Thompson v. Torres

          ORDER DISMISSING SECOND AMENDED COMPLAINT IN PART AND DIRECTING SERVICE

          Derrick K. Watson, United States District Judge.

         Before the Court is Plaintiff Thad Thompson's Second Amended Complaint (“SAC”). ECF No. 18. Thompson is incarcerated at the Halawa Correctional Facility (“HCF”) and is proceeding in forma pauperis. Thompson alleges that Defendant Nurse Mike violated his rights under the First and Eighth Amendments by serving him a “finger food” diet in the HCF High Security Unit (“HSU”) when Thompson had requested a “chopped food” diet.

         For the following reasons, Thompson's Eighth Amendment claim is DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) because it fails to state a plausible claim for relief and amendment would be futile. Thompson, however, states a claim for retaliation under the First Amendment. This claim shall therefore be permitted to proceed, and the SAC shall be served on Nurse Mike by the United States Marshals Service in accordance with the Court's instructions below.

         I. BACKGROUND^[1]

         Thompson's original July 7, 2017 Complaint (ECF No. 1) claimed that HCF employees Torres, Paleka, John Doe, Jane Doe, and Kitchen Supervisor Jane Doe 2 violated his rights under the (1) First Amendment when they allegedly retaliated against him for filing grievances and lawsuits; and (2) Fourteenth Amendment when they allegedly denied him due process during a segregation determination and custody classification review.

         On August 2, 2017, the Court screened the Complaint, held that Thompson stated a retaliation claim against Torres only, and dismissed all remaining claims for failure to state a claim with leave granted to amend. See Order, ECF No. 9.

         Thompson's August 23, 2017 First Amended Complaint (“FAC”)(ECF No. 10) renamed Defendants Torres, Paleka, Uehara, and John and Jane Does and added Nurse Mike. He reasserted his retaliation claims, added Eighth Amendment claims, and abandoned his due process claims.

         On October 4, 2017, the Court screened and dismissed the FAC for failure to state a claim, with leave granted to amend Thompson's retaliation claim against Nurse Mike only, on or before November 4, 2017.^[2] See Order, ECF No. 11.

         On October 10, 2017, apparently after receiving the October 4, 2017 Order, Thompson signed an application to proceed in forma pauperis on appeal and mailed it to the Ninth Circuit Court of Appeals. ECF Nos. 12, 12-1. The Ninth Circuit received the application on October 23, 2017, and forwarded it to the District of Hawaii to process. See ECF Nos. 12-2, 14. This Court denied Thompson's request to proceed in forma pauperis on appeal because he had accrued three strikes pursuant to 28 U.S.C. § 1915(g), and further noted that this action would remain open until the time to file the amended pleading had passed. See Order, ECF No. 13.

         On October 23, 2017, Thompson signed the SAC. He mailed it on November 7, and the Court filed it on November 13, 2017. ECF No. 18. Thompson sets forth two causes of action. In Count I, Thompson states that while on suicide watch for approximately seven days, he told Nurse Mike that HCF staff were retaliating against him for filing grievances and lawsuits. Id., PageID #150- 51. Also while on suicide watch, Thompson was served a “finger food” diet which required no utensils. Id., PageID #150. About three to four days after Thompson was released from suicide watch to solitary confinement in the HSU, he asked Nurse Mike to “get [his] chopped diet started again.” Id., PageID #151. Instead, Thompson continued to receive a finger food diet, which he claims is “unsanitary for regular housing.” Id. Thompson says that he developed a rash on his arm, “busted knuckles, ” and a sore elbow due to the finger food diet. Id. When Thompson complained to Nurse Mike three times, he alleges that Nurse Mike “snidely” told him to file a grievance. Id. Thompson concludes that Nurse Mike did this in retaliation for his having filed grievances and lawsuits against others at HCF, in violation of the First Amendment. In Count II, Thompson alleges Nurse Mike's actions also violated the Eighth Amendment. He seeks declaratory relief and damages.

         II. 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(e)(2) and 1915A(a). Courts 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(e)(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). A complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). 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 Twombly, 550 U.S. at 555). Further, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         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). However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). A plaintiff must identify specific facts supporting the existence of substantively plausible claims for relief. Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014) (per curiam) (citation omitted). Leave to amend should be granted if it appears possible that the plaintiff can correct the complaint's defects. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

         III. DISCUSSION

         “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); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.

         Additionally, 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); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (explaining that a plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights). A person deprives another of a constitutional right “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).

         A. Official ...