Rowan v. Mayor et al

Filing 6

ORDER DISMISSING 1 COMPLAINT WITH LEAVE GRANTED TO AMEND: "IT IS HEREBY ORDERED that: (1) The Complaint is DISMISSED for failure to state a claim, as discussed above. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). (2) Plaintiff is GRANTE D leave to file a proposed amended complaint curing the deficiencies noted above by April 2, 2012. Failure to timely amend the Complaint and cure its pleading deficiencies will result in AUTOMATIC DISMISSAL of this action for failure to state a claim , and may be counted as strike pursuant to 28 U.S.C. § 1915(g). (3) The Clerk of Court is directed to mail a form prisoner civil rights complaint to Plaintiff so that he may comply with the directions in this Order. IT IS SO ORDERED." S igned by District JUDGE LESLIE E. KOBAYASHI on March 6, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address liste d on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Prisoner Civil Rights Complaint and instructions mailed on 03/06/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GEORGE ROWAN, #A0221576,
Plaintiff,
vs.
I.A. LARRY MAYOR, KEONE
MORREIRA, SARGENT FIELD,
JOHN HALL,
Defendants.
____________________________

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CIV. NO. 12-00098 LEK/RLP
ORDER DISMISSING COMPLAINT WITH
LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff George Rowan’s
prisoner civil rights complaint brought pursuant to 42 U.S.C.
§ 1983.1

Plaintiff is incarcerated at the Halawa Correctional

Facility (“HCF”).

The complaint names HCF employees I.A.

Larry Mayor,2 Adult Correctional Officer (“ACO”) Keone Morreira,
ACO Sargent Field, and ACO John Hall (collectively,
“Defendants”),in their official capacities, seeking only
injunctive relief.

Plaintiff claims that, after he informed

Mayor and Field about allegedly illegal activities at the prison
between ACOs and inmates, Defendants retaliated against him.
Plaintiff seeks a transfer to the Federal Detention Center
(“FDC), Honolulu, for his protection.

1

Plaintiff is proceeding in forma pauperis.

2

It appears that “I.A.” stands for “Internal Affairs.”

See ECF #5

The Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim.
Because it is possible that Plaintiff can cure the Complaint’s
deficiencies, he is granted leave to amend.
I. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or 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.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed for failure to state a
claim for (1) lack of a cognizable legal theory; or (2)
insufficient facts under a cognizable legal theory.

Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To

state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not demand

detailed factual allegations, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v.

Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009).
2

“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Id. (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

“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.”

Id. at 1950.

Thus, although a

plaintiff’s specific factual allegations may be consistent with a
constitutional claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.

Id. at

1951.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the
plaintiff can correct the defects of his or her complaint.
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
//

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Lopez

II.

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, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Rule 8
Rule 8 of the Federal Rules of Civil Procedure requires

a “short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Although the Federal Rules adopt a flexible pleading policy, a
complaint must give fair notice and state the elements of the
claim plainly and succinctly.

Jones v. Cmty. Redev. Agency of

City of L.A., 733 F.2d 646, 649 (9th Cir. 1984).

“All that is

required [by Fed. R. Civ. P. 8(a)] is that the complaint gives
‘the defendant fair notice of what the plaintiff’s claim is and
the ground upon which it rests.’”

Kimes v. Stone, 84 F.3d 1121,

1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett-Packard
Co., 941 F.2d 864, 870 (9th Cir. 1991)).
In addition, a complaint with the factual elements of a
cause of action scattered throughout the complaint and not
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organized into a “short and plain statement of the claim” may be
dismissed for failure to satisfy Rule 8(a).

See Sparling v.

Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also
McHenry, 84 F.3d 1172.
Plaintiff’s claims fail to plainly and succinctly show
that Defendants have violated his constitutional rights.

For

example, in Count I, Plaintiff checks three boxes as the basis
for his claims: “Threat to safety;” “Medical care;” and
“Retaliation.”

ECF #1, Compl. at 5, Count I.

Plaintiff then

broadly alleges that he informed Defendant Sargent Field, Sargent
Kepa, and Lieutenant J. Umeda (Kepa and Umeda are not named as
defendants), that inmate gang members forced him to pay for
illegal drugs and tobacco allegedly brought into HCF by Defendant
Hall, and ACOs Toa Salanoa and John Ione (neither Salanoa or Ione
are named as defendants).

Although Plaintiff says Kepa and Umeda

conducted a search that revealed contraband, he provides no
further details.

Plaintiff does not allege that Defendants Field

and Hall spoke to each other, and then conspired with each other
to retaliate against Plaintiff.

Plaintiff does not specify the

date or dates that he told HCF officials about this illegal
activity, or the dates that he was allegedly subjected to
retaliation, so that an inference can be drawn that Plaintiff’s
protected activity influenced Defendants’ alleged retaliation.

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Moreover, Plaintiff alleges no facts suggesting Defendants denied
him medical care or ignored threats to his safety.
In Count II, Plaintiff again checks “Threat to safety;”
“Medical care;” and “Retaliation.”

Id. at 6, Count II.

Plaintiff says that, after “they” found out he had spoken to
Defendant Field, he “started having problems with only one A.C.O.
John, Hall and other inmates that was conected [sic] to his
operation.”

Id.

Plaintiff claims he was assaulted daily by

other inmates, felt his life was endangered, and began sleeping
with a weapon.

Plaintiff does not identify whether “they” are

inmates or ACOs, or even named Defendants.

While these

allegations broadly suggest retaliation and threats to
Plaintiff’s safety, Plaintiff supplies no supporting details to
allow this court or Defendants to make the necessary conclusory
leap of faith that will move Plaintiff’s claims from the realm of
mere possibility to a plausible inference that one or all of the
named Defendants are responsible for his claims.
550 U.S. at 570.

See Twombly,

Plaintiff again provides nothing suggesting

that he was denied medical care.

Rule 8 “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation,” and
this is all Plaintiff provides here.

Iqbal, 129 S. Ct. at 1949.

In Count III, Plaintiff again checks “Threat to
safety;” “Medical care;” and “Retaliation.”

Id. at 7, Count III.

Plaintiff says that after he spoke to Defendant Mayor and filed
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grievances, his laundry was lost, he was denied recreation and
showers, he was written up for refusing housing (because he
feared for his safety), and he was restrained with handcuffs that
were too tight.

Plaintiff concludes that this was in retaliation

for having spoken out, but he identifies no particular ACO or
named Defendant as responsible.

Plaintiff provides no dates so

that any named Defendant could even speculate whether Plaintiff
is directing this accusation at them.

Without dates or specific

allegations stating which Defendant did what to Plaintiff, these
claims simply do not state a plausible claim for relief on its
face.

See Twombley, 550 U.S. at 570.

As written, it is

impossible to determine who did what to Plaintiff, when his
claims accrued, what his specific claims against each individual
Defendant entails, and how Plaintiff’s constitutional rights were
violated.

Plaintiff’s Complaint therefore fails to state a claim

for relief and is DISMISSED with leave granted to amend.
B.

Failure to Link Defendants to His Claims
As noted above, Plaintiff makes generalized claims

regarding alleged constitutional violations but fails to set
forth any specific factual allegation that links any of the named
Defendants to an action that is directly related to Plaintiff.
“A plaintiff must allege facts, not simply conclusions, that show
that an individual was personally involved in the deprivation of
his civil rights.”

Barren v. Harrington, 152 F.3d 1193, 1194

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(9th Cir. 1998).

A person deprives another of a constitutional

right under § 1983, when he or she “‘does an affirmative act,
participates in another’s affirmative acts, or omits to perform
an act which [that person] is legally required to do that causes
the deprivation of which complaint is made.’”

Preschooler II v.

Clark County Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir.
2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
1978)).

The “requisite causal connection may be established” not

only by some kind of direct personal participation in the
deprivation, but also by setting in motion “a series of acts by
others which the actor knows or reasonably should know would
cause others to inflict the constitutional injury.”

Id. (citing

Johnson, 588 F.2d at 743–44).
Plaintiff fails to allege facts showing that any named
Defendants were personally involved in the alleged deprivation of
his civil rights.

Moreover, he appears to seek to hold some of

these Defendants liable in their supervisory capacity.

There is

no respondeat superior liability under § 1983, however.

Palmer

v. Sanderson, 9 F.3d 1433, 1437–38 (9th Cir. 1993).

“The inquiry

into causation must be individualized and focus on the duties and
responsibilities of each individual defendant whose acts or
omissions are alleged to have caused a constitutional
deprivation.”

Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

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(citing Rizzo, 423 U.S. at 370–71).

As such, he fails to state a

claim.
C.

Retaliation
Plaintiff alleges that Defendants retaliated against

him for informing prison officials about Defendants’ allegedly
illegal activities.

To state a retaliation claim under § 1983, a

prisoner must demonstrate that (1) prison officials retaliated
against him for exercising his constitutional right; and (2) the
retaliatory action did not advance legitimate penological goals,
such as the preservation of institutional order, discipline,
security, or rehabilitation of prisoners.

Rizzo v. Dawson, 778

F.2d 527, 532 (9th Cir. 1985); Pratt v. Rowland, 65 F.3d 802,
806-07 (9th Cir. 1995).

The prisoner has the burden of pleading

and proving the absence of legitimate correctional goals.
65 F.3d at 806.

Pratt,

Furthermore, a retaliation claim without an

allegation of a “chilling effect” or other harm is not
actionable.
2000).

See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.

Plaintiff fails to set forth a retaliation claim against

any named Defendant.
D.

Denial of Medical Care
Plaintiff alleges either denial of or inadequate

medical care.

The Eighth Amendment requires that prisoners

receive adequate medical care.

Estelle v. Gamble, 429 U.S. 97,

104 (1976); see also McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
9

Cir. 1992), overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133 (9th Cir. 1997).

To state an arguable

§ 1983 claim for failure to provide medical care, a prisoner must
allege that a defendant’s “acts or omissions [were] sufficiently
harmful to evidence a deliberate indifference to serious medical
needs.”

Estelle, 429 U.S. at 106; Toussaint v. McCarthy, 801

F.2d 1080, 1111 (9th Cir. 1986).
Deliberate indifference under the Eighth Amendment
involves two elements: “[1] the seriousness of the prisoner’s
medical need[;] and [2] the nature of the defendant’s response to
that need.”

McGuckin, 974 F.2d at 1059; see also Lolli v. County

of Orange, 351 F.3d 410, 419 (9th Cir. 2003).

That is, a

plaintiff must demonstrate “‘objectively, sufficiently serious’
harm and that the officials had a ‘sufficiently culpable state of
mind’ in denying the proper medical care.

Thus, there is both an

objective and a subjective component to an actionable Eighth
Amendment violation.”

Clement v. Gomez, 298 F.3d 898, 904 (9th

Cir. 2002)(citing Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir.
1995)).

Plaintiff provides no facts supporting an inference that

he was denied medical care.
E.

As such, he fails to state a claim.

Threat to Safety
Plaintiff vaguely alleges that Defendants failed to

protect him from threats to his safety.

Prison officials are

required to take reasonable measures to guarantee the safety of
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inmates and have a duty to protect prisoners from violence at the
hands of other prisoners.

Farmer v. Brennan, 511 U.S. 825,

832-33 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
1998).

To state a claim for threats to safety, an inmate must

allege facts to support that he was incarcerated under conditions
posing a substantial risk of harm and that prison officials were
“deliberately indifferent” to his safety.

Farmer, 511 U.S. at

834; Frost, 152 F.3d at 1128; Redman v. County of Los Angeles,
942 F.2d 1435, 1443 (9th Cir. 1991) (en banc).
Thus, a plaintiff must set forth facts supporting an
inference that defendant knew of, but disregarded, an excessive
risk to an inmate’s safety.

Farmer, 511 U.S. at 837.

That is,

“the official must both [have been] aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exist[ed], and he must also [have] draw[n] the inference.”
Farmer, 511 U.S. at 837; Frost, 152 F.3d at 1128; Redman, 942
F.2d at 1442.

Plaintiff fails to allege facts that support an

inference that any Defendant was deliberately indifferent to
threats to his safety.

As such, Plaintiff fails to state a

claim.
F.

Leave to Amend
The Complaint is DISMISSED as discussed above.

Plaintiff may file a proposed amended complaint on or before
April 2, 2012.

The proposed amended complaint must cure the
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deficiencies noted above and demonstrate how the conditions
complained of resulted in a deprivation of his federal
constitutional or statutory rights.
The court will not refer to the original pleading to
make any amended complaint complete.

Local Rule 10.3 requires

that an amended complaint be complete in itself without reference
to any prior pleading.

Defendants not named and claims not

realleged in an amended complaint are deemed waived.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

See King v.

Furthermore, as a

general rule, an amended complaint supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
G.

28 U.S.C. § 1915(g)
If Plaintiff fails to file an amended complaint

correcting the deficiencies identified in this Order, this
dismissal may count as a “strike” under the “3-strikes” provision
of 28 U.S.C. § 1915(g).

Under the 3-strikes provision, a

prisoner may not bring a civil action or appeal a civil judgment
in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility,
brought an action or appeal in a court of the
United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious
physical injury.
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28 U.S.C. § 1915(g).
III.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED for failure to state a

claim, as discussed above.

See 28 U.S.C. § 1915(e)(2)(b) &

1915A(b)(1).
(2)

Plaintiff is GRANTED leave to file a proposed

amended complaint curing the deficiencies noted above by
April 2, 2012.

Failure to timely amend the Complaint and

cure its pleading deficiencies will result in AUTOMATIC
DISMISSAL of this action for failure to state a claim, and
may be counted as strike pursuant to 28 U.S.C. § 1915(g).
(3)

The Clerk of Court is directed to mail a form

prisoner civil rights complaint to Plaintiff so that he may
comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 6, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Rowan v. Mayor, et al., Civ. No. 1:12-00098 LEK-RLP, Order Dismissing Complaint With Leave
Granted to Amend; psa/Screening/dmp/2012/Rowan 12-98 lek (dsm ftsc R8 lv amd)

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