Judge dismisses Guerrero’s claims, but allows him to amend

The federal court has dismissed the claims against an inmate and several current and former Department of Corrections officials and employees contained in a lawsuit filed by former Commonwealth Utilities Corp. board chair Francisco Q. Guerrero, who has been serving a six-year prison term for sexual abuse of a minor girl.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona dismissed without prejudice Guerrero’s claim against inmate John Kileleman and granted Guerrero’s request to amend his claims against some DOC officials and employees.

Manglona issued the dismissal of claims in granting Guerrero’s request to proceed with his lawsuit in forma pauperis.

Forma pauperis refers to a court’s permission to an indigent to initiate a lawsuit without having to pay for court fees or costs due to his or her lack of financial resources.

Manglona said the court is required to screen complaints brought in civil actions by prisoners filing in forma pauperis or seeking redress from governmental entities, officers, or employees.

Guerrero alleged that inmate John Kileleman, who is mentally ill, beat him up when he tried to pacify him from beating another inmate in DOC last Jan. 14.

Last April 4, Guerrero filed before the court his application to proceed with the lawsuit informa pauperis and his draft complaint.

He sued Kileleman for physical pain and emotional distress. He also sued 14 other defendants in his complaint for violations of his 8th and 14th Amendment rights.

Then-DOC commissioner Vincent Attao is among those 14 defendants. The 13 DOC employees named as co-defendants are Jose K. Pangelinan, Pius Yaroitemal, Jose Castro, Laena Cabrera, Eloy Dela Cruz, Joaquin Sablan, Manuela Guerrero, Rachel Rebuenog, Fred Billy, Marvin Seman, Leanna P. Quitugua, Romualdo Teregeyo Jr., and Keith Lizama.

In her order issued last Friday, Manglona said she interprets plaintiff’s claims against these defendants in three categories: failure to protect, failure to supervise, and failure to investigate.

Citing that the court lacks subject matter jurisdiction over the state law tort claims against inmate Kileleman, Manglona dismissed without prejudice Guerrero’s claim against Kileleman.

Dismiss without prejudice means Guerrero may re-file the claim against Kileleman.

Tort refers to an action in which one person or entity causes injury, harm, or damage to another person or entity.

Ruling that Guerrero has failed to state a claim against each of them, Manglona also dismissed without prejudice the claims against former DOC commissioner Attao, and DOC officials and employees Jose K. Pangelinan, Pius Yaroitemal, Fred Billy, Marvin Seman, Leanna P. Quitugua, Romualdo Teregeyo Jr., and Keith Lizama.

Manglona allowed Guerrero to file an amended complaint no later than June 21, 2019.

The judge said if Guerrero does not timely file an amended complaint, the court will order the U.S. Marshal to serve the complaint on the six other DOC employees named as co-defendants—Joaquin Sablan, Manuela Guerrero, Rachel Rebuenog, Jose Castro, Laena Cabrera, and Eloy Dela Cruz.

Manglona said a plaintiff cannot rely on allegations and claims included in an original pleading if an amended pleading is filed.

Therefore, the judge said, Guerrero must replead all necessary factual allegations, all claims against every defendant he intends to sue, and all remedies he seeks in the first amended complaint, if he chooses to file one.

Manglona said Guerrero has not established that this court has jurisdiction over his claims against Kileleman.

Manglona said it is not an action arising under federal law nor has Guerrero pleaded diversity of citizenship or an amount in controversy.

The judge said the tort claims against Kileleman are not ones that would ordinarily be tried in a single judicial proceeding with the Section 1983 claim against DOC defendants.

Section 1983 refers to the statute that creates a remedy for violations of federal rights committed by persons acting under color of state law.

Manglona said the objective prong of the deliberate indifference test in a failure to protect case is not the actual injury suffered, but rather the risk of substantial injury.

Therefore, the judge said, the assault and battery claims against Kileleman and the Section 1983 claims against DOC defendants do not derive from a common nucleus of operative facts.

She said the potential assault and battery claims are therefore dismissed without prejudice to any right Guerrero may have to file suit against Kileleman in the Commonwealth courts.

According to Guerrero’s complaint, on Jan. 14, 2019, he was playing cards with three other inmates on the mezzanine floor of Pod 2, Section B of the DOC. He heard a strange noise coming from cell number 232. He ran over to the cell where he saw inmate Kileleman punching fellow inmate Bi Chuan Nian.

Bi had blood flowing from his head. Guerrerro shouted to Kileleman to stop. Instead, Kileleman started pushing and punching Guerrero, causing him to fall down and lose consciousness.

Guerrero regained consciousness and stood up, but Kileleman pushed him again, causing him to fall down three stairs.

Kileleman then kicked Guerrero, which caused him to roll down another 15 flights of stairs.

Manglona said it is unclear from the complaint at what point duty officers came to the scene.

Guerrero was taken to the booking area, where he was seen by medics.

At some later time, DOC took Guerrero to the Commonwealth Health Center for X-rays and other medical checks. He suffered bruises on his head and legs.

On the same day of the attack, Guerrero tried to call 911 from a DOC payphone but the phone would not connect.

Instead, he called a friend to ask him to contact 911 on his behalf. Guerrero met with police, who took his statement.

The next day, Jan. 15, Guerrero submitted a request to DOC Professional Standard Unit (PSU) to discuss the incident. He spoke to chief investigator Lawrence Pangelinan from the Office of the Attorney General.

On Jan. 17, 2019, he submitted a grievance to then-DOC Commissioner Attao about his “body-ache” caused by the attack.

On Jan. 18, he spoke to Lawrence Pangelinan and Urbano Babauta of the OAG.

Guerrero told them that he contacted 911 because none of the DOC officers would help him file a complaint.

On Jan. 28, 2019, he submitted another request to speak to PSU.

He met with Lawrence Pangelinan on Feb. 6, 2019, along with Ikluk Masayo. They took his statement and told him that they would rather arrange for him to possibly speak with the PSU.

On Feb. 7, 2019, Guerrero met with three PSU officers—Lt. Frederick Billy, Lt. Marvin Seman, and Officer Leanna Quitugua.

They asked Gurrero what he wanted and he told them that assigned officers must be required to do their duties.

PSU told him they would look into his complaint.

Manglona said the end result, if any, of that complaint is unclear from Guerrero’s suit.

MD: The federal court has dismissed the claims against an inmate and several current and former Department of Corrections officials and employees that contained in a lawsuit filed by former Commonwealth Utilities Corp. board chair Francisco Q. Guerrero, who has been serving a six-year prison term for sexual abuse of a minor girl.

KW: Francisco Q. Guerrero, Department of Corrections, Vince Attao.