United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT
LEAVE TO AMEND
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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
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.
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). 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).
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).
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
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 “aided and abetted” these
“abuses, ” and that Aguyon “actively
executed the crimes.” Id.
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.
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.
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.
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
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).
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.
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.
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
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 ...