United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART AND
Derrick K. Watson, United States District Judge
the Court is pro se Plaintiff Scott Gordon's First
Amended Complaint (“FAC”). ECF No. 14. Gordon
names Halawa Correctional Facility (“HCF”)
employees Warden Francis Sequeira; Classification Custody
Officers (“COs”) Doe Defendants 1 and 2; Security
COs Doe Defendants 3 and 4; Counselor Paul Neeson; Thomas
Craig, III, M.D.; Unit Team Manager Keoni Morreira; and
Programs Administrator Gary Kaplan as Defendants in their
individual capacities. He alleges that Defendants failed to
protect him from two assaults by other inmates when he was
incarcerated at HCF in June 2016.
states failure-to-protect claims under the Eighth Amendment
against Defendants Dr. Thomas Craig, Paul Neeson, Keoni
Morreira, and Classification CO Doe Defendants 1 and 2. As a
result, these claims may be served, and Defendants shall
fails to state a claim against Defendant HCF Warden Francis
Sequeira, and these claims are DISMISSED with prejudice.
Gordon also fails to state a claim against Defendants Gary
Kaplan,  and Security CO Doe Defendants 3 and 4,
and these claims are DISMISSED without prejudice.
26, 2016, Gordon was hired for the HCF kitchen work line and
transferred to medium security housing Module 3, where inmate
Shalom Tuimalealiifano was also housed. Tuimalealiifano had
recently been returned to Hawaii to face criminal charges for
assaulting inmate “Naki” in 2012; he had also
allegedly assaulted inmate “Landis” in 2015.
Gordon says that Tuimalealiifano was transferred to Arizona
because of these two assaults, where he was classified as a
maximum security inmate and required to participate in a
“SHIP” treatment program that is designed for
violent gang members. He says Tuimalealiifano had not
completed the SHIP program when he was returned to Hawaii and
that, therefore, he was still classified as a maximum
security inmate when he returned to HCF.
6, 2016, Tuimalealiifano assaulted Gordon and broke his jaw.
Gordon was taken immediately to the emergency room for
treatment. He returned to HCF that day and was rehoused in
the HCF Medical Unit. While in the Medical Unit for
approximately two weeks, Gordon met with Defendant Dr. Craig
several times and discussed his fears for his safety from
Tuimalealiifano and his gang.
20, 2016, Gordon met with Defendant Neeson, who had
investigated the June 6, 2016 assault. Neeson apparently
initiated “Separatee Status” for Gordon against
Tuimalealiifano and all related gang members which was to
take effect immediately. Neeson also had investigative
reports and anonymous “kites” from other inmates
regarding the June 6, 2016 assault. Neeson assured Gordon
that he would be safe when he left the Medical Unit. Gordon
was then transferred from the Medical Unit to a new module,
where he was “immediately assaulted” and held
hostage by Tuimalealiifano's gang associates for
twenty-four hours. FAC, ECF No. 14, PageID #112. On June 21,
2016, Gordon was discovered and immediately taken to the Pali
Momi Medical Center emergency room for treatment. He was
apparently returned to the Medical Unit.
30, 2016, Defendant HCF Warden Francis Sequeira denied
Gordon's request for protective custody and approved
Gordon's transfer to another module. When Gordon arrived
at the new module, Tuimalealiifano immediately confronted
him. Gordon therefore refused to accept this transfer and was
taken to segregation; he was granted protective custody and
suffered no disciplinary or other consequences for his
refusal to transfer. See id., PageID #113.
commenced this action on October 30, 2017. Compl., ECF No. 1.
On January 5, 2018, Gordon submitted a signed Amended
Complaint. ECF No. 8. On January 24, 2018, the Court found
that Gordon stated failure-to-protect claims against
Defendants Craig, Neeson, Kaplan, and Morreira. See
01/24/2018 Order, ECF No. 9. All other claims as alleged
against all other Defendants were dismissed.
March 20, 2018, Gordon filed the FAC, alleging
failure-to-protect claims under the Eighth Amendment against
Defendants Craig, Neeson, Kaplan, Morreira, Sequeira, and Doe
Defendants 1-4. FAC, ECF No. 14.
Court must screen the FAC's failure-to-protect claims to
determine whether they state a claim against each named
Defendant. See 28 U.S.C. §§ 1915(e) and
1915A(a) (requiring pre-answer screening of all inmate
complaints filed in forma pauperis or against government
officials). 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.
Failure-to-Protect Under ...