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Oliver v. Asuncion

United States District Court, D. Hawaii

December 4, 2018

JUSTIN M. OLIVER, #A4015015, Plaintiff,
v.
RICHARD ASUNCION, ACO GRIMLEY, Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT

          Jill A. Otake, United States District Judge.

         Before the court is pro se Plaintiff Justin Mitchell Oliver's First Amended Complaint (FAC) brought pursuant to 42 U.S.C. § 1983. ECF No. 16. Oliver alleges Oahu Community Correctional Center (OCCC) officers Richard Asuncion and ACO Grimley violated his constitutional rights when they allegedly used excessive force against him and denied him medical care in violation of the Eighth, Ninth, Fourteenth, and Fifteenth Amendments.

         For the following reasons, the FAC is dismissed pursuant to 28 U.S.C. § 1915(e), for failure to comply with Federal Rules of Civil Procedure 8 and 15. The original Complaint, as limited by the October 30, 2018 Order Dismissing the Complaint in Part and Directing Service, ECF No. 8, remains the operative pleading.

         I. CLAIMS IN THE FAC

         As in the original Complaint, Oliver alleges that Asuncion and Grimley attacked him at OCCC on or about September 23, 2016, breaking his ribs. He says they immediately transferred him to solitary confinement and denied his multiple requests for medical care. After approximately one week, Oliver was given chest x-rays, which revealed that he had three fractured ribs. The only factual difference between the original Complaint and the FAC is that Oliver now states that Asuncion and Grimley never reported the incident. He now alleges that, in addition to violating the Eighth Amendment, Asuncion and Grimley deprived him of “Due Process, Medical, and Disciplinary preceedings [sic], ” in violation of the Ninth, Fourteenth, and Fifteenth Amendments. ECF No. 1, PageID #74. Oliver again names Asuncion and Grimley in their individual and official capacities; he seeks damages and unidentified prospective injunctive relief.

         II. LEGAL STANDARDS

         The court must screen Oliver's FAC pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Claims that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing § 1915A(b)).

         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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Under Rule 8 of the Federal Rules of Civil Procedure, a 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 a complaint must allege enough facts to provide both “fair notice” of the claim asserted and “the grounds upon which [that claim] rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and quotation marks omitted); see also Iqbal, 556 U.S. at 555.

         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). The court must grant leave to amend if it appears the plaintiff can correct the defects in the complaint, Lopez, 203 F.3d at 1130, but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate, Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         III. DISCUSSION

         The court granted Oliver leave to amend those claims that were dismissed without prejudice from his original Complaint. See October 30, 2018 Order, ECF No. 8. Moreover, a plaintiff may amend a complaint as of right up to 21 days after a defendant answers. Fed.R.Civ.P. 15(a)(1). After that, “a party may amend its pleading only with the opposing party's written consent or with leave of court. The court should freely give leave when justice so requires.” Id.

         The court considers four facts to determine whether granting a plaintiff leave to amend is appropriate: “[1] bad faith, [2] undue delay, [3] prejudice to the opposing party, and [4] futility of amendment.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Here, neither Defendant has filed an Answer to the original Complaint and the court granted Oliver leave to amend those claims dismissed without prejudice from the original Complaint, if he can cure the deficiencies in those claims. Thus, Oliver has the right to amend his pleading, as long as filing such an amendment is not futile.

         A. 42 U.S.C. § 1983

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (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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