Burns v. Shores et al

Filing 5

ORDER DISMISSING COMPLAINT IN PART PURSUANT TO 28 U.S.C. §§ 1915A & 1915 re: 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/9/2013. Excerpt of conclusion: ~ "Plaintiff's claims again st Defendants Pasamonte, Mulleitner, and Walker in Counts II and III are DISMISSED. Plaintiff's retaliation claim against Defendant ACO Shores in Count I is also DISMISSED. Plaintiff's Eighth Amendment claim in Count I, alleging that Def endant ACO Shores assaulted him states a claim and may proceed." "Plaintiff is granted leave to file an amended complaint on or before May 7, 2013, in compliance with this Order. In the alternative, Plaintiff may elect to stand on his E ighth Amendment claims against Defendant ACO Shores as presented in Count I...." ~ (afc) 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. Plaintiff will be served by First Class Mail on April 9, 2013 with a copy of the instant order and the Prisoner Civil Rights Complaint form with its instructions.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NICHOLAS DONALD BURNS,
#A5003928,

)
)
)
Plaintiff,
)
)
vs.
)
)
ACO SHORES, ACO PASAMONTE,
)
CAPT. MULLEITNER, ACO KENETH )
WALKER,
)
)
Defendants.
)
)

CIV. NO. 13-00122 LEK/BMK
ORDER DISMISSING COMPLAINT IN
PART PURSUANT TO 28 U.S.C.
§§ 1915A & 1915

ORDER DISMISSING COMPLAINT IN PART
PURSUANT TO 28 U.S.C. §§ 1915A & 1915
Plaintiff is a prisoner 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”) Shores,
Pasamonte, Walker, and Captain Mulleitner violated his
constitutional rights while acting in their official and
individual capacities and seeks declaratory judgment,
compensatory and punitive damages.
Plaintiff’s Complaint is dismissed in part for failure
to state a claim pursuant to 28 U.S.C. § 1915A(b)(1) and
§ 1915(e)(2).

Plaintiff is given leave to amend, as discussed

and limited below.

In the alternative, Plaintiff may rest on his

claim that ACO Shores assaulted him, and that claim will be
ordered to be served.
1

I. PLAINTIFF’S CLAIMS
Plaintiff says that when he complained about the
quality of MCCC’s linen, ACO Shores assaulted him and “fabricated
false misconducts that [Plaintiff] beat in adjustment hearings.”
Compl., Count I, ECF No. 1 at PageID #6.

Plaintiff concludes

that ACO Shores made these false allegations to cover up the
assault or “in retaliation for [Plaintiff’s] complaints about
linens and food.”

Id., PageID #7.

Plaintiff alleges that this

violated his rights under the First Amendment.

Plaintiff also

claims that ACO Shores also put the Module B inmates in early
lockdown and cut their recreation time, then told the other
inmates to thank Plaintiff, causing them to resent him.

See id.,

Count II, PageID #8.
Plaintiff says that later that day, he requested
medical assistance when an inmate lost consciousness.

Plaintiff

claims that ACO Pasamonte became angry over this request and
threatened him and called him names.

This resulted in another

lockdown and more lost recreation time for Module B inmates,
allegedly causing further resentment against Plaintiff.

As a

consequence, Plaintiff requested Captain Mulleitner to transfer
him to another module.

When Mulleitner refused, Plaintiff says

he remained in his cell for a week out of fear.

2

Plaintiff

alleges these events violated the Eighth Amendment.1
Finally, Plaintiff says that ACO Walker saw Plaintiff
pass documents to a jailhouse lawyer (or vice versa), and wrote
misconduct charges against both inmates, resulting in their
assignment to segregation.

Plaintiff claims this constitutes

retaliation and interference with his right to redress grievances
with the court, in violation of the First Amendment.

Id., Count

III, PageID #10.
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
1

It is unclear whether Plaintiff is a sentenced prisoner or
a pretrial detainee. The Fourteenth Amendment, rather than the
Eighth Amendment, governs a pre-trial detainee’s threat to safety
and assault claims. See Gibson v. Cnty. of Washoe, 290 F.3d
1175, 1187 (9th Cir. 2002). The same legal standards apply,
however. See Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th
Cir. 2010).
3

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.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

“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.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

“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.
4

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) 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 names Defendants in their official and

individual capacities.

States, state agencies, and state

officials sued in their official capacities are not persons
subject to civil rights suits under 42 U.S.C. § 1983.
Mich. Dep’t of State Police, 491 U.S. 58, 64–66 (1989).

Will v.
Further,

the Eleventh Amendment prohibits federal jurisdiction over suits
against the state or a state agency unless the state or agency
consents to the suit.

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).

State officers acting in their official capacities

receive the same immunity as the government agency that employs
them.

Hafer v. Melo, 502 U.S. 21 (1991).
5

The State of Hawaii has not consented to suit under
§ 1983 in this case and Plaintiff’s damages claims against
Defendants in their official capacities are barred.

See Doe v.

Lawrence Livermore Natl. Lab., 131 F.3d 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).

Defendants named in their

official capacities and damages claims against them are them
DISMISSED with prejudice.
B.

Eighth Amendment Claims
Plaintiff alleges three claims that arise under the

Eighth Amendment.

First, he alleges ACO Shores assaulted him.

Second, he alleges ACO Pasamonte threatened and called him names.
Finally, he alleges Captain Mulleitner denied his request to
transfer to another cell or module, suggesting she therefore
failed to protect him from harm by other inmates.
1.

ACO Shores
The Eighth Amendment prohibits the infliction of “cruel

and unusual” punishment.

See, e.g., Ingraham v. Wright, 430 U.S.

651, 664–68 (1977); Haygood v. Younger, 769 F.2d 1350, 1354–55
(9th Cir. 1985).

“[The] Eighth Amendment, which is specifically

concerned with the unnecessary and wanton infliction of pain in
penal institutions, serves as the primary source of substantive
protection to convicted prisoners[.]”
U.S. 312, 327 (1986).

Whitley v. Albers, 475

Plaintiff’s claim that ACO Shores
6

assaulted him, although lacking in detail, sufficiently states a
claim under the Eighth Amendment and shall proceed.
2.

ACO Passamonte
Plaintiff 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).

Mere 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.
3.

Captain Mulleitner
To prevail on his Eighth Amendment claim against

Captain Mulleitner for failing to prevent a threat to his safety,
Plaintiff must demonstrate that she acted with deliberate
indifference to a substantial risk of serious harm.
v. Brennan, 511 U.S. 824, 828 (1994).

See Farmer

This requires “more than

ordinary lack of due care for the prisoner’s interests or
7

safety.”

Whitley v. Albers, 475 U.S. 312, 319 (1986).

In other

words, Plaintiff must show she acted with more than negligence.
Farmer, 511 U.S. at 835.

A “substantial risk of serious harm,”

requires that the risk be objectively sufficiently serious, and
that the prison official has a sufficiently culpable state of
mind; that is, he or she must be deliberately indifferent to an
inmate’s health and safety.

Id. at 834 (citations omitted).

To act with deliberate indifference, a prison official
must know of and disregard an excessive risk to an inmate’s
health.

That is, the official must be aware of facts from which

the inference could be drawn that a substantial risk of serious
harm exists, and she must also draw the inference.

Id. at 837.

An inmate need not show that the prison official acted or failed
to act believing that harm would actually befall the inmate; “it
is enough that the official acted or failed to act despite [her]
knowledge of a substantial risk of serious harm.”

Id. at 842.

Plaintiff fails to allege sufficient facts indicating
that Captain Mulleitner was deliberately indifferent to a
substantial or excessive risk of serious harm to his safety when
she denied him a transfer based on his subjective and
unarticulated fears that the other inmates resented him for the
lockdowns and shortened recreation periods on one day at MCCC.
Plaintiff does not describe his housing situation; that is, he
may have already been in a segregated or protective cell or

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module.

Plaintiff does provide any facts showing why the Module

B inmates resented him instead of the guards who put them on
lockdown.

Nor does he detail other reasons suggesting that these

inmates were a threat to him.

Moreover, ACO Shores’ alleged

assault on Plaintiff and ACO Pasamonte’s threats and racial
epithets (“dumb haole”) against him as easily suggest the other
inmates might sympathize with Plaintiff as resent him.

Based on

the facts alleged here, Captain Mulleitner may have believed,
based on her own experience, information, and knowledge of the
situation, that Plaintiff’s fears were exaggerated, or that
Plaintiff was sufficiently protected in the cell and module to
which he was assigned.

Claims against Captain Mulleitner are

DISMISSED.
C.

False Allegations of Misconduct and Due Process
To the extent Plaintiff alleges a claim against ACO

Shores for falsely accusing him of misconduct, he fails to state
a claim.

Prisoners have no constitutional right to be free from

false accusations of misconduct, so the falsification of a
misconduct report does not give rise to a claim under § 1983.
See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989);
Freeman v. Rideout, 808 F.2d 949, 952 (2nd Cir. 1986).
To the extent Plaintiff alleges a due process claim
against ACO Shores (although he mislabels it as a First Amendment
claim), he similarly fails to state a claim.

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To state a

procedural due process claim, Plaintiff must allege facts
showing: “(1) a deprivation of a constitutionally protected
liberty or property interest, and (2) a denial of adequate
procedural protections.”
(9th Cir. 2003).

Kildare v. Saenz, 325 F.3d 1078, 1085

Plaintiff fails to allege a deprivation of any

liberty or property interest.

More importantly, Plaintiff claims

he “beat” the allegedly false misconduct reports, clearly showing
that he was given adequate procedural protection.

Plaintiff’s

allegations against ACO Shores regarding the allegedly false
misconduct report is DISMISSED.2
D.

First Amendment Claims
1.

Retaliation
To state a viable First Amendment retaliation claim, a

prisoner must allege five elements: “(1) An assertion that a
state actor took some adverse action against an inmate (2)
because of (3) that prisoner’s protected conduct, and that such
action (4) chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance a
legitimate correctional goal.”

Rhodes v. Robinson, 408 F.3d 559,

567–68 (9th Cir. 2005).

2

Plaintiff does not claim that ACO Walker falsely charged
him with passing documents to another inmate, he admits this
happened and complains because he was written up for his conduct.
Plaintiff’s claims against ACO Walker are discussed supra.
10

Plaintiff loosely alleges that ACO Shores made false
accusations against him in retaliation for Plaintiff’s complaints
about MCCC’s linen or to cover up Shores’s alleged assault
against Plaintiff.

Plaintiff’s complaints to ACO Shores

regarding the quality of the towels and sheets at MCCC do not
constitute “protected conduct.”

Moreover, while ACO Shores may

have falsely charged Plaintiff to cover up his alleged assault on
Plaintiff, that does not plausibly suggest that he did so “in
retaliation” for Plaintiff’s complaining about the linens.

This

claim is DISMISSED.
2.

Right To Petition The Government for Redress Grievances
Without Retaliation
Plaintiff alleges that ACO Walker retaliated against

him by filing misconduct charges when he saw Plaintiff exchange
documents with “a known jailhouse lawyer” while Plaintiff was
“attempting redress in this case in this court.”

Compl., Count

III, ECF No. 1 at PageID #10 (alleging that Plaintiff was
“[p]unished for seeking redress in this court in this matter”).
Inmates have a fundamental constitutional right of
access to the courts.

Lewis v. Casey, 518 U.S. 343, 346 (1996).

That access includes “a right to meaningful access to the courts
and a broader right to petition the government for a redress of
his grievances.”

Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th

Cir. 2011) (citing Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.
1995) overruled on other grounds by Shaw v. Murphy, 532 U.S. 223,
11

230 n.2 (2001)).
This right of meaningful access to the courts prohibits
officials from actively interfering with inmates’ attempts to
prepare or file legal documents.

Lewis v. Casey, 518 U.S. 343,

350 (1996); Silva, 658 F.3d at 1103.

The right of access to the

courts is only a right to bring petitions or complaints to
federal court, however, and not a right to discover such claims
thereafter, or even to ligate them effectively once filed with a
court.

Id. at 354.
To show standing for an access-to-courts claim, a

plaintiff must show that he suffered an “actual injury,” that is,
“actual prejudice with respect to contemplated or existing
litigation, such as the inability to meet a filing deadline or to
present a claim.”

Lewis, 518 U.S. at 348–49 (citation omitted);

see also Christopher v. Harbury, 536 U.S. 403, 412–15 (2002)
(discussing how an inmate may show an actual injury to his right
of access to the courts).

“[T]he injury requirement is not

satisfied by just any type of frustrated legal claim.”
518 U.S. at 354.

Lewis,

The claim must be a nonfrivolous direct or

collateral attack on the inmate’s sentence or a challenge to the
conditions of his confinement.

Id. at 355; see also Silva, 658

F.3d at 1103.
The Hawaii Department of Public Safety’s (DPS) Policies
and Procedure Manual (PPM), provides that an inmate shall be

12

afforded reasonable opportunities to prepare legal documents and
access to legal materials, counsel, and the courts.

See DPS PPM

COR12.02.4.04, http://dps.hawaii.gov/wp-content/uploads.

Inmates

who are illiterate, uneducated, or indigent, so as to prevent
their equitable access to such assistance, are allowed to seek
legal assistance when it does not disrupt prison security.

Id.

Plaintiff is literate, educated, and despite his indigence, is
able to process and copy documents, grieve his claims, and
present them to the court.

He is not, therefore, entitled to

assistance from a “jailhouse lawyer” or assistance from another
inmate without the prison’s permission.
Even if Plaintiff qualified for such assistance, the
prison has the right to determine when, how, and from whom to
provide him such legal assistance.

See Bounds v. Smith, 430 U.S.

817, 828, 832 (1977) (holding that prisons may exercise their
discretion when choosing alternative ways to provide access to
the court within constitutional bounds); see also Shaw v. Murphy,
532 U.S. 223, 231 (2001) (holding that jailhouse lawyers’
provision of legal assistance is not accorded First Amendment
protection beyond that normally accorded to prisoner speech under
Turner v. Safley, 482 U.S. 78 (1987) (sustaining restrictions on
inmate-to-inmate written correspondence), and stating that “it is
‘indisputable’ that inmate law clerks ‘are sometimes a menace to
prison discipline’ and that prisoners have an ‘acknowledged

13

propensity . . . to abuse both the giving and the seeking of
[legal] assistance.’”) (citations omitted).
Plaintiff fails to plausibly allege that Walker took an
adverse action against him because of a protected conduct that
chilled his right to redress his claims and was not in
furtherance of a legitimate correctional goal.

First, while

filing a grievance in anticipation of initiating a suit or
preparing a complaint may constitute protected conduct, violating
the prison’s rules regarding unauthorized contact between inmates
is not.

Second, Plaintiff fails to plausibly allege non-

conclusory facts that Walker’s action interfered with his right
to file a grievance or this present action.
Third, Plaintiff fails to plausibly allege that the
prison’s rules regarding unauthorized contact between inmates,
meaning Plaintiff’s contact with the jailhouse lawyer, does not
reasonably advance legitimate correctional goals.

Finally,

Plaintiff fails to allege that Walker interfered with Plaintiff’s
access to the court or ability to redress his grievances with the
government.

Plaintiff claims he grieved his claims, this case

has been filed, is ongoing, and the court has found that
Plaintiff states a claim in part against ACO Shores.

Plaintiff

has not suffered any actual injury conferring standing to sue.
Plaintiff’s allegations do not support a finding that
Walker retaliated against him for grieving his claims or

14

“attempting redress” with the court in this case.

Rather,

Plaintiff concedes that Walker wrote Plaintiff up for an admitted
rule infraction.

Plaintiff fails to state a claim against

Walker, and Count III is DISMISSED.
IV.

LEAVE TO AMEND

Plaintiff’s Complaint is DISMISSED IN PART.

Plaintiff

may file a proposed amended complaint on or before May 7, 2013,
curing the specific deficiencies noted above.

In the

alternative, Plaintiff may elect to proceed with the present
complaint on his claim in Count I that ACO Shores assaulted him.
If Plaintiff fails to timely file an amended complaint, the court
will order service of this claim on ACO Shores only, and the
remaining claims in Counts II and III will be dismissed with
prejudice.
If Plaintiff elects to file an amended complaint, it
must contain short, plain statements explaining how Defendants
violated his rights in light of the court’s discussion.

The

proposed amended complaint must clearly designate that it is the
“First 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 was raised in the original complaint is waived if it
is not raised in an amended complaint.
15

King v. Atiyeh, 814 F.2d

565, 567 (9th Cir. 1987).
V.
1.

CONCLUSION

The 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 Defendants

Pasamonte, Mulleitner, and Walker in Counts II and III are
DISMISSED.

Plaintiff’s retaliation claim against Defendant ACO

Shores in Count I is also DISMISSED.

Plaintiff’s Eighth

Amendment claim in Count I, alleging that Defendant ACO Shores
assaulted him states a claim and may proceed.
2.

Plaintiff is granted leave to file an amended

complaint on or before May 7, 2013, in compliance with this
Order.

In the alternative, Plaintiff may elect to stand on his

Eighth Amendment claims against Defendant ACO Shores as presented
in Count I.

If Plaintiff chooses to stand on his claims in this

complaint and fails to file a timely amended complaint, the court
will order his Eighth Amendment claim that ACO Shores assaulted
him served.
3.

The Clerk of Court is DIRECTED to forward a copy of

the court’s prisoner civil rights complaint and instructions to
//
//
//
//
16

//
Plaintiff so that he may comply with this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 9, 2013.

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

Burns v. Shores, 1:13-cv-00084 LEK/BMK; G:\docs\prose attys\Scrng\DMP\2013\Burns
13-122 lek (1st and 8th amd).wpd

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