Kudoba v. Harrington et al
ORDER DISMISSING 8 FIRST AMENDED COMPLAINT: "(1) The First Amended Complaint is DISMISSED for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). (2) Plaintiff is GRANTED leave to file a proposed second amended compl aint curing the deficiencies noted above on or before August 8, 2012. Failure to timely amend and cure the noted pleading deficiencies will result in AUTOMATIC DISMISSAL of this action for failure to state a claim, and may be counted as strike pursua nt to 28 U.S.C. § 1915(g)." Signed by JUDGE LESLIE E. KOBAYASHI on July 11, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electron ically 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. 1 blank prisoner civil rights complaint form mailed to Pltf at the address of record.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ERWIN ARTHUR WILHELM KUDOBA,
DAVID SAYURIN, IRENE
REVILLA, DWAYNE KOJIMA, TUI
CIV. NO. 12-00164 LEK/BMK
ORDER DISMISSING FIRST AMENDED
ORDER DISMISSING FIRST AMENDED COMPLAINT
Before the court is pro se Plaintiff Erwin Kudoba Jr.’s
first amended prisoner civil rights complaint (“FAC”).
complains of events that allegedly occurred at the Waiawa
Correctional Facility (“WCF”).
Plaintiff names WCF Lieutenant
David Sayurin, Head Nurse Irene Revilla, Substance Abuse
Counselor Dwayne Kojima, and Adult Correctional Officer (“ACO”)
Tui Faatea as defendants in their individual and official
capacities (collectively, “Defendants”).
For the following reasons, the FAC is DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for
failure to state a claim.
Because Plaintiff can possibly cure
the deficiencies in the FAC, he is again granted leave to amend.
I. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
28 U.S.C. § 1915A(a).
The court must
dismiss a complaint in full or in part 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 for (1) lack of a cognizable legal theory; or (2)
insufficient facts under a cognizable legal theory.
v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
Fed. R. Civ. P. 8(a)(2).
While Rule 8 does not demand
detailed factual allegations, “it demands more than an unadorned,
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.”
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
“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 claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true and in the light
most favorable to the plaintiff.
447 (9th Cir. 2000).
Resnick v. Hayes, 213 F.3d 443,
Leave to amend should be granted if it
appears at all possible that the plaintiff can correct the
defects of his or her complaint.
Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000).
Plaintiff claims that, because he reported that WCF ACO
Macalino had “stolen” empty cans that the inmates collected,
Macalino’s partner, Defendant Faatea, threatened Plaintiff and
Plaintiff says that he feared for his life, and to
secure a transfer to the Halawa Correctional Facility (“HCF”), he
pretended to hang himself.
While Plaintiff was feigning
unconsciousness, Plaintiff claims that Defendants Faatea and ACO
Marco Valencia planted a weapon or unauthorized instrument under
Plaintiff was charged with three misconduct violations
on November 30, 2011: (1) possession of a weapon or dangerous
instrument; (2) possession of an unauthorized tool; and (3)
malingering or feigning illness.
Defendants Sayurin, Kojima, and
Revilla comprised the adjustment hearing committee.
claims that they denied him the right to call witnesses at the
Plaintiff seeks injunctive relief only in the form of a
reprimand to all Defendants and reinstatement to a minimum
custody facility and participation in a work furlough program or
immediate early release.1
“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)
(citation omitted), vacated and remanded on other grounds, 129 S.
The Hawaii Statewide Automated Victim Information and
Notification service (“SAVIN”), database reveals that Plaintiff
has been transferred from HCF to Oahu Community Correctional
Center (“OCCC”), a minimum custody jail facility. See
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
Plaintiff alleges that Sayurin, Kojima, and Revilla
violated his right to due process when they refused to allow him
to call witnesses at his disciplinary hearing.
The Due Process Clause protects prisoners from the
deprivation of liberty without due process of law.
McDonnell, 418 U.S. 539, 556 (1974).
To state a due process
claim, a plaintiff must first establish the existence of a
Liberty interests may arise from the Due
Process Clause itself or from state law.
U.S. 460, 466-68 (1983).
Hewitt v. Helms, 459
Inmates’ liberty interests are
“generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force,
nonetheless impose atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations
“As long as the conditions or degree of confinement to
which the prisoner is subjected is within the sentence imposed
upon him and does not otherwise violate the Constitution, the Due
Process Clause does not in itself subject an inmate’s treatment
by prison authorities to judicial oversight.”
Haymes, 427 U.S. 236, 242 (1976).
Thus, a prisoner may challenge a disciplinary action
that (1) deprives or restrains a liberty interest in some
“unexpected manner,” directly under the Due Process Clause, or
(2) “imposes some ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’”
See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing
Sandin, 515 U.S. at 483–84)).
First, Plaintiff has no protected liberty interest in
freedom from transfer between prisons, even if his transfer from
WCF to HCF meant that Plaintiff was removed from the WCF work
See Toussaint v. McCarthy, 801 F.2d 1080,
1094–95 (9th Cir. 1986) (holding that, under the pre-Sandin
mandatory language framework, inmates have no constitutional
right to participate in prison work programs); Baumann v. Arizona
Dep’t of Corr., 754 F.2d 841, 846 (9th Cir. 1985); cf., Coakley
v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989) (no liberty
interest based on a transfer from work release center back to
Nor does Plaintiff have a right to early release, the
relief he seeks and something that he may have been working
toward at WCF.
See Greenholtz v. Inmates of Neb. Penal and Corr.
Complex, 442 U.S. 1, 7-11 (1979); see also Neal v. Shimoda, 905
F. Supp. 813, 818 (D. Haw. 1995), aff’d in part rev’d in part,
131 F.3d 818 (9th Cir. 1997) (no state created liberty interest
in Hawaii to early release).
Plaintiff fails to state a claim
under the Due Process Clause itself.
Second, Plaintiff still provides no facts suggesting
that his transfer to HCF, something that he admits he sought by
feigning a suicide attempt, or his thirty-day sanction at WCF
imposed atypical or significant hardship comparison to the normal
incidents of prison life at WCF.
Plaintiff provides no facts
indicating how his confinement at HCF or thirty-day sanction,
compares to confinement in the general population or
administrative segregation at WCF.
In short, Plaintiff provides
no facts that support a finding of atypical or significant
hardship and he therefore fails to state a claim for the
deprivation of due process under state law relating to his
Eighth Amendment Claim
Plaintiff claims that Defendant Faatea’s alleged
threats against him violated the Eighth Amendment.
of mere threats are not cognizable under § 1983, however.
Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does
not constitute constitutional wrong, nor do allegations that
naked threat was for purpose of denying access to courts compel
Retaliation Claim Against Valencia and Claims for Injunctive
Plaintiff also claims that ACO Marco Valencia violated
the Eighth Amendment by planting the weapon under his mattress in
retaliation for Plaintiff’s filing a report against ACO Macalino.
Plaintiff does not name Valencia in the FAC’s caption, but only
within the body of his pleading.
A prisoner must set forth five essential elements to
state a viable claim for retaliation.
See Rhodes v. Robinson,
408 F.3d 559, 566 (9th Cir. 2005).
(1) An assertion that a state actor took some adverse
action against an inmate (2) because of (3) that
prisoner’s protected conduct, and that such action (4)
chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance a
legitimate correctional goal.
408 F.3d at 567-68.
See also Brodheim v. Cry, 584 F.3d 1262,
1269 (9th Cir. 2009) (applying Rhodes test); Barnett v. Centoni,
31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam).
Plaintiff adequately states a retaliation claim against
Plaintiff must, however, name all Defendants in the
caption of a pleading.
See Fed. R. Civ. P. 10(a); Ferdik v.
Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir. 1992) (affirming
dismissal of pro se civil-rights plaintiff’s complaint as
sanction for plaintiff’s failure to amend it to replace “et al.,”
in caption’s list of defendants, with actual names of all
Even a pro se prisoner’s complaint must
comply with Fed. R. Civ. P. 10(a) and include the names of all
parties in the in title of the action.
Myles v. United States,
416 F.3d 551, 551-52 (7th Cir. 2005).
Moreover, Plaintiff seeks only injunctive relief, in
fact, relief that it appears he has already received, transfer to
a minimum custody facility.
Plaintiff’s remaining claim against
WCF ACO Valencia for injunctive relief was mooted when he
transferred from WCF to HCF, and now, to OCCC.
See Nelson v.
Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (explaining that “when a
prisoner is moved from a prison, his action will usually become
moot as to conditions at that particular facility”).
fails to demonstrate a reasonable expectation of being
transferred back to WCF, particularly in light of his recent
transfer to OCCC and his statements that he will be finish his
maximum term in approximately one month.
Thus, Plaintiff’s case
does not satisfy the “capable of repetition yet evading review”
exception to the mootness doctrine.
See Johnson v. Moore, 948
F.2d 517, 519 (9th Cir. 1991) (per curiam).
however, amend his pleadings to properly name ACO Valencia and
add a claim for damages against him.
That is not to say that
Plaintiff will be successful on this claim, only that he may be
able to adequately state a claim against Valencia.
LEAVE TO AMEND
Plaintiff may file a proposed second amended complaint
on or before August 8, 2012, that properly names Valencia and
adds a damages claim against him.
Local Rule 10.3 requires that
an amended complaint be complete in itself without reference to
any prior pleading.
Defendants not named and claims not
realleged in an amended complaint are deemed waived.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
See King v.
Furthermore, as a
general rule, an amended complaint supersedes the original
See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
28 U.S.C. § 1915(g)
If Plaintiff fails to file a second amended complaint
correcting the deficiencies identified in this Order, this
dismissal may count as a “strike” under the “3-strikes” provision
of 28 U.S.C. § 1915(g).
Under the 3-strikes provision, a
prisoner may not bring a civil action or appeal a civil judgment
in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility,
brought an action or appeal in a court of the
United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g).
The First Amended Complaint is DISMISSED for
failure to state a claim.
See 28 U.S.C. § 1915(e)(2)(b) &
Plaintiff is GRANTED leave to file a proposed
second amended complaint curing the deficiencies noted above
on or before August 8, 2012.
Failure to timely amend and
cure the noted pleading deficiencies will result in
AUTOMATIC DISMISSAL of this action for failure to state a
claim, and may be counted as strike pursuant to 28 U.S.C.
The Clerk of Court is directed to mail a form
prisoner civil rights complaint to Plaintiff so that he may
comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 11, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Kudoba v. Harrington, et al., 1:12-00164 LEK-BMK; Order Dismissing First Amended
Complaint; psa/Screening/dmp/2012/Kudoba 12-164 lek (FAC)
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