Burns v. Shores et al

Filing 14

ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART re 10 . Signed by JUDGE DERRICK K. WATSON on 07/22/2013. (eps) -- The First Amended Complaint is DISMISSED IN PART for Plaintiff's failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Specifically, Plaintiff's claims against Defendant ACO Pasamonte are DISMISSED with prejudice. Plaintiff's claims against Defendant ACO Shores for assault and retaliation state a claim and sh all proceed. CERTIFICATE OF SERVICEParticipants registered to receive 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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

NICHOLAS DONALD BURNS,
#A5003928,
Plaintiff,
vs.
JUSTIN SHORES, DANIEL
PASAMONTE,
Defendants.

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CIV. NO. 13-00122 DKW/BMK

ORDER DISMISSING FIRST
AMENDED COMPLAINT IN PART

ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART
Before the court is Nicholas Donald Burns’ (“Plaintiff”) first amended
complaint (“FAC”). Plaintiff is a pre-trial detainee at the Maui Community
Correctional Center (“MCCC”), who brings this pro se civil rights action pursuant
to 42 U.S.C. § 1983. Plaintiff complains that Defendants MCCC Adult
Correctional Officers (“ACO”) Justin Shores and Donald Pasamonte violated his
constitutional rights while acting in their official and individual capacities. He
seeks declaratory judgment, compensatory and punitive damages. For the
following reasons, the FAC is dismissed in part for failure to state a claim.

I. PROCEDURAL BACKGROUND
On April 9, 2013, the court dismissed Plaintiff’s original Complaint in
part for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1) and
§ 1915(e)(2). Order, ECF No. 5 (“April 9, 2013 Order”). Specifically, the court
dismissed Plaintiff’s claims for damages against all Defendants in their official
capacities, all claims against Defendants Pasamonte, Mulleitner, and Walker in
Counts II and III, and Plaintiff’s retaliation claim against ACO Shores in Count I.
The court found that Plaintiff’s Eighth Amendment claim against Defendant ACO
Shores stated a claim. Plaintiff was granted leave to amend, although he was
informed that, in the alternative, he may rest on his claim that ACO Shores
assaulted him, and if he failed to amend the Complaint on or before May 7, 2013,
the court would order that claim to be served.
On May 17, 2013, after Plaintiff failed to amend his Complaint, the
court ordered it served on Shores, as alleging claims under the Eighth Amendment.
See ECF No. 8.
Plaintiff completed the service documents on or about May 21, 2013,
and the United States Marshal Service sent a waiver of service of summons to
ACO Shores on or about June 3, 2013. See ECF No. 11. The Department of
Public Safety received the waiver on or about June 5, 2013, and ACO Shores
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accepted waiver of service on or about June 24, 2013. See ECF No. 12.
On June 25, 2013, Plaintiff’s FAC was mailed from Maui, and the
court received it on June 27, 2013, although it is inexplicably signed on April 17,
2013. The FAC alleges that Shores assaulted Plaintiff on December 17, 2012, and
then Shores retaliated against Plaintiff by filing misconduct reports after Plaintiff
grieved this assault. Plaintiff reasserts his claim that Passamonte threatened him
and called him a “dumb ha’ole.” FAC, ECF No. 12, PageID #67.
II. 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). 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 if it (1) lacks
a cognizable legal theory; or (2) contains 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
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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
fails to state a claim if it does not plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
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. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe
v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010) (stating that “we continue to
construe pro se filings liberally”). Leave to amend should be granted unless it
appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000).
III. DISCUSSION
“To sustain an action under section 1983, a plaintiff must show ‘(1)
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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.

Immunities
Plaintiff again asserts damages claims against Shores and Passamonte

in their official capacities. Official capacity claims for damages against all
Defendants were dismissed with prejudice in the April 9, 2013 Order. See ECF
No. 1, PageID #31. For the reasons set forth in the April 9, 2013 Order, the court
finds that neither Shores nor Passamonte are subject to suit under § 1983 in their
official capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64–66 (1989)
(holding that official capacity defendants are not “persons” within the meaning of
§ 1983). They are also entitled to Eleventh Amendment immunity in their official
capacities. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 53 (1996); Pennhurst
State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Quern v. Jordan, 440
U.S. 332, 342 (1979). The State of Hawaii has not consented to suit under § 1983
in this case and Plaintiff’s damages claims against Shores and Passamonte in their
official capacities are barred. See Doe v. Lawrence Livermore Natl. Lab., 131 F.3d
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836, 839 (9th Cir. 1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996);
Pena v. Gardner, 976 F.2d 469, 472 (1992). Damages claims against Shores and
Passamonte in their official capacities are DISMISSED with prejudice.
B.

Claims Against ACO Shores
Because Plaintiff now clarifies that he is a pre-trial detainee, he is

correct that his claims alleging that ACO Shores assaulted him on December 17,
2012 arise under the Fourteenth rather than the Eighth Amendment. See Pierce v.
Multnomah Cnty., Ore., 76 F.3d 1032, 1042 (9th Cir. 1996) (holding that the
Eighth Amendment’s prohibition against cruel and unusual punishment applies
only after conviction). The same standards apply to pre-trial detainees under the
Due Process Clause as apply to convicted prisoners under the Eighth Amendment,
however. See Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.
2010). Plaintiff’s claim in Counts I and II that ACO Shores assaulted him states a
claim under the Fourteenth Amendment and shall proceed.
Plaintiff also asserts that Shores retaliated against him by writing
disciplinary reports against Plaintiff, after Plaintiff filed a grievance against Shores
regarding the assault. See FAC, ECF No. 10, PageID #64. Although somewhat
vague, Plaintiff asserts sufficient facts to state a retaliation claim against ACO

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Shores and this claim shall proceed. See Rhodes v. Robinson, 408 F.3d 559, 56768 (9th Cir. 2005).
C.

Claims Against ACO Pasamonte
The FAC still fails to state a claim against ACO Pasamonte for his

alleged threats, verbal harassment, or emotional abuse. See Freeman v. Arpaio,
125 F.3d 732, 738 (9th Cir. 1997), abrogated on other grounds by Shakur v.
Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008); see also Keenan v. Hall, 83 F.3d
1083, 1092 (9th Cir. 1996) (“disrespectful and assaultive comments” by prison
guard do not implicate Eighth Amendment); Oltarzewski v. Ruggiero, 830 F.2d
136, 139 (9th Cir. 1987) (prison guard’s use of “vulgar language” toward prisoner
does not violate constitution). Threats are not cognizable under § 1983. See
Corales v. Bennett, 567 F.3d 554, 564–65 (9th Cir. 2009); Gaut v. Sunn, 810 F.2d
923, 925 (9th Cir. 1987) (same). Plaintiff’s claims against ACO Pasamonte fail to
state a claim and are DISMISSED with prejudice.
IV. CONCLUSION
The First Amended Complaint is DISMISSED IN PART for
Plaintiff’s failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(a). Specifically, Plaintiff’s claims against Defendant ACO Pasamonte are

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DISMISSED with prejudice. Plaintiff’s claims against Defendant ACO Shores for
assault and retaliation state a claim and shall proceed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 22, 2013.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Burns v. Shores, 1:13-cv-00122 DKW/BMK; ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART;
G:\docs\DKW shared\WP Orders\Burns 13-122 dkw (FAC dsm Passamonte).wpd

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