Murphy v. Kimoto et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND; ORDER TO SHOW CAUSE re 1 Complaint filed by Matthew Keone Murphy, (Show Cause Response due by 3/2/2015.) Signed by JUDGE LESLIE E. KOBAYASHI on 01/29/2015. (1) The Complaint is DISMISSED for failure to state a claim for the reasons detailed above. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).(2) Plaintiff is GRANTED leave to file an amended complaint curing the deficiencies noted above on or before March 2, 2015. Failure to timely amend the Complaint and cure its pleading deficiencies will result in dismissal of this action for failure to state a claim.(3) If Plaintiff decides to amend his Complaint, he is Ordered to Show Cause on o r before March 2, 2015 why venue in Hawaii, rather than Arizona, is proper. In the alternative, Plaintiff may voluntarily dismiss this action without prejudice on or before March 2, 2015. (4) The Clerk is directed to mail Plaintiff court forms for a prisoner civil rights complaint so that he can comply with the directions in this Order. (eps)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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MATTHEW KEONI MURPHY,
#A0721922,
Plaintiff,
vs.
SHERRI KIMOTO, TODD THOMAS,
SGT. HOLLEY,
Defendants.
____________________________

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CIV. NO. 15-00022 LEK/RLP
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND; ORDER TO SHOW
CAUSE

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND;
ORDER TO SHOW CAUSE
Before the court is pro se Plaintiff Matthew Keoni
Murphy’s prisoner civil rights complaint.

Compl., Doc. No. 1.

Plaintiff is incarcerated at the Saguaro Correctional Center
(“SCC”), located in Eloy, Arizona.

He names Department of Public

Safety (“DPS”) Contract Monitor Supervisor Sherri Kimoto, SCC
Warden Todd Thomas, and SCC Disciplinary Hearing Officer Sgt.
Holley as Defendants.

Plaintiff claims that Defendants are

responsible for the denial of his parole in 2013, by virtue of
their participation in an earlier disciplinary hearing.
Plaintiff’s Complaint is DISMISSED with leave to amend
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for
failure to state a claim or comply with Rule 8 of the Federal
Rules of Civil Procedure.

Plaintiff is further ORDERED TO SHOW

CAUSE why this action should not be transferred to the United
States District Court for the District of Arizona.

I.

BACKGROUND

Plaintiff raises three causes of action, each referring
to an undated disciplinary hearing that was apparently held at
SCC some time before Plaintiff was denied parole in 2013.

In

Count I, Plaintiff simply states, “My rights to Due Process were
violated,” when Kimoto “knowingly allowed Sgt. Holley to violate
my rights to Due Process & did nothing to correct it.”
1, Count I, PageID #5.

Doc. No.

He asserts, “Due to Sherri Kimoto’s

negligence, my parole was denied in 2013 for a period of 2
years.”

Id.

Plaintiff repeats this claim verbatim in Count II,

substituting Warden Thomas for Kimoto.
#6.

See id., Count II, PageID

In Count III Plaintiff states, “Sgt. Holley violated my

rights to Due Process at my disciplinary hearing, resulting in
the denial of parole in 2013.

Id., Count III, PageID #7.

Plaintiff provides no further details.
Plaintiff requests compensatory and punitive damages,
unspecified declaratory relief, and immediate release.
PageID #8.

Id.,

Plaintiff also states that he has or will file a

similar action in the District of Arizona.

See letter, Doc. No.

5, PageID #19 (“I attempted to file this claim in both Hawaii &
Arizona, 1 Defendant from Hawaii, 2 from Arizona.”)
II. STATUTORY SCREENING
Federal courts must screen all cases in which prisoners
seek redress from a governmental entity, officer, or employee, or
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seek to proceed without prepayment of the civil filing fees.
28 U.S.C. §§ 1915(b)(2) and 1915(A)(a).

See

The court must identify

cognizable claims, and dismiss claims that are frivolous,
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.

Id. at §§ 1915(b)(2) and 1915A(b).
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.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the
plaintiff can correct the complaint’s defects.

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
right.’”

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

(citation omitted), vacated and remanded on other grounds, 556
U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
For the following reasons, Plaintiff’s Complaint is
DISMISSED for failure to state a claim pursuant to 28 U.S.C.
3

§§ 1915(b)(2) and 1915(A)(b).

Plaintiff is granted leave to

amend the Complaint on or before [INSERT DATE] to correct its
deficiencies.
A.

Rule 8 of the Federal Rules of Civil Procedure
To state a claim under Rule 8 of the Federal Rules of

Civil Procedure, a pleading must contain “a short and plain
statement” showing the court’s jurisdiction, that the pleader is
entitled to relief, and setting forth a demand for relief.
R. Civ. P. 8(a).

Fed.

“Such a statement must simply give the

defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”
U.S. 506, 512 (2002).

Swierkiewicz v. Sorema N.A., 534

Detailed factual allegations are not

required, but “[t]hreadbare recitals of the elements of the cause
of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A

complaint “must set forth sufficient factual matter accepted as
true, to ‘state a claim that is plausible on its face.’”

Id.

At

a minimum, a plaintiff must detail what his claims are, when they
occurred, and who is allegedly responsible.
Plaintiff provides no facts enabling the court or
Defendants to determine when the alleged disciplinary hearing
occurred, what the basis for and outcome of the proceeding was,
what steps Plaintiff took thereafter, how Defendants each
individually violated his rights to due process in relation to

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this hearing, and how Defendants’ actions negatively and
illegally influenced his 2013 parole consideration by the Hawaii
Paroling Authority.

Because Plaintiff fails to allege sufficient

facts to allow the court to understand his allegations or the
circumstances surrounding his claims, the court cannot reasonably
infer that Defendants violated his civil rights.

Nor can

Defendants defend against such claims.
B.

Plaintiff’s Claims for Declaratory and Injunctive Relief
Plaintiff seeks immediate release for the remainder of

his sentence.1

Compl., Doc. No. 1, PageID #20.

relief is unavailable in this civil rights suit.

Such injunctive
That is,

because Plaintiff’s request for injunctive relief seeks
“immediate release from prison” or the “‘shortening’ of his term
of confinement,” this request actually challenges “the duration
of his confinement,” and he must raise this claim in a habeas
petition.

See Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005)

(holding a claim that expressly attacks “the very duration of [a
prisoner’s] physical confinement . . . lies at the core of habeas
corpus”) (internal quotation marks omitted); Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973); cf. Ramirez v. Galaza, 334
F.3d 850, 859 (9th Cir. 2003) (“[H]abeas jurisdiction is absent,
and a § 1983 action proper, where a successful challenge to a

1

See Hawaii Statewide Automated Victim Information and
Notification SAVIN service: https://www.vinelink.com/vinelink.
(showing Plaintiff’s scheduled release date as “03/26/2016”).
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prison condition will not necessarily shorten the prisoner’s
sentence.”).

Although Plaintiff may challenge the procedures

used at his disciplinary hearing in this civil rights action,
release from prison is not available as a remedy for this alleged
violation of procedural due process.

If successful here, the

results of Plaintiff’s disciplinary hearing may possibly be
expunged, which may then support a challenge to Plaintiff’s 2013
parole consideration via a petition for habeas corpus under 28
U.S.C. §§ 2241 or 2254, or be used as evidence before his next
parole review hearing.
Plaintiff’s non-specific request for declaratory relief
is subsumed by his damages action.

See Rhodes v. Robinson, 408

F.3d 559, 566 n.8 (9th Cir. 2005) (“And because his claim for
damages necessarily entails a determination whether the officers’
alleged conduct violated his rights, his separate request for
declaratory relief is subsumed by his damages action.”).
C.

Immunities
Plaintiff names Defendants in their individual and

official capacities.

Defendants named in their official

capacities are not persons subject to suit under § 1983.

See

Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989);
Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).
Further, “[t]he Eleventh Amendment bars suits against a state or
its agencies, regardless of the relief sought, unless the state

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unequivocally consents to a waiver of its immunity.”

Wilbur v.

Locke, 423 F.3d 1101, 1111 (9th Cir. 2005) (quoting Yakama Indian
Nation v. Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir.
1999)).

The only exception is “for prospective declaratory and

injunctive relief against state officers, sued in their official
capacities, to enjoin an alleged ongoing violation of federal
law.”

Id. (quoting Agua Caliente Band of Cahuilla Indians v.

Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000); see Ex parte Young,
209 U.S. 123 (1908).
D.

Due Process Requirements for Disciplinary Hearing
“Prison disciplinary proceedings are not part of a

criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply.”
McDonnell, 418 U.S. 539, 556 (1974).

Wolff v.

The minimum procedural

requirements for prison disciplinary proceedings are: (1) written
notice of the charges; (2) at least 24 hours between the time the
prisoner receives written notice and the time of the hearing, so
that the prisoner may prepare his defense; (3) a written
statement by the fact finders of the evidence they rely on and
reasons for taking disciplinary action; (4) the right of the
prisoner to call witnesses in his defense, when permitting him to
do so would not be unduly hazardous to institutional safety or
correctional goals; and (5) legal assistance to the prisoner
where the prisoner is illiterate or the issues presented are
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legally complex.

Id. at 563–71.

As long as these five

requirements are met, due process is satisfied.

Walker v.

Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other
grounds by Sandin v. Connor, 515 U.S. 472 (1995).
Plaintiff asserts no facts indicating how his due
process rights were violated before, during, or after the undated
disciplinary proceeding.
E.

Venue In Hawaii
When jurisdiction is not founded solely on diversity,

such as civil rights actions brought under 42 U.S.C. § 1983,
venue is proper in the district in which: (1) any defendant
resides, if all of the defendants reside in the same state; (2) a
substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the
subject of the action is situated; or (3) any defendant may be
found, if there is no district in which the action may otherwise
be brought.

28 U.S.C. § 1391(b); see also Ziegler v. Indian

River Cnty., 64 F.3d 470 (9th Cir. 1995) (extensive discussion on
jurisdiction); Lee v. Corr. Corp. of America, 525 F. Supp. 2d
1238, 1241 (D. Haw. 2007).
Although Plaintiff was apparently convicted and
sentenced in Hawaii, he is incarcerated in Arizona.
does not explain why he brings this action in Hawaii.

Plaintiff
The

disciplinary hearing about which he complains took place at SCC
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in Arizona.

Defendants Warden Thomas and Sgt. Holley are

employed at SCC, in Arizona.

The Defendants reside in Arizona

(Thomas and Holley) and Hawaii (Kimoto).

Venue for Plaintiff’s

claims therefore lies in the District of Arizona, where SCC is
located and the disciplinary hearing took place.
§ 1391(b).

See 28 U.S.C.

Plaintiff apparently recognizes that venue for this

action may lie in Arizona, as he states that he has or intends to
commence suit there raising the same claims presented here.
If Plaintiff decides to amend his Complaint to cure the
deficiencies noted above, he is ORDERED TO SHOW CAUSE why this
action should not be transferred to the District of Arizona.

See

28 U.S.C. § 1406(a) (“The district court of a district in which
is filed a case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been
brought.”).
IV. LEAVE TO AMEND
The Complaint is DISMISSED.

Plaintiff may file an

amended complaint on or before March 2, 2015.

The amended

complaint must cure the deficiencies noted above and demonstrate
how the conditions complained of resulted in a deprivation of
Plaintiff’s federal constitutional or statutory rights.
Each claim and the involvement of each defendant must be
sufficiently alleged.

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If Plaintiff amends his Complaint, he must explain what
Defendants personally did to violate his rights, what those
rights are, when and where the action he sues over occurred, and
why venue is proper in the District of Hawaii.
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 later count as a “strike” under the “3–strikes”
provision of 28 U.S.C. § 1915(g).

See Knapp v. Hogan, 738 F.3d

1106, 1110 (9th Cir. 2013) (holding “dismissals following the
repeated violation of Rule 8(a)’s ‘short and plain statement’
requirement, following leave to amend, are dismissals for failure
to state a claim under § 1915(g)” (emphasis in original)); see
also Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011) (finding
a plaintiff who fails to amend his complaint after it is
dismissed as incomprehensible under Rule 8, leaves the court
“with [ ] a complaint that, being irremediably unintelligible,
[gives] rise to an inference that the plaintiff could not state a
claim”) (cited with approval in Knapp, 738 F.3d at 1110).
If Plaintiff fails to comply with this Order, the court
may, without further notice, dismiss this action for failure to
state a claim or failure to comply with this Order.

See Ferdik

v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district

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court may dismiss an action for failure to comply with any order
of the court).
VI.
(1)

CONCLUSION

The Complaint is DISMISSED for failure to state a

claim for the reasons detailed above.

See 28 U.S.C.

§ 1915(e)(2)(b) & 1915A(b)(1).
(2)

Plaintiff is GRANTED leave to file an amended complaint

curing the deficiencies noted above on or before March 2, 2015.
Failure to timely amend the Complaint and cure its pleading
deficiencies will result in dismissal of this action for failure
to state a claim.
(3)

If Plaintiff decides to amend his Complaint, he is

Ordered to Show Cause on or before March 2, 2015 why venue in
Hawaii, rather than Arizona, is proper.

In the alternative,

Plaintiff may voluntarily dismiss this action without prejudice
on or before March 2, 2015.
(4)

The Clerk is directed to mail Plaintiff court forms for

a prisoner civil rights complaint so that he can comply with the
directions in this Order.
IT IS SO ORDERED.

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DATED: Honolulu, Hawaii, January 29, 2015.

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

Murphy v. Kimoto, et al., 1:15-cv-00022 LEK/RLP; scrg 2015; J:\PSA Draft
Ords\LEK\Murphy 15-22 LEK (dsm ftsc R8).wpd

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