United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART;
DENYING PENDING MOTIONS; DIRECTING SERVICE; AND LIFTING
E. Kobayashi United States District Judge.
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.
Plaintiff alleges that Defendants violated his civil rights
while he was incarcerated at the Oahu Community Correctional
Center (“OCCC”) and at the Halawa Correctional
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.
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.
alleged against DPS Director Espinda, OCCC Warden Sequeira,
COS Kawamoto, and ACO Keawe state plausible claims for relief
and shall be SERVED.
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.
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.
court is required to screen all prisoner pleadings pursuant
to 28 U.S.C. § 1915A(a). 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).
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
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).
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)).
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.
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. 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.
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).
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.
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.
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.
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.
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.
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
August 23, 2019, Plaintiff filed the FAC. ECF No. 26.
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.
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].
Claims in the FAC
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.
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 ...