United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT IN PART WITH LEAVE TO
Derrick K. Watson, United States District Judge
the court is pro se Plaintiff Fred Cabrera's prisoner
civil rights Complaint. ECF No. 1. Cabrera is incarcerated at
the Halawa Correctional Facility (“HCF”) but
complains of events that allegedly took place at the Oahu
Community Correctional Center (“OCCC”). Cabrera
claims that Defendants Benjamin Hubmer, “OCCC CO”
(correctional officer), and OCCC Warden violated his rights
under the Eighth Amendment during an alleged assault that
occurred at OCCC on or about June 22, 2017. For the following
reasons, the Complaint is DISMISSED IN PART with leave
granted to amend.
alleges that an unidentified OCCC CO ordered him to help move
Hubmer, allegedly an OCCC “mental-health detainee,
” from one cell to another on June 22, 2017. Compl.,
ECF No. 1, PageID #5. He claims that Hubmer struck him
several times in the stomach and chest during this cell
transfer, while COs Manuel Tavares and Sergeant Anderson
stood nearby but failed to intervene. Cabrera asserts that the
OCCC Warden failed to properly train the unidentified OCCC
CO. He alleges that Defendants acted with negligence and/or
deliberate indifference to his safety when they failed to
protect him from Hubmer's alleged assault, violating his
rights under the Eighth Amendment. He seeks $1 million in
courts must screen all cases in which prisoners seek redress
from a governmental entity, officer, or employee, or seek to
proceed without prepayment of the civil filing fees.
See 28 U.S.C. §§ 1915(b)(2) and 1915A(a).
The court must identify cognizable claims and dismiss those
claims that are frivolous, malicious, fail to state a claim
on which relief may be granted, or seek monetary relief from
a defendant who is immune from such relief. Id. at
§§ 1915(b)(2) and 1915A(b).
complaint 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). 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Moreover, a plaintiff must demonstrate that each
defendant personally participated in the deprivation of his
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
determine whether a complaint states a claim for screening
purposes, the court applies the same pleading standard from
Federal Rules of Civil Procedure (“FRCP”) Rule 8
as it would to evaluate a motion to dismiss under FRCP
12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998). The Court must decide whether the
complaint contains “sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678 (quotations
omitted). The task is context-specific and requires the Court
“to draw on its judicial experience and common
sense.” Id. at 679.
prisoners' pleadings must be liberally construed and
given the benefit of any doubt. Blaisdell v.
Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However,
“the liberal pleading standard . . . applies only to a
plaintiff's factual allegations.” Neitzke v.
Williams, 490 U.S. 319, 330 n.9 (1989). “[A]
liberal interpretation of a civil rights complaint may not
supply essential elements of the claim that were not
initially pled.” Bruns v. Nat'l Credit Union
Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting
Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
1982)). A plaintiff must identify specific facts supporting
the existence of substantively plausible claims for relief.
Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014)
(per curiam) (citation omitted). Leave to amend should be
granted if it appears possible that the plaintiff can correct
the complaint's defects. Lopez v. Smith, 203
F.3d 1122, 1130 (9th Cir. 2000).
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.
Inmate Benjamin Hubmer is Dismissed
fails to allege any facts explaining how Hubmer, a fellow
inmate, was acting under color of state law when he allegedly
attacked Cabrera, and the court cannot plausibly infer this
from the facts as alleged. Hubmer and the claims against him
are DISMISSED without prejudice.
Official Capacity ...