Grindling v. Martone et al

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915 re: 9 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/29/2012. "The First Amended Complaint is DISMISSED for failure to state a claim. Plaintiff may amend his claims concerning the alleged denial of Hepatitis C care. Plaintiff's other claims are DISMISSED without leave to amend." "Plaintiff shall file an amended complaint on or before September 28, 2012, in compliance with this Ord er. If Plaintiff fails to do so, this action shall be AUTOMATICALLY DISMISSED, without further notice and the Clerk SHALL enter judgment...." (afc)CERTIFICATE OF SERVICEParticipants registered to r eceive electronic notifications received this document 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. Mr. Grindling also served with a copy of the "Prisoner Civil Rights Complaint" form and its instructions.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRIS GRINDLING, #A0721079,
Plaintiff,
vs.
FREDERICK MARTONE, et al.,
Defendants.

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CIV. NO. 12-00361 LEK/BMK
ORDER DISMISSING FIRST AMENDED
COMPLAINT PURSUANT TO 28 U.S.C.
§ 1915

ORDER DISMISSING FIRST AMENDED COMPLAINT
PURSUANT TO 28 U.S.C. § 1915
Before the court is pro se Plaintiff Chris Grindling’s
first amended prisoner civil rights complaint (“FAC”) brought
pursuant to 42 U.S.C. § 1983.

Plaintiff is incarcerated at the

Maui Community Correctional Center (“MCCC”), and complains of
incidents that allegedly occurred there and at the Saguaro
Correctional Center (“SCC”), in Eloy, Arizona.
Plaintiff names the Hawaii Department of Public Safety
(“DPS”) Director Jodie Maesaka-Hirata,1 and DPS “contract
monitors,” Scott Jinbo, Heather Kimura, and Shari Kimoto as
Defendants in their individual and official capacities.
Plaintiff alleges that Defendants violated his constitutional
rights by failing to ensure that prison officials in Arizona and
Hawaii complied with unspecified DPS policies, procedures, and

1

Plaintiff misidentifies Maesaka-Hirata as “Jodi Hirata.”
Further, Maesaka-Hirata is no longer the DPS Director.

contractual obligations, and/or for allegedly enforcing
unconstitutional DPS policies.

For the following reasons, the

FAC is dismissed for failure to state a claim pursuant to 28
U.S.C. § 1915A(b)(1).

Plaintiff is again given leave to amend,

as discussed and limited below.
I. LEGAL STANDARD
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).

A complaint or

portion thereof must be dismissed 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).
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, 678 (2009).

“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

2

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.

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.

Courts must “construe pro se filings liberally,”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), 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).

A pro se prisoner “complaint

‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’”

Hebbe, 627 F.3d at 342 (quoting Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

Leave to amend

should be granted unless it appears that amendment is futile.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II.

DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff
3

must allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2)
that the violation was committed by a person acting under the
color of state law.
A.

See West v. Atkins, 487 U.S. 42, 48 (1988).

Plaintiff’s Claims
Plaintiff broadly alleges that Defendants violated his

rights under the First, Eighth, and Fourteenth Amendments and
seeks compensatory damages, declaratory and injunctive relief.
In Count I, Plaintiff alleges that SCC grievance coordinator
Juan Valenzuela denied him access to the grievance process by
failing to respond to informal grievances and denying him
grievance forms.

FAC, ECF #9 at 6.

Plaintiff says that he was

transferred to SCC’s segregation unit for attempting to file
grievances.

Plaintiff suggests that Defendants are liable for

these actions based on their positions as DPS Director and
contract monitors, although he does not allege specific facts
showing their involvement.
In Count II, Plaintiff complains that after he was
transferred to Arizona from Hawaii, a state court judge issued an
order to show cause in his state action seeking a writ of habeas
corpus.

FAC, ECF #9 at 7.

Plaintiff claims that Defendants

disregarded this order to “produce the body,” and refused to
return him to Hawaii, in violation of Hawaii Revised Statutes
§§ 660-22-23.

Plaintiff asserts that under Hawaii law it is a

4

“criminal offense to transfer any person pending issu[a]nce of
writ of habeas corpus.”

Id. at 8.

Plaintiff also alleges that,

when he was transferred back to Hawaii to participate in his
federal civil rights suit in August 2011, SCC officials destroyed
his personal property.

Id. at 7-8.

Plaintiff reiterates that he

was denied the right to file grievances in Arizona, alleging this
was “per orders of the Named Defendant.”

Id. at 8.

In Count III, Plaintiff alleges Defendants violated the
Eighth Amendment by enforcing a DPS policy regarding treatment
for inmates with Hepatitis C.

FAC, ECF #9 at 9.

Plaintiff says

Defendants are aware that he has Hepatitis C and “due to policy
deny treatment for monetary reason[.] A medical doctor should
determine who does and doesn[’]t receive treatment not prison
official policy.”

Id.

Plaintiff claims that this policy places

him in imminent danger and he broadly alleges that, “Denied
treatment for a known illness causes death.”

Id.

In Count IV, Plaintiff reiterates that he was placed in
SCC’s segregation unit for “accessing the grievance process.”
FAC, ECF #9 at 10.

He alleges that the conditions in SCC’s

segregation violated the Eighth Amendment, pursuant to
“Defendants’ policies and enforcement.”
B.

FAC, ECF #9 at 10-12.

No Link Between Defendants and Allegations
Section 1983 plainly requires that there be an actual

connection or link between the actions of the defendants and the
5

deprivations alleged to have been suffered by plaintiff.

See

Monell v. Dep’t of Soc. Serv., 436 U.S. 658(1978); Rizzo v.
Goode, 423 U.S. 362 (1976).

The Ninth Circuit has held that “[a]

person ‘subjects’ another to the deprivation of a constitutional
right, within the meaning of section 1983, if he does an
affirmative act, participates in another’s affirmative acts or
omits to perform an act which he is legally required to do that
causes the deprivation of which complaint is made.”

Johnson v.

Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff provides no facts linking Defendants to his
claims, other than his conclusion that they, as “contract
monitors” or supervisors are responsible for the actions of SCC
and MCCC employees.

Plaintiff provides nothing showing that

Maesaka-Hirata, Kimura, Kimoto, or Jinbo affirmatively acted,
participated in another’s affirmative acts, or failed to perform
an act which he or she was legally required to do that caused the
constitutional deprivations Plaintiff alleges.

Plaintiff simply

claims that he was: (1) denied the ability to file grievances at
SCC, (2) placed in segregation at SCC, (3) unlawfully transferred
from Hawaii to SCC, (4) denied medical care for Hepatitis C at
SCC and MCCC, and (5) deprived of his personal property at SCC.
Plaintiff makes no effort to explain who was personally
responsible for each of these acts or how Defendants are
specifically connected to these acts.

6

Plaintiff is required to demonstrate that each
Defendant was personally involved in the alleged deprivations of
his constitutional rights.
(9th Cir. 2002).

Jones v. Williams, 297 F.3d 930, 934

Plaintiff’s entire case against Defendants is

premised on his conclusory belief that they had authority as a
special review team over SCC and MCCC prison officials and
employees.

This is insufficient to state a claim against them.
Moreover, Plaintiff’s allegations do not show that any

Defendant was even aware of Plaintiff’s alleged mistreatments.
Plaintiff also fails to state a claim against Defendants insofar
as he alleges that they failed to intervene on his behalf after
the fact during some review of DPS policy enforcement, or failed
to prevent or remedy the allegedly unconstitutional behavior of
others, or denied his grievances.

See Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999).
C.

Supervisor Liability
Supervisors may not be held liable under § 1983 for the

unconstitutional actions of their subordinates based solely on a
theory of respondeat superior.

See Iqbal, 556 U.S. at 676; Moss

v. U.S. Secret Serv., 675 F.3d 1213, 1230 (9th Cir. 2012).
Instead, a claimant must make a showing relating to that
supervisor’s own action or inaction.

“A showing that a

supervisor acted, or failed to act, in a manner that was
deliberately indifferent to an inmate’s Eighth Amendment rights
7

is sufficient to demonstrate the involvement — and the liability
— of that supervisor.”

Starr v. Baca, 652 F.3d 1202, 1206–07

(9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012).
Supervisors may be held liable under § 1983: “(1) for
setting in motion a series of acts by others, which they knew or
reasonably should have known would cause others to inflict
constitutional injury; (2) for culpable action or inaction in
training, supervision, or control of subordinates; (3) for
acquiescence in the constitutional deprivation by subordinates;
or (4) for conduct that shows a ‘reckless or callous indifference
to the rights of others.’”

Moss, 675 F.3d at 1231 (quoting

al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009), overruled
on other grounds by Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S.
Ct. 2074 (2011)) (citation omitted).
Plaintiff fails to allege any facts supporting a
supervisory liability claim based on action or inaction by
Maesaka-Hirata, Jinbo, Kimura, or Kimoto.

Nor do Plaintiff’s

statement of facts support a finding that the Moss factors apply
to Defendants.

Plaintiff does not show how Defendants were

involved with or acquiesced in any of the alleged constitutional
violations he sets forth.

Plaintiff does not even allege that

Defendants were aware of the violations.

Plaintiff simply

concludes that, because Maesaka-Hirata was the DPS Director and
Kimura, Kimoto, and Jinbo monitor and enforce contractual

8

compliance with DPS policies at prisons where Hawaii inmates are
incarcerated, they are responsible for all alleged transgressions
at these prisons.

To the extent that Plaintiff alleges

supervisor liability against DPS Director Maesaka-Hirata, or the
other Defendants who may be in supervisory positions, he fails to
state a claim.
D.

SCC Claims
Plaintiff alleges that Defendants are liable for SCC

officials’ improper handling of his grievances, retaliation by
placing him in segregation where the conditions violated the
Eighth Amendment, denial of Hepatitis C treatment, and loss or
destruction his personal property.

FAC, ECF #9 at 6-12.

These

claims are dismissed because (1) venue for them lies in Arizona,
(2) res judicata bars the grievance, segregation, and denial of
Hepatitis C treatment claims, and (3) Plaintiff fails to state a
claim regarding the loss of his personal property.
1.

Improper Venue
Venue for these claims lies in Arizona, where a

substantial part of the events or omissions giving rise to the
claims occurred.

See 28 U.S.C. § 1391(b); see also Ziegler v.

Indian River County, 64 F.3d 470 (9th Cir. 1995) (extensive
discussion on jurisdiction); Lee v. Corr. Corp. of America, 525
F. Supp. 2d 1238, 1241 (D. Haw. 2007).

The court notified

Plaintiff of this when it dismissed his original Complaint.
9

To

avoid this conclusion, the FAC omits the names of the SCC
officials that allegedly committed these acts, and instead
alleges that Maesaka-Hirata, Jinbo, Kimura, and Kimoto are
responsible for failing to monitor SCC officials and prevent
these acts.

This is insufficient to lay venue for these acts in

Hawaii and the interests of justice do not favor transfer of
these claims to Arizona.
2.

28 U.S.C. § 1406(a).

Res Judicata and Collateral Estoppel
Even if venue were proper in Hawaii, Plaintiff’s claims

regarding grievances, segregation, and denial of medical care are
barred by the doctrine of res judicata, which limits a litigant’s
ability to relitigate matters that were previously decided on
their merits.

Allen v. McCurry, 449 U.S. 90, 94 (1980);

Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th
Cir. 2005).

“[I]f a court is on notice that it has previously

decided the issue presented, the court may dismiss the action sua
sponte, even though the defense has not been raised,” Arizona v.
California, 530 U.S. 392, 416 (2000), provided that the parties
have an opportunity to be heard prior to dismissal, Headwaters,
Inc., 399 F.3d at 1055.
“The elements necessary to establish res judicata are:
‘(1) an identity of claims, (2) a final judgment on the merits,
and (3) privity between parties.’”

Headwaters, Inc., 399 F.3d at

1052 (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l
10

Planning Agency, 322 F.2d 1064, 1077 (9th Cir. 2003)).

Res

judicata (or claim preclusion) bars claims that were previously
raised and the assertion of new legal theories or grounds for
recovery that might have been raised but were not.

A plaintiff

cannot avoid claim preclusion simply by alleging conduct by the
defendant that was not alleged in the prior action, or by
pleading a new legal theory.

See McClain v. Apodaca, 793 F.2d

1031, 1034 (9th Cir. 1986).
Res judicata does not apply “when the party against
whom the earlier decision is asserted did not have a ‘full and
fair opportunity’ to litigate the claim or issue. . . .
‘Redetermination of issues is warranted if there is reason to
doubt the quality, extensiveness, or fairness of procedures
followed in prior litigation.’”

Kremer v. Chem. Constr. Corp.,

456 U.S. 461, 480–81 & n.22 (1982) (citations omitted).

A person

who is not a party to an action is not generally entitled to the
benefits of res judicata.

However, where “two parties are so

closely aligned in interest that one is the virtual
representative of the other, a claim by or against one will serve
to bar the same claim by or against the other.”

Nordhorn v.

Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993).
Plaintiff has unsuccessfully litigated his alleged
denial of grievances at SCC, his placement in SCC segregation and
its allegedly unconstitutional conditions of confinement, and the

11

alleged denial of Hepatitis C treatment at SCC.2

In Grindling v.

Thomas, No. 2:2:09-cv-01685 FJM (D. Ariz., Jun. 10, 2010), the
district court granted SCC officials summary judgment, finding
that (1) Plaintiff had no right to file repetitive frivolous
grievances, (2) SCC officials did not retaliate against Plaintiff
for doing so, and (3) SCC officials had a legitimate penological
justification for his placement in segregation.

The Ninth

Circuit Court of Appeals affirmed this decision.

See No. 10-

16456 (9th Cir., Aug. 2, 2011).
In Grindling v. Thomas, No. 2:09-cv-2395 FJM (D. Ariz.,
Mar. 2, 2011), the district court granted SCC officials summary
judgment, finding that SCC’s grievance restrictions were
reasonably related to legitimate penological interests and did
not deny Plaintiff the right to file grievances, and that SCC
officials were not deliberately indifferent to Plaintiff’s
serious medical need when they denied him Hepatitis C treatment.
The Ninth Circuit recently affirmed this decision.

See No. 11-

15615 (9th Cir., Jul. 26, 2012).

2

This court may take notice of facts that are not subject
to reasonable dispute, the existence of public records, and of
proceedings in its own other courts, within and without the
federal judicial system, if those proceedings have a direct
relation to matters at issue. See Lee v. City of Los Angeles,
250 F.3d 668, 689-690 (9th Cir. 2001); United States ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d
244, 248 (9th Cir. 1992); Fed. R. Evid. 201(b) (West 2006).
12

Finally, in Grindling v. Thomas, No. 2:10-cv-02366 FJM
(D. Ariz., Feb. 3, 2012), the district court granted SCC
officials summary judgment, finding inter alia, that SCC’s
segregation did not impose an atypical and significant
deprivation on Plaintiff so as to deprive him due process, that
Plaintiff failed to exhaust most of his conditions of confinement
claims regarding SCC’s segregation unit, and that Plaintiff’s
claims regarding the constant lighting and denial of dental floss
in SCC segregation failed to amount to a constitutional
deprivation.

The Ninth Circuit recently dismissed Plaintiff’s

appeal for his failure to pay the docketing fees.

See No. 12-

15298 (9th Cir. June 15, 2012) (finding that Plaintiff had
accrued three strikes pursuant to § 1915(g) and was not entitled
to in forma pauperis status).
This court has carefully reviewed these decisions and
finds that Plaintiff’s claims regarding grievances, segregation,
and denial of medical care at SCC were fully litigated on their
merits in federal court through appeal.

There is clearly an

identity of claims and a final judgment on the merits of those
claims.

The court also finds privity between the SCC prison

officials who Plaintiff sued before and Defendants.

Importantly,

Plaintiff himself asserts their privity by alleging that
Defendants are liable for the SCC officials’ acts or failure to
act.

13

Moreover, a person who is not technically a party to
the prior action may still be bound by the prior decision if that
person’s interests are so similar to a party’s that the party was
the person’s virtual representative in the prior action.
Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996).

See

Privity “is

a legal conclusion ‘designating a person so identified in
interest with a party to former litigation that he represents
precisely the same right in respect to the subject matter
involved.’”

In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997).

As relevant here, privity may be established when the interests
of a non-party were represented adequately by a party in the
original suit.

See id.

It is reasonable to conclude that

Defendants interests were virtually represented by SCC in
Plaintiff’s prior actions.

See Nordhorn, 9 F.3d at 1405.

Thus, res judicata bars Plaintiff from reasserting
these claims here, because the parties are the same or in privity
as in the earlier cases, the causes of action are the same as he
raised before, and these causes of action were fully adjudicated
on summary judgment on their merits.

Although Plaintiff now

asserts a new legal theory against seemingly new Defendants for
their alleged failure to enforce DPS policies and contracts,
these claims stem from the same “cause of action” as his claims

14

in the District of Arizona.3

Res judicata bars Plaintiff from

relitigating claims that were actually litigated and claims that
could have been litigated regarding these issues.
3.

Personal Property Claim
Plaintiff’s claim that SCC officials destroyed his

personal property does not appear to have been litigated before,
but it fails to state a claim.

Neither negligent nor intentional

deprivation of property states a due process claim under § 1983,
if the deprivation was random and unauthorized.
Taylor, 451 U.S. 527, 535-44

See Parratt v.

(1981) (finding no claim under

§ 1983 where state employee negligently lost prisoner’s
property), overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S.
517, 533 (1984) (finding no claim under § 1983 for intentional
destruction of prisoner’s property).

If a state provides an

adequate post-deprivation remedy, such as a state tort action,
that remedy provides sufficient procedural due process.

See

Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994); Zinermon
v. Burch, 494 U.S. 113, 128 (1990).
Hawaii expressly waives its immunity for its employees’
torts and provides an adequate post-deprivation remedy for an
inmate’s alleged loss of property.

3

See Haw. Rev. Stat. § 662-2.

Defendants appear to have been named solely to avoid
transfer for improper venue or dismissal on res judicata grounds.
15

Plaintiff’s allegation that SCC officials lost or destroyed his
personal property fails to state a claim for the deprivation of a
constitutional right.

E.

Remaining Claims
Plaintiff asserts that Defendants refused to return him

to Hawaii after the state circuit court issued an order to show
cause in Plaintiff’s state habeas action allegedly in violation
of Haw. Rev. Stat. §§ 660-22-23.

FAC, ECF #9 at 8.

Plaintiff

also apparently alleges that he is being denied treatment at MCCC
for his Hepatitis C.
1.

Haw. Rev. Stat. Section 660: State Habeas Corpus
Plaintiff fails to state a claim for relief under

Hawaii’s habeas corpus statutes.
seq. (West).

See Haw. Rev. Stat. §§ 660-3 et

Section 660-7, states that a judge may issue an

order to show cause directing the respondent to answer a petition
for writ of habeas corpus in lieu of a writ commanding respondent
to produce the body.

See Haw. Rev. Stat. § 660-7.

If, on the

other hand, the court believes that the petition provides
“satisfactory proof” that the writ should issue, it may issue a
warrant directing that the prisoner be brought immediately before
the court.

See Haw. Rev. Stat. § 660-16.
Plaintiff does not claim that the state court issued

the writ or a warrant directing his return to Hawaii, but states
16

that the state court issued an order to show cause to respond to
the petition.

Thus, the state court did not grant the writ or

command that the State produce him.

Moreover, the record in

Grindling v. Thomas, No. 1:10-cv-00429 KSC (D. Haw. Mar. 22,
2011), Plaintiff’s federal petition for writ of habeas corpus,
conclusively shows that Plaintiff was not granted a writ of
habeas corpus in the state court.

See ECF #54.

Therefore, even

presuming that Defendants are responsible for producing Plaintiff
upon issuance of a writ of habeas corpus, rather than the SCC
warden, they had no duty to do so under Hawaii’s statutes.
Plaintiff fails to state a cognizable claim under state or
federal law and this claim is DISMISSED without leave to amend.
2.

Denial of Hepatitis C Treatment at MCCC
Plaintiff vaguely alleges that he is being denied

Hepatitis C treatment at MCCC pursuant to unspecified DPS
policies.

FAC, ECF #9 at 9.

To state a § 1983 medical claim, a

plaintiff must allege facts showing that a defendant acted with
“deliberate indifference to serious medical needs.”

Jett v.

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)).

A plaintiff must allege facts

that (1) demonstrate that failure to treat a “serious medical
need” could result in further significant injury or the
unnecessary and wanton infliction of pain and (2) show the
defendant’s response was deliberately indifferent.
17

Jett, 439

F.3d at 1096 (quotations omitted).
“Deliberate indifference is a high legal standard.”
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

To act

with deliberate indifference, a prison official must both know of
and disregard an excessive risk to inmate health; the official
must be aware of facts from which the inference that a
substantial risk of serious harm exists could be drawn
must also draw the inference.
837 (1994).

and he

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

Deliberate indifference in the medical context may

be shown by a purposeful act or failure to respond to a
prisoner’s pain or possible medical need and harm caused by the
indifference.

Jett, 439 F.3d at 1096.

Deliberate indifference

may also be shown when a prison official intentionally denies,
delays, or interferes with medical treatment or by the way prison
doctors respond to the prisoner’s medical needs.

Estelle, 429

U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than
negligence or lack of ordinary due care for the prisoner’s
safety.

Farmer, 511 U.S. at 835.

“Neither negligence nor gross

negligence will constitute deliberate indifference.”

Clement v.

Cal. Dep’t of Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002);
see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.
1980) (mere claims of “indifference,” “negligence,” or “medical
malpractice” do not support a claim under § 1983).

18

“A difference

of opinion does not amount to deliberate indifference to [a
plaintiff’s] serious medical needs.”
240, 242 (9th Cir. 1989).

Sanchez v. Vild, 891 F.2d

The indifference must be substantial.

The action must rise to a level of “unnecessary and wanton
infliction of pain.”

Estelle, 429 U.S. at 105-06.

Plaintiff fails to allege any facts showing that his
Hepatitis C has progressed to a level of a serious medical need
requiring treatment.

That is, he does not describe any symptoms

suggesting that a failure or delay in treating his Hepatitis C is
likely to result in significant harm.

Further, Plaintiff fails

to allege facts showing that he is being denied any prescribed
treatment which is likely to result in significant harm.

That

is, Plaintiff fails to allege who, how, and/or when anyone, named
Defendant or not, acted with deliberate indifference to his
serious medical need for Hepatitis C treatment.

Plaintiff simply

asserts his disagreement with unspecified DPS policies concerning
the provision of Hepatitis C treatment.4

Plaintiff does not show

that these policies are medically unsound.

Even if Plaintiff

requested Hepatitis C treatment and MCCC medical staff have
denied him treatment, and this is not evident from his claim,
this is not sufficient to show deliberate indifference, because a
difference of opinion with medical staff, absent more, is

4

DPS Policy No. COR.10.1G.01 addresses treatment
requirements for inmates with chronic diseases including
Hepatitis C. See http://hawaii.gov/psd/policies-and-procedures.
19

insufficient to show deliberate indifference.

Plaintiff fails to

state a claim that he is being denied medical care in violation
of the Eighth Amendment, by Defendants or anyone else at MCCC and
this claim is DISMISSED with leave to amend.
III.

LEAVE TO AMEND

Plaintiff may file an amended complaint on or before
September 28, 2012 curing the deficiencies in Count III that are
noted above.

Plaintiff must write short, plain statements

explaining: (1) the constitutional right allegedly violated; (2)
the name of the defendant who allegedly violated that right; (3)
facts connecting defendant’s action or inaction to the alleged
violation of Plaintiff’s constitutional right; and (4) what
specific injury Plaintiff suffered because of that defendant’s
conduct.

Rizzo, 423 U.S. at 371-72.

Plaintiff must repeat this

process for each person he names as a defendant.

Plaintiff may

not allege new claims that are not part of the same transaction
and occurrence in Count III.
The amended complaint must clearly designate that it is
the “Second Amended Complaint.”

The amended complaint must be

retyped or rewritten in its entirety on court-approved forms and
may not incorporate any part of the original Complaint by
reference.

Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).

Any cause of action that is not raised in the amended complaint
is considered waived.

King v. Atiyeh, 814 F.2d 565, 567 (9th
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Cir. 1987).
IV.

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.
28 U.S.C. § 1915(g).
V.
1.

CONCLUSION

The First Amended Complaint is DISMISSED for

failure to state a claim.

Plaintiff may amend his claims

concerning the alleged denial of Hepatitis C care.

Plaintiff’s

other claims are DISMISSED without leave to amend.
2.

Plaintiff shall file an amended complaint on or

before September 28, 2012, in compliance with this Order.

If

Plaintiff fails to do so, this action shall be AUTOMATICALLY
DISMISSED, without further notice and the Clerk SHALL enter
judgment stating that the dismissal was made pursuant to 28

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U.S.C. § 1915.
3.

The Clerk of Court is DIRECTED to forward a copy of

the court’s approved prisoner civil rights complaint and
instructions to Plaintiff so that he may comply with this Order.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, August 29, 2012.

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

Grindling v. Martone, et al., 1:12-cv-00361 LEK/BMK; ORDER DISMISSING FIRST AMENDED
COMPLAINT PURSUANT TO 28 U.S.C. § 1915; psas/Screening/dmp 2012/Grindling 12-361 lek
(FAC)

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