Lauro v. Hawaii
| Decision Date | 07 February 2020 |
| Docket Number | CIV. NO. 19-00633 JAO-KJM |
| Parties | THOMAS LAURO, #A0153221, Plaintiff, v. STATE OF HAWAII, et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Before the Court is pro se Plaintiff Thomas Lauro's ("Plaintiff['s]") Complaint brought pursuant to 42 U.S.C. §§ 1983 and 1985. Compl., ECF No. 1.1 Plaintiff is incarcerated at the Halawa Correctional Facility ("HCF") pursuant to the August 7, 2019 revocation of his parole in State v. Russo, 1PC121001460 (Haw. 1st Cir. 2013) ("Russo").2 See Compl., ECF No. 1 at 3. Plaintiff names asDefendants: (1) the State of Hawaii; (2) the Department of Public Safety ("DPS"); (3) the Hawaii Paroling Authority ("HPA"); (4) HPA Chairman Edmund "Fred" Hyun; (5) HPA Board Member Max N. Otani; (6) HPA Paroles and Pardons Administrator Tommy Johnson; (7) DPS Director Nolan Espinda; (8) HPA Parole Officer Earl Everett; and (9) John and Jane Does 1-100 (collectively, "Defendants"), in their individual and official capacities. He asserts that Defendants unlawfully revoked his parole, causing him to be re-incarcerated, which he alleges has or may subject him to cruel and unusual punishment.
The Complaint and this action are DISMISSED without prejudice, but without leave to amend, as barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff's pending motions, ECF Nos. 4 and 5, are DENIED as moot.
The Court must conduct a pre-answer screening of a prisoner's pleading pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Claims or complaints that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d1002, 1004 (9th Cir. 2010).
Screening under §§ 1915(e)(2) and 1915A(a) involves the same standard of review as that under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso, 791F.3d 1037, 1039 (9th Cir. 2015) (citation omitted); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). A complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The "mere possibility of misconduct" or an "unadorned, the-defendant-unlawfully-harmed-me accusation" falls short of meeting this plausibility standard. Id. at 678-79 (citation omitted); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure ("FRCP") "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
When screening, the Court accepts the allegations of the complaint as true, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted), and construes the pleading liberally. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)(citations omitted). Leave to amend must be granted if it appears the plaintiff can correct the complaint's defects. See Lopez, 203 F.3d at 1130. Dismissal without leave to amend is appropriate if a claim or complaint cannot be saved by amendment. See Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013).
Plaintiff alleges that prison officials denied him adequate medical care when he was incarcerated at HCF in or about July 13, 2011 and July 13, 2012. See Compl., ECF No. 1. at 9. He alleges this resulted in the loss of his colon, disfigurement, disability, and "ongoing catastrophic damages." Id. Plaintiff says that then-DPS Medical Director, Steven DeWitt, M.D., testified before the HPA in "Nov-Dec, 2011," and admitted that DPS was liable for Plaintiff's injuries. Id.
While awaiting trial in Russo, Plaintiff, represented by counsel, sued the State and DPS officials in state court for medical malpractice, negligence, and state and federal constitutional violations. See Lauro v. State, 1CC121002784 (Haw. 1st Cir.); Defendants removed the suit to this federal district court on November 29, 2012. See Lauro v. State of Hawaii, CIV. NO. 12-00637 DKW-RT(D. Haw.) ("Lauro I"), Notice of Removal, ECF No. 1.3
On April 24, 2013, Plaintiff pled guilty in the Circuit Court of the First Circuit, State of Hawaii ("circuit court"), to Theft in the Second Degree (Count 1),4 and Habitual Property Crime (Count 2), in violation of Hawai'i Revised Statutes ("HRS") §§ 708-831(1)(b) and 708-803, respectively. See Russo, Mins. filed Apr. 24, 2013.
On July 10, 2013, the circuit court dismissed Count 2 with prejudice, waived all fees and mandatory fines, sentenced Plaintiff to an indeterminate five-year term as to Count 1, and reduced Plaintiff's mandatory minimum term to six months. See Russo, Mins. filed July 10, 2013. Plaintiff did not directly appeal, although he filed three unsuccessful petitions for post-conviction relief in the circuit court between September 2013 and August 2015. See generally Russo (docket sheet).
On or about August 20, 2015, while Plaintiff was litigating Lauro I in federal court, he was released on parole. See Lauro I, Green Decl., ECF No. 218-1 ¶¶ 6-8.
On December 3, 2015, Lauro I was dismissed with prejudice pursuant to FRCP Rule 41(b), see Lauro I, Order Dismissing Case, ECF No. 321 at 10, for Plaintiff's "continuous, willful, and deliberate conduct in failing to cooperate with his counsel or comply with court orders." Lauro I, Order Denying Motion for Relief from Judgment, ECF No. 357 at 4 (). On May 5, 2016, the Ninth Circuit Court of Appeals dismissed Plaintiff's appeal for his failure to prosecute. See Lauro I, Mandate, ECF No. 341 ().
On or about June 27, 2019, Plaintiff was arrested for violating the terms and conditions of parole in Russo. See Lauro Decl., ECF No. 348-1 at 8. Plaintiff then began filing requests, letters, and motions to reopen Lauro I. See, e.g., Lauro I, ECF Nos. 342-44, 347-49, 354, 356.
On or about October 22, 2019, while attempting to reopen Lauro I, Plaintiff filed a state petition for post-conviction relief in the circuit court challenging his conviction and sentence in Russo, which remains pending. See Lauro v. State,1CPN-19-0000002 (Haw. 1st Cir.) (last visited Feb. 3, 2020).5
On October 25, 2019, Plaintiff filed Lauro II with the stated intent of reopening his dismissed claims in Lauro I. See Lauro II, ECF No. 1. The case was dismissed on January 9, 2020, as precluded by the doctrine of res judicata. See Lauro II, Order, ECF No. 14.
On November 25, 2019, Plaintiff filed the present action and Lauro III, both pursuant to 42 U.S.C. §§ 1983 and 1985(2). See Compl., ECF No. 1; Lauro III, ECF No. 1. Lauro III was dismissed on January 28, 2020 for failure to state a colorable claim for relief. See Lauro III, Dismissal Order, ECF No. 8 ().
In the present action, Plaintiff asserts that, although he pled guilty to Theft in the Second Degree in Russo, he was really only guilty of Theft in the Third Degree6 because the wholesale value of the items he stole was less than $300, his crime was non-violent, and the items were immediately returned to the vendor.See Compl., ECF No. 1 at 10. Because Theft in the Third Degree is a misdemeanor carrying a one-year term of imprisonment, Plaintiff asserts that he is subject to a one-year sentence only, which would have expired before his arrest in June 2019, making the revocation of his parole illegal. See id.
Plaintiff claims that Defendants knew or should have known that his sentence is illegal because the facts in Russo show that he is guilty only of Theft in the Third Degree, not Theft in the Second Degree. See Compl., ECF No. 1 at 9-14. He claims that Defendants also knew that he was disabled by the allegedly inadequate medical care he received at HCF in 2011 and 2012. Plaintiff alleges that Defendants conspired to revoke his parole to retaliate against him for having sued the State in Lauro I, knowing that he would be returned to HCF, where he alleges he will be unable to obtain necessary surgery. He therefore alleges that Defendants revoked his parole with deliberate indifference to his health and safety, and that their actions constitute cruel and unusual punishment, wrongful imprisonment, and gross negligence. See id. Plaintiff seeks immediate release from prison and compensation for the medical injuries that he allegedly incurred at HCF in 2011 and 2012, or that he may incur if he is denied surgery. See id. at 15.
"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus" or a civil rights complaint brought pursuant to 42 U.S.C. § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Generally, claims alleging constitutional violations related to the "circumstances" of a prisoner's confinement must be brought under § 1983, id., while constitutional challenges to the validity or duration of that confinement, that seek "immediate release from prison" or the "shortening of [a state prison] term," must be raised in a petition for habeas corpus under 28 U.S.C. § 2254 (). Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005) (citations and internal quotation marks omitted); see Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) ...
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