United States District Court, D. Hawaii
MARK A. BLANKENSHIP, FED. REG. #83718-022, Plaintiff,
WARDEN D. SHINN, MANAGER MR. SHELKO, 1-10 JOHN DOE, Defendants.
ORDER GRANTING DEFENDANT LEE SHELLKO’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
Leslie E. Kobayashi United States District Judge
Before the Court is Defendant Lee Shellko’s (“Defendant Shellko”) Motion to Dismiss Second Amended Complaint (“Motion”), filed on January 27, 2016. [Dkt. no. 113.] Pro se Plaintiff Mark A. Blankenship (“Plaintiff”) filed a memorandum in opposition on February 9, 2016,  and Defendant filed his reply on March 2, 2016. [Dkt. nos. 115, 117.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendant’s Motion is HEREBY GRANTED for the reasons set forth below.
The facts of this case are well known to the parties, and the Court will only repeat those facts that are relevant to the instant Motion. On September 30, 2015, the Court issued its Order Granting Defendants’ Motion for Dismissal or Summary Judgment of Defendants David Shinn and Lee Shellko (“9/30/15 Order”). [Dkt. no. 97. In the 9/30/15 Order, the Court dismissed with prejudice Plaintiff’s claims brought pursuant to: the Fourteenth Amendment to the United States Constitution; the Americans with Disabilities Act; and § 504 of the Rehabilitation Act. [9/30/15 Order at 12.] The Court also dismissed Plaintiff’s claim brought pursuant to the Eighth Amendment to the United States Constitution. The dismissal of the Eighth Amendment claim was with prejudice as to Defendant Shinn and without prejudice as to Defendant Shellko. [Id.] The 9/30/15 Order explained that “[i]t is arguably possible that Plaintiff could amend his Eighth Amendment claim as to Defendant Shellko. However, the amended claim must allege the seriousness of Plaintiff’s medical conditions and Defendant Shellko’s knowledge of these conditions.” [Id. at 11.] Moreover, the Court “emphasize[d] that it has only granted Plaintiff leave to amend his Eighth Amendment claim against Defendant Shellko. This court has not granted Plaintiff leave to make other changes, such as adding new parties, claims, or theories of liability.” [Id.]
The Court gave Plaintiff until November 16, 2015 to file his second amended complaint. On October 13, 2015, the Court received a letter from Plaintiff requesting additional time because of a pending transfer to a new facility. [Dkt. no. 99.] The magistrate judge granted Plaintiff’s request in an entering order filed on October 19, 2015, and extended Plaintiff’s deadline to November 23, 2015. [Dkt. no. 100.] On November 24, 2015, the Court received another letter from Plaintiff requesting an extension of his filing deadline, again due to issues related to his transfer to a new facility. [Dkt. no. 101.] The Court granted Plaintiff’s request, and extended his deadline for filing a second amended complaint to December 23, 2015. [Dkt. no. 102.]
On November 27, 2015, Plaintiff filed his Second Amended Complaint. [Dkt. no. 103.] In a letter received on December 7, 2015 (“12/7/15 Letter”), Plaintiff informed the Court that he was having difficulty getting his legal documents back after his transfer to a new facility. [Dkt. no. 106.] In a letter received on December 21, 2015 (“12/21/15 Letter”), Plaintiff informed the Court that many of his legal documents were returned, and he included a few documents for the Court’s review. [Dkt. no. 108.] In an entering order filed on January 5, 2016 (“1/5/16 EO”), the Court construed the 12/21/15 Letter as part of Plaintiff’s Second Amended Complaint. [Dkt. no. 109.] The Court also noted that: it appeared that Plaintiff had not cured the defects identified in the 9/30/15 Order; and “[t]he documents that Plaintiff includes with the [Second Amended Complaint] have either already been submitted to the Court or do not address the seriousness of Plaintiff’s condition and Shellko’s knowledge of that condition before Plaintiff’s fall on June 9, 2012.” [1/5/16 EO at 2.] Given Plaintiff’s difficulty in obtaining his legal documents after his transfer, the Court gave Plaintiff until February 12, 2016 to revise his Second Amended Complaint. [Id.] On January 19, 2016, Plaintiff filed a second document titled Second Amended Complaint. [Dkt. no. 110.] Also on January 19, 2016, the Court received a letter from Plaintiff (“1/19/16 Letter”), wherein Plaintiff informed the Court, inter alia, of newly-discovered health problems. [Dkt. no. 111.]
I. 1/19/16 Letter
The 1/19/16 Letter requested further settlement discussions, and questioned whether or not Defendant Shellko’s counsel, Assistant United States Attorney Thomas Helper, should represent Defendant Shellko, who is sued is his individual capacity. [Id. at 1.] Defendant Shellko has indicated that he has no interest in settlement, see dkt. no. 86 (letter from Mr. Helper, dated July 30, 2015, informing the Court that he believes that “settlement discussions would be fruitless”), and “[t]he Court, of course, cannot force an unwanted settlement on anyone.” See Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774, at *11 (N.D. Cal. June 19, 2007). In addition,
Assistant U.S. Attorneys are statutorily authorized to defend “all civil actions, suits or proceedings in which the United States in concerned.” 28 U.S.C. § 547(2). Moreover, pursuant to 28 C.F.R. § 50.15(a), a federal employee “may be provided representation in civil . . . proceedings in which he is sued . . . in his individual capacity . . . when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States.” Because this action involves claims against various employees of the Federal Bureau of Prisons based on alleged misconduct undertaken by them within the course of their official duties, this matter certainly falls within the scope of the statutory and regulatory authorization.
Tennille v. Quintana, No. 1:09-cv-238-SJM-SPB, 2011 WL 767810, at *1 (W.D. Pa. Feb. 28, 2011) (alterations in Tennille) (citations omitted). This matter, too, “certainly falls within the scope of the statutory and regulatory authorization.” See id.
Finally, any suggestion that Plaintiff makes that the United States Attorney’s Office for the District of Hawai`i cannot defend Defendant Shellko in this matter due to a conflict, see 1/19/16 Letter at 1 (“I also object to the U.S. attorney representing as a conflict. After all they prosecuted me.”), is incorrect. See, e.g., United States v. Bolden, 353 F.3d 870, 869 (10th Cir. 2003) (“[B]ecause disqualifying government attorneys implicates separation of powers issues, the generally accepted remedy is to disqualify a specific Assistant United States Attorney, not all the attorneys in the office.” (alteration, internal quotation marks, and citation omitted)). Mr. Helper did not prosecute Plaintiff,  and his representation of Defendant Shellko is legally and ethically appropriate.
II. Third Amended Complaint
Plaintiff is proceeding pro se, and the Court will construe the complaint he filed on January 19, 2016 as his Third Amended Complaint. See, e.g., Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (“We construe pro se complaints liberally, especially in civil rights cases.” ...