Tomel v. State of Hawaii et al

Filing 15

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915: "(5) Plaintiff may file a proposed second 11 amended complaint on or before April 12, 2012, curing the specific deficiencies noted above.... (7) The Clerk of Court is DIRECTED to forward a copy of the court's approved prisoner civil rights complaint and instructions to Plaintiff so that she may comply with this Order." Signed by District JUDGE LESLIE E. KOBAYASHI on March 12, 2012. (bbb, )CERTIFIC ATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DARLENE LOUISE TOMEL,
#A4017655,
Plaintiff,
vs.
STATE OF HAWAII, et al.,
Defendants.

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CIV. NO. 12-00047 LEK/BMK
DISMISSAL ORDER PURSUANT TO 28
U.S.C. § 1915

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915
On January 31, 2012, the court dismissed Plaintiff’s
original complaint in this prisoner civil rights action brought
pursuant to 42 U.S.C. § 1983.1
Dismissal Order.”

ECF #8, “January 31, 2012

The court notified Plaintiff that her

Complaint failed to state a claim and she was given leave to
amend to cure its deficiencies.
first amended complaint (“FAC”).2

Before the court is Plaintiff’s
Plaintiff has voluntarily

dismissed six of the original eighteen defendants and added
further details, such as the dates on which her claims alleged
occurred.

Plaintiff, however, has still failed to heed the

court’s directions in the January 31, 2012 Dismissal Order.

For

1

Plaintiff is incarcerated at the Women’s Community
Correctional Center (“WCCC”) and is proceeding pro se and in
forma pauperis.
2

After filing the FAC, Plaintiff filed a supplement to the
FAC, realleging claims against Defendant John Waikiki, that she
had omitted from the FAC. The court considers the supplement as
part of the FAC and discusses it herein.

the following reasons, Plaintiff’s FAC is dismissed for failure
to state a claim pursuant to 28 U.S.C. § 1915A(b)(1).

Plaintiff

is once again granted leave to amend, as discussed and limited
below.
I. BACKGROUND
Plaintiff names twelve individuals as defendants,
including: (1) Hawaii Community Correctional Center (“HCCC”)
physician Glen Morrison, M.D.; (2) WCCC bookkeeper Tracie Iwamoto
Dias; (3) Hawaiian Hotels and Resorts CEO Glen Hogan; (4) Royal
Lahaina Resort employee Yvette Wirngerter; (5) Royal Lahaina
Resort employee Frank Arnise Jr.;

(6) Andres Alcain (Arnise’s

uncle); (7) the Bank of Hawaii; (8) WCCC ACO Taka; (9) Deputy
Prosecutor Timothy Tate; (10) probation officer Katherine
Patricio; (11) Deputy Prosecutor Kevin Jenkins; and (12) HCCC ACO
John Waikiki (collectively “Defendants”).
Plaintiff generally alleges that, since approximately
2002, Defendants violated largely unspecified rights under the
First, Fourth, Fifth, and Eighth Amendments to the United States
Constitution.

Plaintiff alleges seventeen causes of action, most

that were brought in earlier suits against these same defendants.
Plaintiff seeks $50,000 in damages.
II. LEGAL STANDARD
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
2

from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e(c)(1).
A complaint may be dismissed for failure to state a
claim if it (1) lacks a cognizable legal theory; or (2) contains
insufficient facts under a cognizable legal theory.

Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To

state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not demand

detailed factual allegations, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v.

Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

“Determining whether a complaint states a plausible claim for
relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Id. at 1950.

Thus, although a plaintiff’s specific

factual allegations may be consistent with a constitutional

3

claim, a court must assess whether there are other “more likely
explanations” for a defendant's conduct.

Id. at 1951.

The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted unless it appears that amendment is
futile.

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
III.

DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2)
that the violation was committed by a person acting under the
color of state law.
A.

See West v. Atkins, 487 U.S. 42, 48 (1988).

The FAC Fails to Comply With Rule 8 of the Federal Rules Of
Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure requires

a “short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Although the Federal Rules adopt a flexible pleading policy, a
complaint must give fair notice and state the elements of the
claim plainly and succinctly.

Jones v. Cmty. Redev. Agency of

City of L.A., 733 F.2d 646, 649 (9th Cir. 1984).

“All that is

required [by Fed. R. Civ. P. 8(a)] is that the complaint gives

4

‘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)).
In addition, a complaint with the factual elements of a
cause of action scattered throughout the complaint and not
organized into a “short and plain statement of the claim” may be
dismissed for failure to satisfy Rule 8(a).

See Sparling v.

Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also
McHenry, 84 F.3d 1172.
The FAC fails to plainly and succinctly show that
Defendants violated Plaintiff’s constitutional rights, or that
she is entitled to relief.

Although Plaintiff now takes pains to

specify many of the dates that her claims allegedly took place
and where these violations allegedly occurred, it is clear that
most of her claims relate to events that occurred years ago.
Plaintiff still fails to explain how Defendants Hogan,
Wirngerter, Arnise, Alcain, and Bank of Hawaii acted under color
of state law, or how any Defendant violated the Constitution, law
or treaties of the United States.
As in the original Complaint, the FAC repeats
Plaintiff’s claims against Defendants several times, relating the
same details and conclusions, but fails to explain how Defendants
allegedly violated the Constitution or laws of the United States.

5

In short, Plaintiff’s Complaint fails to “state a claim to relief
that is plausible on its face.”
550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v. Twombley,

As written, it is impossible to

determine how Defendants violated Plaintiff’s rights, when her
claims accrued and why the statute of limitation should be told
for most of her claims, what her specific constitutional claims
against each individual Defendant entails, how certain defendants
were acting under color of state law, and why many of her claims
are not time-barred or alleged against defendants who are
entitled to immunity.

Plaintiff’s Complaint fails to state a

claim for relief and is DISMISSED with leave granted to amend.
B.

The FAC Fails to Comply With Rules 18 and 20
The FAC again asserts unrelated claims against wholly-

unrelated defendants, based on separate factual scenarios, that
clearly occurred at vastly different times and places.

The court

notified Plaintiff that, although she may join as many claims as
she has against an opposing party, see Fed. R. Civ. P. 18(a), she
may not join unrelated claims against unrelated defendants.

See

Aul v. Allstate Life Ins. Co., 993 F.2d 881, 884 (9th Cir. 1993);
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

Plaintiff

was told that she may assert claims against multiple defendants
only if her claims arise out of the same transaction or
occurrence, or series of transactions and occurrences, and there
are common questions of law or fact.
6

Fed. R. Civ. P. 20(a)(2);

Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert
Empire Bank v. Insurance Co. of North America, 623 F.3d 1371,
1375 (9th Cir. 1980).
Plaintiff’s claims in the FAC do not conform with Rules
18 and 20, and cannot proceed in a single action.

The FAC still

alleges claims against private individuals for actions that
apparently occurred in or about 2002, against the deputy
prosecutor at her criminal proceeding in 2004, an HCCC ACO who
allegedly violated her rights when she in 2006-2009, the deputy
prosecutor at her revocation hearing in 2011, her probation
officer, and against WCCC prison officials who are allegedly
violating various rights concerning the conditions of
confinement.
unrelated.

Most of these claims and defendants are completely

Plaintiff’s FAC is DISMISSED for failure to state a

claim under Rule 8 and for failure to comply with Rules 18 and 20
of the Federal Rules of Civil Procedure, with leave granted to
amend.
C.

Claims Against Hogan, Wirngerter, Arnise, Alcain, Bank of
Hawaii, Waikiki, and Jenkins Are Dismissed
1.

Statute of Limitation
As detailed in the January 31, 2012 Dismissal Order,

Plaintiff has brought three previous actions in this court:
1:09-cv-00195 HG, filed May 1, 2009, 1:09-cv-00489 SOM, filed
November 16, 2009, and 1:09-cv-00490 JMS, filed October 9, 2009.

7

Plaintiff raised many of the same claims in her previous cases
against many of the same Defendants as she asserts here, in
particular, against Waikiki, Jenkins, Hogan, and Wirngerter.

The

court notified Plaintiff that, consequently, many of her claims
appear time-barred.

See ECF #8, Dismissal Order at 8-11.

The statute of limitation applicable to § 1983 actions
in Hawaii is Haw. Rev. Stat. § 657-7, the two-year “general
personal injury” provision.

See Pele Defense Fund v. Paty, 73

Haw 578, 597-98, 837 P.2d 1247, 1260 (1992); see also Wilson v.
Garcia, 471 U.S. 261, 276 (1985) (holding that § 1983 plaintiffs
must satisfy the forum state’s statute of limitation for
personal-injury torts).

Federal law determines when a cause of

action under § 1983 accrues and the statute of limitations begins
to run.

Elliott v. City of Union City, 25 F.3d 800, 802 (9th

Cir. 1994).

Under federal law, a cause of action generally

accrues when the plaintiff knows or has reason to know of the
injury that forms the basis of his or her action.
Lewis, 174 F.3d 987, 991 (9th Cir. 1999).

Two Rivers v.

The district court may

sua sponte raise the issue of statute of limitation and dismiss
the complaint as long as the defendant has not waived the issue.
See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686-87
(9th Cir. 1993).
The FAC alleges that Plaintiff’s claims against
Defendants Hogan, Wirngerter, Arnise, Alcain, Bank of Hawaii, and
8

Jenkins accrued between 2002 and 2009.
14, 16, 19-25.

See FAC, ECF #11 at 12-

Moreover, Plaintiff raised the same claims

against these Defendants and Defendant Waikiki in her 2009 civil
suits referenced above.

The court notified Plaintiff that it was

considering dismissing her claims against these Defendants as
time-barred, and told her that she must specifically allege the
dates on which her claims against them occurred, and, if these
claims accrued prior to December 31, 2009, two years before she
signed the present Complaint, she must explain how the statute of
limitation is tolled for her claims.

The FAC and her prior cases

make clear that Plaintiff’s claims against Defendants Hogan,
Wirngerter, Arnise, Alcain, Bank of Hawaii, Waikiki, and Jenkins
accrued no later than May 1, 2009, the date that she filed
1:09-cv-00195, and first alleged her claims against them.
Plaintiff fails to explain why the statute of limitation should
be tolled, apparently because these claims are, in fact, timebarred.

As such, Plaintiff’s claims against Defendants Hogan,

Wirngerter, Arnise, Alcain, Bank of Hawaii, Waikiki, and Jenkins
accrued no later than December 31, 2009, and are DISMISSED with
prejudice as time-barred.
2.

No Color of State Law: Hogan, Wirngerter, Arnise,
Alcain, and Bank of Hawaii
In addition to being time-barred, Plaintiff fails to

show how Defendants Hogan, Wingerter, Arnise, Alcain, and Bank of
Hawaii were acting under color of state law when they allegedly
9

violated her constitutional rights.

Hogan, Wirngerter, and

Arnise allegedly work or worked for Hawaiian Hotels and Resorts
and Alcain is Arnise’s uncle.

Plaintiff says Arnise and Alcain

raped, robbed, and spread lies about her.
19-21, 23.

ECF #11, FAC at 12-14,

She asserts that Hogan and Wirngartaer failed to

protect her from Arnise and Alcain, interfered with her business,
spread lies about her to her clients, and withheld evidence and
information in her criminal prosecution.

Id.

Plaintiff claims

that a Bank of Hawaii teller released her confidential financial
information.

Id. at 14.

The court informed Plaintiff that private parties may
be sued under § 1983 only if their conduct is “fairly
attributable to the State” and there was an agreement between the
state and the private party to deprive a plaintiff’s
constitutional rights.

Lugar v. Edmondson Oil Co., 457 U.S. 922,

936-37 (1982); United Steelworkers of Am. v. Phelps Dodge Corp.,
865 F.2d 1539, 1540-41 (9th Cir. 1989) (citations omitted).
Plaintiff was told that she must allege sufficient facts to show
that these Defendants conspired with or wilfully participated in
a joint action with state officials to deprive the plaintiff of
his or her constitutional rights.

Degrassi v. City of Glendora,

207 F.3d 636, 647 (9th Cir. 2000) (citing Dennis v. Sparks, 449
U.S. 24, 27-28 (1980)); Taylor, 880 F.2d at 1048.
Plaintiff again fails to allege facts showing that

10

Hogan, Wirngerter, Arnise, Alcain, and Bank of Hawaii acted under
color of state law.

Plaintiff does not allege a conspiracy

between any of these Defendants and any state employee.
Plaintiff sets forth no facts showing that they acted in concert
with any state actor to deprive her of a constitutionally
protected right.
under § 1983.

Plaintiff fails to state a claim against them

See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th

Cir. 2003); see also Price v. Hawaii, 939 F.2d 702, 709 (9th Cir.
1991) (finding that the dismissal of the private appellees was
proper “since there was no sufficient pleading that the private
appellees were acting under color of state law”).
Moreover, even if they acted under color of state law,
Plaintiff’s claims against Hogan, Wingerter, Arnise, Alcain, and
Bank of Hawaii are insufficient to state a constitutional
violation under § 1983.

Defendants Hogan, Wirngerter, Arnise,

Alcain, and Bank of Hawaii are DISMISSED with prejudice.
D.

Prosecutorial Immunity: Jenkins and Tate
Plaintiff’s claims against Jenkins and Tate are also

subject to absolute prosecutorial immunity.

Plaintiff states

that Jenkins was the prosecutor during her 2004 criminal
conviction and Tate was the prosecutor during her August 2011,
probation revocation hearing.
25.

See FAC, ECF #11 at 16, 22, 24,

Plaintiff claims that Jenkins and Tate accused her of lying,

mentally and verbally abused her, withheld unidentified evidence

11

in her case, and were generally “corrupt.”

See generally, id.

Prosecutors are absolutely immune from damages
liability pursuant to § 1983 for actions taken in their role as a
prosecutor.

Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

Prosecutorial immunity is based on “the nature of the function
performed, not the identity of the actor who performed it.”
Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001) (internal
quotation marks and citation omitted).

“[A]cts undertaken by a

prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his
role as an advocate for State, are entitled to the protections of
absolute immunity.”
omitted).

Id. (internal quotation marks and citations

On the other hand, “[w]hen a prosecutor performs the

investigative functions normally performed by a detective or
police officer,” the prosecutor is entitled to only qualified
immunity.

See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
Jenkins and Tate’s actions, remarks, alleged bias and

perjury, are alleged to have occurred during or in preparation
for Plaintiff’s 2004 criminal trial (Jenkins), or her 2011
revocation proceedings (Tate), and are protected by absolute
prosecutorial immunity.

Moreover, Plaintiff’s claims against

Jenkins and Tate are simply conclusory allegations unsupported by
fact.

Nor do Plaintiff’s claims of verbal abuse and harassment

state a constitutional violation.

12

See Oltarzewski v. Ruggiero,

830 F.2d 136, 139 (9th Cir. 1987).

Plaintiff’s claims against

Jenkins and Tate are DISMISSED with prejudice.
E.

Heck v. Humphrey: Claims Against Tate and Patricio
Plaintiff alleges that Defendants Tate and Patricio

acted unprofessionally and mentally abused her during her
probation revocation proceedings in state CR No. 2PC04-1-00087.3
Plaintiff claims this violated her rights to due process.
FAC, ECF #11 at 16, 22, 25.

See

First, Plaintiff’s claims, seeking

damages against Tate and Patricio relating to her probation
revocation, are barred by the doctrine set forth in Heck v.
Humphrey, 512 U.S. 477 (1994).
“[T]o 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,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of a writ of habeas corpus[.]”

Id. 512 U.S. at 486-87.

Any determination that Tate or Patricio denied
Plaintiff due process at her probation revocation proceedings
would call into question Plaintiff’s continuing incarceration.

3

See Hawai’i State Judiciary’s Public Access to Court
Information, at: http://hoohiki1.courts.state.hi.us/jud/Hoohiki/.
13

Plaintiff’s sentence has not been reversed, expunged, declared
invalid, or otherwise set aside.

Rather, Plaintiff’s attorney is

challenging the revocation of her probation.
Second, Plaintiff’s claims that Tate and Patricio acted
unprofessionally, verbally harassed her, and gave inaccurate
testimony at her probation revocation hearing do not arise to the
level of a constitutional violation.

See Oltarzewski, 830 F.2d

at 139; see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.
1996) (a deprivation of “peace of mind” does not support a
constitutional claim).

Plaintiff’s claims against Tate and

Patricio are DISMISSED as barred under Heck v. Humphrey, 512 U.S.
477 (1994), and as failing to state a claim.
F.

Claims Against ACO Taka
Plaintiff claims that ACO Taka failed to protect her

when her cell mate threatened her on September 2, 2011.
#11 at 15.

FAC, ECF

Plaintiff explains that she told Taka about the

threat, Taka spoke with the other inmate and told her to stop
making threats, but did not remove Plaintiff from the cell.
Plaintiff says that her cell mate continued to threaten her.
Later that evening, Plaintiff told a WCCC Sargent about the
continuing threats, who then removed Plaintiff from the cell.
These facts are insufficient to conclude that Taka violated
Plaintiff’s constitutional rights.
“[P]rison officials have a duty . . . to protect

14

prisoners from violence at the hands of other prisoners,” and
prison officials violate an inmate’s Eighth Amendment rights when
they exhibits deliberate indifference to the inmates safety.
Farmer v. Brennan, 511 U.S. 825, 833-34 (1994).

A prison

official violates the Eighth Amendment, however, only when two
requirements are met: (1) the deprivation alleged is,
objectively, sufficiently serious; and (2) the prison official
is, subjectively, deliberately indifferent to the prisoner’s
safety. Id. at 834.
To show that a prison official is liable for failure to
prevent harm, a prisoner must show: (1) that he was incarcerated
under conditions posing a substantial risk of serious harm, id.;
and (2) that the prison official knew of and disregarded such a
risk, id. at 837.

The prison official must both be aware of

facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.
Id.

He need not “believe to a moral certainty that one inmate

intends to attack another at a given place at a time certain
before [he] is obligated to take steps to prevent such an
assault.”

Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986).

But he must have more than a “mere suspicion” that an attack will
occur.

Id.
Showing that the prison official knew of a substantial

risk of serious harm is not enough without showing indifference

15

by that official.

A prison official “who actually knew of a

substantial risk to inmate health or safety may be found free
from liability if [he] responded reasonably to the risk, even if
the harm ultimately was not averted.”

Farmer, 511 U.S. at 844.

A prison official’s duty under the Eighth Amendment is to ensure
“reasonable safety,” a standard that incorporates due regard for
prison officials’ “unenviable task of keeping dangerous men in
safe custody under humane conditions.”

Id. at 844–45 (citations

and internal quotation marks omitted).

“Whether one puts it in

terms of duty or deliberate indifference, prison officials who
act reasonably cannot be found liable under the Cruel and Unusual
Punishments Clause.”

Id. at 845.

Plaintiff’s conclusory allegations do not show that
Taka acted with deliberate indifference.

Taka spoke to

Plaintiff’s cell mate and told her to stop making threats.
Plaintiff says the threats continued, and she therefore reported
the threats to another guard later that same day.

Plaintiff does

not say that she was later attacked, she simply says her cell
mate’s verbal harassment continued.

Taka’s actions appear to

have been a reasonable first step in resolving the alleged
conflict between Plaintiff and her cell mate.

“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory allegations,” are insufficient to state a claim.
Iqbal, 129 S. Ct. at 1949.

Plaintiff was given leave to allege

16

sufficient facts to state a claim against Taka and has not done
so.

Claims against Taka are therefore DISMISSED with prejudice

for failure to state a claim.
G.

Claims Against Iwamoto-Dias
Plaintiff alleges that Dias mishandled money deposited

in her WCCC prison trust account.

See ECF #11, FAC at 11, 18.

Plaintiff first complains that Dias deducted funds from her
prison trust account to pay for Plaintiff’s past filing fee
balance to the court for her previous actions, then alleges that
Dias stole her money.

Plaintiff says she’s spoken to the WCCC

Warden about this, and has filed a police report.
As explained to Plaintiff in the January 31, 2012
Dismissal Order, if she is complaining that Dias is taking her
funds to reimburse her court fees, she fails to state a claim.
Dias’s withdrawals are authorized by statute, see 28 U.S.C.
§ 1915 (a-b), and Plaintiff consented to these deductions when
she sought in forma pauperis status in 1:09-cv-00195 and on
appeal.

Plaintiff has not been overcharged or overpaid her court

filing fees.

To date, Plaintiff has paid only $266.85 in 1:09-

cv-00195, towards her civil filing fee of $350 and her appellate
filing fee of $455.

Plaintiff has paid nothing for her other two

actions, or as yet, for this action.

See 1:09-cv-00195, ECF #71.

Second, as noted previously explained to Plaintiff,
neither the negligent nor intentional deprivation of property
17

states a due process claim under § 1983, if the deprivation was
random and unauthorized.

See Parratt v. Taylor, 451 U.S. 527,

535-44 (1981) (finding no claim under § 1983 where state employee
negligently lost prisoner’s property), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986);
Hudson, 468 at 533 (finding no claim under § 1983 for intentional
destruction of prisoner’s property).

Because the state expressly

waives its immunity for its employees’ torts, see Haw. Rev. Stat.
§ 662-2 § 662-2, Hawaii law provides Plaintiff an adequate
post-deprivation remedy, and in fact, Plaintiff admits that she
has filed a complaint with the police.
Plaintiff fails to state a claim for the violation of a
federal constitutional right regarding Dias’s alleged mishandling
or theft of Plaintiff’s funds.

Plaintiff’s claims against Dias

are DISMISSED with prejudice.
H.

Claims Against Dr. Morrison
1.

Denial of Medical Care
Plaintiff claims that she had three “slip and falls

with injuries” while incarcerated at HCCC for three months in
2011.

Id.

Plaintiff alleges that Dr. Morrison failed to provide

her with adequate medical care when he “refused to send [her] for
x-rays or [to] outside doctors.”

ECF #11, FAC at 10.

Plaintiff

alleges that, because Dr. Morrison failed to provide her with
adequate medical care, she has three “bulging discs into nerve
18

roots, now requiring surgery[.]”

Id.

A prisoner asserting a § 1983 claim for denial of
medical care must show “acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976).

A serious medical

need exists if failure to treat the condition could result in
further significant injury or the unnecessary and wanton
infliction of pain.

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

Cir. 1992), overruled on other grounds by WMX Technologies, Inc.
v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

Deliberate

indifference requires that defendants purposefully ignore or fail
to respond to the prisoner’s pain or medical need.
F.2d at 1060.

McGuckin, 974

Deliberate indifference “may appear when prison

officials deny, delay or intentionally interfere with medical
treatment, or it may be shown in the way in which prison
physicians provide medical care.”

Id. at 1059.

Plaintiff alleges that Dr. Morrison denied her
necessary x-rays or medical care, resulting in further injury and
pain.

Plaintiff states a claim against Dr. Morrison and it may

proceed.
2.

Discrimination
Plaintiff also alleges that Dr. Morrison discriminated

against her, as a veteran, when he allegedly stated, “All
veterans are on welfare, [who] live off the taxpayers, [and]
don’t deserve medical care, go out and get a job like everyone
19

else.”

Id. at 17.

The court again construes this as Plaintiff’s

attempt to assert a claim under the Fourteenth Amendment.
With respect to any substantive due process claim
Plaintiff asserts, that claim is redundant of her Eighth
Amendment claim against Dr. Morrison.

See Graham v. Connor, 490

U.S. 386, 395(1989) (providing that when there is an “explicit
textual source” of constitutional protection available, “that
Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing” such claims); see also
Whitley v. Albers, 475 U.S. 312, 327 (1986) (“[T]he Eighth
Amendment, which is specifically concerned with the unnecessary
and wanton infliction of pain in penal institutions, serves as
the primary source of substantive protection to convicted
prisoners”).

Plaintiff sets forth no facts suggesting that she

was denied procedural due process.
To the extent that Plaintiff is asserting an equal
protection claim, Plaintiff’s vague and conclusory allegations
are insufficient.
suspect class.

Plaintiff, as a veteran, is not part of a

See Disabled American Veterans v. United States

Department of Veterans Affairs, 962 F.2d 136, 142 (2d Cir. 1992).
She must, therefore, allege that she was treated differently than
persons who were similarly situated.

See City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985).
Plaintiff does not allege that any similarly situated prisoner
was treated differently by Dr. Morrison, because that prisoner
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was not a veteran.

As such, Plaintiff’s allegations are

insufficient to state a cognizable Equal Protection Clause claim.
Moreover, Plaintiff’s discrimination claim against
Dr. Morrison is the quintessential “unadorned, the-defendantunlawfully- harmed-me accusation[,]” that the Supreme Court held
insufficient to state a claim.
(2009).

See Iqbal, 129 S. Ct. at 1949

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.

Plaintiff’s discrimination claim against Dr. Morrison is

DISMISSED.
IV.
(1)

CONCLUSION

Plaintiff’s first amended complaint is DISMISSED.

Specifically:
(2)

Plaintiff’s claims against Defendants Iwamoto Dias,

Hogan, Wirngerter, Arnise, Alcain, Bank of Hawaii, Waikiki, Taka,
Tate, and Jenkins are DISMISSED WITH PREJUDICE.
(3)

Plaintiff’s claims against Defendant Patricio are

DISMISSED without prejudice to refiling in a separate action
after her revocation of probation has been reversed, expunged,
declared invalid, or otherwise set aside as having been
improperly revoked, and she can cure her insufficient allegations
of fact.
(4) Plaintiff’s claims against Defendant Dr. Morrison, are
DISMISSED without prejudice.

Plaintiff may reallege her claims

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against Dr. Morrison in a second amended complaint that complies
with the court’s instructions herein.
(5)

Plaintiff may file a proposed second amended complaint

on or before April 12, 2012, curing the specific deficiencies
noted above.
(6)

Any proposed second amended complaint must clearly

designate that it is the “Second Amended Complaint.”

The second

amended complaint must be retyped or rewritten in its entirety on
court-approved forms and may not incorporate any part of the
original Complaint by reference.
1258 (9th Cir. 1992).

Ferdik v. Bonzelet, 963 F.2d

Any cause of action that was raised in the

original complaint is waived if it is not raised in an amended
complaint.
(7)

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
The Clerk of Court is DIRECTED to forward a copy of the

court’s approved prisoner civil rights complaint and instructions
to Plaintiff so that she may comply with this Order.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII,

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tomel v. State of Hawaii, et al., Civ No. 12-00047 LEK/BMK; DISMISSAL ORDER PURSUANT
TO 28 U.S.C. § 1915; psas/Screening/dmp 2012/Tomel 12-47 (dsm FAC lv amd)

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