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Chavez v. Hagel

United States District Court, D. Hawaii

March 9, 2017

LEONARDO R. CHAVEZ, #A6068476, Plaintiff,
v.
CHUCK HAGEL, WILLIAM H. McRAVEN, P. GARDNER HOWE, III, NORMAN BROSNICK, STEVEN GRZESZCZAK, MICHAEL RIVERA, JOHN O'CONNOR, CIELO ALMANZA, Defendants,

          ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE GRANTED TO AMEND

          Helen Gillmor United States District Judge

         Before the court is pro se Plaintiff Leonardo R. Chavez's amended civil rights complaint brought pursuant to 42 U.S.C. § 1983. Am. Compl., ECF. No. 6. Chavez names former United States Secretary of Defense Chuck Hagel, Admiral William H. McRaven, Rear Admiral P. Garner Howe III, Major General Norman Brosnik, Captain Steven Grzeszczak, Lieutenant Michael Rivera, Lieutenant Colonel John O'Connor, and Commander Cielo Almanza as Defendants in their individual and official capacities (collectively, “Defendants”). Chavez alleges Defendants violated the Fourteenth Amendment and United States Special Operation Command Policy (“USSCOM”) No. 12-11, during his separation proceedings from the United States Army.

         For the following reasons, Chavez's Amended Complaint is DISMISSED for failure to state a claim with leave granted to amend as discussed and limited below.

         I. BACKGROUND

         A. Procedural History

         On December 30, 2016, Chavez filed a Complaint alleging that Defendants had violated his rights to due process under the Eighteenth Amendment[1] during separation and discharge proceedings from the Armed Forces. Compl., ECF No. 1.

         On January 23, 2017, the court granted Chavez's in forma pauperis (“IFP”) application. Order, ECF No. 5. On February 17, 2017, before the Court screened the Complaint, Chavez submitted a new pleading labeled as an “Original Complaint, ” a new IFP application, and a letter. See ECF Nos. 6, 7. Chavez mistakenly believed the Court had terminated this action when it granted his IFP application and he sought to commence a new action alleging the same claims. ECF No. 7. Chavez explained that the new pleading corrected his assertion of claims under the Eighteenth Amendment to allege claims under the Fourteenth Amendment. Id.; ECF No. 6, PageID #33 (“I listed wrong amendment.”).

         Because the new pleading alleges the same claims against the same Defendants, clarifies Defendants' official titles, explicitly asserts a claim for damages, and better explains the constitutional and factual bases for his claims, the Court construes it as an Amended Complaint rather than opening a new action (which would require additional filing fees). See Am. Compl., ECF No. 6.

         B. Facts[2]

         Chavez is incarcerated at the Oahu Community Correctional Center (“OCCC”) awaiting trial in the Circuit Court of the First Circuit, State of Hawaii (“circuit court”), for Murder in the Second Degree and Carrying or Use of a Firearm in the Commission of a Separate Felony.[3] See Compl., ECF No. 1, PageID #8 (“facing murder in the 2nd”); State v. Chavez, 1PC141000360 (Haw. 1st Cir. 2014) (last visit Feb. 22, 2017), https://jimspss1.courts.state.hi.us/JEFS.[4]

         Chavez alleges that Defendants:

Denied me access to my Administrative Separation Board, and equal protection of the laws (UCMJ). Deprived me of liberty (rest between Deployments) and property (falsified my military service and strip[p]ed me of my retirement). [Count I]
• Deployed in excess twice as much of SECDEF own policy without his written approval.
• Deliberate falsification of U.S.SOCOM Policy 12-11[.]
• No deployment waivers on file for my Operational Tempo[.] [Count II]

Am. Compl., ECF No. 6, PageID 35-36 (Counts I-II).

         Chavez claims Defendants left him “to rot at OCCC, ” pushed him to commit suicide, caused his PTSD (post-traumatic stress disorder), deprived him of his family, and denied him retirement benefits. Id. He seeks 100 million dollars and the correction of his military records. Id., PageID #38.

         II. STATUTORY SCREENING

         Because Chavez is a prisoner and is proceeding IFP, the Court screens his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must dismiss a complaint or any portion of it that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

         Screening under §§ 1915(e)(2) and 1915A(b) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (discussing screening pursuant to § 1915A). Under Rule 12(b)(6), a complaint must “contain 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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678.

         Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” or an “unadorned, the defendant-unlawfully-harmed me ...


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