Pauline v. HCF Administration et al

Filing 9

ORDER DISMISSING 1 COMPLAINT WITH LEAVE GRANTED TO AMEND: "IT IS HEREBY ORDERED that: (1) The Complaint is DISMISSED for failure to state a claim, as discussed above. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). (2) Plaintiff is GRANTE D leave to file a proposed amended complaint curing the deficiencies noted above on or before May 31, 2012. Failure to timely amend the Complaint and cure its pleading deficiencies will result in AUTOMATIC DISMISSAL of this action for failure to stat e a claim, and may be counted as strike pursuant to 28 U.S.C. § 1915(g). (3) 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.&qu ot; Signed by JUDGE LESLIE E. KOBAYASHI on May 1, 2012. (bbb, )CERTIFICATE 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. Prisoner Civil Rights form sent to Plaintiff on the date of this docket entry.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ALDEN PAULINE, #A0256259,
Plaintiff,
vs.
HCF ADMINISTRATION, HCF
MEDICAL STAFFS, DEP’T OF
PUBLIC SAFETY, OCCC
ADMINISTRATION,
Defendants.
____________________________

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CIV. NO. 12-00179 LEK/BMK
ORDER DISMISSING COMPLAINT WITH
LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Alden Pauline’s
prisoner civil rights complaint brought pursuant to 42 U.S.C.
§ 1983.1

Plaintiff claims that the Department of Public Safety

(“DPS”), the Halawa Correctional Facility (“HCF”) and Oahu
Community Correctional Center (“OCCC”) Administrations and
medical departments, retaliated against him for reporting illegal
activities at OCCC, thereafter failed to protect him, and denied
him medical care in violation of the Eighth Amendment.

Plaintiff

seeks a transfer to a safer facility for his protection.
For the following reasons, the Complaint is DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for
failure to state a claim.

Because it is possible that Plaintiff

can cure the Complaint’s deficiencies, he is granted leave to
amend.

1

Plaintiff is proceeding in forma pauperis.

See ECF #5

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
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 for (1) lack of a cognizable legal theory; or (2)
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.

“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
2

on its face.’”

Id. (quoting Bell Atlantic 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
misconduct alleged.”

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 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.

See

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

A “complaint [filed by

a pro se prisoner] ‘must be held to less stringent standards than
formal pleadings drafted by lawyers.’” Hebbe, 627 F.3d at 342
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam)).

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).

The court should not, however, advise the litigant how to cure
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the defects.

This type of advice “would undermine district

judges’ role as impartial decisionmakers.”

Pliler v. Ford, 542

U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13
(declining to decide whether the court was required to inform a
litigant of deficiencies).
II.

PLAINTIFF’S ALLEGATIONS

Plaintiff claims that, when he was incarcerated at
OCCC, he informed unnamed prison officials that unnamed prison
guards were taking drugs with inmates at the prison.
Compl. at 5, Count I.

ECF #1,

Plaintiff alleges that, thereafter, three

unnamed inmates and two unnamed prison guards attacked him.
Plaintiff states that OCCC officials then transferred him to HCF,
presumably for his safety, but he alleges that he remains in
danger because the prison guards at HCF are related to the OCCC
prison guards.

Id.

Plaintiff next alleges that HCF officials are aware
that the OCCC and HCF guards are related, and know that the HCF
guards are threatening him.

Compl. at 6, Count II.

Plaintiff

claims that unnamed HCF guards have retaliated against him for
filing grievances by putting glass in his food, refusing him
razors, and failing to investigate his claims on unspecified
dates.

Id.

4

Finally, Plaintiff alleges that unnamed OCCC and HCF
medical personnel refused to treat his unspecified injuries, on
unspecified dates, despite his pain.

Compl. at 7, Count III.

Plaintiff names no individual defendants and seeks only
injunctive relief in the form of a protective transfer from HCF.
III.

DISCUSSION

To state a claim under 42 U.S.C. § 1983: (1) the
defendant must be a person acting under color of state law; and
(2) his conduct must have deprived the plaintiff of rights,
privileges, or immunities secured by the Constitution or laws of
the United States.

Parratt v. Taylor, 451 U.S. 527, 535 (1981),

overruled in part on other grounds by Daniels v. Williams, 474
U.S. 327(1986).

When a plaintiff fails to allege or establish

one of the three elements, his complaint must be dismissed.
A.

Rule 8
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
‘the defendant fair notice of what the plaintiff’s claim is and
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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)).
“A plaintiff must allege facts, not simply conclusions,
that show that an individual was personally involved in the
deprivation of his civil rights.”

Barren v. Harrington, 152 F.3d

1193, 1194 (9th Cir. 1998) (emphasis added).

A person deprives

another of a constitutional right under § 1983, when he or she
“‘does an affirmative act, participates in another’s affirmative
acts, or omits to perform an act which [that person] is legally
required to do that causes the deprivation of which complaint is
made.’”

Preschooler II v. Clark County Sch. Bd. of Trustees, 479

F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978)).

The “requisite causal connection

may be established” not only by some kind of direct personal
participation in the deprivation, but also by setting in motion
“a series of acts by others which the actor knows or reasonably
should know would cause others to inflict the constitutional
injury.”
1.

Id. (citing Johnson, 588 F.2d at 743–44).
Plaintiff Fails to Name Any Individual
Plaintiff’s claims fail to plainly and succinctly show

that any individual defendant violated his constitutional rights.
The DPS, HCF and OCCC “Administrations,” and their medical units
are not “persons” within the meaning of § 1983.
6

Without some

identifying facts, it is impossible to link any specific
individual to Plaintiff’s claims.
Only “persons” may be sued in civil actions under 42
U.S.C. § 1983.

“[N]either a State nor its officials acting in

their official capacities are ‘persons’ under § 1983.”
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Will v.
“[A] suit

against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the
official's office.

As such, it is no different from a suit

against the State itself.”

Id. (citations omitted); see Edelman

v. Jordan, 415 U.S. 651, 662-63 (1974).
To properly state a claim under § 1983, Plaintiff must
name the individual defendants who violated his federal rights
and he must allege facts showing how each individually named
defendant caused or personally participated in causing the harm
alleged in the complaint.
(9th Cir. 1981).

Arnold v. IBM, 637 F.2d 1350, 1355

“The inquiry into causation must be

individualized and focus on the duties and responsibilities of
each individual defendant whose acts or omissions are alleged to
have caused a constitutional deprivation.”

Leer v. Murphy, 844

F.2d 628, 633 (9th Cir. 1988) (citing Rizzo, 423 U.S. at 370–71).
Plaintiff names only the DPS, HCF and OCCC
Administrations, and their medical departments as Defendants.
ECF #1.

Defendants are simply agencies of a sovereign state

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entity and not persons under § 1983.

Plaintiff fails to allege

facts showing that any individual or person was personally
involved in the alleged deprivation of his civil rights, and
therefore fails to state a claim.

Plaintiff shall be given an

opportunity to amend his complaint to individually name persons
whom he alleges were involved in violating his constitutional
rights.
2.

Supervisor Liability
There is no respondeat superior liability under § 1983,

however.
1993).

Palmer v. Sanderson, 9 F.3d 1433, 1437–38 (9th Cir.

A supervisor’s liability can be established if the

supervisor sets “in motion a series of acts by others,” or
“knowingly refuses to terminate a series of acts by others, which
[the supervisor] knew or reasonably should have known would cause
others to inflict a constitutional injury.” Dubner v. City &
Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)
(quoting Redman v. Cnty of San Diego, 942 F.2d 1435, 1447 (9th
Cir. 1991)) (alteration in original; internal quotation marks
omitted), .
“A defendant may be held liable as a supervisor under
§ 1983 ‘if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful
conduct and the constitutional violation.’”
8

Starr v. Baca, 652

F.3d 1202, 1207 (9th Cir. 2011), cert. denied, (2012) (quoting
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).
Plaintiff must show that a supervisor breached a duty
to him which was the proximate cause of his alleged injury.
Baca, 652 F.3d at 1207 (quoting Redman v. Cnty of San Diego, 942
F.2d 1435, 1447 (9th Cir. 1991).

As noted, Plaintiff relates no

facts focusing on any individual or individual’s duties,
responsibilities, or knowledge of and acquiescence in, a
subordinate’s actions.

As such, Plaintiff fails to state a claim

for supervisory liability.
3.

Insufficient Facts Alleged
Plaintiff fails to specify the date or dates that he

told OCCC officials about the alleged drug use at the prison, the
date that he was allegedly assaulted by the unnamed OCCC guards
and inmates, the date that he was transferred to HCF and
allegedly subjected to more abuse, or any facts detailing when he
requested medical care and what the medical units response to
those requests were.

Without more, it is impossible to draw the

inference that Plaintiff’s protected activity influenced any
prison official’s alleged retaliation or denial of medical care.
Without dates or specific allegations stating which Defendant did
what to Plaintiff, Plaintiff’s claims do not state a plausible
claim for relief and are simply Plaintiff’s conclusions.
Twombley, 550 U.S. at 570.
9

See

While Plaintiff’s allegations may suggest retaliation
and threats to his safety, other conclusions are just as
plausible.

Plaintiff supplies no supporting details to allow

this court or Defendants to make the necessary leap that move
Plaintiff’s claims from possibilities to plausible inferences
that any specific individual is responsible for his claims.
Twombly, 550 U.S. at 570.

See

Rule 8 “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation,” and
this is all Plaintiff provides.

Iqbal, 129 S. Ct. at 1949.

As written, it is impossible to determine who did what
to Plaintiff, when his claims accrued, what his specific claims
against any individual entails, and how Plaintiff’s
constitutional rights were violated.

Plaintiff’s Complaint

therefore fails to state a claim for relief and is DISMISSED with
leave granted to amend.
B.

Retaliation
To state a retaliation claim under § 1983, a prisoner

must demonstrate that (1) prison officials retaliated against him
for exercising his constitutional right; and (2) the retaliatory
action did not advance legitimate penological goals, such as the
preservation of institutional order, discipline, security, or
rehabilitation of prisoners.

Rizzo v. Dawson, 778 F.2d 527, 532

(9th Cir. 1985); Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir.
1995).

The prisoner has the burden of pleading and proving the
10

absence of legitimate correctional goals.

Pratt, 65 F.3d at 806.

Furthermore, a retaliation claim without an allegation of a
“chilling effect” or other harm is not actionable.

See Resnick

v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000).
Plaintiff broadly alleges that HCF and OCCC
Administration Defendants retaliated against him.

Plaintiff

suggests that OCCC prison officials transferred him to HCF after
he was assaulted in retaliation for his whistleblowing.
Compl. at 5.

See

The most plausible inference to draw from this set

of facts, however, is not that these officials retaliated against
Plaintiff, but rather, that they acted to protect him.
Similarly, Plaintiff provides no facts supporting a plausible
inference that HCF officials retaliated against him once he
arrived there.

As such, Plaintiff fails to set forth a

retaliation claim against the OCCC and HCF Administrations or
medical units.
Plaintiff is apparently alleging that unnamed prison
guards and OCCC inmates retaliated against him for reporting the
illegal activities allegedly occurring at OCCC.

But, as noted,

Plaintiff neither names these individuals, nor provides any
identifying facts indicating who these individuals are, or any
facts suggesting a connection between his protected activity and
their alleged retaliatory acts.

As such, Plaintiff fails to

state a claim.

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C.

Denial of Medical Care
Plaintiff alleges that the OCCC and HCF medical units

“do not want to provide me the treatment that I need for my
medical injury” following the alleged attack at OCCC.

The Eighth

Amendment requires that prisoners receive adequate medical care.
Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other
grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.
1997).

To state an arguable § 1983 claim for failure to provide

medical care, a prisoner must allege that a defendant’s “acts or
omissions [were] sufficiently harmful to evidence a deliberate
indifference to serious medical needs.”

Estelle, 429 U.S. at

106; Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986).
Deliberate indifference involves two elements: “[1] the
seriousness of the prisoner’s medical need[;] and [2] the nature
of the defendant’s response to that need.”

McGuckin, 974 F.2d at

1059; see also Lolli v. County of Orange, 351 F.3d 410, 419 (9th
Cir. 2003).

That is, a plaintiff must demonstrate “‘objectively,

sufficiently serious’ harm and that the officials had a
‘sufficiently culpable state of mind’ in denying the proper
medical care.

Thus, there is both an objective and a subjective

component to an actionable Eighth Amendment violation.”

Clement

v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002)(citing Wallis v.
Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995)).
12

Although Plaintiff demonstrates a serious medical need,
because he claims he is injured and in great pain, he provides
nothing showing that the OCCC and HCF medical unit’s response to
his need was motivated by a sufficiently culpable, deliberately
indifferent state of mind.

Plaintiff’s claim that they “do not

want to provide” him treatment can mean that they refused him
treatment, or that he disagrees with the treatment they have
provided.

See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir.

2004) (a difference in opinion regarding medical care does not
establish deliberate indifference). Without more detail,
Plaintiff fails to state a claim for the delay or denial of
medical care.
D.

Threat to Safety
Prison officials are required to take reasonable

measures to guarantee the safety of inmates and they have a duty
to protect prisoners from violence at the hands of other
prisoners or guards.

Farmer v. Brennan, 511 U.S. 825, 832-33

(1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

To

state a claim for threats to safety, an inmate must allege facts
to support that he was incarcerated under conditions posing a
substantial risk of harm and that prison officials were
“deliberately indifferent” to his safety.

Farmer, 511 U.S. at

834; Frost, 152 F.3d at 1128; Redman v. County of Los Angeles,
942 F.2d 1435, 1443 (9th Cir. 1991) (en banc).
13

Thus, a plaintiff must set forth facts supporting an
inference that defendant knew of, but disregarded, an excessive
risk to an inmate’s safety.

Farmer, 511 U.S. at 837.

That is,

“the official must both [have been] aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exist[ed], and he must also [have] draw[n] the inference.”
Farmer, 511 U.S. at 837; Frost, 152 F.3d at 1128; Redman, 942
F.2d at 1442.

Plaintiff fails to allege facts that support an

inference that Defendants were deliberately indifferent to
threats to his safety.

As such, Plaintiff fails to state a

claim.
IV.

LEAVE TO AMEND

The Complaint is DISMISSED as discussed above.
Plaintiff may file a proposed amended complaint on or before
May 31, 2012.

The proposed amended complaint must cure the

deficiencies noted above and demonstrate how the conditions
complained of resulted in a deprivation of his federal
constitutional or statutory rights.
The court will not refer to the original pleading to
make any amended complaint complete.

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).
14

See King v.

Furthermore, as a

general rule, an amended complaint supersedes the original
complaint.

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.
V.

28 U.S.C. § 1915(g)

If Plaintiff fails to file an 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
physical injury.
28 U.S.C. § 1915(g).
VI.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED for failure to state a

claim, as discussed above.

See 28 U.S.C. § 1915(e)(2)(b) &

1915A(b)(1).
(2)

Plaintiff is GRANTED leave to file a proposed

amended complaint curing the deficiencies noted above on or

15

before May 31, 2012.

Failure to timely amend the Complaint

and cure its 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. § 1915(g).
(3)

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, May 1, 2012.

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

Pauline v. HCF Administration, et al., Civ. No. 1:12-00179 LEK-BMK, Order Dismissing
Complaint With Leave Granted to Amend; psa/Screening/dmp/2012/Pauline 12-179 lek (imp
defs, ftsc R8 lv amd)

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