Hillen v. Liilii et al

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/12/12. -- "(2) Hillen is GRANTED leave to file a proposed amended complaint curing the deficiencies noted above by July 9, 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 she may comply with the directions in this Order." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electroni c 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 June 13, 2012. -- A Prisoner Civil Rights Complaint form with instructions was included in the mailing to Ms. Hillen.

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 COMPLAINT
WITH LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Barbie-Jane
Hillen’s prisoner civil rights complaint brought pursuant to 42
U.S.C. § 1983.

Hillen is incarcerated at the Women’s Community

Correctional Center (“WCCC”), but complains of an incident that
allegedly occurred at the Oahu Community Correctional Center
(“OCCC”).

Hillen names OCCC Adult Correctional Officers (“ACO”)

Jeff Liilii and G. Miller as Defendants in their individual and
official capacities.

Hillen claims Defendants violated her

constitutional rights when they failed to prevent her from
tripping when she got out of a prison vehicle in restraints.
The Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for Hillen’s failure to state a
claim.

Hillen is granted leave to amend.

Hillen’s claims for

damages against official capacity Defendants for injunctive
relief are DISMISSED with prejudice.
//
//

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 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
Hillen claims that LiiLii and Miller negligently failed
to assist her when she got out of a van in shackles at OCCC while
waiting to be taken to court.
was injured.

Hillen tripped on the stairs and

She claims she was embarrassed and is experiencing

ongoing pain.

See Compl., ECF #1 at 5-6.

Hillen further claims

that “[d]ue to the negligence and unprofessionalism of [Liilii
and Miller]” she “was deprived of proper & adequate medical care
and treatment.”

Id. at 6.

Hillen alleges that Liilii’s and

Miller’s negligent behavior violated the Eighth Amendment.
Hillen attaches an “INMATE INJURY REPORT” that details
her injuries and the immediate care she received and includes
photographs of her injuries.
III.

Id. at 9-10.
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)
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(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.

Defendants in their Official Capacities
Plaintiff names Liilii and Miller in their individual

and official capacities.

In Will v. Mich. Dept. of State Police,

491 U.S. 58, (1989), the Supreme Court held that states, state
agencies, and state officials sued in their official capacities
are not persons subject to civil rights suits under 42 U.S.C.
§ 1983.

491 U.S. at 664-66.

Further, the Eleventh Amendment

prohibits federal jurisdiction over suits against the state or a
state agency unless the state or agency consents to the suit.
See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53 (1996);
Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,
100 (1984); Quern v. Jordan, 440 U.S. 332, 342 (1979).

State

officers acting in their official capacities receive the same
immunity as the government agency that employs them.

Hafer v.

Melo, 502 U.S. 21 (1991).
Thus, the Eleventh Amendment bars Hillen’s claims for
damages from Liilii and Miller in their official capacities.

See

Doe v. Lawrence Livermore Natl. Lab., 131 F.3d 836, 839 (9th Cir.
1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996); Pena
v. Gardner, 976 F.2d 469, 472 (1992).

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Because Liilii and Miller

are immune from suit in their official capacities for damages
claims against them, those claims are DISMISSED with prejudice.
B.

Failure to Protect Plaintiff from Injury
To prevail on a claim under the Eighth Amendment for a

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

Farmer v.

Eighth Amendment liability

requires “more than ordinary lack of due care.
the inmate must show more than negligence.

In other words,

Id. at 835.

A

“substantial risk of serious harm,” requires that the risk be
objectively sufficiently serious.

Id. at 834.

In addition, the

defendant prison official must have a sufficiently culpable state
of mind; that is, he must be 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.

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Hillen does not allege facts indicating that Liilii and
Miller were deliberately indifferent to her 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.”
1450.

Id. at

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,
‘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 follows that requiring a prisoner to leave a
van in shackles, a daily occurrence during prisoner transports,
does not violate the Eighth Amendment.

Hillen sets forth no

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

She does not

claim they pushed her from behind or knew of and allowed other

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inmates to do so.

She does not say they pulled her roughly from

the van; she says only that they kept her shackled while she got
out of the van.

Hillen herself defines their action as negligent

and unprofessional, not reckless, wanton, or malicious.
Moreover, the INMATE INJURY REPORT attached to the Complaint
shows that Hillen stated immediately after the accident, “I was
getting out of the van, I had shackles and cuffs on when I
tripped on the last step.”

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 getting out of the van.
C.

This claim is DISMISSED.

Delay of Medical Care
Hillen further alleges that, after she fell, Liilii and

Miller took her to court despite her injuries, where she was held
from 9:00 a.m. to 1:00 p.m. before being returned to OCCC.
Hillen then waited for transport to WCCC for several more hours.
She complains that she was in pain during this time and was
laughed at by other prison guards.

Hillen claims that Liilii and

Miller therefore deprived her of “proper & adequate medical care
and treatment.”
As noted above, however, Hillen attached a copy of her
INMATE INJURY REPORT to the Complaint.

ECF #1 at 9.

This report

shows that Hillen was seen by a nurse at OCCC within five minutes

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of her accident, photographs were taken of her injuries, and her
wounds were cleaned and treated with Bacitracin and bandaged.
Id.

The nurse reported that Hillen was “okay to proceed to

court.”

Id.
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 to a prisoner’s medical needs
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

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Cir. 2002)(citing Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir.
1995)).
Hillen’s Complaint shows that Liilii and Miller acted
quickly to secure care for her injuries.

They are not alleged to

be medical personnel themselves, however.

They ensured that she

was treated and were told that her injuries were stable and that
she was cleared for transport to court.

Nothing within the

Complaint supports a finding that Liilii and Miller acted with
deliberate indifference to Hillen’s medical needs.

Hillen’s own

pleading calls into question her claim against Liilii and Miller
concerning the denial or delay of medical treatment, and this
claim is DISMISSED.
D.

Leave to Amend
The Complaint is DISMISSED as discussed above.

Hillen

may file a proposed amended complaint on or before July 9, 2012.
The proposed amended complaint must (1) cure the deficiencies
noted above and demonstrate how the conditions complained of
resulted in a deprivation of her federal constitutional or
statutory rights, and (2) may not include claims dismissed by the
present Order with prejudice.
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
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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
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.
E.

28 U.S.C. § 1915(g)
If Hillen 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).
IV.

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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(2)

Hillen is GRANTED leave to file a proposed amended

complaint curing the deficiencies noted above by July 9,
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 she may
comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 12, 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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