Blankenship v. Shinn et al

Filing 119

ORDER GRANTING DEFENDANT LEE SHELLKO'S MOTION TO DISMISS SECOND AMENDED COMPLAINT re 113 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 03/15/2016. Defendant Lee Shellko's Motion to Dismiss Se cond Amended Complaint, filed on January 27,2016, is HEREBY GRANTED, and the Third Amended Complaint is HEREBY DISMISSED WITH PREJUDICE. There being no remaining claims in this case, the Court DIRECTS the Clerks Office to close this case on April 26, 2016, unless Plaintiff files a motion for reconsideration of this Order by April 19, 2016. (eps)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
MARK A. BLANKENSHIP, FED.
REG. #83718-022,

)
)
)
)
Plaintiff,
)
vs.
)
)
WARDEN D. SHINN, CASE MANAGER )
)
MR. SHELKO, 1-10 JOHN DOE,
)
)
Defendants.
_____________________________ )

CIV. NO. 14-00168 LEK-BMK

ORDER GRANTING DEFENDANT LEE SHELLKO’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT
Before the Court is Defendant Lee Shellko’s (“Defendant
Shellko”) Motion to Dismiss Second Amended Complaint (“Motion”),
filed on January 27, 2016.

[Dkt. no. 113.]

Pro se Plaintiff

Mark A. Blankenship (“Plaintiff”) filed a memorandum in
opposition on February 9, 2016,1 and Defendant filed his reply on
March 2, 2016.

[Dkt. nos. 115, 117.]

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Defendant’s
1

Plaintiff’s memorandum in opposition and his other filings
are not always consecutively paginated. In addition, Plaintiff
often includes medical records and other documents with his
filings without labeling them as exhibits.
The Court will refer
to these filings and documents using the page numbers assigned by
this district court’s electronic case filing system.

Motion is HEREBY GRANTED for the reasons set forth below.
BACKGROUND
The facts of this case are well known to the parties,
and the Court will only repeat those facts that are relevant to
the instant Motion.

On September 30, 2015, the Court issued its

Order Granting Defendants’ Motion for Dismissal or Summary
Judgment of Defendants David Shinn and Lee Shellko (“9/30/15
Order”).2

[Dkt. no. 97.3]

In the 9/30/15 Order, the Court

dismissed with prejudice Plaintiff’s claims brought pursuant to:
the Fourteenth Amendment to the United States Constitution; the
Americans with Disabilities Act; and § 504 of the Rehabilitation
Act.

[9/30/15 Order at 12.]

The Court also dismissed

Plaintiff’s claim brought pursuant to the Eighth Amendment to the
United States Constitution.

The dismissal of the Eighth

Amendment claim was with prejudice as to Defendant Shinn and
without prejudice as to Defendant Shellko.4

[Id.]

The 9/30/15

2

The Court notes that, in the case caption, Defendant
Shellko is identified as “Shelko,” and he was identified as such
in many of the Court’s previous orders. This spelling is
incorrect. See, e.g., Waiver of Service of Summons (“Waiver”),
filed 1/30/15 (dkt. no. 53) (a signed waiver of service of
process of Defendant Shellko in his individual capacity).
Because the Court referred to Defendant Shellko using the proper
spelling in the 9/30/15 Order, the Court will continue to do so
here.
3

The 9/30/15 Order is also available at 2015 WL 5769222.

4

The Court dismissed the Eighth Amendment claim against
Defendant Shinn with prejudice because the Court had addressed
(continued...)
2

Order explained that “[i]t is arguably possible that Plaintiff
could amend his Eighth Amendment claim as to Defendant Shellko.
However, the amended claim must allege the seriousness of
Plaintiff’s medical conditions and Defendant Shellko’s knowledge
of these conditions.”

[Id. at 11.]

Moreover, the Court

“emphasize[d] that it has only granted Plaintiff leave to amend
his Eighth Amendment claim against Defendant Shellko.

This court

has not granted Plaintiff leave to make other changes, such as
adding new parties, claims, or theories of liability.”

[Id.]

The Court gave Plaintiff until November 16, 2015 to
file his second amended complaint.

On October 13, 2015, the

Court received a letter from Plaintiff requesting additional time
because of a pending transfer to a new facility.

[Dkt. no. 99.]

The magistrate judge granted Plaintiff’s request in an entering
order filed on October 19, 2015, and extended Plaintiff’s
deadline to November 23, 2015.

[Dkt. no. 100.]

On November 24,

2015, the Court received another letter from Plaintiff requesting

4

(...continued)
that claim previously, and had already provided Plaintiff with an
opportunity to amend it. See 9/30/15 Order at 5; see also Order
Granting Defendants’ Motion to Dismiss and Order to Show Cause,
filed 12/2/14 (dkt no. 42) (“12/2/14 Order”), at 9. The Court
did not address the claims against Defendant Shellko in his
individual capacity in the 12/2/14 Order because Defendant
Shellko had not been served. [12/2/14 Order at 9.] On January
14, 2015, the magistrate judge “found good cause to facilitate
and expedite service,” [Minutes, filed 1/14/15 (dkt. no. 50),]
and Defendant Shellko waived service on January 23, 2015 [Waiver
at 1].
3

an extension of his filing deadline, again due to issues related
to his transfer to a new facility.

[Dkt. no. 101.]

The Court

granted Plaintiff’s request, and extended his deadline for filing
a second amended complaint to December 23, 2015.

[Dkt. no. 102.]

On November 27, 2015, Plaintiff filed his Second
Amended Complaint.

[Dkt. no. 103.]

In a letter received on

December 7, 2015 (“12/7/15 Letter”), Plaintiff informed the Court
that he was having difficulty getting his legal documents back
after his transfer to a new facility.

[Dkt. no. 106.]

In a

letter received on December 21, 2015 (“12/21/15 Letter”),
Plaintiff informed the Court that many of his legal documents
were returned, and he included a few documents for the Court’s
review.

[Dkt. no. 108.]

In an entering order filed on

January 5, 2016 (“1/5/16 EO”), the Court construed the 12/21/15
Letter as part of Plaintiff’s Second Amended Complaint.
no. 109.]

The Court also noted that:

[Dkt.

it appeared that Plaintiff

had not cured the defects identified in the 9/30/15 Order; and
“[t]he documents that Plaintiff includes with the [Second Amended
Complaint] have either already been submitted to the Court or do
not address the seriousness of Plaintiff’s condition and
Shellko’s knowledge of that condition before Plaintiff’s fall on
June 9, 2012.”

[1/5/16 EO at 2.]

Given Plaintiff’s difficulty

in obtaining his legal documents after his transfer, the Court
gave Plaintiff until February 12, 2016 to revise his Second

4

Amended Complaint.

[Id.]

On January 19, 2016, Plaintiff filed a

second document titled Second Amended Complaint.
Also on January 19, 2016, the Court

[Dkt. no. 110.]

received a letter from

Plaintiff (“1/19/16 Letter”), wherein Plaintiff informed the
Court, inter alia, of newly-discovered health problems.

[Dkt.

no. 111.]
DISCUSSION
I.

1/19/16 Letter
The 1/19/16 Letter requested further settlement

discussions, and questioned whether or not Defendant Shellko’s
counsel, Assistant United States Attorney Thomas Helper, should
represent Defendant Shellko, who is sued is his individual
capacity.

[Id. at 1.]

Defendant Shellko has indicated that he

has no interest in settlement, see dkt. no. 86 (letter from
Mr. Helper, dated July 30, 2015, informing the Court that he
believes that “settlement discussions would be fruitless”), and
“[t]he Court, of course, cannot force an unwanted settlement on
anyone.”

See Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL

1793774, at *11 (N.D. Cal. June 19, 2007).

In addition,

Assistant U.S. Attorneys are statutorily
authorized to defend “all civil actions, suits or
proceedings in which the United States in
concerned.” 28 U.S.C. § 547(2). Moreover,
pursuant to 28 C.F.R. § 50.15(a), a federal
employee “may be provided representation in civil
. . . proceedings in which he is sued . . . in his
individual capacity . . . when the actions for
which representation is requested reasonably
appear to have been performed within the scope of
5

the employee’s employment and the Attorney General
or his designee determines that providing
representation would otherwise be in the interest
of the United States.” Because this action
involves claims against various employees of the
Federal Bureau of Prisons based on alleged
misconduct undertaken by them within the course of
their official duties, this matter certainly falls
within the scope of the statutory and regulatory
authorization.
Tennille v. Quintana, No. 1:09-cv-238-SJM-SPB, 2011 WL 767810, at
*1 (W.D. Pa. Feb. 28, 2011) (alterations in Tennille) (citations
omitted).

This matter, too, “certainly falls within the scope of

the statutory and regulatory authorization.”

See id.

Finally, any suggestion that Plaintiff makes that the
United States Attorney’s Office for the District of Hawai`i
cannot defend Defendant Shellko in this matter due to a conflict,
see 1/19/16 Letter at 1 (“I also object to the U.S. attorney
representing as a conflict.
incorrect.

After all they prosecuted me.”), is

See, e.g., United States v. Bolden, 353 F.3d 870, 869

(10th Cir. 2003) (“[B]ecause disqualifying government attorneys
implicates separation of powers issues, the generally accepted
remedy is to disqualify a specific Assistant United States
Attorney, not all the attorneys in the office.” (alteration,
internal quotation marks, and citation omitted)).

Mr. Helper did

not prosecute Plaintiff,5 and his representation of Defendant

5

In the event Plaintiff is not aware of these facts, the
Court notes that Mr. Helper is an Assistant United States
Attorney in his office’s civil section and does not have any
(continued...)
6

Shellko is legally and ethically appropriate.
II.

Third Amended Complaint
Plaintiff is proceeding pro se, and the Court will

construe the complaint he filed on January 19, 2016 as his Third
Amended Complaint.

See, e.g., Litmon v. Harris, 768 F.3d 1237,

1241 (9th Cir. 2014) (“We construe pro se complaints liberally,
especially in civil rights cases.” (citation omitted)).

In the

9/30/15 Order, the Court reminded Plaintiff that his
second amended complaint must include all of the
allegations that his claim is based upon, even if
he previously presented these allegations in prior
versions of the complaint. Plaintiff cannot
incorporate any part of the prior versions of the
complaint into the second amended complaint by
merely referencing the earlier two documents.
[9/30/15 Order at 11 (emphasis in original).]
this instruction in the 1/5/16 EO.

The Court repeated

See 1/5/16 EO at 2.

The

Third Amended Complaint neither recounts the factual allegations
that allegedly gave rise to Plaintiff’s claim nor states the
actual claim.

The Third Amended Complaint therefore not only

fails to comply with the Court’s previous orders, but it also
fails to comply with the Federal Rules of Civil Procedure.

See

Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for
relief must contain[] a short and plaint statement of the claim
showing that the pleader is entitled to relief.”); Rule 8(d)(1)
5

(...continued)
cases in which he is involved in criminal prosecution on behalf
of the United States.
7

(“Each allegation must be simple, concise, and direct.”); see
also Local Rule LR83.13 (“Pro se litigants shall abide by all
local, federal, and other applicable rules and/or statutes.”).
Again, however, “[t]his Court must ‘construe pro se complaints
liberally and may only dismiss a pro se complaint for failure to
state a claim if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.’”

Caldarone v. Abercrombie, Civil No. 14-00523

LEK-BMK, 2015 WL 1967440, at *2 (D. Hawai`i Apr. 30, 2015)
(quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)).
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. V. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)). When reviewing a motion to dismiss, we
“consider only allegations contained in the
pleadings, exhibits attached to the complaint, and
matters properly subject to judicial notice.”
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007) (per curiam).
Akhtar v. Mesa, 698 F. 3d 1202, 1212 (9th Cir. 2012).

Plaintiff

brings a claim against Defendant Shellko in his individual
capacity, pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), for a violation of the Eighth
Amendment.

See 9/30/15 Order at 2.

Plaintiff alleges that

Defendant Shellko knew of Plaintiff’s medical condition, and
assigned him to a cell on an upper level.

8

As a result, on

June 9, 2012, Plaintiff fell down the stairs and was injured.
The Court previously explained that “[p]rison officials’
deliberate indifference to an inmate’s ‘serious medical needs’ is
a violation of the Eighth Amendment.”

[Id. at 5 (some citations

omitted) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).]
“Deliberate indifference involves two elements:

‘[1] the

seriousness of the prisoner’s medical need[;] and [2] the nature
of the defendant’s response to that need.’”

Pauline v. HCF

Admin., No. CIV. 12-00179 LEK/BMK, 2012 WL 1564500, at *5 (D.
Hawai`i May 2, 2012) (alterations in Pauline) (some citations
omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
Cir. 1992)).
The specific allegations in the Third Amended Complaint
include, inter alia:

Defendant Shellko knew that Plaintiff was

100% disabled, and also knew that Plaintiff had returned to FDC;
a warden told Defendant Shellko that Plaintiff needed to be on a
lower tier in 2010; Plaintiff’s Federal Bureau of Prison (“BOP”)
medical records indicate that he was prescribed morphine as far
back as 2008, and he was prescribed morphine during the time in
question; upon intake at the Federal Detention Center in
Honolulu, Hawai`i (“FDC”), Plaintiff was told he would spend his
first night on a lower tier, and would remain on a lower tier
thereafter; and after Plaintiff fell, a doctor told him “that it
was unbelievable [that Plaintiff] was forced to use steps.”

9

[Third Amended Complaint at 1-3.]

While “[o]n a rule 12(b)(6)

motion to dismiss, all allegations of material fact are taken as
true and construed in the light most favorable to the nonmoving
party,” Jinadasa v. Brigham Young Univ. - Haw., Civil No. 1400441 SOM/BMK, 2015 WL 3407832, at *2 (D. Hawai`i May 27, 2015)
(citing Fed’n of African Am. Contractors v. City of Oakland, 96
F.3d 1204, 1207 (9th Cir. 1996)), “conclusory allegations of law,
unwarranted deductions of fact, and unreasonable inferences are
insufficient to defeat a motion to dismiss.”

Id. (some citations

omitted) (citing Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir. 2001)).

While the Court is sympathetic to

Plaintiff’s medical conditions, the Third Amended Complaint does
not cure the defects identified in the 9/30/15 Complaint.

On

their own, neither Plaintiff’s medical conditions nor his
prescription for morphine establish his inability to go up stairs
or his need for a cell on a lower tier.6

Further, a warden’s

alleged assessment in 2010 that Plaintiff should be assigned to a
lower tier does not prove medical necessity, and it does not
corroborate Plaintiff’s claim that he required a cell on a lower
tier two years later in 2012.

Finally, statements made at

Plaintiff’s intake about his cell assignment and a doctor’s

6

Plaintiff’s assertion that “I was given Rx Morphine +
benzodiazapam before going to Court. That alone is cause to
house inmates on lower tier,” [Third Amended Complaint at 3,] is
unsupported and conclusory.
10

opinion given after Plaintiff’s fall do not prove that Plaintiff
had a serious medical need for a cell on a lower tier before the
fall.7

The Court therefore must agree with Defendant Shellko

that “plaintiff simply fails to provide any medical support for
his claim that he had a serious medical need for a lower tier
assignment or that Shellko was aware of such a need.”8

[Mem. in

Supp. of Motion at 6 (footnote omitted).]

7

As the Court explained supra, the 1/5/16 EO ruled that the
documents Plaintiff attached to the 12/21/15 Letter do not
address the defects identified in the 9/30/15 Order. See 1/5/16
EO at 2. These documents include a statement by a fellow inmate
at FDC that he observed Defendant Shellko, upon seeing Plaintiff
utilizing the stairs by sitting down, tell Plaintiff to “deal
with it.” [12/21/15 Letter at 3.] This statement, however,
relates to an alleged incident that occurred on June 11, 2012 –
after Plaintiff’s fall on June 9, 2012. Plaintiff also included
a medical record that he has previously submitted to this Court,
see dkt. no. 68 at 5, and that does not state that he requires a
cell on the lower level. [12/21/15 Letter at 4.] The other
documents included with the 12/21/15 letter – a statement by a
second inmate at FDC; a request by Plaintiff related to the
grievances he filed at FDC; a medical record dated November 1,
2012; and a letter to Plaintiff’s then-warden regarding his need
for stamps – similarly fail to provide any evidence related to
the defects identified in the 9/30/15 Order. See 12/21/15 Letter
at 5-8.
8

The Third Amended Complaint alleges that Defendant Shellko
“attempt[ed] along with secretary Lincoln to have me charged with
threat to staff – proven or found false by Lieutenant + Counselor
Potts.” [Third Amended Complaint at 4.] Plaintiff elaborates on
these allegations in his memorandum in opposition, where he
states that “the Warden + Shellko wanted my medication taken
away,” and “Shellko got his secretary Ms. Lincoln to file false
allegations against me.” [Mem. in Opp. at 3.] Insofar as
Plaintiff alleges that Defendant Shellko’s actions amount to
retaliation, this claim must be rejected. The 9/30/15 Order only
gave Plaintiff leave to amend his Eighth Amendment claim, and
Plaintiff has not sought leave to file any additional claims.
See 9/30/15 Order at 11.
11

Plaintiff appears to acknowledge that his allegations
lack support, and explains:
proper forms.

“I have NOT been able to obtain the

I have sent over 12 requests with NO response.

ask the Court to PLEASE accept this as my Complaint.”
Amended Complaint at 1 (emphasis in original).]
understands Plaintiff’s frustration.

I

[Third

The Court

Even after opportunities to

amend and specific instructions from the Court, however,
Plaintiff does not identify the nature or subject of the
requested information, nor does he explain how this information
would help him state a sufficient Eighth Amendment claim.

The

9/30/15 Order informed Plaintiff that “if the second amended
complaint fails to cure the defects identified in this Order,
this Court will dismiss the second amended complaint with
prejudice.”

[9/30/15 Order at 11.]

The Third Amended Complaint

fails to state a claim upon which relief can be granted; the
Court has provided Plaintiff with many opportunities to amend the
complaint; and Plaintiff has been unable to cure the defects in
the complaint.9

It is “absolutely clear” to the Court that the

9

On March 14, 2016, the court received a letter from
Plaintiff titled Memorandum to Reply to Motion to Dismiss
(“3/14/16 Letter”). [Dkt. no. 118.] Local Rule 7.4 provides
deadlines for a non-movant’s memorandum in opposition to a motion
and for a movant’s reply. Local Rule 7.4 also states that “[n]o
further or supplemental briefing shall be submitted without leave
of court.” The Court has not given Plaintiff leave to file a
supplemental brief. In addition, the Court has previously warned
Plaintiff about filing supplemental memoranda without leave of
the Court. See EO: Court Order Directing Defendants to File a
(continued...)
12

defects cannot be cured, and the Third Amended Complaint is
therefore DISMISSED WITH PREJUDICE.

See, e.g., Lucas v. Dep’t of

Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely
clear that no amendment can cure the defect, however, a pro se
litigant is entitled to notice of the complaint’s deficiencies
and an opportunity to amend prior to dismissal of the action.”
(citations omitted)).
CONCLUSION
On the basis of the foregoing, Defendant Lee Shellko’s
Motion to Dismiss Second Amended Complaint, filed on January 27,
2016, is HEREBY GRANTED, and the Third Amended Complaint is
HEREBY DISMISSED WITH PREJUDICE.

There being no remaining claims

in this case, the Court DIRECTS the Clerk’s Office to close this
case on April 26, 2016, unless Plaintiff files a motion for
reconsideration of this Order by April 19, 2016.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 15, 2016.

9

(...continued)
Response to Plaintiff’s Supplemental Memorandum in Opposition to
Defendant’ Motion for Dismissal or Summary Judgment, filed
8/14/15 (dkt. no. 89), at 1 (“[T]his court cautions Plaintiff
that, if he files supplemental memoranda in the future without
obtaining permission to do so, this Court may strike the
supplemental memoranda.” (emphasis omitted)). Even assuming,
arguendo, that the Court had given Plaintiff leave to file a
supplemental brief, the arguments in the 3/14/16 Letter do not
cure the defects identified in the 9/30/15 Order. The Court
therefore STRIKES the 3/14/16 Letter.
13

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

MARK A. BLANKENSHIP VS. WARDEN D. SHINN, ETC., ET AL; CIVIL 1400168 LEK-BMK; ORDER GRANTING DEFENDANT LEE SHELLKO’S MOTION TO
DISMISS SECOND AMENDED COMPLAINT

14