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Slavick v. Colotario

United States District Court, D. Hawaii

December 10, 2018

CHRIS SLAVICK, #A0765881, Plaintiff,
v.
SHAWN COLOTARIO, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.

         Before the court is pro se Plaintiff Chris Slavick's First Amended Complaint (FAC) brought pursuant to 42 U.S.C. § 1983. ECF No. 7. Slavick alleges that Halawa Correctional Facility (HCF) and Oahu Community Correctional Center (OCCC) staff violated his state and federal rights in May and June 2018.[1]

         For the following reasons, the FAC is DISMISSED pursuant to 28 U.S.C. § 1915(e) and 1915A(a), for failure to state any colorable claim for relief. Slavick is granted leave to amend as specifically limited below.

         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). 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).

         II. BACKGROUND [2]

         Without explanation, the FAC omits Count I and begins at Count II. See FAC, ECF No. 7, PageID #67. In Count II, Slavick alleges that Defendants Colotario, Lopez, and Murray conspired to seize his “injury supports, ” for unidentified medical injuries, causing him severe pain. Id. He claims that they then falsely charged him with “lying, obstruction, and escape” to justify placing him in solitary confinement, which allowed them to confiscate his legal materials and obstruct a “May 17, 2018, hearing on a critical motion.” Id., PageID #67. Slavick alleges, without any supporting facts, that Defendant Kaplan was also involved with these allegedly false charges. See id., PageID #69 (Count IV).

         In Count III, Slavick alleges Colotario, Lopez, and Murray fabricated the false charges to justify transferring him to solitary confinement, so that Defendants Harrington and Paleka could interfere with his legal property between May 10 and July 8, 2018. See id., PageID #68. Slavick alleges this obstructed the prosecution of his appeal in “CAAP-17-0000834, ” a state post-conviction petition.

         In Count IV, Slavick says that Kaplan failed to notify him that his attorney scheduled a visit with Slavick for June 4, 2018, the day before Slavick's state court hearing, although his attorney never arrived on that date. Slavick alleges that Defendant Lorico threatened to take Slavick to the June 5, 2018 hearing without his cane, although it does not appear that Lorico followed through on this threat. Lorico then issued Slavick another allegedly false rules violation, which omitted Lorico's alleged threat, but cited a “lack of 48 hour prior notice.” Id., PageID #69. Slavick alleges that Kaplan and Defendant Aguyon[3] “aided and abetted” these “abuses, ” and that Aguyon “actively executed the crimes.” Id.

         In Count V, Slavick alleges that Defendants Uedoi and Limahai tried to “coerce” him into attending a disciplinary hearing on June 8, 2018, for which he had not received notice. Id., PageID #71. Slavick held a sign to his cell window stating, “OBJECT TO YOU, ” and refused to participate. Id. He alleges Limahai swore at him and Uedoi said that she would hold the hearing without him.[4]

         In Count VI, Slavick says Limahai and Defendant Souza stood outside his cell telling Slavick to “cuff up” and clicking handcuffs in a threatening manner. Id., PageID #72. When Slavick refused this order, Limahai allegedly told him that they would beat and rape him and tried to incite nearby inmates to harass him.[5]

         In Count VII, Slavick says that acting Sergeant Allen, who is not a Defendant, refused to accept Slavick's police report on June 9, 2018. Id., PageID 73. Later that morning, Lorico gave Slavick a trash bag and told him to “pack-up” for transfer to the High SHU (special housing unit). Id. Lorico took Slavick's belongings, including his cane, and Aguyon summoned an armored assault team to assist in the transfer. Id. Captain Shook returned Slavick's cane, however, and and the assault team was not required. Slavick complains that guards repacked his property into smaller bags and loaded them into the trunk of a car out of his sight. He says he was not permitted “full access” to his legal papers until he was released from the High SHU on July 8, 2018. Id.

         Slavick broadly alleges that Defendants' actions violated the Fifth, Eighth, and Fourteenth Amendments, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, et seq., and unidentified criminal statutes. Slavick seeks an order expunging his May 10 and June 5 disciplinary charges and damages.

         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 violation of his rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         A. Rule 8

         Slavick's FAC is more confusing than the original Complaint, with fewer relevant facts from which the court can infer that any Defendant violated his rights. Slavick again alleges that Defendants violated various constitutional amendments, the ADA, and unidentified criminal statutes, without regard to the court's careful explanation of the deficiencies in these allegations in the September 24, 2018 Order Dismissing Complaint With Leave to Amend (September 24 Order). ECF No. 4. The court has struggled to understand the FAC's statement of facts, with and without reference to Slavick's original Complaint, to ignore Slavick's opinions and legal conclusions, and to discern sufficient facts to support his claims, and has been left, for the most part, to guess.

         Because the FAC fails to give Defendants or the court a fair understanding of Slavick's claims, the court is unable to “infer more than the mere possibility of misconduct, ” by any Defendant. Iqbal, 556 U.S. at 679. The FAC is DISMISSED for failure to state a claim with limited leave to amend, as set forth below.

         B. Fifth Amendment

         Slavick again alleges that Defendants violated the Fifth Amendment, see Counts III, V, VII, despite the court's clear instructions that the Fifth Amendment applies “only to actions of the federal government - not to those of state or local governments.” Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (citing Schweiker v. Wilson, 450 U.S. 221, 227 (1981)). Slavick cannot state a claim against Defendants under the Fifth Amendment, and these claims are DISMISSED with prejudice.

         C. ADA

         In Counts IV and VII, Slavick alleges that Defendants violated his rights under the ADA. As the September 24 Order explained, to state a claim under ...


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