Hillen v. Liilii et al

Filing 10

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION re 9 - Signed b CHIEF JUDGE SUSAN OKI MOLLWAY on 7/16/12. -- "IT IS HEREBY ORDERED that: (1) The Complaint is DISMISSED for failure to state a claim. See 28 U.S.C. § 1915(e )(2)(b) & 1915A(b)(1). Because amendment is futile, this dismissal is with prejudice, and leave to amend is not granted. (2) This dismissal may be counted as strike pursuant to 28 U.S.C. § 1915(g). (3) The court certifies that any appeal of this order would be frivolous and, therefore, not taken in good faith, given Ms. Hillen's failure to state a claim on which relief can be granted and her failure to adequately amend the complaint. See Coppedge v. United States, 369 U.S. 438, 445 (19 62); 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). (4) The Clerk of Court is DIRECTED to enter judgment and to close this case." (emt, )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). Barbie-Jane Hillen served by first class mail at the address of record on July 16, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BARBIE-JANE HILLEN, #A0233547, )
)
Plaintiff,
)
)
vs.
)
)
JEFF LIILII, G. MILLER,
)
)
)
Defendants.
______________________________ )

CIV. NO. 12-00222 SOM/KSC
ORDER DISMISSING FIRST AMENDED
COMPLAINT AND ACTION

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION
Before the court is pro se Plaintiff Barbie-Jane
Hillen’s first amended prisoner civil rights complaint (“FAC”)
brought pursuant to 42 U.S.C. § 1983.

Hillen is now incarcerated

at the Women’s Community Correctional Center (“WCCC”), but
complains of an incident that allegedly occurred when she was
being transported from the Oahu Community Correctional Center
(“OCCC”) to the state court.

Hillen claims Defendants OCCC Adult

Correctional Officers (“ACOs”) Jeff Liilii and G. Miller violated
her constitutional rights when they failed to protect her from
tripping as she got out of a prison vehicle while in restraints.
The FAC is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for Hillen’s failure to state a
claim.

Because Hillen was given leave to amend her original

Complaint and was unable to do so, the present dismissal is
without 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
governmental entity.

28 U.S.C. § 1915A(a).

The court is

required to dismiss a prisoner’s 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
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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 is possible

that the plaintiff can correct the complaint’s defects.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

Lopez v.

The court should

not, however, advise the litigant on how to cure the defects.
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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 CLAIMS
The FAC alleges three claims for relief, although all
relate to Liilii and Miller’s alleged deliberate indifference to
her safety.

Hillen says that, while shackled, she tripped when

getting out of a prison van.

Hillen complains that LiiLii and

Miller negligently failed to help her down the van’s stairs.
Hillen claims she was embarrassed and is experiencing ongoing
pain.

See FAC, ECF #9 at 5-.7 She alleges that Liilii and Miller

made fun of her after she fell, and that their negligence,
thoughtlessness, and unprofessional behavior violated the Eighth
Amendment.

In what appears to be a concession that she was

treated for her injuries, Hillen’s FAC omits the claim for
failure to provide medical treatment that was part of the
original pleading.

Hillen still complains that she received no

“further medical assistance,” after her court proceedings had
concluded and while she waited to be taken back to WCCC.1

1

Hillen attached an “INMATE INJURY REPORT” to her original
Complaint that details her injuries and the immediate care she
received and includes photographs of her injuries. Compl., ECF
#1 at 9-10.
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III.

DISCUSSION

“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
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Damage Claims Against Miller in His Official Capacity
Plaintiff again names Miller in his individual and

official capacities.

The court dismissed all damage claims

against Liilii and Miller in their official capacities in the
Order Dismissing Complaint With Leave Granted to Amend, and those
claims remain dismissed.
B.

Ord., ECF #8 at 6.

Eighth Amendment Claims
To prevail on a claim under the Eighth Amendment for a

threat to his or her safety, a prisoner must demonstrate
deliberate indifference to a substantial risk of serious harm.
Farmer v. Brennan, 511 U.S. 825, 828 (1994).

Eighth Amendment

liability requires “more than ordinary lack of due care.
other words, the inmate must show more than negligence.
835.

In
Id. at

A “substantial risk of serious harm” requires that the risk

be objectively sufficiently serious.
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Id. at 834.

In addition,

the defendant prison official must have had sufficiently culpable
state of mind; that is, he must have been deliberately
indifferent.

Id.

To act with deliberate indifference, a prison official
must both know of and disregard an excessive risk to inmate
health; the 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. at 837.

However, the inmate need not show that the defendant acted or
failed to act believing that harm would actually befall the
inmate; “it is enough that the official acted or failed to act
despite his knowledge of a substantial risk of serious harm.”
Id. at 842.
The FAC does not allege facts indicating that Liilii
and Miller were deliberately indifferent to Hillen’s safety.

In

LeMaire v. Maass, a prisoner alleged that forcing prisoners to
wear handcuffs and shackles while they showered violated the
Eighth Amendment.

12 F.3d 1444, 1457 (9th Cir. 1993).

The

district court held that “[t]he use of full mechanical restraints
on inmates while they shower violates the Eighth Amendment.”
at 1450.

Id.

The Ninth Circuit reversed and held “that shackling a

dangerous inmate in a shower [does not] create[ ] a sufficiently
unsafe condition.”

Id. at 1457.

“Even if the floors of the

shower are slippery and [prisoners] might fall while showering,

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‘slippery prison floors . . . do not state even an arguable claim
for cruel and unusual punishment.’”

Id. (quoting Jackson v.

Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (holding that a § 1983
claim based on “slippery prison floors . . . do[es] not state
even an arguable claim for cruel and unusual punishment”)).
If shackling a prisoner in the shower, where it is
accepted that the floor will be slippery, does not violate the
Eighth Amendment, it is hard to say that an Eighth Amendment
violations occurs when a prisoner is taken to and from the prison
in shackles, including when the prisoner enters and leaves a van
or goes up and down other stairs.

Hillen still sets forth no

facts explaining how Liilii and Miller acted with deliberate
indifference to an excessive risk to her safety.

That is, Hillen

does not allege that they knew that allowing her to exit and
enter a van in shackles exposed her to a substantial risk of
serious injury and that they did so despite this knowledge with
deliberate indifference to her safety.
As this court noted when it dismissed the original
Complaint, Hillen provided no facts suggesting that Miller and
Liilii had pushed her, or had pulled her roughly from the van, or
had seen other inmates doing so and failed to intervene.

Hillen

simply says that they kept her shackled while she got out of the
van and that she tripped and fell.

Hillen characterizes their

action as negligent and unprofessional, not reckless, wanton, or

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malicious.

Moreover, in the original Complaint, Hillen attached

an INMATE INJURY REPORT that included Hillen’s statement, made
immediately after the accident, that, “I was getting out of the
van, I had shackles and cuffs on when I tripped on the last
step.”

Compl., ECF #1 at 9.

Hillen fails to state a claim that

Liilii and Miller acted with deliberate indifference to an
excessive risk to her safety by shackling her during transport to
and from court and failing to prevent her from tripping while she
was getting out of the van.
IV.

28 U.S.C. § 1915(g)

Hillen is notified that 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).
V.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)
claim.

The Complaint is DISMISSED for failure to state a
See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).
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Because

amendment is futile, this dismissal is with prejudice, and leave
to amend is not granted.
(2)

This dismissal may be counted as strike pursuant to 28

U.S.C. § 1915(g).
(3) The court certifies that any appeal of this order would
be frivolous and, therefore, not taken in good faith, given Ms.
Hillen’s failure to state a claim on which relief can be granted
and her failure to adequately amend the complaint.

See Coppedge

v. United States, 369 U.S. 438, 445 (1962); 28 U.S.C.
§ 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).
(4)

The Clerk of Court is DIRECTED to enter judgment and to

close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 16, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Hillen v. Liilii, et al., Civ. No. 12-00222 SOM/KSC; Order Dismissing Complaint;
psas\Screening\DMP\2012\Hillen 12-222 som (ftsc neg. lv amd)

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