Jones v. Shinn et al

Filing 17

ORDER DISMISSING COMPLAINT IN PART 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/21/2014. ~ 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). 2. Count I, naming Warden Shinn and pertaining to the provision of contaminated cereal and denial of medical care, and Count II, naming Doctor Ackley and alleging the denial of medical care, state cognizable claims for relief and are appropriat e for service. 3. Claims against all Defendants in their official capacities, and claims in Count III against unidentified cereal manufacturers are DISMISSED with prejudice. 4. All other claims in Counts I, III, IV, and V are DISMISSED without preju dice for failure to state a claim. 5. Plaintiff may file an amended complaint on or before August 4, 2014, curing the specific deficiencies noted in Counts I, III, IV, and V, if possible. In the alternative, Plaintiff may stand on his claims against Defendants Shinn and Doctor Ackley in Counts I and II. If Plaintiff elects to stand on these claims, he must notify the court of his decision on or before August 4, 2014. If Plaintiff fails to notify the court or file a timely amended complaint, the court will order these claims and this Order served on Defendants Warden Shinn and Doctor Ackley. 6. The Clerk of Court is DIRECTED to forward a copy of the court's prisoner civil rights complaint and instructions to Plaintiff so that he may c omply with this order. (ecs, )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). Participant Opherro G. Jones was served by first class mail on 7/22/2014 with copy of prisoner's civil rights complaint and instructions.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OPHERRO GARY JONES, FED.
REG. #02902-122,
Plaintiff,
vs.
WARDEN SHINN, DOCTOR ACKLEY,
KITCHEN STAFF/DRY CEREAL
MANUFACTURER JOHN DOE 1-5,
JANE DOE 1-5,
Defendants.
____________________________

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CIV. NO. 14-00231 LEK-BMK
ORDER DISMISSING COMPLAINT IN
PART

ORDER DISMISSING COMPLAINT IN PART
Before the court is pro se Plaintiff Opherro Gary
Jones’ prisoner civil rights Complaint.

See Doc. No. 1.

Plaintiff is incarcerated at the Federal Detention CenterHonolulu (“FDC-Honolulu”) awaiting sentencing.
v. Esera, et al., Cr. No. 13-00860(3) LEK.

See United States

Plaintiff alleges

that FDC-Honolulu Warden David Shinn, FDC-Honolulu physician
Doctor Ackley, unidentified FDC-Honolulu kitchen staff, and
unidentified cereal manufacturers/suppliers violated his
constitutional rights under the Eighth Amendment.

Plaintiff

names all Defendants in their official and individual capacities
and seeks compensatory and injunctive relief.
The court has screened the Complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b)(1), and finds that it states a
cognizable claim for relief in part.

Plaintiff’s claims against

all Defendants in their official capacities and against the

unidentified cereal manufacturers are DISMISSED with prejudice.
Plaintiff’s claims against the unidentified FDC-Honolulu kitchen
workers, and certain claims against Warden Shinn as discussed in
detail below, are DISMISSED without prejudice.

Service is

appropriate for Plaintiff’s claims against Warden Shinn and
Doctor Ackley for the denial of medical care, and against Warden
Shinn regarding the provision of contaminated food to inmates.
I.

STATUTORY SCREENING

The court must screen all civil actions brought by
prisoners regarding prison conditions or seeking redress from a
governmental entity, officer, or employee.

28 U.S.C. § 1915A(a).

Complaints or claims that are frivolous, malicious, fail to state
a claim, or seek relief from a defendant who is immune from such
relief must be dismissed.

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).
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.”

2

To

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
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
3

by lawyers.”

Erickson, 551 U.S. at 94.

Leave to amend should be

granted unless it appears that amendment is futile.

Lopez v.

Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II. DISCUSSION
Plaintiff sets forth five claims, each broadly alleging
that Defendants violated the Eighth Amendment.
A.

Official Capacity Defendants
Plaintiff alleges jurisdiction under 42 U.S.C. § 1983.

Because he is a federal prisoner asserting civil rights 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).

“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).
To state a cognizable Bivens claim, Plaintiff must
allege that: (1) a right secured under the United States
Constitution was violated, and (2) the violation was committed by
a federal actor.

Id.; Karim–Panahi v. Los Angeles Police Dept.,

839 F.2d 621, 624 (9th Cir. 1988); Daly–Murphy v. Winston, 837
F.2d 348, 355 (9th Cir. 1988).

Bivens does not authorize suits

against the government or its agencies for monetary relief.

FDIC

v. Meyer, 510 U.S. 471, 486 (1994); Ibrahim v. Dept. of Homeland
4

Sec., 538 F.3d 1250, 1257 (9th Cir. 2008).

A Bivens action may

be brought only against the responsible federal official in his
or her individual capacity.

Plaintiff’s claims against

Defendants in their official capacities are DISMISSED with
prejudice.
B.

Count III: Cereal Manufacturers
Plaintiff alleges that unidentified private cereal

manufacturers violated the Eighth Amendment by supplying cereal
contaminated with maggots to the FDC-Honolulu.

Bivens does not

provide a remedy for wrongs allegedly committed by a private
entity or its employees in violation of the Eighth Amendment.
See Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (“‘[T]he
purpose of Bivens is to deter the officer,’ not the agency.”)
(quoting Meyer, 510 U.S. at 486); Minneci v. Pollard, 132 S. Ct.
617, 626 (2012) (holding a prisoner cannot bring a Bivens action
against an employee of a private entity for damages pursuant to
the Eighth Amendment).

“[W]here the conduct allegedly amounts to

a violation of the Eighth Amendment, and where that conduct is of
a kind that typically falls within the scope of traditional state
tort law . . . , the prisoner must seek a remedy under state tort
law.”).

Minneci, 132 S. Ct. at 626.
Plaintiff may raise his Eighth Amendment claim against

the private cereal manufacturers or their employees as a tort

5

claim in state court, but it is not cognizable under Bivens, and
is DISMISSED.
C.

Count III: Unnamed Kitchen Workers
Plaintiff alleges that unidentified FDC-Honolulu

kitchen workers violated the Eighth Amendment by serving cereal
that was allegedly contaminated with maggots every day between
September 24, 2013, and March 24, 2014.

Plaintiff claims these

kitchen workers knew there were maggots in the cereal because
they parceled it onto the inmate trays.
The Eighth Amendment protects prisoners from inhumane
conditions of confinement.

Morgan v. Morgensen, 465 F.3d 1041,

1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832
(1994)).

Prison officials have a “duty to ensure that prisoners

are provided with adequate shelter, food, clothing, sanitation,
medical care, and personal safety.”

Johnson v. Lewis, 217 F.3d

726, 731 (9th Cir. 2000) (citations omitted).

To establish a

violation of this duty, a prisoner must satisfy both an objective
and subjective component.
298 (1991).

See Wilson v. Seiter, 501 U.S. 294,

First, a prisoner must demonstrate an objectively

serious deprivation, one that amounts to the denial of “the
minimal civilized measures of life’s necessities.”

Keenan v.

Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v.
Chapman, 452 U.S. 337, 346 (1981)).

Second, a prisoner must

demonstrate that prison officials acted with “deliberate
6

indifference.”
733.

Wilson, 501 U.S. at 303; Johnson, 217 F.3d at

A prison official is liable for denying an inmate humane

conditions of confinement only if “the official knows of and
disregards an excessive risk to inmate health and safety; 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, 511 U.S. at 837.

Knowingly serving an inmate cereal contaminated by
maggots every day for six months sufficiently alleges an
objectively serious deprivation.

Cf. LeMaire v. Maass, 12 F.3d

1444, 1456 (9th Cir. 1993) (finding that prison food that is
occasionally contaminated with foreign objects or served cold is
not an objectively serious deprivation).

Plaintiff, however,

fails to allege sufficient facts to raise a plausible inference
that the FDC-Honolulu kitchen workers were acting under color of
federal law or were subjectively aware the cereal was
contaminated and posed a substantial risk of serious harm, and
served it nonetheless, with deliberate indifference to his
health.
Plaintiff provides no identifying details regarding the
kitchen workers, such as whether they were FDC-Honolulu employees
or inmate workers, who are not federal agents subject to suit
under Bivens.

He also alleges no facts showing that they knew

the cereal was contaminated and served it with deliberate

7

indifference to his health.

Plaintiff simply alleges that

because the cereal was supplied in bulk and parceled out by the
workers onto inmate trays, they must have seen the maggots.
Plaintiff states that he closely inspected his cereal daily, and
if he discovered a maggot, he removed it.

Plaintiff’s careful

inspection of his own cereal does not lead to the inference that
the FDC-Honolulu kitchen workers also saw the maggots as they
scooped the cereal onto hundreds of trays, and continued serving
it knowing it posed a substantial risk of harm.

Plaintiff

submits no facts showing the kitchen workers were actually aware
of the allegedly contaminated cereal until on or about March
2014, when he says Lieutenant Cline saw the maggots and sent the
cereal back to the kitchen.

Compl., Doc. No. 1, PageID #5.

Plaintiff also fails to explain why he waited to grieve the
allegedly contaminated cereal until April 23, 2014, if he saw the
maggots in his cereal every day for six months.1

Id., PageID #16

(Pl.’s grievance #776595-F1).
Moreover, if Plaintiff is alleging that all FDCHonolulu kitchen workers conspired to violate his rights by
serving contaminated cereal to inmates, he must do so with

1

The purpose behind requiring an inmate to exhaust his
complaints is to allow “prison officials an opportunity to
resolve disputes . . . before being haled into court.” Jones v.
Bock, 549 U.S. 199, 204 (2007). Waiting six months to file a
grievance, after the issue is resolved, defeats this purpose.
8

particularity.

Conclusory allegations of a conspiracy that are

unsupported by material facts do not state a claim.

See Simmons

v. Sacramento Cnty. Superior Court, 318 F.3d 1156, 1161 (9th Cir.
2003).

As the Ninth Circuit recently explained:
A civil conspiracy is a combination of two or
more persons who, by some concerted action,
intend to accomplish some unlawful objective
for the purpose of harming another which
results in damage. To prove a civil
conspiracy, the plaintiff must show that the
conspiring parties reached a unity of purpose
or a common design and understanding, or a
meeting of the minds in an unlawful
arrangement. To be liable, each participant
in the conspiracy need not know the exact
details of the plan, but each participant
must at least share the common objective of
the conspiracy. A defendant’s knowledge of
and participation in a conspiracy may be
inferred from circumstantial evidence and
from evidence of the defendant’s actions.

Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012)
(quoting Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th
Cir. 1999) (further citations and quotations omitted).
Conspiracy is not a separate cause of civil rights action, it
only enlarges the number of cognizable defendants.

Id.

Plaintiff’s conclusory allegations against the FDCHonolulu kitchen workers are insufficient to satisfy Iqbal’s
pleading standards, see Lacey, 693 F.3d at 935, and are DISMISSED
for failure to state a claim.

9

D.

Claims Against Warden Shinn: Counts I, IV, V
Plaintiff has been confined in the FDC-Honolulu special

housing unit (SHU) since on or about September 24, 2013,
classified as an Administrative Detention inmate.2

He alleges

Warden Shinn imposed unconstitutional conditions of confinement
in the SHU in retaliation for Plaintiff’s gang-related
racketeering charges, an attack on a prison guard in Arizona (in
which Plaintiff was not involved) (Count I), and for a hunger
strike (in which Plaintiff did not participate) (Count IV).
Specifically, he alleges Warden Shinn violated the Eighth
Amendment by restricting commissary purchases, limiting personal
phone calls and changes of clothing, knowingly allowing
contaminated cereal to be served, denying him medical care, and
failing to follow FDC-Honolulu regulations.
1.

Count I: Eighth Amendment Claims re: Restricted
Commissary, Changes of Clothing, Telephone Privileges
Prison conditions do not violate the Eighth Amendment

unless they amount to “unquestioned and serious deprivations of
basic human needs” or the “minimal civilized measure of life’s

2

Plaintiff was indicted on gang-related racketeering
charges on September 12, 2013, transferred to FDC-Honolulu on
September 24, 2013, and pled guilty on March 28, 2014, to one
count of racketeering conspiracy in violation of 18 U.S.C.
§ 1962(d). See United States v. Esera, et al., Cr. No. 1300860(3); see also, United States v. Ritchie, 342 F.3d 903, 908
(9th Cir. 2003) (permitting judicial notice of public records in
federal criminal proceedings).
10

necessities.”

Rhodes, 452 U.S. at 347.

“[O]nly the unnecessary

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

Whitely v.

Albers, 475 U.S. 312, 319 (1986) (internal quotations and
citations omitted).
“The 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).

Conditions of confinement must be more

than uncomfortable, however, to violate the Eighth Amendment.
See Rhodes, 452 U.S. at 347.

Although only allowing Plaintiff a

change of clothes every five days for three months may have been
unpleasant, it did not inflict pain or deprive him of the minimal
necessities of life.

Similarly, limiting an inmate’s purchases

from the prison commissary, without more, does not deny an inmate
the minimal necessities of life or violate the Eighth Amendment.
Further, allowing a prisoner only monthly personal
telephone calls does not violate the First or Eighth Amendments,
or due process.

See Valdez v. Rosenbaum 302 F.3d 1039, 1045-47

(9th Cir. 2002) (holding that restrictions on an inmate’s
telephone access does not amount to impermissible punishment and
that prisoners have no liberty interest in unlimited access to a
telephone); see also Overton v. Bazzetta, 539 U.S. 126, 131
(2003) (discussing inmates’ limited rights to freedom of

11

association, and stating, “[a]n inmate does not retain rights
inconsistent with proper incarceration”).

Prisoners have “the

right to communicate with persons outside prison walls,” but a
telephone is only one means of exercising this right.

Id. at

1048; see also 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’s Eighth Amendment claims regarding limited
commissary purchases, monthly personal telephone calls, and
limited changes of clothing for three months are DISMISSED for
failure to state a claim.
2.

Count I: Eighth Amendment Claim re: Contaminated
Cereal
Plaintiff states that Warden Shinn restricted the SHU

inmates’ full commissary purchases after an inmate complained
about the alleged denial of weekly personal telephone calls.

He

says Shinn did this, “despite complaints of the food and
breakfast of cold dry cereal with magget in it.”
No. 1, PageID #5.

Compl., Doc.

Plaintiff says he personally asked Warden

Shinn if he could supplement his food provisions from the
commissary “because of the food problems.”

Id.

A reasonable

inference is that Warden Shinn was aware that the dry cereal
being served in the SHU was contaminated with maggots and did
nothing to remedy the situation.
12

This states a cognizable claim

that Warden Shinn acted with deliberate indifference to
Plaintiff’s health and safety.

This claim shall be served on

Warden Shinn.
3.

Count I: Eighth Amendment Claim re: Denial of Medical
Care
Prison officials violate the constitution when they are

“deliberately indifferent” to an inmate’s serious medical needs.
See Farmer, 511 U.S. at 834; 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.”
1091, 1096 (9th Cir. 2006).

Jett v. Penner, 439 F.3d

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.

Plaintiff says he had the flu and acute pain in his
throat and chest, but was given no medical attention for
approximately three months after he transferred to FDC-Honolulu.
Plaintiff alleges that Warden Shinn was informed “on numerous
occasions . . . about [his] continuous request for medical
13

attention, s[]ince 9/24/2013.”

Compl., Doc. No. 1, PageID #5.

Plaintiff alleges he notified Shinn regarding his medical needs
when he submitted “numerous administrative remedies . . .
thr[ough] Counsel[o]r Potts,” but he “was not seen [by medical
providers] till Jan. 2014.”

Id.

These allegations support a plausible inference that
Warden Shinn knew that Plaintiff was suffering from potentially
serious medical conditions that posed a risk of further serious
injury and that he was being denied medical attention, yet did
nothing to ensure that Plaintiff received medical care.
Plaintiff is entitled to offer evidence in support of this claim.
Count I, regarding the alleged denial of medical care for three
months states a claims and shall be served on Warden Shinn.
4.

Count I: Retaliation
Plaintiff alleges Warden Shinn imposed the allegedly

unconstitutional conditions of confinement discussed above in
retaliation for an inmate’s assault on a guard in Arizona, and
because of Plaintiff’s gang-related federal charges.

See Compl.,

Doc. No. 1, PageID #5 (“[I] asked Warden Shinn why I’m being
treated like this[.]

Warden Shinn stated[,] what did I expect

after what happen [sic] in Arizona (assault on staff)[.]
him I was not even in that Facility ‘ever.’

I told

He Warden Shin

stated ‘well’ and said, what[’]s on my indictment[?] and walked
away.”).

14

A viable prison retaliation claim “entails five basic
elements: (1) An assertion that a [prison official] 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 [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 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).
Plaintiff fails to allege that Warden Shinn imposed
unconstitutional conditions of confinement in the SHU, on him

15

personally or SHU inmates in general, based on Plaintiff’s
protected conduct.

A more plausible inference is that Warden

Shinn had reasonable concerns regarding Plaintiff and seventeen
co-defendants’ arriving at FDC-Honolulu on gang-related
racketeering charges for conduct allegedly committed while they
were incarcerated.

See Indictment, Cr. No. 13-00860, Doc. No. 1.

Shinn’s reference to the staff assault in Arizona supports this
concern (and suggests that attack may have been gang-related).
Being a gang member or associating with gang members is not
protected conduct.
Plaintiff also fails to assert how these alleged
restrictions at the SHU chilled Plaintiff’s exercise of protected
rights.

He admits he filed “numerous administrative remedies,”

spoke with Counselor Potts and Warden Shinn personally, and filed
the present action.

He fails to allege any facts showing that

any protected activity was chilled.

Rather, Plaintiff’s

statements suggests that restrictions in the SHU were imposed to
advance the legitimate correctional goal of discouraging illicit
gang activity in the prison.

To the extent Plaintiff alleges

Warden Shinn denied him medical care in retaliation for his gangmember status or charges, this claim is nothing more than a
conclusory assertion devoid of supporting facts.

Plaintiff’s

retaliation claims in Count I against Warden Shinn fail to state
a claim and are DISMISSED.

16

5.

Count IV: Retaliation for Hunger Strike
Plaintiff alleges that, on May 11, 2014, Warden Shinn

rewrote FDC-Honolulu’s SHU regulations to restrict Administrative
Detention inmates’ personal telephone calls to once monthly in
retaliation for a March 28, 2014, hunger strike in which
Plaintiff did not participate.3

See Compl., Doc. No. 1, PageID

#11.
Because Plaintiff asserts that he did not participate
in the hunger strike, he technically concedes that he did not
engage in the protected conduct that allegedly resulted in
retaliation.

Plaintiff fails to allege that Shinn’s allegedly

retaliatory act chilled the exercise of Plaintiff’s protected
rights or resulted in other actionable harm to him.
408 F.3d at 568; Resnick, 213 F.3d at 449.

See Rhodes,

As discussed above,

Plaintiff has no right to unlimited personal telephone calls and
therefore suffered no constitutional harm from this restriction.
Moreover, Plaintiff filed his Complaint three days after the
restriction was allegedly put into effect throughout the SHU.

It

is impossible to infer that this restriction had a chilling
effect on Plaintiff’s protected conduct.

Plaintiff also fails to

plead the absence of any legitimate correctional goals.
3

Even

These dates appear to conflict with those in Count I,
where Plaintiff intimates that Warden Shinn’s alleged
retaliation, including limited telephone calls, began much
earlier and was based on Plaintiff’s charges and alleged attacks
at another prison.
17

accepting that Warden Shinn indiscriminately punished all SHU
inmates for the hunger strike, Plaintiff fails to state a
retaliation claim in Count IV.
a.

Violation of Prison Rules

To the extent Plaintiff claims Warden Shinn violated
his civil rights when he allegedly amended FDC-Honolulu
guidelines to restrict all SHU inmates’ personal telephone calls,
he fails to state a claim.

The violation of a prison rule is not

cognizable under Bivens, because Bivens actions provide relief
for violations of the United States Constitution or laws of the
United States only, not for the violation of prison rules.

See

Carlson v. Green, 446 U.S. 14, 18 (1980) (allowing Bivens action
against federal actors for alleged violation of Eighth
Amendment).
Moreover, the rule Plaintiff refers to in support of
his alleged right to weekly personal telephone calls states only,
“To the extent practical, inmates in Administrative Detention
shall be provided with the same general privileges as inmates in
general population.”

See Compl., Doc. No. 1, PageID #9.

This

language is discretionary and applies only when “practical.”
This provision also states that “Inmates in the Special Housing
Unit are authorized one phone call every thirty days, provided
the inmate does not have a current phone restriction.”

18

Id.

Plaintiff asserts that he is in the SHU, and therefore, he is
entitled to only monthly personal telephone calls, not weekly.
Plaintiff fails to state a cognizable retaliation claim
against Warden Shinn in Count IV and it is DISMISSED.
6.

Count V: Eighth Amendment Violation for Slip and Fall
Plaintiff claims that on or about April 23, 2014, he

fell and injured himself when he stepped from his shower, because
water accumulated on the ground outside of the shower.

Plaintiff

alleges that Warden Shinn violated the Eighth Amendment when he
failed to “abide by safety regulations” and did not ensure that
shower mats or safety strips were placed outside the shower.
Compl., Doc. No. 1, PageID #12.
“[T]o show an Eighth Amendment violation, a prisoner
must typically show that a defendant acted, not just negligently,
but with ‘deliberate indifference.’”
(quoting Farmer, 511 U.S. at 834)).

Minneci, 132 S. Ct. at 625
Plaintiff alleges no facts

suggesting that Warden Shinn deliberately withheld safety mats or
shower strips from Plaintiff’s cell with subjective indifference
to his safety.

At most, Plaintiff’s claim suggests negligence or

gross negligence.

Plaintiff fails to state a violation of the

Eighth Amendment regarding his slip and fall in the FDC-Honolulu
shower and this claim is DISMISSED.

19

a.

Federal Tort Claim Act

Although this court must “continue to construe pro se
filings liberally,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010), it may not “supply essential elements of the claim that
were not initially pled.”

Ivey v. Bd. of Regents of the Univ. of

Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

“Courts should not

undertake to infer in one cause of action when a complaint
clearly states a claim under a different cause of action,” and
should review a complaint as it is pled.
189 F.3d 999, 1001 (9th Cir. 1999).

Bogovich v. Sandoval,

The court will not construe

this claim as brought under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671, et seq., but he may reallege it as such.
Plaintiff is notified, however, that the FTCA requires
timely exhaustion of administrative remedies with the appropriate
federal agency before commencement of a tort action against the
government.

28 U.S.C. § 2675(a); McNeil v. United States, 508

U.S. 106, 113 (1993).

Plaintiff’s receipt for filing a grievance

about this accident shows that prison officials had until May 28,
2014, two weeks after Plaintiff commenced this action, to respond
to his grievance.
#778810-F1).

See Compl., Doc. No. 1, PageID # 17 (Grievance

Because prison officials had not yet responded to

Plaintiff’s grievance, he neither fully exhausted his claim
within the meaning of the Prison Litigation Reform Act nor

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pursuant to the FTCA, before he commenced this action.

See 28

U.S.C. § 2675(a); 42 U.S.C. § 1997e(a).
E.

Count II: Doctor Ackley
Plaintiff alleges that FDC-Honolulu physician Doctor

Ackley refused to treat him for the flu and acute pain in his
throat and chest from September 2013 until January 2014, despite
numerous requests for medical care.

Plaintiff alleges that

Doctor Ackley told him, “as long as [you are] in SHU, [you] will
not be getting medical attention.”

Compl., Doc. No. 1, PageID

#6.
Accepting that severe chest and throat pain, and
untreated flu symptoms for three months are serious medical
conditions, and that the failure to treat Plaintiff caused him to
suffer and could have resulted in further harm, Plaintiff
sufficiently states an Eighth Amendment violation against
Dr. Ackley.

See Jett, 439 F.3d at 1096 (9th Cir. 2006) (delay

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

Count III shall be served on Doctor

Ackley.
III

LEAVE TO AMEND

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

Plaintiff may file an amended complaint on or before

August 4, 2014, curing the specific deficiencies noted in those
claims that are not dismissed with prejudice, if possible.
21

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.

It must be designated

as the “First Amended Complaint,” and be retyped or rewritten in
its entirety on court-approved forms; it may not incorporate any
part of the original or complaint by reference without court
approval.4

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.”
at 928.5

Id.

Plaintiff is further reminded that an amended

complaint’s allegations may not “contradict[] any of the
allegations of [the] original complaint,” or allege facts
inconsistent with the original pleading.

Reddy v. Litton Indus.,

Inc., 912 F.2d 291, 296-97 (9th Cir. 1990).
In the alternative, Plaintiff may elect to proceed with
Count I against Warden Shinn, to the extent it alleges Shinn knew
yet did nothing about the allegedly contaminated food and denial
of medical care, and Count II against Doctor Ackley.

If

4

Plaintiff must legibly print or type his claims only on
the lines provided and use additional pages if necessary.
Plaintiff may not write between the lines in cramped, tiny print
to avoid appending extra pages to his compliant, as in the
original Complaint.
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).
22

Plaintiff elects to proceed only on these claims against
Defendants Shinn and Ackley, he should notify the court on or
before August 4, 2014.
If Plaintiff fails to either notify the court of his
intent to stand on these claims or to timely amend the complaint
or on or before August 4, 2014, the court will direct service of
these claims only on Defendants Shinn and Ackley, and the
remaining claims and Defendants will remain dismissed.
IV.
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).
2.

Count I, naming Warden Shinn and pertaining to the

provision of contaminated cereal and denial of medical care, and
Count II, naming Doctor Ackley and alleging the denial of medical
care, state cognizable claims for relief and are appropriate for
service.
3.

Claims against all Defendants in their official

capacities, and claims in Count III against unidentified cereal
manufacturers are DISMISSED with prejudice.
4.

All other claims in Counts I, III, IV, and V are

DISMISSED without prejudice for failure to state a claim.
5.

Plaintiff may file an amended complaint on or

before August 4, 2014, curing the specific deficiencies noted in
23

Counts I, III, IV, and V, if possible.

In the alternative,

Plaintiff may stand on his claims against Defendants Shinn and
Doctor Ackley in Counts I and II.

If Plaintiff elects to stand

on these claims, he must notify the court of his decision on or
before August 4, 2014.

If Plaintiff fails to notify the court or

file a timely amended complaint, the court will order these
claims and this Order served on Defendants Warden Shinn and
Doctor Ackley.
6.

The Clerk of Court is DIRECTED to forward a copy of

the court’s prisoner civil rights complaint and instructions to
Plaintiff so that he may comply with this order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 21, 2014.

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

Jones v. Shinn, 1:14-cv-00231 JMS/BMK; 2014 scrng J:\Denise's Draft Orders\LEK\Jones
14-231 LEK (dsm in part, ord svc).wpd

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