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Pauline v. Doj

United States District Court, D. Hawaii

December 2, 2019

ALDEN PAULINE, JR., #A0256259, Plaintiff,
v.
DIRECTOR DOJ, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART; DENYING PENDING MOTIONS; DIRECTING SERVICE; AND LIFTING STAY

          Leslie E. Kobayashi United States District Judge.

         Before the Court is pro se Plaintiff Alden Pauline, Jr.'s, first amended prisoner civil rights complaint (“FAC”), brought pursuant to 42 U.S.C. § 1983. ECF No. 26.[1] Plaintiff alleges that Defendants[2] violated his civil rights while he was incarcerated at the Oahu Community Correctional Center (“OCCC”) and at the Halawa Correctional Facility (“HCF”).

         For the following reasons, the FAC is DISMISSED in part for Plaintiff's failure to state a colorable claim for relief pursuant to 28 U.S.C. § 1915A(a). Claims alleged against the Director of the DOJ are DISMISSED with prejudice. Claims alleged against HCF ACOs Lie and Cossy regarding incidents that allegedly occurred at HCF are DISMISSED without prejudice, but without leave to amend in this action.

         Claims against the DOH Director, COS Evans, Captain Strong, ACOs Santos, Molina, Rodan, Visitation, Murray, Rabacal, and Tucker, DPS Litigation Coordinator Shelley Harrington, and Chari Kimoto that are alleged to have occurred at OCCC fail to state any plausible claim for relief and are DISMISSED with leave to amend.

         Claims alleged against DPS Director Espinda, OCCC Warden Sequeira, COS Kawamoto, and ACO Keawe state plausible claims for relief and shall be SERVED.

         To the extent that Plaintiff seeks declaratory or injunctive relief against the State of Hawaii or Defendants named in their official capacity regarding events alleged to have occurred at OCCC, those claims are DISMISSED with prejudice.

         Plaintiff's Motion for Transfer, Mental Health Medical Care, [and] Constitutional Rights; Motion for Order; and Motion for Monetary Damages and to be Transferred Out of HCF, ECF Nos. 37-39, are DENIED.

         I. STATUTORY SCREENING

         The court is required to screen all prisoner pleadings pursuant to 28 U.S.C. § 1915A(a).[3] Claims or complaints 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); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

         Screening under § 1915A(a) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (citation omitted). 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 and citation omitted). A claim is “plausible” when the facts alleged in the complaint would support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. See Id. (citation omitted).

         Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). 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 (citations omitted); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         To state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it requires factual allegations sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). “All that is required is that the complaint gives ‘the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.'” Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett Packard Co., 941 F.2d 864, 870 (9th Cir. 1991)).

         Pro se litigants' pleadings must be liberally construed and all doubts should be resolved in their favor. See 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. See Lopez, 203 F.3d at 1130. If a claim or complaint cannot be saved by amendment, however, dismissal with prejudice is appropriate. See Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013).

         II. BACKGROUND

         A. Procedural History

         Plaintiff was incarcerated at OCCC when he filed the original Complaint in the First Circuit Court, State of Hawaii (“state court”) on February 8, 2019, and when he filed the FAC on August 30, 2019.[4] See Compl., ECF No. 1-1; FAC, ECF No. 26. Plaintiff styled the original Complaint as a class action challenging the conditions of confinement for all prisoners at OCCC.

         On April 3, 2019, the DOJ Director, who is the only Defendant who has received notice of this suit, removed the action to this district court pursuant to 28 U.S.C. § 1442(a)(1). See Notice of Removal, ECF No. 1. Plaintiff was apparently transferred to HCF before the case was removed, although the record does not reveal the date of that transfer. Plaintiff was housed at HCF no later than April 16, 2019, however, when he filed a response to the removal of this action to federal court. See ECF Nos. 9-11 (showing HCF as Plaintiff's return address).

         On May 6, 2019, the DOJ Director moved to dismiss the Complaint (“Motion to Dismiss”). Mot., ECF No. 12. Plaintiff filed an Opposition to the Motion to Dismiss on May 24, and a document titled “First Amended Complaint” on June 6, 2019. Plaintiff was housed at HCF when he filed these documents. See ECF Nos. 15, 16 (showing HCF as Plaintiff's return address). Plaintiff's amended pleading added new claims against new defendants regarding incidents that allegedly occurred at HCF after he filed the original Complaint, but omitted the original claims and Defendants.

         On June 28, 2019, the Court entered a minute order construing the “First Amended Complaint, ” as a motion to supplement the original Complaint “to add all new defendants and new claims based on factual allegations that appear entirely unrelated to the allegations at issue in the instant action, ” rather than a properly amended pleading. See EO, ECF No. 18. The Court denied this motion pursuant to Fed.R.Civ.P. 18 and 20, because it alleged “entirely unrelated claims against unrelated parties in a single action.” Id. The Court explained that Plaintiff may raise these new allegations in a new and separate action, but could not bring them in the present action. The Court also granted the DOJ Director's Motion to Dismiss, with written Order to follow. Id.

         On August 12, 2019, the Court issued its Order Granting in Part and Denying in Part Director DOJ's Motion to Dismiss Complaint (“August 12, 2019 Order”). ECF No. 23. The Court first held that Plaintiff, as a pro se litigant, cannot represent others in a class action, and construed Plaintiff's claims as alleged by him only. Id. at 200. The Court rejected DOJ Director's argument based on failure to serve, because DOJ Director had notice of the action when the Government acknowledged receipt of the Complaint, removed the action to federal court, moved to extend time to answer, and filed a Motion to Dismiss. Id. at 205.

         The Court dismissed Plaintiff's official capacity claims against DOJ Director based on sovereign immunity and lack of subject matter jurisdiction over claims construed as raised under the Federal Tort Claim Act (“FTCA”). Id. at 207-09. Individual capacity claims against DOJ Director were dismissed for lack of personal jurisdiction and for Plaintiff's failure to state a colorable claim for relief under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Id. at 209-11. Thus, the Court granted the Motion to Dismiss as to all claims alleged against the DOJ Director. Id. at 212.

         The Court then screened the Complaint as required by the Prison Litigation Reform Act (“PLRA”), and found that Plaintiff failed to show DOJ Director's personal knowledge or involvement in his claims, and dismissed such claims as alleged against the DOJ Director. Id. at 213-14. The Court dismissed all claims against the remaining sixteen Defendants for Plaintiff's failure to “plead any non-conclusory allegations” against them. Id. at 215. Thus, the Court dismissed the original Complaint in its entirety with leave granted to amend on or before September 23, 2019.

         In granting leave to amend, the Court notified Plaintiff that, if he was unable to state a claim against DOJ Director in an amended pleading, those claims would be dismissed with prejudice. And, because Plaintiff failed to serve any other Defendant within 90 days of the lawsuit's removal, as required under 28 U.S.C. § 1448 and Fed.R.Civ.P. 4(m), the remaining claims were subject to dismissal for his failure to timely serve. See Order, ECF No. 23 at 218 (discussing service under 28 U.S.C. § 1448 and Fed.R.Civ.P. 4(m)). The Court directed Plaintiff to file an in forma pauperis application (“IFP application”), with any amended pleading, if he sought assistance in serving the amended pleading.[5]

         On August 23, 2019, Plaintiff filed the FAC. ECF No. 26.

         On September 9, 2019, the DOJ Director moved for a stay in the proceedings pending screening of the FAC. ECF No. 30. The Court granted DOJ Director's Motion for Stay on September 13, 2019. ECF No. 31.

         On November 26, 2019, Plaintiff filed three Motions: (1) Motion for Transfer, Mental Health Medical Care, [and] Constitutional Rights [ECF No. 37]; Motion for Order [ECF No. 38]; and Motion for Monetary Damages and to be Transferred Out of HCF [ECF No. 39].

         B. Claims in the FAC

         Plaintiff filed the FAC on August 30, 2019, when he was again incarcerated at OCCC. See ECF No. 24-1 (FAC mailing documentation). Plaintiff did not submit an IFP application with the FAC, but stated that he sent the “IFP form to the business office. When [they] send it back to me I will send it to the court.” FAC, ECF No. 26 at 229. To date, Plaintiff has not submitted an IFP application.

         Plaintiff says that he lives in fear of being “set up” by other inmates and prison staff and asserts that his constitutional rights are being violated ...


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