Cabrera v. Hubmer et al

Filing 8

ORDER Dismissing Complaint In Part and Directing Service. Signed by JUDGE DERRICK K. WATSON on 9/22/17. (cib, )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. Copy of endorsed amended complaint , two completed summons to Sgt. Malia Anderson and ACO, Manny Tauares, four Notice of Lawsuit and Request for Waiver of Service for Summons forms(AO398), four Waiver of Service of Summons forms(AO399), and instruction sheet mailed to pro se plaintiff Fred Cabrera. Copy of this order forwarded to U.S. Marshal.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRED CABRERA, #A0114810,

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)
Plaintiff,
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vs.
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STATE OF HAWAII, et al.,
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Defendants.
)
_______________________________ )

CIV. NO. 17-00367 DKW-KJM
ORDER DISMISSING COMPLAINT
IN PART AND DIRECTING
SERVICE

Before the court is pro se Plaintiff Fred Cabrera’s amended prisoner civil
rights Complaint. Am. Compl., ECF No. 7. Cabrera complains that Defendants
the State of Hawaii and Oahu Community Correctional Center (“OCCC”) officers
Sergeant Malia Anderson and Manny Tavares violated his rights under the Eighth
Amendment during an incident that allegedly occurred at OCCC on or about June
22, 2017.
For the following reasons, the State of Hawaii and the claims against
Anderson and Tavares in their official capacities are DISMISSED. Cabrera is
DIRECTED to effect service on Defendants Malia Anderson and Manny Tavares
by mailing a copy of the amended Complaint and completed service documents to
the United States Marshal. After service is completed, Anderson and Tavares (in
their individual capacities) are directed to respond to the amended Complaint.

I. 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).
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).
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.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Leave to amend should be granted if it

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appears possible that the plaintiff can correct the complaint’s defects. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II. DISCUSSION1
Cabrera alleges that Anderson and Tavares ordered him to help move an
allegedly mentally ill inmate from one cell to another on June 22, 2017. He claims
that this inmate struck him several times during this cell movement causing him
pain, while Tavares and Anderson stood nearby but failed to intervene. Cabrera
alleges that Defendants violated the Eighth Amendment when they failed to protect
him from this alleged assault. He seeks $100,000 in damages.
A.

Eleventh Amendment
“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) (quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir.

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For purposes of screening, 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).
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2005), abrogated on other grounds by Levin v. Commerce Energy Inc., 560 U.S.
413 (2010)); 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).
Cabrera’s damages claims against the State of Hawaii, and against Anderson
and Tavares in their official capacities, are DISMISSED.
B.

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).

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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
of a substantial risk of serious harm.’” Id. at 1074 (quoting Farmer, 511 U.S. at
837).
Cabrera states plausible claims against Anderson and Tavares for deliberate
indifference to his safety in violation of the Eighth Amendment, and these claims
shall proceed. The Court orders the amended Complaint to be served and
Defendants Anderson and Tavares are directed to file a response.
III. SERVICE ORDER
Service of the Complaint is appropriate for Defendants Malia Anderson and
Manny Tavares.
(1) The Clerk shall send Cabrera one copy of the endorsed amended
Complaint, two completed summons, two USM-285 forms, four Notice of Lawsuit
and Request for Waiver of Service for Summons forms (AO 398), four Waiver of
Service of Summons forms (AO 399), and an instruction sheet. The Clerk shall
send a copy of this order to the U.S. Marshal.
(2) Plaintiff shall complete the forms and send them to the U.S. Marshal.

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Because Anderson and Tavares are Department of Public Safety (“DPS”)
employees, Plaintiff should name them on the forms, but address the forms to
Shelley Nobriga, DPS Litigation Coordinator, 919 Ala Moana Blvd., 4th Floor
Honolulu, HI 96814, and send them to the U.S. Marshal. Ms. Nobriga is
authorized to accept one complaint and the waiver of service forms for DPS
Defendants.
(3) The U.S. Marshal shall mail a copy of the Complaint, two completed
Notice of Lawsuit and Request for Waiver of Service forms (AO 398), and four
completed Waiver of Service of Summons forms (AO 399) (two for each
defendant) to Ms. Nobriga.
(4) The U.S. Marshal shall retain the summons and a copy of the Complaint.
Defendants Anderson and Tavares shall return the Waiver of Service forms to the
U.S. Marshal within thirty days from the date the requests are mailed. If the
Waiver of Service of Summons forms and requests for waiver of service are
returned as undeliverable, the U.S. Marshal shall immediately file them with the
court.
(5) If Anderson and Tavares fail to return the Waiver of Service of
Summons forms within thirty days, the U.S. Marshal shall personally serve them
and command all necessary assistance from DPS. Within ten days after personal
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service is effected, the U.S. Marshal shall file the return of service for Anderson
and Tavares with evidence of any attempts to secure a waiver of service of
summons and the costs incurred in effecting service. These costs will be taxed
against the personally-served Defendant.
(6) Anderson and Tavares shall file an answer or responsive motion within
sixty days after the request for waiver of service was sent (if formal service is
waived), or twenty days after personal service.
(7) Cabrera shall inform the court of any change of address in writing. The
notice shall not include requests for other relief. Failure to file such notice may
result in the dismissal of the action for failure to prosecute.
(8) After the amended Complaint is served, Cabrera’s documents are
deemed served on Defendants or their attorney(s) when they are electronically filed
by the court.
IV. CONCLUSION
(1) Claims against the State of Hawaii and Defendants Malia Anderson and
Manny Tavares in their official capacities are DISMISSED.
(2) Claims against Defendants Malia Anderson and Manny Tavares in their
individual capacities state a plausible claim for relief and shall be served.

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(3) Cabrera SHALL request the U.S. Marshal to effect service on
Defendants Anderson and Tavares as directed above. The Clerk is DIRECTED to
send Cabrera the service forms detailed above.
(4) Anderson and Tavares SHALL file a response to Cabrera’s Complaint.
IT IS SO ORDERED.
DATED: September 22, 2017 at Honolulu, Hawai’i.

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

Fred Cabrera v. State of Hawaii, et al.; Civil No. 17-00367 DKW-KJM; ORDER
DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE
Cabrera v. State, 1:17-cv-00367 DKW-KJM; Scrng 2017 Cabrera 17-367 (fac dsm soh ORD SVC)

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