Adkins v. Unnamed Defendants

Filing 17

ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/16/2014. ~ 1. 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, Plaintiffs claims in Counts III, IV, and VII against Defendants Cline, Urasaki, and Lidge state cognizable claims for relief. Plaintiffs claims in Counts I, II, III, V, VI, and VIII, against Defendants Shinn, Sterns, R eiser, and Potts, are dismissed with leave to amend for failure to state a claim. 2. Plaintiff may file a second amended complaint on or before July 16, 2014, curing the specific deficiencies noted in Counts I, II, III, V, VI, and VIII, if possible. In the alternative, and in light of the courts discussion above, Plaintiff may stand on his claims against Defendants Cline,Urasaki, and Lidge in Counts III, IV, and VII. If Plaintiffelects to stand on these claims, he must notify the court of his de cision on or before July 16, 2014. If Plaintiff fails to notify the court of his decision or to file a timely second amended complaint, the court will order the First Amended Complaint and this Order served on Defendants Cline, Urasaki, and Lidge. 3 . The Clerk of Court is DIRECTED to forward a copy of the courts prisoner civil rights complaint and instructions to Plaintiff so that she may comply with this order. (ecs, )CERTIFICATE OF SERVICEParticipants regis tered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participant Tineimalo Adkins, Jr will be served by first class mail on 6/17/2014 (with a Prisoner Civil Rights Complaint and Instructions).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TINEIMALO ADKINS JR., FED.
REG. #9532-022,
Plaintiff,
vs.
DAVID SHINN, STEVEN REISER,
CULLY STERNS, WILLIAM CLINE,
JOSEPH POTTS, ALAN URASAKI,
TREVOR LIDGE,
Defendants.
____________________________

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CIV. NO. 14-00156 LEK/KSC
ORDER DISMISSING FIRST AMENDED
COMPLAINT IN PART

ORDER DISMISSING FIRST AMENDED COMPLAINT
Before the court is pro se Plaintiff Tineimalo Adkins,
Jr.’s First Amended Complaint (“FAC”).

See Doc. No. 14.

Plaintiff is a state inmate presently confined at the Federal
Detention Center-Honolulu (“FDC-Honolulu”) awaiting trial in
federal court.
00860 LEK.

See United States v. Esera, et al., Cr. No. 13-

Plaintiff alleges that FDC-Honolulu Warden David

Shinn, Captain Steven Reiser, Investigator Cully Sterns,
Counselor Joseph Potts, Chaplain Alan Urasaki, Nurse Trevor
Lidge, and Investigator William Cline violated his constitutional
rights.

Plaintiff names Defendants in their official and

individual capacities, seeks compensation for his pain and
suffering, and requests a transfer from the special holding unit
(“SHU”) to the general population.
The court has screened the FAC pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), and finds that it states a

cognizable claim for relief in part.

Service is appropriate for

Defendants Cline, Urasaki, and Lidge, as discussed below.

Claims

against Defendants Shinn, Reiser, Sterns, and Potts are
dismissed.
I.

STATUTORY SCREENING

Federal courts must screen all civil actions brought by
prisoners seeking redress from a governmental entity, officer, or
employee, and dismiss a claim or complaint if it is frivolous,
malicious, fails to state a claim, or seeks monetary relief from
a defendant who is immune from such relief.

28 U.S.C. § 1915A;

28 U.S.C. § 1915(e)(2); 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 showing that the pleader is entitled to
relief.”

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

Rule 8 does not require

detailed factual allegations, but “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 sufficient

complaint must plead “enough facts to state a claim to relief
2

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.

“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.”
679.

Id. at

Thus, “where the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the
complaint has alleged — but it has not ‘show[n]’ — ‘that the
pleader is entitled to relief.’”

Id. (quoting Fed. R. Civ. P.

8(a)(2)).
The court must construe a pro se complaint liberally,
in the light most favorable to the plaintiff, and accept all
allegations of material fact as true.

See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam); Hebbe v. Pliler, 611 F.3d
1202, 1205 (9th Cir. 2010).

A pro se prisoner’s complaint is

“held to less stringent standards than formal pleadings drafted
by lawyers.”

Erickson, 551 U.S. at 94.

Leave to amend should be

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

3

Lopez v.

III. DISCUSSION
Plaintiff sets forth eight claims, alleging
retaliation, inadequate medical care, interference with the
exercise of his religion, denial of the right to petition the
government, due process, access to his attorney, and violation of
FDC-Honolulu rules.
A.

Elements of a Bivens Action
Plaintiff alleges jurisdiction under 42 U.S.C. § 1983.

Because he is a federal prisoner asserting claims against federal
agents, however, the court construes his claims as brought
pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971).1

Bivens “established that compensable injury to a

constitutionally protected interest could be vindicated by a suit
for damages invoking the general federal-question jurisdiction of
the federal courts.”

Butz v. Economou, 438 U.S. 478, 486 (1978).

“Actions under § 1983 and those under Bivens are
identical save for the replacement of a state actor under § 1983
by a federal actor under Bivens.”

Van Strum v. Lawn, 940 F.2d

406, 409 (9th Cir. 1991); see also Hartman v. Moore, 547 U.S.
250, 254 n.2 (2006) (“Though more limited in some respects . . .

1

Plaintiff transferred from the Halawa Correctional
Facility (“HCF”) to FDC-Honolulu on or about September 24, 2013.
He is awaiting trial on two federal racketeering charges related
to USO gang activities, in violation of 18 U.S.C. §§ 1959(a)(3)
and (b)(2); 18 U.S.C. § 1959-7473.F(4), in Cr. No. 13-00860 LEK.
4

a Bivens action is the federal analog to suits brought against
state officials under [§ 1983].”).

To sustain an action under

Bivens, “a plaintiff must show ‘(1) that the conduct complained
of was committed by a person acting under color of [federal] 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, 556 U.S. 1256 (2009).
Because Bivens actions do not lie against the United
States, its agencies, or its agents in their official capacity,
see FDIC v. Meyer, 510 U.S. 471, 484–86 (1994); Ibrahim v. Dept.
of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008),
Plaintiff’s claims against Defendants in their official
capacities are DISMISSED.
B. Counts I, II, III:

Retaliation Claims

Plaintiff alleges that Defendants Shinn, Sterns,
Reiser, and Cline retaliated against him by (1) refusing to move
him from the SHU to general population (Count I); (2) failing to
respond to his grievances (Count II); and (3) writing a
disciplinary report against him for his participation in a hunger
strike (Count III).
“Within the prison context, a viable [retaliation]
claim . . . entails five basic elements: (1) An assertion that a
[prison official] took some adverse action against an inmate (2)
5

because of (3) that prisoner’s protected conduct, and that such
action (4) chilled the inmate’s exercise of his [protected]
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) (footnote omitted); see also Blaisdell v.
Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013) (stating that
retaliation “actions need not be tethered to the speech or
associational freedoms secured by [the First Amendment] . . . but
can be based upon the theory that the government imposed a burden
on the plaintiff more generally, ‘because he exercised[d] a
constitutional right’”) (citations omitted).

A prisoner must

allege that he suffered some harm, since harm that is more than
minimal will almost always have a chilling effect.

Id., 408 F.3d

at 567–68 n.11; see Gomez v. Vernon, 255 F.3d 1118, 1127–28 (9th
Cir. 2001).

Plaintiff has the burden of pleading and proving the

absence of legitimate correctional goals.

Pratt, 65 F.3d at 806.

A retaliation claim without an allegation of a “chilling effect”
or other harm is not actionable.

See Resnick v. Hayes, 213 F.3d

443, 449 (9th Cir. 2000).
1.

Count I
Plaintiff complains that Defendants Shinn, Sterns,

Reiser, and Cline refuse to transfer him to general population
because they consider him “a threat to the safety and security of
the institution,” based on the nature of his federal charges, and
6

another USO gang-member’s assault on a guard four years ago in
Arizona.

FAC, Doc. No. 14, PageID #45.
Plaintiff admits that he has been in the SHU since his

arrival at FDC-Honolulu, long before he filed grievances or this
lawsuit.

He does not allege Defendants housed him in the SHU for

submitting grievances, petitioning the court, or other protected
conduct, or that conditions worsened in the SHU after he filed
his first grievance.

Instead, he concedes that Defendants housed

him in the SHU from the beginning, because they determined that
he is a danger to security in FDC-Honolulu general population.
Plaintiff sets forth no facts supporting a chilling effect on his
protected conduct or that his placement in the SHU is
retaliatory.
Plaintiff’s statement of facts does not permit this
court “to infer more than the mere possibility of misconduct”
regarding his placement in the SHU.

Iqbal, 556 U.S. at 678.

That is, Plaintiff has not plausibly shown that he is entitled to
relief.

Id.

Moreover, this court “must defer to prison

officials’ expert judgments” concerning the running of the
prison.

Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010).

This “deference requires ‘that neither judge nor jury freely
substitute their judgment for that of officials who have made a
considered choice.’”

Id. at 1066–67 (quoting Whitley v. Albers,

475 U .S. 312, 322 (1986)).

A determination that an inmate poses

7

a threat to the facility is precisely the type of decision to
which courts generally defer.
Finally, Plaintiff has no right to be housed in general
population.

See Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir.

1991) (holding prisoners have no constitutional right to a
transfer to a less restrictive section of a facility); see also,
Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (holding that
prisoners have no liberty interest in avoiding transfer to
another prison or in being transferred to a particular prison).
As such, Plaintiff’s housing status within the prison is not a
constitutionally protected right and he cannot show harm from his
placement in the SHU.

Count I fails to state a cognizable

retaliation claim and is DISMISSED.
2.

Count II
Plaintiff complains that Warden Shinn failed to respond

to his grievances.

First, although Plaintiff labels this a

retaliation claim, he provides no facts showing that Warden Shin
refused to answer his grievances because Plaintiff filed a
grievance, which is the protected conduct presumably at issue.
Nor does he allege facts showing Shinn’s alleged refusal to
answer his grievances chilled his First Amendment rights.
Plaintiff continued to file grievances and pursue the required
steps in FDC-Honolulu’s administrative process.

8

He then filed

the present action when his grievances were ignored.

There is no

basis for finding a “retaliation” claim in Count II.
Moreover, while Plaintiff’s allegation that Warden
Shinn refused to answer his grievances may have bearing later, as
justification for any failure to administratively exhaust his
claims, it does not otherwise state a cognizable constitutional
claim.

See, e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

2003) (holding that a prisoner has no constitutional right to an
effective grievance or appeal procedure); Mann v. Adams, 855 F.2d
639, 640 (9th Cir. 1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993) (“[A prison] grievance procedure is a procedural
right only, it does not confer any substantive right upon the
inmates.”).

A prisoner’s right to petition the government “does

not guarantee a response to the petition or the right to compel
government officials to act on” the petition.

Apple v. Glenn,

183 F.3d 477, 479 (6th Cir. 1999); see also, Velasquez v.
Barrios, 2008 WL 4078766, *11 (S.D. Cal. Aug. 29, 2008) (“An
official’s involvement in reviewing a prisoner’s grievances is an
insufficient basis for relief through a civil rights action.”).
Warden Shinn’s alleged inaction regarding Plaintiff’s grievances
is an insufficient basis to state a constitutional claim.
II is DISMISSED.

9

Count

3.

Count III
Plaintiff alleges that Defendant Cline retaliated

against him by filing disciplinary charges regarding Plaintiff’s
participation in a prison hunger strike.

Taking Plaintiff’s

allegations as true, a plausible inference can be made that Cline
intended to prevent Plaintiff from exercising his First Amendment
right to free speech by participating in a hunger strike, and
that this chilled those rights without advancing a legitimate
correctional goal.

Plaintiff is entitled to offer evidence in

support of this claim.

Count III shall go forward against

Defendant Cline.
C.

Count IV: Free Exercise of Religion
Plaintiff claims he “has not been able to see an Imam

since changing [his] religion to Islam.”
PageID #48.

FAC, Doc. No. 14,

Plaintiff complains that chaplains only visited the

prison once per month during his first four months, allegedly in
violation of Bureau of Prisons (“BOP”) policy, and that Chaplain
Urasaki allowed kosher meals to be substituted for halal meals.2
Plaintiff also states that he “had difficulty” getting a Koran, a

2

“Halal foods are foods that Muslims are allowed to eat or
drink under Islamic Shariah [law]. The criteria specify both
what foods are allowed, and how the food must be prepared. The
foods addressed are mostly types of meat and animal tissue.” See
http://en.wikipedia.org/wiki/Halal.
10

kufi,3 and other religious books.

Id.

He alleges these

incidents violated his right to practice his religion.
The First Amendment guarantees the right to the free
exercise of religion.

Cruz v. Beto, 405 U.S. 319, 323 (1972).

“The free exercise right, however, is necessarily limited by the
fact of incarceration, and may be curtailed in order to achieve
legitimate correctional goals or to maintain prison security.”
O’Lone v. Shabazz, 482 U.S. 342, 348 282 (1987).

To establish a

free exercise violation, a prisoner must show that a defendant
burdened the practice of his religion by preventing him from
engaging in conduct mandated by his faith, without any
justification reasonably related to legitimate penological
interests.

See Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.

1997) overruled in part on other grounds by Shakur v. Schriro,
514 F.3d 878, 884-85 (9th Cir. 2008).

To state a constitutional

violation, “the interference with one’s practice of religion must
be more than an inconvenience; the burden must be substantial and
an interference with a tenet or belief that is central to
religious doctrine.”
citation omitted).

Id. at 737 (internal quotation marks and

A prisoner may be inconvenienced in the

practice of his or her faith so long as the governmental conduct

3

A kufi is a short, brimless, rounded cap worn by
Christians, Muslims, and African Jews in Africa, Asia and in the
“African diaspora.” See http://en.wikipedia.org/wiki/Kufi.
11

does not prohibit the prisoner from “participating in the
mandates of his religion.”

Id.

While an inmate who adheres to a minority religion must
be afforded “reasonable opportunities” to exercise his religious
freedom, Cruz, 405 U.S. at 322 n.2, prison officials have no
obligation “to provide inmates with the chaplain of their
choice.”

Hartman v. Calif. Dept. of Corr. and Rehabilitation,

707 F.3d 1114, 1122 (9th Cir. 2013) (dismissing inmates’
allegations that they were denied a Wiccan chaplain for failure
to “show that they have been deprived a “reasonable opportunity”
to freely exercise their faith.”); Ward v. Walsh, 1 F.3d 873, 880
(9th Cir. 1993).
Plaintiff concedes that chaplains visited FDC-Honolulu
monthly from September to January, and more often thereafter.

He

admits he has a Koran and a kufi, and does not elaborate on the
“difficulties” he allegedly encountered receiving these items.
He alleges no facts suggesting that he was unable to practice the
tenets of Islam based on these alleged delays or that Defendants
substantially burdened the practice of his religion.

Plaintiff

fails to state a cognizable First Amendment claim regarding the
lack of an Imam, monthly chaplain visits, and difficulties he
encountered obtaining a Koran or a kufi.
DISMISSED.

12

These claims are

Accepting that there is a significant religious
difference between kosher and halal meals,4 and that observing a
halal diet is a tenet of his faith, Plaintiff alleges sufficient
“facts to state a claim that is plausible on its face” regarding
this claim.

See Twombly, 550 U.S. at 570.

Plaintiff identifies

as a Muslim, states that part of the practice of his religion
requires him to follow a halal diet, and asserts that Chaplain
Urasaki arbitrarily substituted a kosher diet with a halal diet.
This states a plausible claim that Urasaki failed to accommodate
Plaintiff’s religiously based request for a halal diet.

This

claim shall proceed against Urasaki.
D.

Count V:

Violation of Prison Rules or the Eighth Amendment

In Count V, Plaintiff claims that Cline violated his
civil rights when he disregarded SHU rules allegedly requiring
that inmates be provided with two shirts, two boxers, and two
pairs of socks weekly.

Plaintiff claims that “[a]t one point we

were in the same cloth[e]s for (5) days straight.”
14, PageID #49.

FAC, Doc. No.

A violation of prison rules is not cognizable

under Bivens, because Bivens actions provide relief only for
violations of the United States Constitution or laws of the

4

Kosher meats are generally considered halal, due to the
similarity between both methods of slaughtering and the similar
principles of kosher meat which are still observed by the
observant Jews today. See http://www.justislam.co.uk/product.
(retrieved June 12, 2014). The court leaves this issue to
further adversary proceedings where permissible evidence may be
introduced.
13

United States, not for the violation of prison rules.

See

Hydrick, 500 F.3d at 987; West, 487 U.S. at 48 (1988).
To the extent Plaintiff asserts an Eighth Amendment
violation, this claims also fails.

The Eighth Amendment

prohibits the imposition of cruel and unusual punishment.
Estelle v. Gamble, 429 U.S. 97, 102 (1976).

Adequate clothing is

one of life’s necessities that prison officials must provide.
Helling v. McKinney, 509 U.S. 25, 32 (1993).

Indeed, “[t]he

denial of adequate clothing can inflict pain under the Eighth
Amendment.”

Walker v. Sumner, 14 F.3d 1415, 1421 (9th Cir.

1994), overruled on other grounds by Sandin v. Conner, 515 U.S.
472, 483–84 (1995).
Prison conditions do not violate the Eighth Amendment,
however, unless they amount to “unquestioned and serious
deprivations of basic human needs” or the “minimal civilized
measure of life’s necessities.”

Rhodes v. Chapman, 452 U.S. 337,

347 (1981) (defining the objective requirement of an Eighth
Amendment violation).

“After incarceration, only the unnecessary

and wanton infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.

To be cruel and

unusual punishment, conduct that does not purport to be
punishment at all must involve more than ordinary lack of due
care for the prisoners’ interest or safety.”

Whitely v. Albers,

475 U.S. 312, 319 (1986) (internal quotations and citations

14

omitted).

That is, a prison official’s actions must also be

subjectively “deliberately indifferent.”
U.S. 825, 826 (1994).

Farmer v. Brennan, 511

Temporary unconstitutional conditions of

confinement do not normally rise to the level of constitutional
violations.

See Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314–15

(9th Cir. 1995).
Failure to provide Plaintiff a change of clothes every
three days, and on one occasion requiring him to wear the same
clothes for five days, while perhaps unhygienic, uncomfortable,
and restrictive, does not constitute cruel and unusual
punishment.

Conditions of confinement must be more than

uncomfortable to violate the Eighth Amendment.
U.S. at 347.

See Rhodes, 452

Plaintiff does not adequately allege that the

denial of change of clothes was objectively sufficiently serious
or subjectively deliberately indifferent to his health or safety.
Count V is DISMISSED for failure to state a claim.
E.

Count VI: Denial of Telephone Calls
Plaintiff claims that Defendant Potts twice refused his

request to call the Office of the Ombudsman and denied his
“written request” to speak with his criminal defense attorney.
In Valdez v. Rosenbaum, the Ninth Circuit Court of Appeals held
that a prisoner has no liberty interest in access to a telephone
and there is no procedural due process violation when the
applicable rules mandated “reasonable access to a telephone” and
15

gave prison officials discretion to determine what access was
reasonable.

302 F.3d 1039, 1045 (9th Cir. 2002).

The court also

held that there is no substantive due process violation, because
a restriction on an inmate’s telephone access does not amount to
impermissible punishment.

Id. at 1045-47.

The court stated that

the First Amendment right at issue is “the right to communicate
with persons outside prison walls” and that a telephone is merely
one means of exercising this right.

Id. at 1048.

Applying the

four-factor test of Turner v. Safley, 482 U.S. 78 (1986), the
court concluded that the restriction on the plaintiff’s telephone
access did not violate the First Amendment.

Id. at 1049.

See

Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)
(holding that an inmate’s right to communicate is subject to
rational limitations in the face of legitimate security
interests).
Plaintiff does not allege that Potts denied him all
communication with the Ombudsman and his attorney.

Rather,

Plaintiff alleges only that Potts denied his requests to contact
the Ombudsman by telephone twice, and denied a written request to
telephone his criminal defense attorney once.

This is

insufficient for the court to plausibly infer that Potts violated
Plaintiff’s constitutional or statutory rights to communicate
with his attorney or others.

Moreover, Plaintiff’s claim

regarding limited telephone access to his defense attorney is

16

barred by Heck v. Humphrey, 512 U.S. 477 (1994), because a
successful ruling on this claim would necessarily imply the
invalidity of Plaintiff’s ongoing criminal proceedings.
Valdez, 302 F.3d at 1049.

See

Plaintiff should address this claim in

his pending criminal action.

Count IV is DISMISSED for

Plaintiff’s failure to state a claim.
F.

Count VII: Denial of Medical Care
Plaintiff alleges that FDC-Honolulu Nurse Lidge denied

him “reasonable medical care,” when Lidge told him that someone
would see him for a stye in his eye, yet Plaintiff has still not
received medical care for his eye.

FAC, Doc. No. 14, PageID #51.

Plaintiff alleges that the stye remains on his eye and that he is
suffering mental stress.
Prison officials violate the constitution if they are
“deliberately indifferent” to an inmate’s serious medical needs.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (same); Simmons v. Navajo Cnty.,
Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

To successfully

allege that inadequate or negligent medical care constitutes
cruel and unusual punishment, a plaintiff must show “a serious
medical need by demonstrating that failure to treat a prisoner’s
condition could result in further significant injury or the
unnecessary and wanton infliction of pain” and that “the
defendant’s response to the need was deliberately indifferent.”
17

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

Deliberate

indifference “is satisfied by showing (a) a purposeful act or
failure to respond to a prisoner’s pain or possible medical need
and (b) harm caused by the indifference.”

Id.

That is, the

prison official “knows of and disregards an excessive risk to
inmate health or safety; [and] the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Accepting that a stye is a serious medical condition
and that failure to treat Plaintiff’s eye has caused him pain and
could result in further harm, Plaintiff sufficiently states an
Eighth Amendment violation.

See Jett, 439 F.3d at 1096 (9th Cir.

2006) (delay of, or interference with, medical treatment can
amount to deliberate indifference).

Count VII shall be served on

Defendant Lidge.
G.

Count VIII:

Discrimination

Plaintiff claims Warden Shinn discriminated against him
by denying SHU inmates the same commissary items that are
available to the general population.

The Fourteenth Amendment

“is essentially a direction that all persons similarly situated
should be treated alike.”

City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985).

To state an equal protection

claim, a plaintiff must demonstrate that the defendant
18

intentionally discriminated against him based on his membership
in a protected class, Lee v. City of Los Angeles, 250 F.3d 668,
686 (9th Cir. 2001), or that defendant intentionally treated him
differently from similarly situated individuals and that this
differential treatment had no rational relationship to a
legitimate state purpose, Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam).

Under the second theory, a

plaintiff must allege that (1) he is a member of an identifiable
class; (2) he was intentionally treated differently than others
similarly situated; and (3) there is no rational basis for the
differing treatment.

Thornton v. City of St. Helens, 425 F.3d

1158, 1167 (9th Cir. 2005).
This allegation does not state a claim.

Plaintiff is

in the SHU and therefore, he is not similarly situated with
inmates in general population.

Plaintiff alleges no facts from

which the court can infer that Warden Shinn intentionally treated
him differently than other SHU inmates.

Accordingly, count VIII

is DISMISSED.
IV.

LEAVE TO AMEND

Plaintiff’s First Amended Complaint is DISMISSED IN
PART as discussed above.

Counts III, IV, and VII state

cognizable claims against Defendants Cline, Urasaki, and Lidge
and may be served.

Counts I, II, III, V, VI, and VIII, insofar

as they name Defendants Shinn, Sterns, Reiser, and Potts, are
19

dismissed with leave to amend for Plaintiff’s failure to state a
claim.

Plaintiff may file an amended complaint on or before

July 16, 2014, curing the specific deficiencies noted in Counts
I, II, III, V, VI, and VIII, if possible.
In the alternative, Plaintiff may elect to proceed with
Counts III, IV, and VII against Defendants Cline, Urasaki, and
Lidge.

If Plaintiff elects to proceed only on these claims

against Defendants Cline, Urasaki, and Lidge, he should notify
the court on or before July 16, 2014.

If Plaintiff fails to

timely file an amended complaint or notify the court of his
intent on or before July 16, 2014, the court will nonetheless
order service of the First Amended Complaint on Defendants Cline,
Urasaki, and Lidge, and the remaining claims and Defendants will
be dismissed.
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.
Plaintiff is reminded that an amended complaint’s allegations may
not “contradict[] any of the allegations of [the] original
complaint.”

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

Cir. 1990).

An amended complaint cannot allege facts

inconsistent with the challenged pleading.

Id. at 296-97.

The amended complaint must designate that it is the
“Second Amended Complaint,” and must be retyped or rewritten in
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its entirety on court-approved forms; it may not incorporate any
part of the original or First Amended Complaints by reference.
Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).

Claims “that

have been dismissed with leave to amend and are not repled in the
amended complaint will be considered waived.”
V.
1.

Id. at 928.5

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 in Counts III, IV,

and VII against Defendants Cline, Urasaki, and Lidge state
cognizable claims for relief.

Plaintiff’s claims in Counts I,

II, III, V, VI, and VIII, against Defendants Shinn, Sterns,
Reiser, and Potts, are dismissed with leave to amend for failure
to state a claim.
2.

Plaintiff may file a second amended complaint on or

before July 16, 2014, curing the specific deficiencies noted in
Counts I, II, III, V, VI, and VIII, if possible.

In the

alternative, and in light of the court’s discussion above,
Plaintiff may stand on his claims against Defendants Cline,
Urasaki, and Lidge in Counts III, IV, and VII.

If Plaintiff

elects to stand on these claims, he must notify the court of his

5

Claims that have been dismissed without leave to amend
need not be repled in an amended complaint to preserve them for
appeal. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925, 928 (9th
Cir. 2012).
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decision on or before July 16, 2014.

If Plaintiff fails to

notify the court of his decision or to file a timely second
amended complaint, the court will order the First Amended
Complaint and this Order served on Defendants Cline, Urasaki, and
Lidge.
3.

The Clerk of Court is DIRECTED to forward a copy of

the court’s prisoner civil rights complaint and instructions to
Plaintiff so that she may comply with this order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 16, 2014.

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

Adkins v. Shinn, 1:14-cv-00156 LEK/KSC; 2014 scrng J:\Denise's Draft Orders\LEK\Adkins
14-156 lek (dsm C in part, lv amd).wpd

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