United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. §§ 1915(E)(2) &
Derrick K. Watson United States District Judge.
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. Slavick seeks relief under 42 U.S.C.
§ 1983 and the Americans With Disabilities Act
(“ADA”), 42 U.S.C. §§ 12182 et
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.
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.
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.
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).
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.
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.
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.
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.