Wideman v. Abercrombie et al

Filing 5

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915A& 1915 re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/5/13. " 1. The Complaint is DISMISSED in its entirety for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). 2. Plaintiff is granted leave to file an amended complaint on or before April 2, 2013, in compliance with this Order. If Plaintiff fails to do so, this action shall be AUTOMATICALLY DISMISSED, without further notice and the Clerk SHALL enter judgment stating that the dismissal was made pursuant to 28 U.S.C. § 1915. 3. The Clerk of Court is DIRECTED to forward a copy of the court's prisoner civil rights complaint and instructions to Pl aintiff so that he may comply with this Order." (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). Lonnell Reginald Wideman served by first class mail at the address of record on March 6, 2013. A copy of the court's Prisoner Civil Rights Form and instructions were included in the mailing to Mr. Wideman.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

LONNELL REGINALD WIDEMAN,
Plaintiff,
vs.
NEIL ABERCROMBIE, TED SAKAI,
PHYLLIS HIRONAKA, MICHAEL
TOWN, DAVID FUJISHIRO, JOYCE
HOSHIJO, TOMMY JOHNSON, BERT
MASUOKA, KEVIN REGO, CHARLES
SIZEMORE,
Defendants.

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CIV. NO. 13-00081 SOM/RLP
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A
& 1915

ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A & 1915
Plaintiff Lonnell Reginald Wideman, a prisoner at the
Saguaro Correctional Center (“SCC”), in Eloy, Arizona, brings
this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff complains that Defendants1 improperly charged him with
parole violations, revoked his parole, illegally extended his
parole revocation term, and allowed his criminal history to be
published.
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Plaintiff also claims that he was attacked by another

Plaintiff names: (1) Hawaii Governor Neil Abercrombie; (2)
Director of the Department of Public Safety (“DPS”) Ted Sakai;
(3) Deputy Public Defender Phyllis Hironaka; (4) Hawaii Paroling
Authority (“HPA”) Board Members Bert Masuoka (Chairman), Michael
Town, and Joyce Hoshijo; (5) HPA Officers David Fujishiro, Kevin
Rego, and Charles Sizemore; and (6) HPA Administrator Tommy
Johnson (collectively “Defendants”).

inmate while he was still imprisoned in Hawaii.
Plaintiff’s Complaint is dismissed for failure to state
a claim pursuant to 28 U.S.C. § 1915A(b)(1) and § 1915(e)(2).
Plaintiff is given leave to amend, as discussed and limited
below.
I. BACKGROUND
Plaintiff was arrested on May 18, 2012, for having
allegedly failed to notify parole officer Fujishiro, regarding
three separate contacts that Plaintiff had with law enforcement.
Plaintiff was not arrested or charged during these police
contacts, but was nonetheless required to notify the HPA of any
such contact as a condition of his parole.

Fujishiro gave

Plaintiff notice of the charges on May 21, 2012, but Plaintiff
complains that he was never afforded a preliminary hearing
regarding the alleged parole violations.
Approximately two months later, on July 16, 2012,
Plaintiff appeared before HPA Board Members Masuoka, Town, and
Hoshijo at his parole revocation hearing.

Plaintiff was

represented by Deputy Public Defender Hironaka.

HPA Officer Rego

acted as prosecutor, and HPA Officer Fujishiro testified.
Plaintiff was found to have failed to notify his parole officer
of contacts with law enforcement and was sentenced to a sevenyear parole revocation term.

Plaintiff complains that HPA

Defendants relied on inaccurate information, caused or allowed

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his criminal information to be published, and denied him the
right to present allegedly exculpatory evidence at the revocation
hearing.

He further alleges that Deputy Public Defender Hironaka

provided ineffective assistance of counsel.
Plaintiff also alleges that, on November 9, 2012, he
was attacked by an unidentified inmate at HCF.

Plaintiff does

not say that any Defendant was personally involved in this
incident.

On January 16, 2012, Plaintiff was transferred to

Arizona.
Plaintiff claims that Defendants violated his rights
under the First, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution, and under the Hawaii constitution,
before, during, and after his parole revocation hearing.
II. LEGAL STANDARD
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

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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.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Id.

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

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 611
F.3d 1202, 1205 (9th Cir. 2010) (stating that “we continue to
construe pro se filings liberally”).

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 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
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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.
The statute plainly requires that there be an actual
connection or link between the actions of a defendant and the
deprivations alleged.

See Monell v. Dep’t of Soc. Serv., 436

U.S. 658(1978); Rizzo v. Goode, 423 U.S. 362 (1976).

“A person

‘subjects’ another to the deprivation of a constitutional right,
within the meaning of section 1983, if he does an affirmative
act, participates in another’s affirmative acts or omits to
perform an act which he is legally required to do that causes the
deprivation of which complaint is made.”

Johnson v. Duffy, 588

F.2d 740, 743 (9th Cir. 1978).
A.

Heck v. Humphrey
Plaintiff primarily alleges due process violations that

allegedly occurred during his parole revocation proceedings, and
he seeks release and damages.

When a prisoner challenges the

legality or duration of his custody, or raises a constitutional
challenge that could entitle him to earlier release, his sole
federal remedy is a writ of habeas corpus.

Wilkinson v. Dotson,

544 U.S. 74, 78 (2005); Preiser v. Rodriguez, 411 U.S. 475, 477
(1973).

Further, as set forth in Heck v. Humphrey, 512 U.S. 477

(1994):
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[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; 28 U.S.C. § 2254.

Thus, a prisoner may

not challenge his custody under § 1983, whether he seeks monetary
damages or injunctive release, until that term of custody has
been set aside.
Plaintiff concedes that he is still imprisoned.

Thus,

his parole revocation sentence has not been reversed, expunged,
declared invalid, or otherwise set aside.

Moreover, Plaintiff is

currently challenging these parole revocation proceedings in the
Hawaii state courts.

See Wideman v. Hawaii Paroling Auth.,

1PR12-1-000045, CAAP-13-00065 (filed Feb. 5, 2013, Haw. App.),
avail. at: http://hoohiki1.courts.state.hi.us/jud/Hoohiki/,
Hawai’i State Judiciary’s Public Access to Court Information.
Plaintiff’s claims for injunctive, declaratory, and monetary
relief are clearly barred by Heck and are DISMISSED without
prejudice to refiling after his parole revocation term has been
set aside.
If Plaintiff’s pending state court action is successful
and his parole revocation proceedings and sentence are
overturned, he may then commence a civil rights action seeking

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damages pursuant to 42 U.S.C. § 1983, if appropriate.

If his

state habeas action is unsuccessful, and he exhausts his claims
through the highest state court available to adjudicate them, he
may seek habeas relief in this court pursuant to 28 U.S.C.
§ 2254.
B.

Eighth Amendment
Plaintiff also alleges that he was assaulted by another

inmate on or about November 9, 2012, while he was incarcerated at
the Halawa Correctional Facility (“HCF”).

Plaintiff claims that

Defendants are responsible for this assault, because their
allegedly illegal actions resulted in revocation of his parole,
which in turn resulted in his alleged assault at HCF several
months later.

See Compl., ECF #1 at PageID #10-11.

While this

type of claim is properly asserted under § 1983, Plaintiff fails
to state a cognizable claim under the facts alleged.
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.

Farmer v. Brennan, 511 U.S. 825, 832-33 (1994);

Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

To state

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

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safety.

Farmer, 511 U.S. at 834; Redman v. County of Los

Angeles, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc).
“[D]eliberate indifference entails something more than mere
negligence . . . [but] is satisfied by something less than acts
or omissions for the very purpose of causing harm or with
knowledge that harm will result.”

Farmer, 511 U.S. at 835.

That

is, an inmate must assert facts supporting an inference that a
defendant knew of, but disregarded, an excessive risk to an
inmate’s safety.

Id. at 837.

“[T]he 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.

Plaintiff provides no details regarding this alleged
assault from which the court can infer that Defendants, Hawaii
Governor Abercrombie, Department of Public Safety Director Sakai,
HPA Officials Town, Hoshijo, Masuoka, Johnson, Fujishiro, Rego,
and Sizemore, or Deputy Public Defender Hironaka knew of a
substantial, imminent, and credible threat to Plaintiff at HCF
and failed to protect him with deliberate indifference to his
safety.

Defendants are not prison officials, and Plaintiff fails

to explain how they could have known of any danger to him
stemming from their involvement in his parole revocation
proceedings approximately four months before the alleged assault.
Plaintiff fails to adequately inform the parties and

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this court of the basis for this “failure-to-protect” claim, or
raise an inference greater than the merest possibility that he is
entitled to relief.

See Fontana v. Haskin, 262 F.3d 871, 876-77

(9th Cir. 2001) (“Specific legal theories need not be pleaded so
long as sufficient factual averments show that the claimant may
be entitled to some relief.”).

Plaintiff’s claim that Defendants

failed to protect him from assault is DISMISSED.
1.

Hironaka Was Not Acting Under Color of State Law
Because Defendant Hironaka, Plaintiff’s public

defender, was not acting under color of state law when she
represented him at his parole revocation hearing, she is not
subject to suit under § 1983.

See Polk Cnty v. Dodson, 454 U.S.

312, 325 (1981) (stating that public defenders do not act under
color of state law when performing traditional functions as
counsel while representing criminal defendants).

Claims against

Hironaka are DISMISSED.
2.

Eleventh Amendment Immunities
State officials sued in their official capacities are

not persons subject to civil rights suits under § 1983.

Will v.

Mich. Dept. of State Police, 491 U.S. 58, 71 (1989); see also
Hafer v. Melo, 502 U.S. 21 (1991) (holding that state officers
acting in their official capacities are immune from suit under
the Eleventh Amendment to the same extent as the government
agency that employs them); Seminole Tribe of Florida v. Florida,
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517 U .S. 44, 53 (1996).

The Eleventh Amendment bars Plaintiff’s

damages claims against all Defendants in their official
capacities, and those claims are DISMISSED.
3.

No Respondeat Superior Under § 1983
Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of
respondeat superior.

Iqbal, 556 U.S. at 676.

Rather, each

government official may only be held liable for his or her own
misconduct.

A defendant may be held liable as a supervisor under

§ 1983 if either (1) he or she was personally involved in the
constitutional deprivation, or (2) there is a sufficient causal
connection between the supervisor’s wrongful conduct and the
Constitutional violation.

Starr v. Baca, 633 F.3d 1191, 1196

(9th Cir. 2011); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989).

In general, a plaintiff “must allege that every

government defendant -- supervisor or subordinate -- acts with
the state of mind required by the underlying constitutional
provision.

Or. State Univ. Student Alliance v. Ray, 699 F.3d

1053, 1070 (9th Cir. 2012).

To the extent Plaintiff names

Governor Abercrombie or DPS Director Sakai in their supervisory
capacities over Hawaii’s prisons, Plaintiff fails to plead
sufficient facts showing that there is a causal connection
between Abercrombie’s or Sakai’s actions or inactions and the
assault on November 9, 2012.
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IV.

LEAVE TO AMEND

Plaintiff’s Complaint is DISMISSED.

Plaintiff may file

a proposed amended complaint on or before April 2, 2013, curing
the specific deficiencies noted above.

The amended complaint

must contain short, plain statements explaining: (1) why his
parole revocation claims are not barred by the doctrine of Heck
v. Humphrey; and (2) facts supporting his Eighth Amendment claim
regarding the alleged November 9, 2012, assault, including the
names of specific individuals who allegedly failed to protect him
from the assault and the facts connecting any Defendant’s action
or inaction to the alleged violation of Plaintiff’s rights.
The proposed amended complaint must clearly designate
that it is the “First Amended Complaint.”

The 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.

Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).

Any cause of action that was raised in the original complaint is
waived if it is not raised in an amended complaint.

King v.

Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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
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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.
1.

CONCLUSION

The Complaint is DISMISSED in its entirety for

failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(a) .
2.

Plaintiff is granted leave to file an amended

complaint on or before April 2, 2013, in compliance with this
Order.

If Plaintiff fails to do so, this action shall be

AUTOMATICALLY DISMISSED, without further notice and the Clerk
SHALL enter judgment stating that the dismissal was made pursuant
to 28 U.S.C. § 1915.
3.

The Clerk of Court is DIRECTED to forward a copy of

the court’s prisoner civil rights complaint and instructions to
Plaintiff so that he may comply with this Order.
//
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 5, 2013.

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

Wideman v. Abercrombie, et al., 1:13-cv-00084 SOM/BMK; ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A & 1915; G:\docs\prose attys\Screening\DMP\2013\Wideman
13-81 som (Heck bar, amd for 8th amd. cls).wpd

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