Marks v. State of Hawaii, Department of Public Safety et al

Filing 16

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO28 U.S.C. §§ 1915(e)(2) & 1915A. Signed by JUDGE HELEN GILLMOR on 4/28/2015. ~ (1) The Complaint is DISMISSED IN PART for failure to state a claim for the reasons de tailed above. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). Specifically, Marks' federal claims against DPS are dismissed. Marks Due Process, Equal Protection, and Supervisor Liability claims against Defendants Ioane and Kimoto are DISMISSED with leave granted to amend. (2) Marks is GRANTED leave to file an amended complaint curing the deficiencies noted above, if possible, on or before June 15, 2015. Failure to timely amend the Complaint and cure its pleading deficiencies will result in dismissal of Marks federal causes of action against Ioane and Kimoto with prejudice for failure to state a claim. (3) In the alternative, Marks may NOTIFY the court in writing on or before June 15, 2015, that he elects to voluntarily dismiss his f ederal claims with prejudice. If Marks chooses this option, this action will be remanded to the First Circuit Court, State of Hawaii. (4) The Clerk is directed to mail Marks court forms for a prisoner civil rights complaint so that he can comply with the directions in this Order. If he amends his Complaint, Marks need not resubmit his exhibits. (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). Participants (Donald Marks) who is not registered to receive electronic notifications was served by first class mail on 4/29/2015, prisoner civil rights complaint form with instructions included.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DONALD B. MARKS, #A0199365,

)
)
Plaintiff,
)
)
vs.
)
)
HAWAII DEP’T OF PUBLIC
)
SAFETY, JOHN IOANE, SHARI
)
KIMOTO,
)
)
)
Defendants.
____________________________ )

CIV. NO. 14-00571 HG/BMK
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND PURSUANT TO 28
U.S.C. §§ 1915(e)(2) & 1915A

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO
28 U.S.C. §§ 1915(e)(2) & 1915A
Before the court is pro se Plaintiff Donald B. Marks’
prisoner civil rights complaint.

Marks is currently incarcerated

at the Halawa Correctional Facility (“HCF”), although he was
housed at the Saguaro Correctional Center (“SCC”), in Eloy,
Arizona, when he filed this action in the Circuit Court of the
First Circuit, State of Hawaii (“state circuit court”).

Marks

names three defendants: the Hawaii Department of Public Safety
(“DPS”), its Mainland & FDC Branch Administrator Shari Kimoto
(“Kimoto”), and its Mainland & FDC Branch Contract Monitor John
Ioane (“Ioane”) (collectively, “Defendants”).

Ioane and Kimoto

are named in their official and individual capacities.
Plaintiff Marks claims Defendants violated his due
process and equal protection rights as guaranteed by the
Fourteenth Amendment to the U.S. Constitution, and Article I,
Sections Two, Three, and Five of the Hawaii Constitution.

See

Compl., Doc. No. 1-1.

Marks further alleges that Defendants

violated Hawaii Revised Statutes (“Haw. Rev. Stat.”), sections
92F-15,92F-27, and DPS policies and procedures.

Id.

Marks’ Complaint is DISMISSED for failure to state a
cognizable claim for relief against DPS, Kimoto, and Ioane.
28 U.S.C. §§ 1915(e)(2) & 1915A(b).

See

Marks is granted leave to

amend to correct the Complaint’s deficiencies on or before June
15, 2015.
In the alternative, Marks may voluntarily dismiss his
federal claims against Ioane and Kimoto with prejudice, the court
will decline supplemental jurisdiction over his state law claims,
and remand this action to the state circuit court.
§ 1367(c)(3).

See 28 U.S.C.

If Marks chooses this alternative, he must notify

the court in writing of his decision on or before June 15, 2015.
I.
A.

BACKGROUND

Procedural History
On or about November 8, 2004, the state circuit court

sentenced Marks to a term of life without parole after he pled no
contest to second-degree murder.1

See Hawaii SAVIN, available

at: https://www.vinelink.com/vinelink (last visited Apr. 7, 2015,

1

The court takes judicial notice of this public
information. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir.
2007) (court may take judicial notice of proceedings in other
courts if they have a direct relation to the matters at issue);
Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012); Fed.
R. Evid. 201(b).
2

indicating “LIFE WITHOUT PAROLE”).

Marks’ sentence has not been

overturned, reversed, or modified to date.

Id.

Marks is

currently challenging his sentence in the state circuit court.
See Marks v. Hawaii, S.P.P. No. 14-1-0008 (Haw. 1st Cir. 2014)
(pending on appeal in CAAP 14-1-0001319).
While Marks was incarcerated at SCC, on or about May 9,
2012, SCC Assistant Warden (“AW”) Ben Griego charged Marks with
two SCC rule violations: (1) “C-9 Failure to Follow,” and (2) “C12 Hindering,” for Marks’ submitting three grievances directly to
the SCC Food Service Manager (“FSM”) Paul Parker, rather than to
AW Griego.

Compl., Doc. No. 6-1, PageID #159-62, #201.

Marks

alleges he was trying to informally resolve FSM Parker’s alleged
failure to provide him with a special kosher menu during the 2012
Passover week.
detention.

Id.

Marks was immediately moved to pre-hearing

On May 14, 2012, he received written notice of the

charges and was notified that the disciplinary hearing would take
place the next day.

See id., PageID #201.

On May 15, 2012, the hearing was held.
#201.

Id., PageID

SCC Disciplinary Hearing Officer (“DHO”) Holley found

Marks guilty of both rule violations, based on the content of
Marks’ grievances to FSM Parker and AW Griego’s statements.
PageID #202.

Id.,

DHO Holley sanctioned Marks to thirty days

disciplinary segregation, calculated from May 9, 2012, the date
Marks entered pre-hearing detention.

3

Id.

Marks signed the

Hearing Information form explaining the basis for DHO Holley’s
finding of guilt, and indicated that he wanted to appeal.

Marks

claims SCC officials never responded to his request to appeal.
See Doc. No. 6-1, PageID #169 and #202.

Marks was released from

segregation on or about June 8, 2012.
On June 20, 2012, Ioane added an “Incident Detail
Report” to Marks’ DPS central file, incorporating Marks’ guilty
finding in the SCC disciplinary proceedings.
#272.

See id., PageID

In doing so, Ioane converted the SCC hindering charge to

an allegedly equivalent DPS hindering charge as required by DPS
policy.

See DPS Policies and Procedures Manual (“PPM”), “High

Misconduct Violations,” COR.13.03.4.3a.7(12);2 available at:
http://dps.hawaii.gov/wp-content/uploads/2014/12/COR.13.03.pdf.
The SCC and DPS hindering charges both permit thirty-days
segregation as a sanction.

Marks asserts the charges are not

equivalent, arguing FSM Parker is not a public servant and that
he did not “physically” obstruct or hinder Parker in his duties.
Marks next claims that Ioane increased his DPS
classification level from 19 points to 25 points on or about

2

COR.13.03.4.3a.7(12) prohibits:

The use of physical interference or obstacle resulting
in the obstruction, hindrance, or impairment of the
performance of a correctional function by a public
servant, which requires facts related to the conduct
and does not require that the conduct was an
intentional act.
4

April 11, 2013.

See Doc. No. 1-1, PageID #44-45 (showing a 5-

point increase for frequency of misconduct reports, and a 1-point
credit loss for attending programs/work).

The April 11, 2013,

annual DPS review report, however, shows that Chris Frappeia was
the reporting officer when Marks’ score was raised, not Ioane.
Ioane is the reporting officer on Marks’ April 14, 2012,
reclassification document, when Marks’ classification points were
still 19.

See id.
On April 30, 2014, Marks wrote Ioane and Kimoto,

alleging he had recently discovered these changes, after Honolulu
Deputy Prosecutor Sonja P. McCullen provided him a copy of his
DPS file.

See Doc. No. 6-1, PageID #186.

Marks does not allege

when he received this information from McCullen.

Marks also

complained of several alleged constitutional violations that he
claims occurred during the 2012 SCC disciplinary proceedings.
Although the May 2012 SCC discipline report had not been
overturned by SCC officials, Marks requested that Ioane and
Kimoto expunge the DPS Incident Report from his DPS file and
adjust his classification score accordingly.

See id., PageID

#186-189.
Marks filed this action in the state circuit court on
or about August 25, 2014, while he was incarcerated at SCC.
Marks was transferred to HCF in early September 2014.

5

See

Transmittal of Record, Doc. Nos. 13-3 (Sept. 23, 2014 Notice of
Change of Address); 13-8 (showing HCF return address).
On December 22, 2014, Defendants properly removed the
action to this court pursuant to 28 U.S. §§ 1331 & 1441(a).

See

Doc. Nos. 1-1, 15 (Order).
B.

Marks’ Claims
Marks alleges that Ioane and Kimoto violated his

federal and state rights to due process and equal protection when
(1) Ioane converted the 2012 SCC hindering charge to the
allegedly more serious DPS hindering charge, and entered it in
his DPS central file on June 20, 2012; (2) Ioane allegedly raised
his classification score on April 11, 2013; and (3) Ioane and
Kimoto refused to expunge the DPS Incident Report.

Marks

primarily argues that DPS policy requires three DHOs at
disciplinary proceedings held in Hawaii, while SCC regulations
require only one.

He asserts that, as DPS’ Mainland & FDC

Contract Monitor and Administrator, Ioane and Kimoto knew or
should have known about this allegedly discriminatory difference
in treatment between inmates incarcerated in Hawaii and inmates
incarcerated in SCC, but they failed to correct this disparity.
He claims they are therefore liable for violating his right to
due process and equal protection.

See id., PageID #18.

Marks seeks costs, actual, compensatory, and punitive
damages against DPS, Ioane, and Kimoto.

6

He demands expungement

of the DPS Incident Detail Report (with notice to all agencies
that refer to this file), and recalculation of his classification
points.

Finally, Marks seeks a declaration that DPS, Ioane,

Kimoto, and unnamed SCC officials3 violated his constitutional
rights.

See Prayer for Relief, Doc. No. 1-1, PageID #34-37.
II.

LEGAL STANDARD

The court must screen all prisoner civil actions
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 an immune
defendant must be dismissed.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).

In analyzing a pleading,

the court sets conclusory factual allegations aside, accepts all
non-conclusory factual allegations as true, and determines
whether those non-conclusory factual allegations accepted as true
state a claim for relief that is plausible on its face.
v. Iqbal, 556 U.S. 662, 677-80 (2009).

Ashcroft

“The plausibility

standard is not akin to a probability requirement, but it asks
3

Marks does not name AW Griego, DHO Holley, FSM Parker, or
other SCC officials as Defendants, despite his clear statement of
facts alleging their actions violated his rights and underlie any
later violation by Ioane and Kimoto. Rather, he carefully
refrains from making direct claims against any individual in
Arizona. The court will not speculate on why Marks decided to
proceed in the Hawaii state court, against Hawaii state officials
only, alleging primarily state law claims. The court will not,
however, address Marks’ vaguely suggested claims against unnamed
SCC officials, except to the extent he alleges derivative
liability against Ioane and Kimoto for those claims.
7

for more than a sheer possibility that a defendant has acted
unlawfully.”
omitted).

Id. at 678 (internal quotation marks and citation

In determining plausibility, the Court is required “to

draw on its judicial experience and common sense.”

Id. at 679.

A complaint that lacks a cognizable legal theory or
alleges insufficient facts under a cognizable legal theory fails
to state a claim.

Balistreri v. Pacifica Police Dep’t, 901 F.2d

696, 699 (9th Cir. 1990).

To state a claim, a pleading must

contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

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

While Rule 8 does not demand detailed factual allegations, “it
demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”

Iqbal, 556 U.S. at 678.

“[A] complaint must

contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Id. (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.;

Twombly, 550 U.S. at 555 (stating the court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.”).
Leave to amend should be granted if it appears the
plaintiff can correct the defects of his or her complaint.

Lopez

v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); but cf., Sylvia
8

Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
2013) (holding that the district court has discretion to dismiss
a pro se complaint without leave to amend when “it is clear that
the complaint could not be saved by any amendment”).
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted), vacated and remanded on other grounds, 556
U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
A.

DPS Is Dismissed
Marks names DPS as a defendant.

Because DPS is an

agency of the State of Hawaii, it is not subject to suit as a
“person” within the meaning of § 1983, and is DISMISSED as to
Marks’ federal claims.

See Pennhurst, 465 U.S. at 106; Seminole

Tribe of Fla. v. Fla., 517 U.S. 44, 53-54 (1996); see also
Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th
Cir. 1991).
Marks names Ioane and Kimoto in their official
capacities for prospective injunctive relief, however, preserving
his claims for prospective injunctive relief.
9

See Hartmann v.

Cal. Dept. of Corr. and Rehab., 707 F.3d 1114, 1127 (9th Cir.
2013) (“An official-capacity suit ‘represent[s] only another way
of pleading an action against an entity of which an officer is an
agent.’”) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985))
(further quotations and citations omitted); Flint v. Dennison,
488 F.3d 816, 824-25 (9th Cir. 2007).4
B.

Due Process
Marks claims Ioane and Kimoto violated his right to due

process when they (1) altered his DPS institutional file; and (2)
changed his classification score.

He further suggests they are

liable for SCC’s failure to provide him three hearing officers or
to allow him to call a witness at the disciplinary hearing.
Marks argues that, if his state post-conviction petition in Marks
v. Hawaii, S.P.P. No. 14-1-0008 is successful, and he is
resentenced to life with parole, his chances of being granted
parole are diminished by the DPS Incident Detail Report and his
heightened classification level.

See Compl., Doc. No. 1-1,

PageID #9.
To state a due process violation, a plaintiff must
first establish the liberty interest for which protection is

4

Even if Defendants waived Eleventh Amendment immunity by
removing this action to this court, see Lapides v. Bd. of Regents
of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002), the Eleventh
Amendment does not bar claims for prospective injunctive relief
brought against state officials in their official capacity. See
Graham, 473 U.S. at 167 n.14.
10

sought.

Liberty interests may arise from the Due Process Clause

of the Fourteenth Amendment or from state law.

Hewitt v. Helms,

459 U.S. 460, 466-68 (1983), abrogated in part on other grounds
by Sandin v. Conner, 515 U.S. 472, 481-84 (1995); Wilkinson v.
Austin, 545 U.S. 209, 221 (2005); Chappell v. Mandeville, 706
F.3d 1052, 1062 (9th Cir. 2013).

If no protected liberty

interest is at stake, no process is required.

See, e.g.,

Wilkinson, 545 U.S. at 221; Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 459-60 (1989); Meachum v. Fano, 427 U.S. 215, 223-24
(1976); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).
1.

No Direct Liberty Interests
A prisoner has a liberty interest directly under the

Fourteenth Amendment if the challenged prison practice or
sanction is not “within the normal limits or range of custody
which the conviction has authorized the State to impose.”
Meachum, 427 U.S. at 225; see also Hewitt, 459 U.S. at 466-70.
First, prisoners have no constitutional right to a
particular security classification.

See Meachum, 427 U.S. at

224-25; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (same as
applied to federal prisoners); Myron v. Terhune, 476 F.3d 716,
718 (9th Cir. 2007) (holding that a raised classification score
does not implicate a state-created liberty interest); Hernandez
v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (declining to

11

find such interest).

Marks has no liberty interest based on the

change in his classification score from 19 to 25.
Second, Hawaii’s inmates have no liberty interest in
parole.

See Greenholtz v. Inmates of Neb. Penal and Corr.

Complex, 442 U.S. 1, 7 (1979); Jago v. Van Curren, 454 U.S. 14,
17–21 (1981) (holding there is no constitutionally protected
interest in a parole date even after a parole date is set);
Mujahid v. Apao, 795 F. Supp. 1020, 1024 (D. Haw. 1992) (finding
no state-created liberty interest in parole); Rideout v. Haw.
Paroling Auth., 2014 WL 1571286, at *3 (D. Haw. April 17, 2014)
(collecting District of Hawaii cases); Turner v. Haw. Paroling
Auth., 93 Haw. 298, 302, 1 P.3d 768, 772 (2000).

As a state

inmate subject to Hawaii’s laws, Marks has no liberty interest in
parole (particularly in light of his life without parole
sentence).
Third, to the extent Marks asserts that Ioane’s and
Kimoto’s actions may result in his diminished future possibility
of parole if his sentence is reduced to life with parole, his
claim fails.

“The decision to release a prisoner rests on a

myriad of considerations.

And, the prisoner is afforded

procedural protection at his parole hearing in order to explain
the circumstances behind his misconduct record.”
U.S. at 487.

Sandin, 515

The mere possibility that a disciplinary action

taken against a prisoner could later influence a prisoner’s

12

chance at early release is “too attenuated” to implicate the Due
Process Clause.

Id.

Marks has no liberty interest in the

possibility that he may some day be eligible for parole.
Fourth, if Marks has no liberty interest in parole, it
follows that he retains no liberty interest in the procedures
relating to the grant of parole, including the maintenance of
accurate prison files.

See Johnson v. Rodriguez, 110 F.3d 299,

309 n.13 (5th Cir. 1997); see also O’Kelley v. Snow, 53 F.3d 319,
321 (11th Cir. 1995) (“[U]nless there is a liberty interest in
parole, the procedures followed in making a parole determination
are not required to comport with standards of fundamental
fairness.”).5
A prisoner has a fundamental liberty interest in the
accuracy of his prison file only if the allegedly erroneous
information will “inevitably affect[] the duration of his
sentence.”

Ricchio v. Eichenberger, 2011 WL 43536, at *3 (E.D.

Cal. Jan. 6, 2011) (emphasis added); Ramirez v. Galaza, 334 F.3d
850, 859-60 (9th Cir. 2003) (holding inmate has a right to
expungement only if expungement is likely to accelerate the
prisoner’s eligibility for parole); Rio v. Schwarzenegger, 2009
WL 1657438, at *6 (C.D. Cal. June 10, 2009) (“[A]n inmate seeking
to expunge erroneous information from his file under the Due

5

The Ninth Circuit Court of Appeals has not recognized a
free-standing constitutional right to an accurate prison file.
See Hernandez, 833 F.2d at 1318.
13

Process Clause ‘must show that the false information will
inevitably lengthen the duration of the inmate’s
incarceration.’”).

As noted, Marks’ life without parole sentence

has not been overturned, reversed, or otherwise altered.

Thus,

Ioane and Kimoto had no duty to expunge the DPS Incident Detail
Report from his DPS institutional file, because, accurate or not,
it cannot affect the “normal limits or range of [Marks’]
custody.”

Meachum, 427 U.S. at 225.

Marks has no liberty

interest in an accurate DPS file, and, as of the date of filing
the Complaint, it appears his file is accurate.
Fifth, to the extent Marks challenges SCC officials’
housing him in pre-hearing detention on allegedly “false”
charges, and suggests that Ioane and Kimoto are liable for this,
he has no constitutional protection from being falsely or wrongly
accused of conduct that may result in the deprivation of a
protected liberty interest.

See Sprouse v. Babcock, 870 F.2d

450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951
(2d Cir. 1986); Chavira v. Rankin, 2012 WL 5914913, *1 (N.D.
Cal., Nov. 26, 2012).

Being innocent of disciplinary charges

that resulted in pre-hearing administrative segregation does not
violate due process, because the “Constitution demands due
process, not error-free decision-making.”

Chavira, 2012 WL

5914913, *1 (citing Ricker v. Leapley, 25 F.3d 1406, 1410 (8th
Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir.

14

1983)).

Even if Marks had such a liberty interest, he fails to

explain how Ioane and Kimoto are liable for his pre-hearing
detention at SCC, when the allegedly false charges have not been
overturned.
2.

No State-created Liberty Interest
Marks also fails to allege facts showing he had a

state-created liberty interest to due process protections before
Ioane and Kimoto changed his DPS file and classification score.
A state-created right to due process may arise when a prisoner’s
placement in segregation imposes an “‘atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.’”

Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir.

2003) (quoting Sandin, 515 U.S. at 484); Wilkinson, 545 U.S. at
221; Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).

A

finding of “atypical and significant” hardship depends on three
factors:
1) whether the challenged condition ‘mirrored
those conditions imposed upon inmates in
administrative segregation and protective
custody,’ and thus comported with the
prison’s discretionary authority; 2) the
duration of the condition, and the degree of
restraint imposed; and 3) whether the state’s
action will invariably affect the duration of
the prisoner’s sentence.
Ramirez, 334 F.3d at 861 (citing Sandin, 515 U.S. at 486–87); see
also Chappell, 706 F.3d at 1064; Myron, 476 F.3d at 718.

15

First, Marks alleges no facts showing that Ioane’s and
Kimoto’s changes to his DPS central file and classification score
affected his life without parole sentence in any unexpected
manner, or imposed atypical and significant changes to the
conditions of his confinement as compared to the normal incidents
of prison life.

Marks had already been released from SCC

segregation when these changes were made.

He does not claim that

he was returned to segregation or otherwise disciplined due to
the changes to his DPS file and classification points.

Moreover,

Marks’ custody level has not changed since the DPS Incident
Detail Report was added to his file and his classification points
were raised.

See Compl., Doc. No. 6-1, PageID #289-90 (July 14,

2014 Kimoto letter, noting Marks remains close custody due to his
life without parole sentence).

Marks had no state-created

liberty interest in preventing the changes to his file and
classification score.
Second, Marks fails to allege facts showing he was
subject to atypical or significant changes to the conditions of
his confinement even while he was in SCC disciplinary segregation
in 2012 for thirty-days, or how such deprivations can be charged
to Ioane or Kimoto, who changed his file after he was released.
See Sandin, 515 U.S. at 485–86 (finding Hawaii prisoner’s
thirty-day placement in disciplinary segregation did not result
in atypical, significant deprivation for which state might create

16

liberty interest); Resnick, 213 F.3d at 445 (holding inmate had
no cognizable due process claim because he had no liberty
interest in being free from disciplinary segregation); Myron, 476
F.3d at 718.

Marks does not compare the conditions in SCC

administrative segregation with those in disciplinary
segregation, or show how they were materially different.

Nor

does he indicate how the thirty-day segregation will invariably
affect his life without parole sentence.

Marks fails to show

that he had a state-created liberty interest, based on the
conditions of his confinement in SCC disciplinary segregation,
that entitled him to procedural protection.
Finally, even if Marks could allege he had a liberty
interest entitling him to procedural due process before the SCC
disciplinary hearing, he fails to state a due process claim.
Prisoners facing discipline are entitled to three minimal due
process protections: (1) written notice of the charges at least
twenty-four hours prior to the hearing; (2) an opportunity to
call witnesses and supply documentary evidence, if this will not
jeopardize prison security; and (3) a written statement of the
reasoning behind the officer’s findings and the evidence relied
on.

Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
Marks received written notice of the charges twenty-

four hours before the hearing, and a written statement detailing
the evidence DHO Holley relied on to find him guilty after the

17

hearing.

See Doc. No. 6-1, PageID #201.

Marks alleges no facts

regarding the alleged denial of his witness, or explain what
evidence he hoped to elicit from this witness to refute the
charges.

Rather, Marks admitted he wrote FSM Parker directly

three times, although he claims he was trying to informally
resolve the issue.

Most importantly, it is immaterial that he

had only one disciplinary hearing officer, because there is no
constitutional right to three hearing officers during
disciplinary proceedings, whether those proceedings are held in
Hawaii or in Arizona.

See Wolff, 418 U.S. at 563–566.

Marks’

conclusory allegations regarding the denial of procedural due
process are insufficient to state a claim against Ioane, Kimoto,
or unnamed SCC officials.
Marks fails to plausibly allege that the changes to his
DPS file and classification score, or his confinement in SCC
disciplinary segregation, created atypical and significant
deprivations to his confinement in relation to the normal
incidents of prison life, or will invariably affect the duration
of his sentence.
omitted).

See Ramirez, 334 F.3d at 861 (further citations

Marks’ Due Process Claims are DISMISSED pursuant to 28

U.S.C. §§ 1915(e)(2) and 1915A(a), with leave to amend.
C.

Equal Protection
Marks alleges Ioane and Kimoto violated his right to

equal protection because they knew that inmates housed in
18

Hawaii’s prisons are afforded three DHOs during disciplinary
hearings, while Hawaii inmates housed in SCC may have only one
DHO.

Compl., Doc. No. 1-1, PageID #8.

“The Equal Protection

Clause requires the State to treat all similarly situated people
equally.”

Hartmann v. Cal. Dep’t of Corr., 707 F.3d 1114, 1123

(9th Cir. 2013) (citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)).

“This does not mean, however, that

all prisoners must receive identical treatment and resources.”
Hartmann, 707 F.3d at 1123 (citations omitted).
To state an equal protection claim, a plaintiff can
allege that “defendants acted with an intent or purpose to
discriminate against [him or her] based upon membership in a
protected class.”

Barren v. Harrington, 152 F.3d 1193, 1194-95

(9th Cir. 1998) (citing Washington v. Davis, 426 U.S. 229, 239-40
(1976)); Hartmann, 707 F.3d at 1123 (further citations omitted).
If the challenged acts do not involve a suspect classification, a
plaintiff can establish an equal protection “class of one” claim
by alleging that he “has been intentionally treated differently
from others similarly situated and that there is no rational
basis for the difference in treatment.”

See Vill. of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000); Squaw Valley Dev. Co. v.
Goldberg, 375 F.3d 936, 944 (9th Cir. 2004).

19

First, as explained above, Marks has no right to three
hearing officers, thus, providing him only one is not evidence of
discrimination.
Second, although Marks is Jewish, he does not allege
that Ioane or Kimoto changed his DPS file, raised his
classification score, and refused to expunge his charges because
of his faith, or because he was challenging SCC’s alleged denial
of Kosher-for-Passover meals to him.

Prisoners are not

considered a suspect class, see Rodriquez v. Cook, 169 F.3d 1176,
1179 (9th Cir. 1999), and Marks does not otherwise allege
membership in a suspect class.
Third, Marks does not allege that he was treated
differently than other Hawaii inmates who are incarcerated at
SCC, the class of prisoners to whom he is similarly situated.
Marks points to no instance when Ioane and Kimoto changed another
Hawaii SCC inmate’s institutional file or classification score
under similar circumstances for a disciplinary infraction
incurred at SCC, but refused to do so for him.

Marks also fails

to allege facts showing that he, or other SCC inmates from
Hawaii, are “similarly situated” to inmates who are incarcerated
in Hawaii’s public prisons and are entitled to identical
procedural rights during disciplinary hearings.

Prisoners are

not entitled to identical treatment regardless of their crimes,
custody status, prison infractions, prison location, or other

20

mutable factors.

See Hartmann, 707 F.3d at 1123.

Prisons can

provide different food, programs, cells, uniforms, and recreation
to inmates, as long as they comply with the Constitution’s
mandates.

Marks, therefore, cannot claim that Ioane and Kimoto

intentionally violated his right to equal protection because
procedures at SCC differ from those at Hawaii’s public prisons.
See Papasan v. Allain, 478 U.S. 265, 286 (1986) (“Although for
the purposes of this motion to dismiss [the court] must take all
the factual allegations in the complaint as true, [the court is]
not bound to accept as true a legal conclusion couched as a
factual allegation.”

Marks fails to state an equal protection

violation and this claim is DISMISSED with leave to amend.
D.

Supervisory Liability
Finally, Marks alleges that DPS Mainland Administrator

Kimoto and Contract Monitor Ioane are liable for SCC officials’
alleged wrongdoings in May-June 2012, based on their supervisory
positions.6

Marks claims Parker, Griego, and Holley retaliated

6

To be clear, Marks names no SCC official as a defendant,
although he identifies DHO Holley, FSM Parker, and AW Griego as
involved in the SCC proceedings. He alleges no direct cause of
action against, and seeks no relief from, any SCC official.
Instead, Marks carefully describes the alleged 2012 SCC
violations as committed by “Defendants’ [DPS, Ioane, Kimoto]
‘contracting agency.’” See Compl., Doc. No. 1-1, PageID #12-15.
Marks also commenced suit in the Hawaii state circuit court,
rather than in the U.S. District Court for the District of
Arizona, although he was incarcerated in Arizona when he filed
suit, the SCC disciplinary hearing took place in Arizona, and the
SCC officials who allegedly committed these violations are
(continued...)
21

against him for having filed an earlier suit against them,7 and
violated his rights under the First Amendment8 and the Religious
Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).9
Marks asserts that Ioane and Kimoto “turned a blind eye” to SCC’s
actions.

Compl., Doc. No. 1-1, PageID #13, ¶ 27.
“Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of
respondeat superior.”

Iqbal, 556 U.S. at 676.

Iqbal, however,

does not foreclose a plaintiff from stating a claim for
supervisory liability based on the “supervisor’s knowledge of and
acquiescence in unconstitutional conduct by his or her
subordinates.”

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

6

(...continued)
located in Arizona. See 28 U.S.C. § 1391.
7

Marks claims SCC officials falsely charged him in
retaliation for his filing suit against them in Marks v. Corr.
Corp. of Am., et al., 2:11-cv-00072 PGR-ECF (D. Ariz. 2011)
(alleging he was denied a kosher diet). See Doc. No. 1-1, PageID
#12-15; see also Marks, 2:11-cv-00072 PGR-ECF, Doc. Nos. 1-2, 48.
8

The First Amendment provides: “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof.” U.S. Const. amend. I. This “requires
government respect for, and noninterference with, the religious
beliefs and practices of our Nation’s people.” Cutter v.
Wilkinson, 544 U.S. 709, 719 (2005).
9

Section 3 of RLUIPA, 114 Stat. 804, 42 U.S.C.
§ 2000cc-1(a)(1)-(2), provides in part: “No government shall
impose a substantial burden on the religious exercise of a person
residing in or confined to an institution,” unless the burden
furthers “a compelling governmental interest,” and does so by
“the least restrictive means.”
22

2011).

A defendant may be held liable as a supervisor under

§ 1983:
‘if there exists either (1) his or her
personal involvement in the constitutional
deprivation, or (2) a sufficient causal
connection between the supervisor’s wrongful
conduct and the constitutional violation.’
* * *
‘The requisite causal connection can be
established . . . by setting in motion a
series of acts by others,’ or by ‘knowingly
refus[ing] to terminate a series of acts by
others, which [the supervisor] knew or
reasonably should have known would cause
others to inflict a constitutional injury.’
‘A supervisor can be liable in his individual
capacity for his own culpable action or
inaction in the training, supervision, or
control of his subordinates; for his
acquiescence in the constitutional
deprivation; or for conduct that showed a
reckless or callous indifference to the
rights of others.’
Id. at 1207-08 (internal citations omitted, alterations in
original).

To premise a supervisor’s alleged liability on a

policy promulgated by the supervisor, a plaintiff must identify a
specific policy and establish a “direct causal link” between that
policy and the alleged constitutional deprivation.

See, e.g.,

City of Canton v. Harris, 489 U.S. 378, 385 (1989); Oviatt v.
Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).
First, Marks fails to allege any facts showing that
Ioane and Kimoto personally participated in or were even aware of
SCC officials’ alleged violations of his constitutional rights

23

before they changed his DPS file.

Marks does not claim that

Ioane and Kimoto knew about (1) his grievances regarding FSM
Parker’s alleged denial of his special Passover kosher diet; (2)
AW Griego’s allegedly retaliatory charge; (3) his confinement in
pre-hearing detention; (4) DHO Holley’s guilty finding; and (5)
his thirty-day segregation, at any time before June 20, 2012,
when Ioane updated Marks’ DPS file.

That is, Marks does not say

Ioane and Kimoto knew that SCC officials were allegedly
retaliating against Marks and violating his religious rights
under the First Amendment and RLUIPA, yet failed to act to
prevent these alleged violations.
Second, Marks fails to allege any facts showing SCC
officials’ alleged retaliation and free exercise of religion
violations were the result of a policy, practice, or procedure
implemented or promoted by DPS, Ioane, and Kimoto that was the
moving force of the alleged constitutional violations at SCC.
DPS’ PPM does not require three hearing officers at SCC, and does
not promote retaliation and the denial of religious rights to
prisoners.

Marks’ supervisory liability claims against Ioane and

Kimoto are DISMISSED with leave to amend.
E.

State Law Claims
Marks is notified that, unless he can amend his

Complaint to state at least one cognizable federal claim, this
court will decline supplemental jurisdiction over his state law

24

claims and remand this action to the state circuit court.

See 28

U.S.C. § 1367(c)(3) (discussing when a federal court may accept
or decline supplemental jurisdiction).
IV.

LEAVE TO AMEND

Marks’ Complaint is DISMISSED IN PART as detailed
above, pursuant to 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b);
42 U.S.C. § 1997e (c)(1).

He may file an amended complaint on or

before June 15, 2015, that cures the deficiencies noted in this
Order, if possible.
An amended complaint generally supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

Local Rule LR10.3 further requires that an amended complaint be
complete in itself without reference to any prior pleading.

The

court will not generally refer to the original pleading to make
an amended complaint complete.

Defendants not named in the

caption and claims dismissed without prejudice that are not
realleged in an amended complaint may be deemed voluntarily
dismissed.

See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th

Cir. 2012) (“[C]laims dismissed with prejudice [need not] be
repled in a[n] amended complaint to preserve them for
appeal. . . . [but] claims [that are] voluntarily dismissed
[are] . . . waived if not repled.”).

In an amended complaint,

each claim and the involvement of each Defendant must be
sufficiently alleged.

Plaintiff is further notified that he must
25

comply with the Federal Rules of Civil Procedure and the Local
Rules for the District of Hawaii if he amends his pleading.
In the alternative, Plaintiff may elect to dismiss his
federal claims with prejudice and stand on his remaining state
law claims against DPS, Ioane, and Kimoto.

If Plaintiff chooses

this alternative, he must NOTIFY the court in writing on or
before June 15, 2015 of his decision, and the court will remand
his remaining state claims to the state circuit court.
U.S.C. § 1367(c)(3).

See 28

If Plaintiff fails to timely comply with

this Order, the court may, without further notice, dismiss the
federal claims alleged herein with prejudice for his failure to
state a claim, and remand his state law claims to the state
circuit court sua sponte.

See Ferdik v. Bonzelet, 963 F.2d 1258,

1260-61 (9th Cir. 1992) (a district court may dismiss an action
for failure to comply with any order of the court).
V.
(1)

CONCLUSION

The Complaint is DISMISSED IN PART for failure to

state a claim for the reasons detailed above.
§ 1915(e)(2)(b) & 1915A(b)(1).

See 28 U.S.C.

Specifically, Marks’ federal

claims against DPS are dismissed.

Marks’ Due Process, Equal

Protection, and Supervisor Liability claims against Defendants
Ioane and Kimoto are DISMISSED with leave granted to amend.

26

(2)

Marks is GRANTED leave to file an amended complaint

curing the deficiencies noted above, if possible, on or before
June 15, 2015.

Failure to timely amend the Complaint and cure

its pleading deficiencies will result in dismissal of Marks’
federal causes of action against Ioane and Kimoto with prejudice
for failure to state a claim.
(3)

In the alternative, Marks may NOTIFY the court in

writing on or before June 15, 2015, that he elects to voluntarily
dismiss his federal claims with prejudice.

If Marks chooses this

option, this action will be remanded to the First Circuit Court,
State of Hawaii.
(4)

The Clerk is directed to mail Marks court forms for a

prisoner civil rights complaint so that he can comply with the
directions in this Order.

If he amends his Complaint, Marks need

not resubmit his exhibits.
IT IS SO ORDERED.
DATED: April 28, 2015, Honolulu, Hawaii.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

Marks v. Hawaii Dep’t of Public Safety, 1:14-cv-00571 HG/BMK, scrng 2015;
H:\Orders\Denise\14cv571 Marks v. HI.Order Dismissing Complaint with leave to
amend.wpd

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