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Gordon v. Sequeira

United States District Court, D. Hawaii

January 24, 2018

SCOTT GORDON, #A1080674, Plaintiff,
v.
FRANCIS SEQUEIRA, et al., Defendants.

          ORDER DISMISSING AMENDED COMPLAINT IN PART

          Derrick K. Watson United States District Judge.

         Pro se Plaintiff Scott Gordon is incarcerated at the Saguaro Correctional Center (“SCC”) located in Eloy, Arizona. He complains of incidents that allegedly occurred in June 2016 while he was a pretrial detainee at the Halawa Correctional Facility (“HCF”) in Aiea, Hawaii. Gordon alleges that Defendants[1] failed to protect him from assault from other inmates, failed to provide him adequate medical care, and retaliated against him in violation of federal and state law.

         The Court finds that Gordon states failure-to-protect claims under the Fourteenth Amendment and state common law negligence claims against Defendants Dr. Thomas Craig, III, Paul Neeson, Gary Kaplan, and Keoni Morreira. These claims may be served and will require a response after service is perfected.

         Gordon fails to state a claim against (1) all Defendants named in their official capacities; and (2) because he is a pretrial detainee, any Defendant under the Eighth Amendment. These claims are DISMISSED with prejudice. Gordon also fails to state any colorable (1) First Amendment retaliation claims; and (2) state common law assault and battery claims. These claims are DISMISSED without prejudice but with leave granted to amend.

         I. SCREENING

         Federal courts must conduct a pre-answer screening in all cases in which prisoners seek redress from a governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court 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(b)(2) and 1915A(b). “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) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         Screening under §§ 1915(e)(2) & 1915A(a) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “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 v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “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.” Iqbal, 556 U.S. at 679.

         Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). 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.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The “mere possibility of misconduct” or an “unadorned, the defendant-unlawfully-harmed-me accusation” falls short of meeting this plausibility standard. Id. at 678-79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         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). Leave to amend should be granted if it is possible that the plaintiff can correct the complaint's defects. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

         II. BACKGROUND[2]

         On December 4, 2015, Gordon was arrested with a broken collarbone and ribs. On December 7, 2015, he was sent to the Oahu Community Correctional Center (“OCCC”) where his injuries were assessed, he was declared a “particularly vulnerable” inmate, and he was housed in Medical Module 2. See Am. Compl., ECF No. 8, PageID #46. On December 24, 2015, Gordon had surgery for his injuries and returned to OCCC.

         On January 8, 2016, Gordon was transferred to HCF, where he was housed in the HCF Medical Unit. It is unclear how long Gordon remained at the Medical Unit or whether he was ever housed in a different housing unit between January and May 2016.

         On May 2, 2016, Gordon was cleared to work with a notation in his institutional file stating: “‘with Restriction, Ambulance Response Within 30 Minutes' (declaring him a vulnerable inmate).” Id. On May 26, 2016, Gordon was hired for the kitchen work line and transferred to housing Module 3.

         On June 6, 2016, inmate Shalom Tuimalealiifano assaulted Gordon, breaking his jaw. Gordon was taken to the emergency room by ambulance, taking more than an hour to arrive (despite the thirty-minute restriction in Gordon's file). Gordon returned to HCF that day and was rehoused in the Medical Unit. Between June 6 and 20, 2016, Gordon remained in the Medical Unit, where he met with Defendant Thomas Craig, III, M.D., several times. Gordon told Dr. Craig numerous times of his fears for his safety from Tuimalealiifano and Tuimalealiifano's gang.

         On June 20, 2016, Gordon met with Defendant HCF counselor Paul Neeson, who had investigated the June 6, 2016 assault. Neeson produced “Anonymous Kites” from inmates who had allegedly witnessed the assault and a “Separatee Status” form for Gordon against Tuimalealiifano, inmate “John Talo, ” and members of the USO, La Familia, West Side, and other gangs. Id. at PageID #47. Although Gordon states that “‘Separatee Status' [was] in place, ” it is unclear when this status took effect. Id., PageID #49. After this meeting with Neeson, Defendant Gary Kaplan, “who is responsible for authorizing all movements at HCF, ” authorized Gordon's transfer from the Medical Unit to Module 1. On arrival there, Gordon was “immediately assaulted” by Tuimalealiifano's gang and held hostage for twenty-four hours. Id. at PageID #45 & #48.

         Gordon was called to the Medical Unit the next day, where he was able to report the second assault. He was immediately taken to the Pali Momi Medical Center emergency room. Gordon returned to HCF later that day and asked Defendant Sergeant Dixon to put him in protective custody. Dixon notified Defendant Captain H. Su'apaia, who authorized Gordon's placement into administrative segregation pending a protective custody evaluation. Gordon alleges that Dixon and Su'apaia failed to “conclude and/or submit [their] findings and recommendation for PC” to their supervisors. Id., PageID #44.

         On June 30, 2016, Defendant HCF Warden Francis Sequeira denied Gordon's protective custody status request. Gordon claims that Sequeira did this “despite the overwhelming evidence which included: the ‘Anonymous Kites' of people who witnessed the assault and feared for their lives, Investigative Reports generated by staff, the two ‘ER' visits, the ‘Separatee Status' in place, and the grievances filed by the plaintiff.” Id., PageID #49.

         Gordon was designated for a third transfer “where he had been directly confronted by inmate ‘Shalom.'” Id. Gordon feared a third assault and refused to transfer. Consequently, Gordon was sent to disciplinary segregation for fifteen days. He does not detail what happened after he was released from disciplinary segregation, or explain where he was housed in relation to Tuimalealiifano and his gang, but Gordon does not allege that he was assaulted or harassed again. Gordon states that Tuimalealiifano “has forever and finally been removed from the [general population] and now is being pursued by state officials on multiple counts of assaults.” Id., PageID #41.

         On or about September 19, 2016, Gordon pled nolo contendere to state criminal charges. See State v. Gordon, 1PC151001930, available at eCourt Kokua: http://www.courts.state.hi.us/legalreferences/records/jims. He was sentenced on or about January 25, 2017, and was later transferred to Arizona.

         Gordon commenced this action on October 30, 2017, with an unsigned pleading. See ECF No. 1. Gordon filed the signed Amended Complaint on January 5, 2018. Am. Comp., ECF No. 8. He alleges three causes of action: “Count I, The Lack of Training Custody Staff;” “Count II, Threats to Safety;” and “Count III, The Denial of Medical Care.” Id., PageID #47-51. Gordon alleges that Defendants violated his rights under the Eighth Amendment by failing to protect him from assault from other inmates and by discharging him prematurely from the Medical Unit. Gordon also vaguely asserts a First Amendment retaliation claim and state common law claims for negligence, assault, and battery. He seeks declaratory relief, compensatory and punitive damages.

         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.

         In addition, a plaintiff asserting a § 1983 claim must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). That is, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant thereby showing an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         A. Eleventh Amendment

         “The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep't of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Defendants named in their official capacities are subject to suit under § 1983 only “for prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing violation of federal law.” Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D. Haw. Apr. 23, 2013) (quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005), abrogated on other grounds by Levin v. Commerce Energy Inc., 560 U.S. 413 (2010)); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989) (“[A] ...


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