United States District Court, D. Hawaii
JUSTIN M. OLIVER, #A4015015, Plaintiff,
RICHARD ASUNCION, ACO GRIMLEY, Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT
Otake United States District Judge
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.
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
CLAIMS IN THE FAC
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.
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)).
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.
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).
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.”
court considers four facts to determine whether granting a
plaintiff leave to amend is appropriate: “ bad
faith,  undue delay,  prejudice to the opposing party,
and  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.
42 U.S.C. § 1983
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 ...