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Feliciano v. Harrington

United States District Court, D. Hawaii

August 15, 2018

GARY FELICIANO, #A0074243, Plaintiff,
v.
SCOTT HARRINGTON, GARY KAPLAN, PAUL NIESEN, JANICE LEPULE, MEGAN OWENS, and DOVIE BORGES, Defendants.

          ORDER (1) GRANTING IN FORMA PAUPERIS APPLICATION; AND (2) DISMISSING COMPLAINT IN PART

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.

         Before the court is pro se Plaintiff Gary Feliciano's (1) prisoner civil rights Complaint and (2) Application to Proceed In Forma Pauperis by a Prisoner (“IFP Application”). ECF Nos. 1, 2. Feliciano asserts that Halawa Correctional Facility (“HCF”) officials and staff[1] violated the Americans With Disabilities Act (“ADA”) and his rights to due process when Defendant Gary Kaplan denied his requests to participate in a prison drug treatment program.

         Feliciano's IFP Application is granted. The Complaint is dismissed in part for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2) & 1915A(a-b). Specifically, Feliciano's due process claims, and all claims as alleged against Defendants Harrington, Niesen, Lepule, Owens and Borges, are dismissed without prejudice. Feliciano states a colorable claim against Defendant Gary Kaplan under the ADA and that claim may be served. Kaplan is required to file a response after service is perfected. See 42 U.S.C. § 1997e(g)(2).

         I. STATUTORY SCREENING

         The court is required to conduct a pre-Answer screening of all prisoners' pleadings pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). The court must dismiss a claim or complaint that is frivolous, malicious, fails to state a claim for relief, or seeks damages from defendants who are immune from suit. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

         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) (screening under § 1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (screening under § 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. 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 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, 203 F.3d at 1130. If the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         II. IFP APPLICATION

         Feliciano qualifies as a pauper, and his IFP Application is GRANTED.[2] See 28 U.S.C. § 1914. As a prisoner, Feliciano is obligated to pay the full filing fee regardless of the outcome of this suit or whether he is later released. See 28 U.S.C. § 1915(b)(1) & (e)(2). Feliciano shall make an initial partial payment of 20% of the current balance of his account, if that balance exceeds $10.00. Thereafter, Feliciano shall make monthly payments of 20% of the preceding month's income credited to his account, when his account exceeds $10.00. Id.

         IT IS HEREBY ORDERED that:

(1) The Hawaii Department of Public Safety (“DPS”), Warden of the Halawa Correctional Facility, or designees, shall calculate, collect, and remit to the Clerk of Court an initial partial payment equaling 20% of the amount in Feliciano's account (if that amount exceeds $10.00), and thereafter, monthly payments equaling 20% of Feliciano's preceding month's income or balance when the account exceeds $10.00, until the $350.00 civil filing fee is paid in full. See 28 U.S.C. § 1915(b)(2). These payments must be identified by the name and number assigned to this action.
(2) The Clerk is directed to serve a copy of this order on Feliciano, the HCF Warden and Financial Office, Shelley Nobriga Harrington, Esq., and Laurie Nadamoto, Esq., DPS Litigation Coordinators. The Clerk shall submit a copy of this order to the District of Hawaii's Financial Department.

         III. DISCUSSION

         To 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). Additionally, a plaintiff must allege that he suffered a specific injury as a result of a particular defendant's conduct and an affirmative link between the injury and the ...


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