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Kriege v. Hawai'i Community Correctional Center

United States District Court, D. Hawaii

September 4, 2019

PHILLIP B. KRIEGE, et al., Plaintiffs,
v.
HAWAI‘I COMMUNITY CORRECTIONAL CENTER, et al., Defendants.

          ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; (2) DISMISSING COMPLAINT IN PART WITHOUT LEAVE TO AMEND; AND (3) DIRECTING SERVICE OF THE COMPLAINT IN PART [1]

          DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE

         On July 18, 2019, Plaintiff Phillip B. Kriege, proceeding pro se, filed a Complaint against the Hawai‘i Community Correctional Center (HCCC), as well as various officials and Jane/John Does. Dkt. No. 1. Kriege also filed an application to proceed in forma pauperis (“IFP Application”).[2] Dkt. No. 2. Although the events alleged in the Complaint took place entirely in Hawai‘i, Kriege filed the foregoing documents with the U.S. District Court for the Southern District of California. As a result, on August 12, 2019, this case was transferred to this District in Hawai‘i. The Court now reviews Kriege's IFP Application and screens the Complaint.

         I. The IFP Application

         Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). While Section 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant must nonetheless show that she is “unable to pay such fees or give security therefor, ” 28 U.S.C. § 1915(a).

         Here, Kriege has made the required showing under Section 1915(a). In the IFP Application, Kriege states that he was released from HCCC after 59 days incarceration, he sustained serious injuries at HCCC, which have prevented him from working, and he therefore has no take-home pay or other income in the last 12 months.[3] Further, Kriege states that he has $23 in a checking or savings account and owns an old Ford Ranger pick-up truck with little apparent value. Further, Kriege states that he has no regular monthly expenses, dependents, or any debts. In light of these figures, Kriege's income falls below the poverty threshold identified by the Department of Health and Human Services' (“HHS”) 2019 Poverty Guidelines. See HHS Poverty Guidelines, available at: https://aspe.hhs.gov/poverty-guidelines. In addition, Kriege has insufficient assets to provide security. As a result, the Court GRANTS the IFP Application, Dkt. No. 2.

         II. Screening the Complaint

         The Court liberally construes the pro se Complaint. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). However, the Court cannot act as counsel for a pro se litigant or supply the essential elements of a claim. Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         In the Complaint, Kriege makes a wide variety of allegations, both in specifically designated causes of action and in areas of the Complaint that are not so designated. The Court begins with the specifically designated causes of action. First, Kriege alleges that, on June 21, 2019, while he was incarcerated at HCCC, he was “brutally and sexually assaulted and violently attacked” by a fellow inmate, Nathanl Dossey. Kriege alleges that 30 other inmates heard his and Dossey's voices and the presiding adult probation officer could hear the violent attack.[4]Kriege alleges that no attempt was made to aid or protect him. Second, Kriege alleges that, on June 23, 2019, Dossey once again violently attacked him and also tried to perform a sexual act on him. Kriege alleges that this attack was “heard by all[, ]” but, as before, no attempt was made by an adult correctional officer to protect him. Third, Kriege alleges that, on June 24, 2019, Dossey sexually attacked him for a third time. Kriege alleges that this attack was “[e]ven louder and more violent” and resulted in serious bodily injuries. Kriege alleges that, after 10 minutes, Officers A. Carrira and Choy removed Dossey from the cell. Fourth, Kriege alleges that he visited a nurse and disclosed the foregoing attacks, with the attacks being entered on the nurse's computer.[5]

         Fifth, Kriege alleges that, on June 26, 2019, Officer Matsu slammed a hallway door while on patrol at HCCC. Kriege then kicked the same door, which resulted in Matsu screaming at Kriege as to why the door was kicked. Kriege alleges that he told Matsu that he kicked the door because Matsu had slammed it, something which Matsu did “every night to wake us all up.” Matsu then struck Kriege with his fist and said “shut up you stupid punk hoale.”

         Sixth, Kriege alleges that he was verbally abused and harassed by Sergeant Yoshita who forced Kriege to fill out and write a report about Dossey's assaults.[6] Kriege alleges that Yoshita “became indifferent and showed no concern” about Kriege.

         Seventh, Kriege alleges that, on July 2, 2019, while in his cell, he fell from the upper bunk and slipped on water that was always leaking from a sink. Kriege alleges that, due to there being no working hallway light, he struck his chest on the edge of the sink, an impact that cracked his sternum. Kriege alleges that he promptly reported his chest injury to a HCCC nurse, and he reported to a nurse on July 4 after two days of extreme pain. Kriege alleges that, from July 2 to July 9, 2019, he was denied any and all medical treatment.[7]

         Finally, in a part of the Complaint that is not specifically designated a cause of action, Kriege makes the following additional allegations and/or arguments. Kriege asserts that a plea he made in a criminal case on July 5, 2019 was made under “physical pain, extreme emotional and physical stress and suffrage; by state actors suborning perjury, [his] plea was made with the full weight of duress.” Kriege further states that “[t]here is no PETER[, ]” his “agreement” is null and void on its face, and he “vacates” any and all agreements. Kriege further appears to accuse unidentified district attorneys of being malicious and Melvin H. Fujino and Margaret Masunagu, who he alleges are judicial officers, of abuse of power.

         As for the latter section of allegations/arguments, the Court will not allow the Complaint to proceed. With respect to the contention that Kriege's plea agreement is null and void, Kriege cannot attack his plea in this civil case. See Heck v. Humphrey, 512 U.S. 477, 486-487 (1994) (holding that, in order for a plaintiff to recover damages for an allegedly unconstitutional conviction or imprisonment, “or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, ” he must prove that the conviction or sentence has been, inter alia, reversed on direct appeal or called into question by the issuance of a writ of habeas corpus). Given that the exhibits Kriege attaches to the Complaint reflect that deferred acceptance of his no-contest plea was only entered in state court on July 5, 2019, see Dkt. No. 1-6 at 3-4, and Kriege does not state that his no-contest plea has been appealed, reversed, or otherwise called into question by the issuance of a writ of habeas corpus, [8] there is no basis for this Court to hear (or allow amendment of) any claim related thereto. See Heck, 512 U.S. at 487 n.8 (noting that abstention may be appropriate). As for any claims against “judicial officers, ” such individuals enjoy absolute immunity for their roles in judicial proceedings. Engebretson v. Mahoney, 724 F.3d 1034, 1038 n.2 (9th Cir. 2013). Here, Kriege merely conclusorily asserts that judicial officers “[a]buse[d]” their power by disregarding Kriege's presumption of innocence. This assertion does not remove any claim Kriege may be asserting against the judicial officers from the realm of absolute immunity. See id. As for any claims against district attorneys, to the extent Kriege is challenging his prosecution or the manner of the same, any such claims are also barred. Imbler v. Pachtman, 424 U.S. 409, 416, 431 (1976) (holding that a prosecutor is immune from civil suit under Section 1983 “in initiating a prosecution and in presenting the State's case, ” including knowingly using alleged perjured testimony). Finally in this regard, the Court notes that Kriege appears to assert that he should have been released on July 5, 2019, but was not released until July 9, 2019. To the extent Kriege makes this assertion to challenge his no-contest plea, which it very much appears he is, again, that is not a matter for this Court to opine upon in the first instance. If, however, Kriege makes this assertion in connection with his claim that he did not receive medical treatment for an injury he allegedly suffered, any such claim will be treated as part of the Complaint's seventh cause of action, which is included in the discussion infra.

         This leaves the causes of action that Kriege expressly designates as such. Having reviewed the Complaint, the Court determines that those claims- specifically, the claims designated as causes of action one through seven in the Complaint-should proceed beyond screening so that the record can be more fully developed. That being said, it is necessary to make at least one thing clear. Many of Kriege's causes of action fail to identify, by name, an individual who engaged in the alleged wrong. For instance, causes of action one, two, four, and seven do not name any prison official who engaged in the alleged conduct. Instead, Kriege merely mentions a “nurse” and “presiding” prison guards. The ...


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