Cabrera v. Hubmer et al

Filing 6

ORDER DISMISSING COMPLAINT IN PART WITH LEAVE TO AMEND re 1 - Signed by JUDGE DERRICK K. WATSON on 8/25/2017. " (1) The Complaint is DISMISSED IN PART for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915 A(b). Specifically, claims for injunctive relief are dismissed with prejudice and claims against Defendants Benjamin Hubmer and OCCC Warden are dismissed with leave to amend. (2) Cabrera's claims against the OCCC CO state a cognizable clai m for relief and shall be served after Cabrera submits an amended complaint that sufficiently identifies this Defendant, so that the U.S. Marshal can perfect service of process. (2) Cabrera is granted leave to file an amended complaint on or be fore September 29, 2017 that cures the Complaint's deficiencies. Failure to timely and adequately amend the Complaint will result in the DISMISSAL of this action. (3) IN THE ALTERNATIVE, Cabrera may notify the Cour t on or before September 29, 2017, that he elects to stand on his claims against OCCC CO or COs and voluntarily dismisses the remaining claims and Defendants. If Cabrera chooses this option, the Court will open early discovery for forty-five days, as discussed above, calculated from the date Cabrera files this notice. (4) The Clerk is DIRECTED to send Cabrera a blank prisoner civil rightscomplaint so that he can comply with the directions of this Order." (emt, )< center>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). Fred Cabrera served by first class mail to the address of record on August 25, 2017. A copy of the court's prisoner civil rights complaint form shall be included in the mailing to Mr. Cabrera.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRED CABRERA, #A0114810,
Plaintiff,
vs.
BENJAMIN HUBMER, OCCC CO,
OCCC WARDEN,
Defendants.
_______________________________

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CIV. NO. 17-00367 DKW-KJM
ORDER DISMISSING COMPLAINT
IN PART WITH LEAVE TO AMEND

ORDER DISMISSING COMPLAINT IN PART
WITH LEAVE TO AMEND
Before the court is pro se Plaintiff Fred Cabrera’s prisoner civil rights
Complaint. ECF No. 1. Cabrera is incarcerated at the Halawa Correctional
Facility (“HCF”) but complains of events that allegedly took place at the Oahu
Community Correctional Center (“OCCC”). Cabrera claims that Defendants
Benjamin Hubmer, “OCCC CO” (correctional officer), and OCCC Warden
violated his rights under the Eighth Amendment during an alleged assault that
occurred at OCCC on or about June 22, 2017. For the following reasons, the
Complaint is DISMISSED IN PART with leave granted to amend.

I. CABRERA’S CLAIMS1
Cabrera alleges that an unidentified OCCC CO ordered him to help move
Hubmer, allegedly an OCCC “mental-health detainee,” from one cell to another on
June 22, 2017. Compl., ECF No. 1, PageID #5. He claims that Hubmer struck him
several times in the stomach and chest during this cell transfer, while COs Manuel
Tavares and Sergeant Anderson stood nearby but failed to intervene.2 Cabrera
asserts that the OCCC Warden failed to properly train the unidentified OCCC CO.
He alleges that Defendants acted with negligence and/or deliberate indifference to
his safety when they failed to protect him from Hubmer’s alleged assault, violating
his rights under the Eighth Amendment. He seeks $1 million in damages.
II. SCREENING
Federal courts must screen all cases in which prisoners seek redress from a
governmental entity, officer, or employee, or seek to proceed without prepayment
of the civil filing fees. See 28 U.S.C. §§ 1915(b)(2) and 1915A(a). The court must
identify cognizable claims and dismiss those 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).
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The court accepts Cabrera’s allegations of material facts as true and construes them in
the light most favorable to him. See Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
2

Cabrera does not name Tavares and Anderson as Defendants.
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A complaint 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). Detailed factual
allegations are not required, but “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Moreover, a plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002).
To determine whether a complaint states a claim for screening purposes, the
court applies the same pleading standard from Federal Rules of Civil Procedure
(“FRCP”) Rule 8 as it would to evaluate a motion to dismiss under FRCP 12(b)(6).
See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The Court must decide
whether the complaint contains “sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotations
omitted). The task is context-specific and requires the Court “to draw on its
judicial experience and common sense.” Id. at 679.
Pro se prisoners’ pleadings must be liberally construed and given the benefit
of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe v.
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Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading standard
. . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S.
319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not
supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l
Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of
Regents, 673 F.2d 266, 268 (9th Cir. 1982)). A plaintiff must identify specific
facts supporting the existence of substantively plausible claims for relief. Johnson
v. City of Shelby, 135 S. Ct. 346, 347 (2014) (per curiam) (citation omitted). Leave
to amend should be granted if it appears 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.

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A.

Inmate Benjamin Hubmer is Dismissed
Cabrera fails to allege any facts explaining how Hubmer, a fellow inmate,

was acting under color of state law when he allegedly attacked Cabrera, and the
court cannot plausibly infer this from the facts as alleged. Hubmer and the claims
against him are DISMISSED without prejudice.
B.

Official Capacity Defendants are Dismissed
“The Eleventh Amendment bars suits for money damages in federal court

against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Defendants
named in their official capacities are subject to suit under § 1983 only “for
prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing
violation of federal law.” Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D.
Haw. Apr. 23, 2013) (quotation omitted); see also Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 70-71 (1989) (“[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.”); Ex parte Young, 209 U.S. 123 (1908).
Any claims that Cabrera may have for injunctive relief are moot because he
is no longer incarcerated at OCCC, and there is no indication that he might return.
See Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (stating
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prisoner’s claims for injunctive relief generally become moot upon transfer); Holt
v. Stockman, 2012 WL 259938, *6 (E.D. Cal. Jan.25, 2012) (a prisoner’s claim for
injunctive relief is rendered moot when he is transferred from the institution whose
employees he seeks to enjoin). All Defendants named in their official capacities
are DISMISSED.
C.

Eighth Amendment - Failure to Protect
“[P]rison officials have a duty . . . to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations
and quotations omitted). “Being violently assaulted in prison is simply not ‘part of
the penalty that criminal offenders pay for their offenses against society.’” Id. at
834 (citation omitted). To establish a prison official’s violation of this duty, a
prisoner must first establish that the deprivation alleged is ‘objectively, sufficiently
serious.” Id. at 834; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). This
is a question of fact that must be “decided by the jury if there is any room for
doubt.” Lemire v. Cal. Dep’t of Corr. and Rehab., 726 F.3d 1062, 1075-76 (9th
Cir. 2013) (citation omitted).
Second, the prisoner must establish that prison officials “‘knew of and
disregarded’ the substantial risk of harm,” even if such harm was not intended,
because “‘it is enough that the official acted or failed to act despite his knowledge
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of a substantial risk of serious harm.’” Id. at 1074 (quoting Farmer, 511 U.S. at
837.
1.

OCCC Warden

The unidentified OCCC Warden may not be held liable for the conduct of
his subordinate employees simply because he is the warden. Crowley v. Bannister,
734 F.3d 967, 977 (9th Cir. 2013); accord Lemire, 726 F.3d at 1074-75. Such
claims allege vicarious or respondeat superior liability only, which is not
cognizable under § 1983. See Iqbal, 556 U.S. at 676. Supervisors are individually
liable under § 1983 “if there exists either (1) [the supervisor’s] personal
involvement in the constitutional deprivation, or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation.”
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Starr v. Baca, 652 F.3d 1202,
1207 (9th Cir. 2011).
A supervisor’s causal connection between wrongful conduct and the
violation of a prisoner’s constitutional rights can be established in several ways,
such as the supervisor’s setting in motion or failing to terminate a series of acts by
others that the supervisor knew or should have known would inflict constitutional
injury, or instituting an improper policy or procedure. Starr, 652 F.3d at 1208. A
plaintiff must also show that the supervisor had the requisite state of mind to
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establish liability. This turns on the requirement of the particular claim – and,
more specifically, on the state of mind required by the particular claim – not on a
generally applicable concept of supervisory liability. Or. State Univ. Student All.
v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012).
Cabrera alleges no facts showing the OCCC Warden’s personal involvement
in the alleged assault. He simply concludes that, because the OCCC CO or COs
ordered him to participate in a potentially dangerous situation and failed to assist
him when he was attacked, the OCCC Warden improperly trained them. This
speculative conclusion is insufficient to state a claim. Claims against the
unidentified OCCC Warden are DISMISSED.
2.

OCCC CO

Cabrera states a plausible claim against the unidentified OCCC CO (or COs)
for deliberate indifference to his safety in violation of the Eighth Amendment, for
allegedly ordering him to assist in Hubmer’s transfer to another cell and then
standing by and allegedly allowing Hubmer to assault him.
The Complaint cannot be served, however, until at least one OCCC CO is
identified by name and the Complaint is amended to reflect this substitution. See
Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980) (noting that “doe”
pleadings are generally disfavored in the federal courts due to the nearly
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impossible task of serving unidentified defendants). Unknown defendants may be
included in a complaint when their identities are unknown prior to the filing of the
complaint and they may later be identified through discovery. Id.; see also
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (holding plaintiff
should be given an opportunity to identify unknown defendants, unless it is clear
that discovery would not uncover their identities, or that the complaint will be
dismissed on other grounds) (citing Gillespie, 629 F.2d at 642); cf. Long v. Makua,
No. 1:16-cv-00372-DKW-RLP (D. Haw. 2016), ECF No. 5 (granting plaintiff
expedited discovery to identify CO John Does); Cobbler Nevada, LLC v. Gonzales,
2016 WL 3392368, at *3 (D. Or. June 8, 2016) (granting plaintiff’s motion to issue
a subpoena to a non-party pursuant to Fed. R. Civ. P. 45, to enable plaintiff to
identify the only defendant).
IV. LEAVE TO AMEND
The Complaint is DISMISSED with leave granted to amend on or before
September 29, 2017 to cure its deficiencies and identify Defendant OCCC CO(s).
Cabrera is notified that he must submit any amended complaint on court forms.
Local Rule LR99.7.10(a). An amended complaint generally supersedes the
previous complaint and should stand on its own without incorporation or reference
to a previous pleading. See Lacey v. Maricopa Cty., 693 F.3d 896, 907, n.1 (9th
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Cir. 2012) (en banc). Defendants not named and claims dismissed without
prejudice that are not realleged in an amended complaint may be deemed
voluntarily dismissed. Id. at 928 (stating claims dismissed with prejudice need not
be repled in an amended complaint to preserve them for appeal, but claims that are
“voluntarily dismissed” are considered “waived if not repled”).
IN THE ALTERNATIVE:
Cabrera may notify the Court in writing on or before September 29, 2017,
that he elects to stand on his claims against the OCCC CO or COs and voluntarily
dismisses his remaining claims against the other Defendants. IF Cabrera chooses
this option, the Court will open early discovery for a period of forty-five [45] days
as calculated from the date he notifies the court of this decision. Cabrera may then
submit a motion to subpoena a non-party, such as the Hawaii Department of Public
Safety or HCF prison officials who can identify who was present during the
altercation at OCCC on June 22, 2017, and respond to interrogatories designed to
identify the OCCC CO or COs named in the Complaint. The motion shall explain
the steps Cabrera has taken to identify the OCCC CO and include the proposed
interrogatories. Cabrera is NOTIFIED that he is responsible for identifying the
OCCC CO or COs, amending his pleadings to substitute the actual identity of the
unknown CO (or COs), and requesting the court to issue a summons and direct
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service upon them. He is cautioned that “authorities clearly support the
proposition that John Doe defendants must be identified and served within [90]
days of the commencement of the action,” and his action may be dismissed for
failure to timely effect service, unless he can show good cause for his failure to
timely serve them.3 Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (N.D.
Ill.1995) (citing Gillespie, 629 F.2d at 643); Fed. R. Civ. P. 4(m) & 15(c)(1).
V. CONCLUSION
(1) The Complaint is DISMISSED IN PART for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, claims for
injunctive relief are dismissed with prejudice and claims against Defendants
Benjamin Hubmer and OCCC Warden are dismissed with leave to amend.
(2) Cabrera’s claims against the OCCC CO state a cognizable claim for
relief and shall be served after Cabrera submits an amended complaint that
sufficiently identifies this Defendant, so that the U.S. Marshal can perfect service
of process.

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Because prisoner complaints must be screened before service, service is generally not
required until 90 days after the court finds the pleading states a claim and directs the U.S.
Marshal or prisoner to effect service. See e.g., Long v. Does, 2016 WL 3983226, at *4 (D. Haw.
July 25, 2016); Warren v. Ruffcorn, 2001 WL 34043449, at *3 (D. Or. Sept. 18, 2001).
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(2) Cabrera is granted leave to file an amended complaint on or before
September 29, 2017 that cures the Complaint’s deficiencies. Failure to timely and
adequately amend the Complaint will result in the DISMISSAL of this action.
(3) IN THE ALTERNATIVE, Cabrera may notify the Court on or before
September 29, 2017, that he elects to stand on his claims against OCCC CO or COs
and voluntarily dismisses the remaining claims and Defendants. If Cabrera
chooses this option, the Court will open early discovery for forty-five days, as
discussed above, calculated from the date Cabrera files this notice.
(4) The Clerk is DIRECTED to send Cabrera a blank prisoner civil rights
complaint so that he can comply with the directions of this Order.
IT IS SO ORDERED.
DATED: August 25, 2017 at Honolulu, Hawaii.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Fred Cabrera v. Benjamin Hubmer, et al.; Civil No. 17-00367 DKW-KJM;
ORDER DISMISSING COMPLAINT IN PART WITH LEAVE TO AMEND
Cabrera v. Hubmer, 1:17-cv-00367 DKW-KJM; Scrng 2017 Cabrera 17-367 (dsm in part allow time to name Doe)

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