Adkins v. Unnamed Defendants

Filing 23

ORDER Dismissing 18 Second Amended Complaint - David Shinn, Cully Sterns, Joseph Potts and Steven Reiser terminated.. Signed by JUDGE LESLIE E. KOBAYASHI on 7/24/14. (gab, )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). 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
TINEIMALO ADKINS, JR., FED.
REG. #95342-022,
Plaintiff,
vs.
DAVID SHINN, et al.,
Defendants.
____________________________

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CIV. NO. 14-00156 LEK/BMK
ORDER DISMISSING SECOND AMENDED
COMPLAINT

ORDER DISMISSING SECOND AMENDED COMPLAINT
Before the court is Plaintiff’s Second Amended
Complaint (“SAC”).

Doc. No. 18.

Plaintiff also submits a letter

electing “to stand on his claims against (Cline, Shinn, Reiser,
Sterns, Urasaki, and Lidge),” as alleged in the First Amended
Complaint (“FAC”).

See Doc. Nos. 14 (FAC), 19, 20.

For the

following reasons, the SAC is DISMISSED for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).

By

separate order, the court will direct the United States Marshal
to serve the FAC on Defendants Cline, Urasaki, and Lidge.
I.

BACKGROUND

On June 16, 2014, the court found that Plaintiff’s
First Amended Complaint (“FAC”) stated cognizable claims for
relief in Counts III, IV, and VII against Defendants Cline,
Urasaki, and Lidge, and that service is appropriate for these

Defendants.

See Order, Doc. No. 17 (“June 16, 2014 Order”).

The

court further found that Counts I, II, III, V, VI, and VIII, as
alleged against Defendants Shinn, Reiser, Stearns, and Potts,
failed to state a claim.
to amend.

Those claims were dismissed with leave

In the alternative, Plaintiff was told he could stand

on his cognizable claims and the court would order the United
States Marshal to serve the FAC, as dismissed in part, on Cline,
Urasaki, and Lidge.
The court explicitly notified Plaintiff that, if he
elected to file an amended complaint, the amended complaint must
be complete in itself, reallege all claims asserted against all
Defendants, and may not incorporate by reference claims set forth
in previous pleadings.

Id., PageID #20-21.

Instead of complying with these directions, Plaintiff
confuses matters by electing to “stand” on claims against six of
the original seven defendants (omitting Potts), despite clear
directions informing him that he failed to state a claim against
three of those defendants.

He compounds this confusion by

submitting an amended pleading that names only Shinn, Reiser,
Sterns, and Cline, fails to cure the deficiencies in his claims
against these Defendants, and omits his cognizable claims against
Cline, Urasaki, and Lidge.

See Doc. Nos. 18-20.

That is,

Plaintiff stands on claims that the court deemed insufficient,

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omits claims that were deemed cognizable, and substitutes a
wholly deficient amended pleading for the FAC.

I.

LEGAL STANDARDS

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 fails 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 sufficiently state a

claim, a pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.”
R. Civ. P. 8(a)(2).

Fed.

This does not require detailed factual

allegations, but “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 sufficient complaint must

plead “enough facts to state a claim to relief that is plausible

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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.

“[W]here 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)).
A court must construe pro se complaints 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).

Leave to amend should be granted

unless amendment is futile.

Lopez v. Smith, 203 F.3d 1122, 1130

(9th Cir. 2000).
III. DISCUSSION
The SAC names FDC-Honolulu Warden David Shinn, Captain
Steven Reiser, Investigator Cully Sterns, and Investigator
William Cline in their individual capacities.

It fails to name

Counselor Joseph Potts, Chaplain Alan Urasaki, and Nurse Trevor
Lidge, and it omits those claims in the FAC that stated a claim
against Cline, Urasaki, and Lidge.
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Without reference to the FAC,

the SAC makes little sense.

Even reading the two pleadings in

conjunction, the SAC fails to allege sufficient facts to
plausibly infer that any Defendant named in either pleading
violated his constitutional rights.
In Count I, Plaintiff vaguely alleges that Shinn,
Reiser, Sterns, and Cline collectively violated the First
Amendment when Shinn failed to respond to Plaintiff regarding his
confinement in the special housing unit.
pertinent details regarding this claim.

Plaintiff provides no
It can only be

understood with reference to Plaintiff’s claims in Count II of
the FAC –- that were dismissed for failure to state a claim.
Order, Doc. No. 17, PageID #72-73.

See

Count I fails to allow the

inference that Shinn, Reiser, Sterns, or Cline violated
Plaintiff’s First Amendment rights.

This is particularly true in

light of the court’s careful analysis of this claim in the
June 16, 2014 Order.

See id.

In Count II, Plaintiff alleges Cline violated the
Eighth Amendment “because of the lack of sanitized clean
laundry.”

SAC, Doc. No. 19, PageID #93.

Here, Plaintiff

apparently refers to his claims in Count V of the FAC, that he
was provided only two boxers, shirts, and pairs of socks weekly,
and at one time wore the same clothes for five days.

As

discussed in detail in the June 16, 2014 Order, the failure to
provide Plaintiff a change of clothes more often did not deprive

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him of the minimal requirements of life and did not violate the
Eighth Amendment.

See Order, Doc. No. 17, PageID #77-79; see

also Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

Count II fails

to state a claim.
In Count III, Plaintiff alleges that his First
Amendment rights were chilled when Warden Shinn failed to respond
to his grievances, apparently referring to an element deemed
lacking in his retaliation claims in the FAC.

As noted in the

June 16, 2014 Order, Plaintiff continued to file grievances
despite Shinn’s alleged lack of response, and filed the present
action, which is proceeding.

Plaintiff still alleges

insufficient facts for the court to infer that Shinn’s alleged
refusal to respond to Plaintiff’s grievances chilled his First
Amendment rights.

Count III fails to state a claim.

Moreover, as Plaintiff was told, defendants not named
and claims not realleged in an amended complaint are deemed
waived, see King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),
and an amended complaint generally supersedes the original, see
Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).1

If the court

allows the SAC to supercede the FAC (as it has been limited),

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Claims that are
an amended complaint to
dismissed with leave to
be considered waived.”
Cir. 2012) (en banc).

dismissed without leave to amend need not be repled in
preserve them for appeal, but “claims that have been
amend and are not repled in the amended complaint will
See Lacey v. Maricopa Cnty., 693 F.3d 896, 925-28 (9th

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Plaintiff’s only cognizable claims as alleged against Cline,
Urasaki, and Lidge would be considered waived.
IV.

CONCLUSION

The Second Amended Complaint fails to state a claim and
is DISMISSED.

The First Amended Complaint, Doc. No. 14, Counts

III, IV, and VII, as alleged against Defendants Cline, Urasaki,
and Lidge, remains the operative pleading in this case.

By

separate order, the court will direct the United States Marshal
to effect service on Cline, Urasaki, and Lidge, who will be
required to file an answer.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 24, 2014.

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

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

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