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Smith v. Sarkission

United States District Court, D. Hawaii

July 16, 2019

JORDAN AARON SMITH, #A6101518, Plaintiff,
v.
KAIPO SARKISSIAN, et al., Defendants,

          ORDER DISMISSING FIRST AMENDED COMPLAINT AND DIRECTING SERVICE OF ORIGINAL COMPLAINT

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         Before 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.

         This action will proceed against Defendants Kaipo Sarkissian, Everett Kaninau, Micheal Bala, and ACO John Doe Berkey[1] 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, 2016 Order”).

         The 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.

         I. BACKGROUND

         Smith, 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 staff[2]violated 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.

         The 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. Id.

         In 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.

         Smith 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.

         The 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 Complaint.

         In 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).

         Smith 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 Complaint.

         The FAC 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). Id.

         II. ...


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