United States District Court, D. Hawaii
ORDER DISMISSING SECOND AMENDED COMPLAINT IN PART AND
Oki Mollway, United States District Judge.
the court is pro se Plaintiff Justin Gonda's second
amended prisoner civil rights complaint (“SAC”),
brought pursuant to 42 U.S.C. § 1983. SAC, ECF No. 15.
Gonda alleges that state officials violated his
constitutional rights under the Eighth and/or Fourteenth
Amendments when they failed to protect him from an assault by
other inmates and then denied him adequate medical
care. Gonda seeks declaratory relief and
compensatory and punitive damages.
claims against all Defendants named in their official
capacities are DISMISSED with prejudice. Gonda's claims
against Dr. Pedri, Dr. Banner, Governor Ige, Director
Espinda, Deputy Director Maesaka, Warden Sequeira, and Chief
of Security Johnson in their individual capacities are
DISMISSED without prejudice. Gonda's claims against Scott
Recarte, Henry Moe, John Doe, and Matthew Kuresa in their
individual capacities shall proceed and be served.
United States Marshals Service SHALL serve the Second Amended
Complaint, as limited herein, on Defendants Recarte, Moe,
Doe, and Kuresa as directed by Gonda, and they are DIRECTED
to file a response.
16, 2017, Gonda commenced this action. See ECF Nos.
1, 3, 4.
August 9, 2017, Gonda filed his First Amended Complaint
(“FAC”). ECF No. 9. He alleged that: (1) Recarte,
Moe, and Doe failed to protect him from an assault by two
inmates that occurred on April 26, 2017; (2) Kuresa failed to
prevent his later injury in his cell; and (3) Dr. Pedri and
Dr. Banner failed to provide him adequate medical care
September 15, 2017, the court screened the FAC pursuant to 28
U.S.C. § 1915(e) and § 1915A(a) and dismissed
claims: (1) against all Defendants in their official
capacities, with prejudice; (2) against Dr. Banner, with
leave to amend; and (3) as alleged under 42 U.S.C. §
1983 against Dr. Pedri, with leave to amend. See
Order Dismissing Amended Complaint In Part, ECF No. 12
(“September 15 Order”). Gonda's Fourteenth
Amendment claims against Recarte, Moe, Doe, and Kuresa, and
his state law negligence claims against Dr. Pedri and Kuresa
were deemed suitable for service. See Id. The court
directed Gonda either to file an amended complaint curing the
deficiencies in the claims dismissed without prejudice or to
notify the court that he would stand on his claims against
Recarte, Moe, Doe, Dr. Pedri, and Kuresa as limited by the
September 15 Order. In the latter event, the court would
direct the United States Marshals Service Service to serve
September 28, 2017, Gonda filed the SAC. ECF No. 15. He
alleges that previously named Defendants Recarte, Moe, Doe,
Pedri, Kuresa, and Banner, and newly named Defendants Ige,
Espinda, Maesaka, Sequeira, and Johnson acted with deliberate
indifference to his health or safety in violation of the
Eighth and/or Fourteenth Amendments. He asserts that the
State of Hawaii is liable for Defendants' acts or
omissions pursuant to Haw. Rev. Stat. § 662-2.
court conducts a pre-answer, sua sponte screening of
prisoners' pleadings pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b). The court must dismiss a
prisoner's complaint, or any portion of it, that is
frivolous, malicious, fails to state a claim, or seeks
damages from defendants who are immune from suit. See
Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(discussing 28 U.S.C. § 1915(e)(2). “The purpose
of [screening] is ‘to ensure that the targets of
frivolous or malicious suits need not bear the expense of
responding.'” Nordstrom v. Ryan, 762 F.3d
903, 920 n.1 (9th Cir. 2014) (describing pre-answer
screening) (quoting Wheeler v. Wexford Health Sources,
Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (same). Rule 12(b)(6)
requires that a complaint “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);
Wilhelm, 680 F.3d at 1121.
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.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
to amend should be granted if it appears the plaintiff can
correct the complaint's defects. Lopez, 203 F.3d
at 1130. A court may dismiss a complaint or claim without
leave to amend, however, when “it is clear that the
complaint could not be saved by any amendment.”
Sylvia Landfield Trust v. City of L.A., 729 F.3d
1189, 1196 (9th Cir. 2013).
is proceeding under 42 U.S.C. § 1983. “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).
a plaintiff must allege that he suffered a specific injury as
a result of a particular defendant's conduct and an
affirmative link between the injury and the violation of his
rights. See Monell v. Dep't of Social Servs.,
436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362,
371-72, 377 (1976). “A person ‘subjects'
another to the deprivation of a constitutional right, within
the meaning of § 1983, if he does an affirmative act,
participates in another's affirmative acts or omits to
perform an act which he is legally required to do that causes
the deprivation of which complaint is made.”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Summary of Allegations in the SAC
alleges that Defendants violated Gonda's rights under the
Eighth and/or Fourteenth Amendments, omits negligence claims
that Gonda had asserted in prior pleadings,  and asserts that
the State of Hawaii has waived its immunity for liability for
Defendants' constitutional torts pursuant to Haw. Rev.
Stat. § 662-2.
says that he was attacked by two inmates on the OCCC
recreation yard on Wednesday, April 26, 2017, at
approximately 9:30 in the morning. He says that Officers
Recarte, Moe, and Doe stood nearby and observed the assault,
yet failed to intervene or come to his aid. After the
assault, Recarte denied that he had seen anything.
was taken to the OCCC infirmary, where cuts on his eye and
elbow were cleaned and he was given an ice pack for his face.
Gonda says Dr. Banner was present, but he does not detail
what Banner said or did, other than alleging that Banner
denied his request to be taken to an emergency room. Someone
at the infirmary, perhaps Banner, explained that x-rays would
be taken the next day, Thursday, April 27,
2017. After three hours, Gonda returned to his
cell. At 7:00 p.m., he was given Naproxen 500 mg. for pain.
next day, April 27, 2017, Gonda returned to the infirmary.
X-rays were taken that confirmed that his arm was broken and
showed that he had a possible fracture to his face. Dr. Pedri
put Gonda's arm in a cast, gave him a sling, and told him
that he would be given a “No Top Bunk”
memorandum. When Gonda did not receive this memorandum
that night, he asked the nurse to consult with Drs. Banner
and Pedri, who he said were aware of his injuries and had
approved the memorandum.
slept in a lower bunk until May 1, 2017, when Kuresa moved
him into a cell with a cellmate, and directed Gonda to take
the top bunk. Gonda says that Kuresa did so over his
objections, and despite Gonda's obvious injuries, because
Gonda did not have a “Top Bunk” memorandum, and
his new roommate required the lower bunk because he urinated
frequently. Gonda says the roommate did not have Top Bunk
2, 2017, Gonda tripped while climbing from the top bunk. He
was unable to prevent the fall because of his cast and sling
and he allegedly incurred further injuries to his face from
the fall. Gonda does not explain what medical treatment he