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D'Agirbaud v. Alanzo

United States District Court, D. Hawaii

February 26, 2018

QUINTIN-JOHN D'AGIRBAUD, III, #A0265488, Plaintiff,
v.
SARAH ALANZO, et al., Defendants.

          ORDER DISMISSING COMPLAINT IN PART

          J. Michael Seabright United States District Judge

         Pro se Plaintiff Quintin-John D'Agirbaud, III, is incarcerated at the Saguaro Correctional Center (“SCC”), in Eloy, Arizona. He complains of incidents that allegedly occurred while he was housed at the Halawa and Waiawa Correctional Facilities (respectively, “HCF” and “WCF”), before his transfer to Arizona. Plaintiff claims that Defendants[1] violated his constitutional rights when they allegedly failed to protect him from assault by other inmates, retaliated against him for filing grievances, illegally searched his locker, and denied him due process.

         Plaintiff states colorable claims against Defendants Sarah Alanzo and Dovie Borges in Counts I and II, and a colorable First Amendment retaliation claim against Alanzo. These claims may be served and will require a response after service is perfected.

         Claims alleged under the Fourth Amendment (Count IV), and claims alleged against all Defendants in their official capacities are DISMISSED with prejudice.

         All other claims as alleged against all Defendants fail to state a claim, and these claims are DISMISSED without prejudice with leave granted to amend.

         I. SCREENING

         Federal courts must conduct a pre-answer screening in all cases in which prisoners seek redress from a governmental entity, officer, or employee. See 28 U.S.C. § 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. 28 U.S.C. §§ 1915(e)(2) and 1915A(b). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         Screening under §§ 1915(e)(2) & 1915A(a) 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). 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 v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “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 679.

         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.” 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.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The “mere possibility of misconduct” or an “unadorned, the-defendant-unlawfully-harmed-me accusation” falls short of meeting this plausibility standard. Id. at 678-79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         Pro se 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). Leave to amend should be granted if it is possible that the complaint's defects can be corrected. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

         II. BACKGROUND[2]

         On July 27, 2016, while incarcerated at HCF, Plaintiff wrote Defendant DPS Director Espinda to complain that violent, “closed [(sic)]custody” gang members are housed with non-violent, non-gang, medium and minimum custody inmates.[3] Espinda did not respond. Compl., ECF No. 1, PageID #7 (Count I).

         On February 20, 2017, Plaintiff signed a “separtee” memorandum against alleged USO gang member Brian Aquino, whom Plaintiff accused of threatening him. Id. Defendant Alanzo allegedly informed USO gang leader “Levu” that Plaintiff had requested separation memoranda against Aquino and several other USO gang members. Id.

         On March 17, 2017, Alanzo allegedly yelled loudly in front of other inmates that Plaintiff “better stop ratting on inmates in here. I'm the one doing your transfer packet, do you want it to take longer?” Id. Plaintiff immediately reported Alanzo's comments to Unit Team Manager Morreira[4] and Defendant Borges.

         On March 18, 2017, close custody USO gang member Joel Pitts allegedly assaulted Plaintiff. Plaintiff says a guard witnessed this assault.

         On April 4, 2017, Plaintiff wrote Morreira that Alanzo had a “personal vendetta towards [him].” Id., PageID #8 (Count II). Plaintiff says Alanzo refused to initiate his reclassification and transfer packet because he had complained about her to her superiors on several occasions.

         On April 5, 2017, Alanzo allegedly authorized close custody USO gang member Gaius Awong's transfer into Plaintiff's housing unit. Plaintiff says that Awong had “just [been] released from segregation for assaulting an inmate in another module.” Id.

         On April 8, 2017, Awong assaulted Plaintiff, allegedly on instructions from USO gang leader Levu. Plaintiff was hospitalized for a fractured index finger, nose, right orbital bones, and damaged upper vertebrae. Plaintiff thereafter grieved DPS's policy of holding close custody gang members with general population inmates. Defendants Borges, HCF Warden Harrington, and DPS Administrator Kimoto denied these grievances.

         On May 19, 2017, Plaintiff was transferred to WCF. On May 22, 2017, Plaintiff wrote WCF Administrator Miike to report his recent assault at HCF and seek assurances that he would not be assaulted or set up by other inmates at WCF for pressing charges against Awong. Miike did not respond. Although Plaintiff says he feared harm from Awong, Aquino, and Pitts, he does not allege that these inmates were incarcerated at WCF. On May 26, 2017, Plaintiff told Case Manager Christy[5] that inmate Dean Kokobun told others that Plaintiff was a “rat” and said that “he is going to get it.” Id., PageID #9 (Count III).

         On July 17, 2017, Plaintiff wrote Defendant WCF COS Evans to express his concerns that he might be set up at WCF and requested to be moved to a different housing unit. He received no response.

         On July 26, 2017, Plaintiff ordered store items totaling $130.00. Also on this date, guards searched Plaintiff's locker while he was attending a program. On July 27, 2017, after allegedly receiving an anonymous tip (“kite”), guards searched Plaintiff's locker again while he was at work and found a “brown leafy substance.” Id., PageID #11 (Count IV). Plaintiff was removed from his work station and put in WCF's segregation unit for an investigation. Plaintiff completed a property receipt on which he listed the store items that he had ordered the day before. The guards told Plaintiff that they knew he had been set up by other inmates and that he should provide information regarding which inmates at WCF were involved with drugs. Plaintiff complied and was given a urinalysis, which tested negative for drugs, but he was later found guilty of a drug misconduct violation.

         On July 28, 2017, Plaintiff was transferred back to HCF and housed in the segregation unit. He asked to have his store items transferred to HCF, or in the alternative, to cancel the order and have his account credited with a refund.

         On August 1, 2017, Borges told him to “submit an inter-unit request via your case manager & unit manager” regarding his store items. Id., PageID #14 (Count VI).

         On August 23, 2017, Miike recalculated Plaintiff's classification points based on his drug misconduct and resultant termination from his WCF work assignment and transfer back to HCF. Plaintiff grieved Miike's calculation of his classification points, but Kimoto denied his grievance.

         Plaintiff commenced this action on January 12, 2018, after he had been transferred to SCC. See Compl., ECF No. 1. He alleges five causes of action: Counts I and II, alleging the failure to protect him from assault under the Eighth Amendment; Counts III, V, and VI, alleging the denial of due process under the Fourteenth Amendment; and Count IV, alleging an unreasonable search and seizure under the Fourth Amendment. See id., PageID #7-15. He seeks damages, a transfer to the Laumaka Work Furlough Program, and ...


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