United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT AND
DIRECTING SERVICE OF ORIGINAL COMPLAINT
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
the court is Plaintiff Jordan Aaron Smith's first amended
complaint (“FAC”) in this prisoner civil rights
action. ECF No. 7. Because allowing the FAC to supercede the
original Complaint will hopelessly confuse the issues and
allegations that the court has determined state colorable
claims, and will delay prompt resolution of those claims, the
FAC is DISMISSED without prejudice as futile.
action will proceed against Defendants Kaipo Sarkissian,
Everett Kaninau, Micheal Bala, and ACO John Doe
Berkey on the facts alleged in
Count I in the original
Complaint. See Order Dismissing Complaint
in Part With Leave to Amend Order, ECF No. 6 (“June 6,
Clerk is DIRECTED to serve the original Complaint, ECF No. 1,
as limited to Count I on Defendants
Sarkissian, Kaninau, Bala, and ACO Berkey who are directed to
file a response after service is perfected.
a pretrial detainee confined at the Halawa Correctional
Facility (“HCF”), filed this action on February
25, 2019. Compl., ECF No. 1. He is proceeding pro se and in
forma pauperis. Smith originally alleged that Hawaii
Department of Public Safety (“DPS”) Director
Nolan Espinda and HCF staffviolated his civil rights by
transferring him to the High Security Special Housing Unit
(“SHU”), threatening him, sexually assaulting and
harassing him, confiscating and switching his medication, and
moving him to a suicide cell when he posed no threat of harm
to himself or others.
court screened the Complaint pursuant to 28 U.S.C.
§§ 1915(e) (1) and 1915A(a), and found that Smith
stated a colorable claim in Count I for sexual assault and
retaliation against Defendants Sarkissian, Kaninau, Bala, and
ACO John Doe (now identified as ACO Berkey). See
June 6, 2019 Order, ECF No. 6, at PageID #33-34. The court
dismissed Smith's claims against all other Defendants as
alleged in Counts II and III, with leave granted to amend.
See id., at PageID #31-33, 34-38. Smith's claims
for release from incarceration and for damages against
official capacity Defendants were dismissed with prejudice.
granting leave to amend, the court informed Smith that an
amended complaint must be complete in itself without
reference to a prior proceeding and will generally supercede
the prior complaint. He was warned that if the amended
complaint omitted any claims or Defendants, those claims and
parties would likely be deemed voluntarily dismissed.
Finally, the court notified Smith that if he filed an amended
complaint that failed to cure the deficiencies in Counts II
and III, “the court will order the present Complaint as
limited” to be served on Sarkissian, Kaninau, Bala, and
ACO John Doe. Id., at PageID #39.
filed the FAC on July 8, 2019. ECF No. 7. The FAC names
Defendants Sarkissian, Bala, and ACO Berkey in their
individual and official capacities, although Smith refers to
previously dismissed Defendants within the body of the FAC.
Smith leaves Count I completely blank, apparently expecting
the court to incorporate Count I's statement of facts
from the original Complaint into the FAC.
FAC's statement of facts sections in Counts II and III
are also largely blank, but Smith attaches additional pages
to each of these Counts, apparently intending these pages to
clarify his claims in Counts II and III in the original
Count II of the FAC, Smith indicates that his claim involves
“Medical care.” See id., at PageID #46.
Smith's attachment identifies Dr. Jane Doe as Dr.
Lettich, and alleges that Dr. Lettich was “out of
order” for placing him on suicide watch, denying him
medication that he requested, and speaking sarcastically to
him. Id. at PageID #47. Even if the court reads
Smith's additional pages in conjunction with the claims
alleged in Count II of the original Complaint, they fail to
support a colorable claim that Dr. Lettich acted with
deliberate indifference to Smith's serious medical needs.
See Gordon v. Cty. of Orange, 888 F.3d 1118, 1125
(9th Cir. 2018).
indicates that Count III of the FAC involves a “Threat
to safety, ” although he again provides no statement of
supporting facts. ECF No. 7, at PageID #49. The attached
pages are obviously meant to be read in conjunction with his
statements in the original Complaint, however, and only make
sense if so incorporated. In Count III of the original
Complaint, Smith complained that he was moved to the High
Security Housing Unit (“SHU”) in November 2018
after an altercation with the Medium SHU Unit Manager. ECF
No. 1 at PageID #8. Smith now provides the dates that he
alleged that he wrote to Defendants Warden Harrington, Mock,
Caplain, Borges, and Antonio, and he states that it was
Kaninau and Sarkissian who were “posing and purposing
threats.” See ECF No. 7 at PageID #50-51. In
the original Complaint, Smith alleged that guards had
threatened him because he is black. ECF No. 1 at PageID #8.
He still fails to explain, however, what he told these
Defendants, and whether they responded, or what actions they
took (or failed to take). His vague statement that he wrote
these individuals requesting a transfer from HCF, without
more, still fails to show that they each, individually
violated his constitutional rights. And, this claim can only
be understood with careful reference to his original
now identifies Joanna White as the “PREA investigator,
” to whom he reported the sexual assault alleged in
Count I in the original Complaint. Id. at PageID
#51. He claims that if she had moved him immediately after he
wrote his PREA report, Sarkissian, Bala, Kananiau, and Berkey
could not have retaliated against him (by allegedly switching
his medication two days after the alleged assault).