United States District Court, D. Hawaii
ORDER DISMISSING AMENDED COMPLAINT IN PART
Derrick K. Watson United States District Judge.
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 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.
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
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
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.
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.
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).
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).
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.
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.
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.
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
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
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.
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.
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.
about September 19, 2016, Gordon pled nolo contendere to
state criminal charges. See State v. Gordon,
1PC151001930, available at eCourt Kokua:
He was sentenced on or about January 25, 2017, and was later
transferred to Arizona.
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
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.
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
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] ...