United States District Court, D. Hawaii
LEONARDO R. CHAVEZ, #A6068476, Plaintiff,
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
Gillmor United States District Judge
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.
following reasons, Chavez's Amended Complaint is
DISMISSED for failure to state a claim with leave granted to
amend as discussed and limited below.
December 30, 2016, Chavez filed a Complaint alleging that
Defendants had violated his rights to due process under the
Eighteenth Amendment during separation and discharge
proceedings from the Armed Forces. Compl., ECF No. 1.
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.”).
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.
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. 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),
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
• 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).
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.
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)).
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.
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 ...