United States District Court, D. Hawaii
ORDER (1) GRANTING IN FORMA PAUPERIS APPLICATION; AND
(2) DISMISSING COMPLAINT IN PART
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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 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.
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.
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).
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).
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).
qualifies as a pauper, and his IFP Application is
GRANTED. 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.
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
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 ...