ” dismissal with prejudice is allowed. Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         II. BACKGROUND

         In Count I, Slavick states that he uses a cane, has medical memoranda and “HCF orders” allowing him to use an “ADA medical ramp, ” and his photograph is posted in the HCF guard station with written notice that he is not to use stairs. ECF No. 1, PageID #5. Slavick says that prior to and on November 25, 2014, he informed Lalotoa of his medical needs and Lalotoa saw Slavick “navigate the ramp with a cane.” Id. Notwithstanding this, Slavick says Lalotoa threatened to deny or denied Slavick use of the ramp on November 25, 2014. Slavick claims that Lalotoa was attempting “to inflict/cause a physical injury/worsen my injuries” “because [Slavick] is injured and disabled.” Id. Slavick says this caused him “[m]ental anguish, emotional distress from harassment, high anxiety, fear of assault and further deprivation of rights.” Id.

         In Count II, Slavick alleges that when the allegations alleged in Count I occurred, and on other occasions, Lalotoa called Slavick a “fuckin haole.” Id., PageID #6. Slavick says this “Racial discrimination” caused him mental anguish, duress, psychological hardship, and fear that Lalotoa would physically injure him or tamper with his prison records.

         In Count III, Slavick alleges Lalotoa retaliated for Slavick having filed suit against prison officials. Slavick alleges he was subjected to continuous harassment from HCF guards and staff causing him duress and anxiety. Slavick seeks damages and a transfer to the Federal Detention Center-Honolulu.

         III. DISCUSSION

         “To sustain an action under section 1983, a plaintiff must show ‘(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded on other grounds, 556 U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.

         A. ...


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