Rowan v. Mayor et al

Filing 9

ORDER DIRECTING SERVICE OF THE COMPLAINT re: 7 . Signed by JUDGE LESLIE E. KOBAYASHI on 5/1/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this documen t electronically at the e-mail address listed 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. Service executed by first class mail on May 2, 2012 to the address of record for George Rowan with a copy of the order, a copy of the First Amended Complaint, Summons, and those forms and instructions as outlined in the order.

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 DIRECTING SERVICE OF THE
COMPLAINT

ORDER DIRECTING SERVICE OF THE COMPLAINT
Before the court is pro se Plaintiff George Rowan’s
first amended prisoner civil rights complaint (“FAC”) brought
pursuant to 42 U.S.C. § 1983.

ECF #7.

The FAC alleges that

Halawa Correctional Facility (“HCF”) Internal Affairs Officer
Larry Mayor, Gang Intelligence Officer Sargent Field, Unit
Manager Keone Morreira, and Adult Correctional Officer (“ACO”)
John Hall (collectively, “Defendants”), have ignored threats to
Plaintiff’s safety and retaliated against Plaintiff for reporting
illegal contraband activities involving inmates and guards at the
prison.
The court has screened the FAC pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), finds that it adequately states
a claim for relief, and that service of the summons and FAC is
appropriate for Defendants Mayor, Field, Morreira, and Hall.
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I. PLAINTIFF’S ALLEGATIONS
Plaintiff says that he was sexually assaulted by an
inmate or inmates at the prison.

ECF #7, FAC at 5.

He informed

the prison medical unit and was taken to Kapiolani Medical Center
for Women and Children for treatment.

Plaintiff says he then

told Gang Intelligence Officer Field “about A.C.O.s and inmates
that was doing elegal [sic] activities together.”1

FAC at 6.

After Plaintiff spoke with Field, Plaintiff alleges that ACO Hall
told inmates that Plaintiff had informed on them and the inmate
attacks against him escalated.

Id.

Plaintiff says he then spoke with Internal Affairs
Officer Mayor and Unit Manager Morreira.

FAC at 7.

Plaintiff

alleges that afterward, in addition to the inmate attacks
increasing, his commissary requests were denied, his grievances
and laundry were destroyed, and he was written up for disobeying
orders.
7.

Plaintiff believes his life is in danger.

See id., at

Plaintiff names Defendants in their official capacities and

seeks injunctive relief only, in the form of a protective
transfer to the Federal Detention Center (“FDC”), Honolulu.
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1

In his original Complaint, Plaintiff alleged that ACO Hall
was trafficking in drugs and tobacco with other ACOs and inmates
at the prison. See ECF #1, Compl. at 5.
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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.

Threat to Plaintiff’s Safety
To state a claim for threats to his safety, an inmate

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

Farmer

v. Brennan, 511 U.S. 825, 834 (1994); Frost v. Agnos, 152 F.3d
1124, 1128 (9th Cir. 1998); Redman v. County of Los Angeles, 942
F.2d 1435, 1443 (9th Cir. 1991) (en banc).
Accepting Plaintiff’s allegations as true and
construing them in the light most favorable to him, Plaintiff
sufficiently alleges that Mayor, Field, and Morreira knew of a
substantial risk to his safety and failed to take steps to
protect him.
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B.

Retaliation
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).

Plaintiff sufficiently alleges that ACO Hall retaliated

against him for reporting Hall and others to prison authorities
for alleged misconduct at the prison.
C.

Denial of Medical Care
To state a § 1983 claim for delaying or failing 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 v.

Gamble, 429 U.S. 97, 106 (1976); Toussaint v. McCarthy, 801 F.2d
1080, 1111 (9th Cir. 1986).
Although Plaintiff marks “Medical care” in Count I of
the FAC, he provides no facts suggesting any Defendant denied or
delayed him medical care.

To the contrary, Plaintiff states that

he was taken to the Kapiolani Medical Center and treated after
the alleged sexual assault.

Moreover, Plaintiff’s claims concern

events that occurred after the sexual assault and do not appear
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to relate to the delay or denial of medical care.

Because the

court informed Plaintiff of this deficiency in his claim in the
Order dismissing his original Complaint, ECF #6, this claim is
dismissed with prejudice.
III.

SERVICE IS DIRECTED

The U.S. Marshal is ORDERED to serve the First Amended
Complaint, ECF #7, and summons on Plaintiff’s behalf.
R. Civ. P. 4(c)(3).

See Fed.

Plaintiff is DIRECTED to effect service on

Defendants Mayor, Field, Morreira, and Hall by mailing a copy of
the First Amended Complaint and the fully completed service
documents to the U.S. Marshal, as set forth below.

Defendants

are ORDERED to file an Answer or other responsive pleading to the
First Amended Complaint within the time allowed under Fed. R.
Civ. P. 12(a).
(1)

IT IS HEREBY ORDERED that:

The First Amended Complaint, alleging that Defendants

Mayor, Field, Morreira, and Hall ignored threats to Plaintiff’s
safety and retaliated against him, states a claim and shall
proceed.

Service is appropriate for Defendants Mayor, Field,

Morreira, and Hall.

The Clerk shall send Plaintiff a summons, a

USM-285 form, a copy of the endorsed First Amended Complaint,
four [4] Notice of Lawsuit and Request for Waiver of Service for
Summons forms (AO 398), four [4] Waiver of Service of Summons
forms (AO 399), and an instruction sheet.

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Plaintiff shall complete the forms, make the necessary
copies of the summons and First Amended Complaint, and submit
these documents with a copy of this order to the United States
Marshals Service in Honolulu, Hawaii, for service on Defendants
Mayor, Field, Morreira, and Hall.
(2)

See Fed. R. Civ. P. 4(i).

Upon receipt of these documents, the U.S. Marshal shall

serve a copy of the endorsed First Amended Complaint, completed
Notice of Lawsuit and Request for Waiver of Service form (AO 398)
and completed Waiver of Service of Summons form (AO 399), upon
Defendants as directed by Plaintiff pursuant to Rule 4 of the
Federal Rules of Civil Procedure without payment of costs.
(3)

The Marshal shall retain the sealed summons and a copy

of the First Amended Complaint for future use.

The Marshal shall

file the returned Waiver of Service of Summons form and request
for waiver if they are returned as undeliverable, as soon as
received.
(4)

If a Defendant does not return the Waiver of Service of

Summons form within sixty days from the date of mailing the
request for waiver, the Marshal shall:
a. Personally serve the Defendant with the
above-described documents pursuant to Rule 4 of the
Federal Rules of Civil Procedure and 28 U.S.C. § 566(c)
and shall command all necessary assistance from the

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Department of Public Safety for service on DPS
employees, to execute this Order.
b. Within ten days after personal service is
effected, the Marshal shall file the return of service
for the Defendant, along with evidence of any attempts
to secure a waiver of service of summons and of the
costs subsequently incurred in effecting service on
said defendant.

Said costs shall be enumerated on the

USM-285 form and shall include the costs incurred by
the Marshal’s office for photocopying additional copies
of the summons and First Amended Complaint and for
preparing new USM-285 forms, if required.

Costs of

service will be taxed against the personally served
defendant in accordance with the provisions of Fed. R.
Civ. P. 4(d)(2).
(5)

Defendants shall file an answer or other responsive

pleading to Plaintiff’s First Amended Complaint within sixty [60]
days after the date on which the request for waiver of service
was sent (if formal service is waived), or twenty [20] days if
service is not waived.

Failure to do so may result in the entry

of default judgment.
(6)

Plaintiff shall inform the court of any change of

address by filing a “NOTICE OF CHANGE OF ADDRESS.”

The notice

shall contain only information about the change of address, and

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its effective date and shall not include any requests for any
other relief.

Failure to file the notice may result in the

dismissal of the action for failure to prosecute under Rule 41(b)
of the Federal Rules of Civil Procedure.
(7)

After the First Amended Complaint is served, Plaintiff

shall serve a copy of all further pleadings or documents
submitted to the court upon the Defendants or their attorney(s).
Plaintiff shall include, with any original paper to be filed with
the Clerk of Court, a certificate stating the date that an exact
copy of the document was mailed to a Defendant or Defendant’s
counsel.

Any paper received by a District or Magistrate Judge

which has not been filed with the Clerk of Court or which does
not include a certificate of service will be disregarded.
(8)

Until the First Amended Complaint is served and

Defendant or his attorney files a notice of appearance, Plaintiff
SHALL NOT FILE MOTIONS OR OTHER DOCUMENTS with the court, other
than a motion for appointment of counsel.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 1, 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 Directing Service of the First Amended
Complaint; psa/SVC Ords/dmp/2012/Rowan 12-98 lek (FAC)

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