United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT IN PART AND DENYING
ASSISTANCE OF COUNSEL
E. Kobayashi United States District Judge
the court is pro se Plaintiff John Leon Gatewood's
prisoner civil rights complaint brought pursuant to 42 U.S.C.
§ 1983, and Motion for Assistance of Counsel. Compl.,
ECF. No. 1; Mot., ECF No. 5. Gatewood is incarcerated at the
Saguaro Correctional Center (“SCC”), located in
Eloy, Arizona, but complains of events that allegedly took
place while he was housed in Hawaii at the Waiawa
Correctional Facility (“WCF”). Gatewood alleges
WCF Warden Scott Harrington, Adult Correctional Officers
(“ACO”) April McNeil and Tui Faatea
(collectively, “Defendants”), violated his
constitutional rights in connection to disciplinary
proceedings at WCF in or about late 2015. Gatewood also
complains of inadequate dental care while he at WCF.
states a retaliation claim against Defendants McNeil and
Faatea and service of the Complaint is appropriate for this
claim only. The remaining claims in Gatewood's Complaint
are DISMISSED in part for failure to state a claim, with
leave granted to amend as discussed below. Gatewood's
Motion for Assistance of Counsel is DENIED.
alleges that on or about September 18, 2015, he told ACO
McNeil and other WCF staff that he was pressing charges
against ACO Faatea for “striking and pushing”
him. Compl. ECF No. 1, PageID #6 (Count II). Gatewood states
that Honolulu Police Department (“HPD”) officers
came to WCF and investigated his claims. He claims that
McNeil and Faatea then wrote a false disciplinary report
against him, alleging that Gatewood had threatened and
elbowed ACO Faatea, to retaliate against him and ensure that
he would be found guilty at his disciplinary proceedings.
Gatewood filed a civil suit against WCF, Faatea, and McNeil
in the Circuit Court of the First Circuit, State of Hawaii,
on January 26, 2016, Gatewood v. State,
1CC161000128. Id., PageID #3; see also
Ho'ohiki, avail. at:
http://www.courts.state.hi.us. (last visited Mar.
23, 2017). This suit is pending.
claims that Warden Harrington negligently upheld ACO
Faatea's “accusation and report.” Compl., ECF
No. 1, PageID #5 (Count I). He says he was then denied parole
on January 24, 2017, as a result of his disciplinary
proceedings, for which he claims a “Loss of Liberty,
” suggesting he raises a due process claim.
Gatewood claims that on or about September 18, 2015, an
unidentified dentist “performed a partial root-canal,
” that was allegedly unauthorized. Id., PageID
#7 (Count III). Gatewood developed an abscess for which he
was given pain medication and was allegedly told by
unidentified hospital staff that he would need antibiotics.
Gatewood claims that he was denied antibiotics by the WCF
“medical unit.” Id. Gatewood seeks
compensatory damages and release from custody.
Gatewood is a prisoner and is proceeding in forma pauperis,
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. §
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 accusation” falls short
of meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Serv., 572 F.3d 962,
969 (9th Cir. 2009).
litigants' pleadings must be liberally construed and all
doubts should be resolved in their favor. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations
omitted). Leave to amend must be granted if it appears the
plaintiff can correct the defects in the complaint. Lopez
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
If the complaint cannot be saved by amendment, dismissal
without leave to amend is appropriate. Sylvia Landfield
Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
Due Process: ...