United States District Court, D. Hawaii
ORDER DISMISSING SECOND AMENDED COMPLAINT IN PART AND
Derrick K. Watson, United States District Judge.
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.
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.
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.
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.
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.
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. See Order, ECF No. 11.
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.
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
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).
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.
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).
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.
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).