Florer v. Hoffman et al
SCREENING AND SERVICE ORDER Re: 1 . Signed by JUDGE DERRICK K. WATSON on 9/29/2015. ` (1) Service of the Complaint is appropriate for Defendant ACO Polloko. The Clerk shall send Plaintiff a copy of the endorsed Complaint, if h e has notalready received one, a completed summons, one USM-285 form, one Notice ofLawsuit and Request for Waiver of Service for Summons form (AO 398), two (2)Waiver of Service of Summons forms (AO 399), and an instruction sheet. TheClerk shall send a copy of this order to the U.S. Marshal. Plaintiff shall complete the forms as directed and submit these documents to the U.S. Marshal in Honolulu, Hawaii. See Fed. R. Civ. P. 4(i). Because Defendant ACO Polloko is alleged to be a Hawaii Departm ent of Public Safety (DPS) employee, Plaintiff should complete the service documents naming Polloko, but should address them to Shelley Nobriga, DPS Litigation Coordinator, 919 Ala Moana Blvd., 4th Floor Honolulu, HI 96814, and send these documents t o the U.S. Marshal to perfect service. Ms. Nobriga is authorized to accept one complaint and the waiver of service forms for DPS defendants. (2) Upon receipt of these documents, the U.S. Marshal shall mail a copy of the Complaint, the completed Notice of Lawsuit and Request for Waiver of Serviceforms (AO 398), and two completed Waiver of Service of Summons forms (AO 399) (two for each defendant), as directed by Plaintiff pursuant to Fed. R. Civ. P. 4without payment of costs. (3) The U .S. Marshal shall retain the sealed summons and a copy of the Complaint. Defendant ACO Polloko shall return the Waiver of Service forms to the U.S. Marshal not more than thirty days from the date the requests for waiver are mailed. If the Waiver o f Service of Summons forms and requests for waiver of service are returned as undeliverable, the U.S. Marshal shall immediately file them with the court. (4) If Defendant ACO Polloko does not timely return the Waiver ofService of Summons fo rms within thirty days of mailing, the U.S. Marshal shall: a. Personally serve ACO Polloko with the above-described documents pursuant to Fed. R. Civ. P. 4 and 28 U.S.C. § 566(c) and shall command all necessary assistance from the Department of Public Safety to execute this Order. b. Within ten days after personal service is effected, the U.S. Marshal shall file the return of service for Defendant ACO Polloko, along with evidence of any attempts to secure a waiver of service of sum mons and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the U.S. Marshals office for photocopying additional copies of the summons and Complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served Defendant in accordance with the provisions of Fed. R. Civ. P. 4(d)(2). (5) Defendant ACO Polloko shall file an answer or other responsive pleading to Plaintiff's Complaint within sixty 60 days after the request for waiver of service was sent (if formal service is waived), or twenty 20 days after personal service. Failure to do so may result in the entry of default judgment. (6) Plaintiff shall inform the court of any change of address by filing a "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information about the change of address and its effective date and shall not in clude requests for other relief. Failure to file such notice may result in the dismissal of the action for failure to prosecute under Fed. R. Civ. P. 41(b). (7) After the Complaint is served, Plaintiff's documents are deemed served on Defe ndant or his attorney(s) when they are electronically filed by the court. The U.S. Marshal is not responsible for serving these documents on Plaintiff's behalf. (8) Until the Complaint is served and Defendant or his attorney files a notice of appearance, Plaintiff SHALL NOT FILE MOTIONS OR OTHER DOCUMENTS with the court. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronicall y 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. Documents provided to Plaintiff as directed.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DENNIS FLORER, #A6070275,
MICHEAL HOFFMAN, et al.,
CIV. NO. 15-00308 DKW/RLP
SCREENING AND SERVICE
SCREENING AND SERVICE ORDER
Before the court is pro se Plaintiff Dennis Florer’s prisoner civil rights
complaint. Compl., Doc. No. 1. Plaintiff is a pretrial detainee incarcerated at the
Oahu Community Correctional Center (“OCCC”)1, and is proceeding in forma
pauperis. Doc. No. 4. Plaintiff names OCCC Warden Michael J. Hoffman;2 Case
Manager (“CM”) Andria Barayuga; Unit Team Manager (“UTM”) Kana
Harrington; Chief of Security (“COS”) Denise Johnston; Sgt. L. Visitacion; Adult
See http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm (State v. Florer, 1PC14-1000229) (last visited Sept. 23, 2015).
The court corrects the spelling of Warden Hoffman’s name from “Micheal” to
Corrections Officer (“ACO”) Polloko; and John Does 1 to 5 (collectively,
“Defendants”), in their official and individual capacities.
Plaintiff alleges ACO Polloko violated his rights under the Eighth
Amendment by (1) using excessive force against him; (2) failing to protect him
from assault by gang members; and (3) delaying calling for medical care. Plaintiff
alleges the remaining Defendants violated the Eighth Amendment by failing to
provide him a single-inmate protective custody cell after the assault.
Plaintiff’s Complaint is DISMISSED IN PART pursuant to 28 U.S.C.
§§ 1915(e)(2) & 1915A(b). Because Plaintiff states a claim against Defendant
ACO Polloko, service of the Complaint on ACO Polloko is appropriate. After
service is perfected, Defendant ACO Polloko is directed to file an answer or other
responsive pleading. See 42 U.S.C. § 1997e(g)(2).
Plaintiff states that the Honolulu Star Advertiser identified him as a child
molester in mid-June 2015. Plaintiff alleges that Module 18 gang members
thereafter began soliciting other inmates to assault him. On July 17, 2015, OCCC
officials transferred Plaintiff from Module 18 to the “Mauka” unit in response to
this perceived threat. See Compl., Doc. No. 1, PageID #6. Plaintiff alleges that
three days after his transfer to the Mauka unit, on July 20, 2015, ACO Polloko
accosted him at his bunk, called him a punk, slapped his face, stood aside while
several gang members attacked him, then delayed calling for medical assistance.
Id., PageID #7. ACO Polloko did call OCCC medical staff, however, and Plaintiff
was taken to The Queens Medical Center (“QMC”), where a CT scan was
performed, allegedly revealing a fractured facial bone, severe facial swelling,
lumps, and cuts inside and outside of his mouth. Plaintiff states his “back ribs have
been in extreme pain fractured or broke.” Id. Plaintiff returned to OCCC the same
day and was housed in Module 2 of the Medical Unit.
Plaintiff filed this action on August 7, 2015.3 Plaintiff says he asked
Defendant Sgt. Visitacion for protective custody on July 23, 2015. He clarifies
that this request for protective custody means “complete isolation from I/Ms
[inmates],” in other words, a single-inmate protective custody cell.4 Id., PageID
#11. Visitacion allegedly told him that OCCC had no such protective custody unit,
and suggested that he speak with CM Barayuga. Id., PageID #8. Plaintiff wrote
Barayuga the next day and copied this letter to Warden Hoffman. Barayuga
Plaintiff was later transferred to the Hawaii State Hospital, and was recently rehoused at
OCCC. See Florer v. Hoffman, Civ. No. 15-00225 DKW. It is unclear where Plaintiff is now
housed within OCCC.
Plaintiff states that OCCC’s Holding Unit cannot be considered “protective custody”
because it houses two inmates per cell and its cell doors are all opened for showers and
recreation at the same time.
allegedly responded that OCCC had no protective custody unit and distributed his
written request for protective custody to Visitacion and UTM Harrington.
Plaintiff seeks a solitary, single-inmate protective custody cell where he will
be completely isolated from other inmates, an order requiring OCCC to establish
such solitary protective custody cells for all inmates who qualify, and
compensatory and punitive damages.
II. SCREENING STANDARDS
The court must screen all civil actions brought by prisoners proceeding in
forma pauperis or seeking redress from a government entity, officer, or employee.
28 U.S.C. §§ 1915(e)(2) & 1915A(a). Complaints or claims that are frivolous,
malicious, fail to state a claim, or that seek relief from a defendant who is immune
from such relief must be dismissed. 28 U.S.C. §§ 1915(e)(2) & 1915A(b); 42
U.S.C. § 1997e (c)(1).
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). This does not require detailed factual allegations,
but “it demands more than an unadorned, the-defendant-unlawfully -harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[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)). A plausible claim states facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
When screening a complaint, a court must identify “the allegations in the
complaint that are not entitled to the assumption of truth,” that is, those allegations
that are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80.
The court must then consider the factual allegations “to determine if they plausibly
suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, the claim may proceed. Id. at 680.
Plausibility “is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (internal
quotation marks omitted). A court must “accept factual allegations in the
complaint as true and construe the pleadings in the light most favorable to the
nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,
1031 (9th Cir. 2008). The court is not, however, required to “‘assume the truth of
legal conclusions merely because they are cast in the form of factual allegations.’”
Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W.
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). “[C]onclusory
allegations of law and unwarranted inferences are insufficient.” Adams v. Johnson,
355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.
Leave to amend should be granted if it appears the plaintiff can correct the
defects in the complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en
banc). If a complaint cannot be saved by amendment, however, dismissal without
leave to amend is appropriate. Sylvia Landfield Trust v. City of L.A., 729 F.3d
1189, 1196 (9th Cir. 2013).
To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff “must allege
a violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Defendants named in their official capacities are not persons subject to suit
under § 1983. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 70-71 (1989);
Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007). The only exception is
“for prospective declaratory and injunctive relief against state officers, sued in their
official capacities, to enjoin an alleged ongoing violation of federal law.” Young v.
Hawaii, 911 F. Supp. 2d 972, 983 (D. Haw. 2012) (quoting Agua Caliente Band of
Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000)); see Ex parte
Young, 209 U.S. 123 (1908).
Plaintiff’s claims for damages against Defendants named in their official
capacities are DISMISSED with prejudice.
Cruel and Unusual Punishment
Because Plaintiff is a pretrial detainee, his protection from cruel and unusual
punishment must be addressed under the Fourteenth Amendment’s Due Process
Clause rather than under the Eighth Amendment, as he alleges in the Complaint.
See Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 2473 (2015)
(evaluating pretrial detainee’s excessive force claim under the Fourteenth
Amendment); Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1241-42 (9th Cir.
2010) (discussing appropriate constitutional provisions to assess pretrial detainees’
Eighth Amendment claims); see also Castro v. Cty. of L.A., --- F.3d ---, 2015 WL
4731366, at *4-5 (9th Cir. Aug. 11, 2015) (citing Clouthier, and explaining that
Kingsley did not alter the deliberate indifference subjective analysis, except as it is
applied to excessive force claims made by pretrial detainees).
Defendant ACO Polloko
Plaintiff claims that ACO Polloko slapped him without provocation,
watched while other inmates assaulted him without intervening, and initially
delayed calling for medical care.
A pretrial detainee must show only that the force purposely or knowingly
used against him was objectively unreasonable to demonstrate that such force was
excessive under the Fourteenth Amendment’s Due Process Clause. Kingsley, 135
S. Ct. at 2472-73 (clarifying that the deliberate indifference subjective standard
does not apply to excessive force claims). “The objective component of an
[excessive force] claim is . . . contextual and responsive to contemporary standards
of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (considering excessive
force under the Eighth Amendment as applied to convicted prisoners) (citations
omitted). “When prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decency always are violated.” Id. at 9 (citing
Whitley v. Albers, 475 U.S. 312, 327 (1986); see also Oliver v. Keller, 289 F.3d
623, 628 (9th Cir. 2002) (holding the excessive force standard examines de
minimis uses of force, not de minimis injuries).
Plaintiff states a claim against ACO Polloko for excessive force, particularly
in light of Polloko’s other alleged actions and inactions during the altercation.
This claim is permitted to proceed.
Failure to Prevent Harm
Prison officials have a duty to protect inmates from violence at the hands of
other inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994); Cortez v. Skol, 776
F.3d 1046, 1050 (9th Cir. 2015). They must “take reasonable measures to
guarantee” inmates’ safety. Farmer, 511 U.S. at 832 (1994) (citing Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)).
A constitutional violation based on a prison official’s failure to prevent harm
has two requirements. Id. at 834. Objectively, “the prison official’s act or
omission must cause ‘a substantial risk of serious harm.’” Cortez, 776 F.3d at
1050 (quoting Farmer, 511 U.S. at 834). Subjectively, the official must be aware
of that risk and nonetheless disregard the risk with “deliberate indifference to
inmate health or safety.” Farmer, 511 U.S. at 837. That is, “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.” Id. The test for
deliberate indifference is the same as that for criminal recklessness, i.e., the official
must actually know of and disregard an excessive risk to inmate safety. Id. at 8369
37. “Deliberate indifference may be established through an ‘inference from
circumstantial evidence’ or ‘from the very fact that the risk was obvious.’” Cortez,
776 F.3d at 1050 (quoting Farmer, 511 U.S. at 842. Neither negligence nor gross
negligence constitutes deliberate indifference. Farmer, 511 U.S. at 835-36 & n.4;
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff states a failure-to-protect
claim against ACO Polloko, and this claim is also permitted to proceed.
Delay of Medical Care
Plaintiff alleges ACO Polloko told him to wait until the next day for
medical care, but then called the medical unit for assistance. Plaintiff was taken to
QMC, treated, and returned to OCCC custody the same day. To state a claim for
delay of medical care, a plaintiff must show both “a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and . . . harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate
indifference can be “manifested by . . . prison guards intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once
prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
Although lacking detail regarding how long the delay was before ACO
Palloko called the medical unit, and whether that delay caused further injury, the
court accepts that Plaintiff may have endured additional pain due to ACO
Polloko’s alleged delay in calling for medical personnel. This claim sufficiently
states a claim and is permitted to proceed.
Claims Against Sgt. Visitacion, CM Barayuga, UTM
Harrington, COS Johnston, and Warden Hoffman
Plaintiff claims that Visitacion and Barayuga informed him there were no
single-inmate protective custody cells at OCCC. He alleges that Harrington,
Johnston, and Hoffman were made aware of his request for such a cell, and
suggests they did nothing. Thus, he alleges they each violated the Eighth
Official Capacity Claims For Injunctive Relief
To the extent that Plaintiff alleges that Visitacion, Barayuga, Harrington,
Johnston, or Hoffman are liable for injunctive relief in their official capacities for
an alleged institutional failure to provide single-inmate protective custody cells at
OCCC, this claim fails. The Department of Public Safety (“DPS”) and OCCC
have a non-punitive protective custody policy for inmates who request or require
separation from other inmates for their protection. See DPS Policy No. Cor. 11.03
(eff. 12/22/09). This policy requires that such inmates be separated from the
general population “for their physical safety and well-being [and are] afforded
separate and secure housing.” Id., Cor.11.3.1.
Plaintiff alleges that unidentified OCCC officials transferred him from
Module 18 to Mauka for his protection, in response to perceived threats from gang
members. When Plaintiff returned to OCCC, prison officials housed him in
Module 2 of the medical unit. These facts suggest that they acted in response to a
perceived threat to his safety and in response to the assault. They acted in full
compliance with Cor. 11.3 to provide Plaintiff a more protective level of
supervision and direct medical care for his injuries. These facts do not suggest
they violated OCCC policies for protecting him from harm.
To be clear, Plaintiff does not allege that Visitacion, Barayuga, Harrington,
Johnston, or Hoffman actually denied him protection. Rather, he alleges that
OCCC must provide him and other similarly situated inmates a higher level of
protection -- solitary confinement protective custody. Plaintiff is mistaken. OCCC
is only required to provide secure and safe housing for a protective custody
inmate. That is, while inmates have a right to be protected from harm, they do not
have a right to be housed in a particular cell, unit, prison, or even state. See Olim
v. Wakinekona, 461 U.S. 238, 245 (1983) (“Just as an inmate has no justifiable
expectation that he will be incarcerated in any particular prison within a State, he
has no justifiable expectation that he will be incarcerated in any particular State.”);
Montayne v. Haymes, 427 U.S. 236, 242-43 (1978) (holding inmate has no
constitutional right to be housed in a particular state prison); Meachum v. Fano,
427 U.S. 215, 224 (1976) (holding that no due process protections were required
upon the discretionary transfer of state prisoners to a substantially less agreeable
prison). The court is unaware of any case law holding that a prison must provide a
certain type of protective custody cell to insure an inmate’s safety, but only must
take objectively reasonable steps to protect an inmate from harm.
This court will not interfere in OCCC housing and classification decisions as
Plaintiff demands, or require the DPS to provide single-inmate protective custody
cells in its prisons based on Plaintiff’s subjective fears. See Bell v. Wolfish, 441
U.S. 520, 562 (1979) (admonishing federal courts to avoid “becom[ing]
increasingly enmeshed in the minutiae of prison operations”); Wright v. Rushen,
642 F.2d 1129, 1132 (9th Cir.1981) (denying injunctive relief beyond what is
necessary to correct conditions that violate the Eighth Amendment); Wylie v.
Montana Women’s Prison, 2014 WL 6685983, at *3 (D. Mont. Nov. 25, 2014)
(denying preliminary injunction and declining to “interfere with day-to-day prison
administrative decisions”). Plaintiff’s official capacity claims for specific
injunctive relief providing single-inmate protective custody cells fail to state a
claim and are DISMISSED without prejudice.
Individual Capacity Claims
Plaintiff alleges that Visitacion, Barayuga, Harrington, Johnston, and
Hoffman violated his rights in their individual capacities by denying him a solitary
protective custody cell. Plaintiff alleges that the Holding Unit5 is not secure
because inmates there are double-celled and released for showers and recreation at
the same time.
Although an inmate need not have actually suffered harm to obtain relief
from unsafe conditions, see Contreras v. Collins, 50 F. App’x 351, 352 (9th Cir.
2002), an inmate’s purely speculative fears of attacks from other inmates do not
meet the objective prong set forth in Farmer. See 511 U.S. at 845. Plaintiff
articulates nothing substantiating his subjective fear of another attack, such as new
and credible threats he has received, acts of violence between other inmates or
against him in Module 2, or even an inability to get along with his cell mate and
consequent fear that the Module 2 assignment poses a danger to him. As such, this
claim is vague, conclusory, and implausible.
Moreover, while prison officials must protect inmates from violence and
take reasonable measures to protect their safety, Farmer, 511 U.S. at 833; Cortez,
It is unclear whether Plaintiff’s Module 2 cell is considered a Holding Unit cell, or that
he is arguing that a transfer to the Holding Unit would not satisfy him.
776 F.3d at 1050, § 1983 requires an actual connection or link between the actions
of the defendants and the deprivation allegedly suffered by the plaintiff. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978) (“Congress did not intend
§ 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976) (holding that § 1983 requires an affirmative link
between the misconduct alleged and the adoption of a plan or policy by supervisors
that authorized or approved such misconduct). “A person ‘subjects’ another to the
deprivation of a constitutional right, within the meaning of section 1983, if he does
an affirmative act, participates in another’s affirmative acts, or omits to perform an
act which he is legally required to do that causes the deprivation of which
complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff alleges no facts showing that Visitacion, Barayuga, Harrington,
Johnston, or Hoffman were personally involved in the July 20, 2015 assault, or that
they were otherwise deliberately indifferent to his safety. He only claims that they
told him that OCCC does not have solitary inmate protective custody cells. This is
insufficient to state a claim that Visitacion, Barayuga, Harrington, Johnston, or
Hoffman acted with deliberate indifference to his safety when they told him that
OCCC has no solitary protective custody cells, or failed to provide him such a cell,
and is DISMISSED without prejudice.
John Does 1-5
As a practical matter, it is impossible in most instances for the United States
Marshal to serve a summons and complaint on an anonymous defendant.
Therefore, the use of Doe Defendants is generally disfavored in federal court. See
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
If the names of individual defendants are unknown when a complaint is
filed, however, a plaintiff may refer to the unknown defendants as Defendant John
Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts to
support how each particular Doe Defendant violated his constitutional rights. A
plaintiff may then use the discovery process to obtain the names of any Doe
Defendants he believes violated his constitutional rights and thereafter seek leave
to amend to name those defendants, unless it is clear that discovery would not
uncover the identities, or that the complaint would be dismissed on other grounds.
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629
F.2d at 642 (9th Cir. 1980)).
Plaintiff sues John Does 1-5 without differentiation as to how any
unidentified individual violated his constitutional or statutory rights. That is,
Plaintiff provides no identifying facts against any John Doe that suggests they were
involved in the July 20, 2015 assault or otherwise failed to protect him. Plaintiff
fails to state a claim against Defendants John Does 1-5.
Plaintiff’s claims against Defendants John Does 1-5 are DISMISSED
without prejudice. He may reallege claims against Doe Defendants, but to
successfully do so, he must allege specific facts showing what each particular Doe
Defendant did to violate his rights.
IV. LEAVE TO AMEND
Plaintiff may move to file an amended complaint to reallege claims or
defendants who are dismissed without prejudice, consistent with this Order. That
is, the amended complaint must cure the deficiencies noted above. An amended
complaint generally supersedes the original complaint. See Loux v. Rhay, 375 F.2d
55, 57 (9th Cir. 1967), overruled in part by Lacey v. Maricopa Cty., 693 F.3d 896
(9th Cir. 2012) (en banc)). 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, 693 F.3d at 928 (“[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 NOTIFIED that he must
comply with the Federal Rules of Civil Procedure and the Local Rules for the
District of Hawaii if he chooses to amend his pleading.
IT IS HEREBY ORDERED that:
Plaintiff’s claims against Defendant ACO Polloko in his individual
capacity state a claim. ACO Polloko shall be served as directed below.
Plaintiff’s official capacity claims against all Defendants for damages,
and those seeking single-inmate protective custody cells at OCCC, are
DISMISSED WITH PREJUDICE.
Plaintiff’s individual capacity claims against Warden Hoffman,
Andria Barayug, Kana Harrington, Denise Johnston, Sgt. L. Visitacion, and John
Does 1-5 are DISMISSED without prejudice.
VI. SERVICE ORDER
The U.S. Marshal is ORDERED to serve the Complaint, Doc. No. 1, and
summons on Defendant ACO Polloko. See Fed. R. Civ. P. 4(c)(3). Plaintiff is
DIRECTED to effect service on Polloko by mailing a copy of the Complaint and
the fully completed service documents to the U.S. Marshal, as set forth below. If
ACO Polloko accepts waiver of service of the summons, he SHALL return the
completed waiver of service documents to the U.S. Marshal, who will file the
waiver with the court. After service is perfected, Polloko is ORDERED to file an
Answer or other responsive pleading to the amended Complaint within the time
allowed under Fed. R. Civ. P. 4(d)(3) and 12(a)(1)(A).
IT IS HEREBY ORDERED that:
Service of the Complaint is appropriate for Defendant ACO Polloko.
The Clerk shall send Plaintiff a copy of the endorsed Complaint, if he has not
already received one, a completed summons, one USM-285 form, one Notice of
Lawsuit and Request for Waiver of Service for Summons form (AO 398), two (2)
Waiver of Service of Summons forms (AO 399), and an instruction sheet. The
Clerk shall send a copy of this order to the U.S. Marshal.
Plaintiff shall complete the forms as directed and submit these documents to
the U.S. Marshal in Honolulu, Hawaii. See Fed. R. Civ. P. 4(i). Because
Defendant ACO Polloko is alleged to be a Hawaii Department of Public Safety
(“DPS”) employee, Plaintiff should complete the service documents naming
Polloko, but should address them to Shelley Nobriga, DPS Litigation Coordinator,
919 Ala Moana Blvd., 4th Floor Honolulu, HI 96814, and send these documents to
the U.S. Marshal to perfect service. Ms. Nobriga is authorized to accept one
complaint and the waiver of service forms for DPS defendants.
(2) Upon receipt of these documents, the U.S. Marshal shall mail a copy of
the Complaint, the completed Notice of Lawsuit and Request for Waiver of Service
forms (AO 398), and two completed Waiver of Service of Summons forms (AO
399) (two for each defendant), as directed by Plaintiff pursuant to Fed. R. Civ. P. 4
without payment of costs.
The U.S. Marshal shall retain the sealed summons and a copy of the
Complaint. Defendant ACO Polloko shall return the Waiver of Service forms to
the U.S. Marshal not more than thirty days from the date the requests for waiver
are mailed. If the Waiver of Service of Summons forms and requests for waiver of
service are returned as undeliverable, the U.S. Marshal shall immediately file them
with the court.
If Defendant ACO Polloko does not timely return the Waiver of
Service of Summons forms within thirty days of mailing, the U.S. Marshal shall:
a. Personally serve ACO Polloko with the above-described
documents pursuant to Fed. R. Civ. P. 4 and 28 U.S.C. § 566(c) and shall
command all necessary assistance from the Department of Public Safety to
execute this Order.
b. Within ten days after personal service is effected, the U.S. Marshal
shall file the return of service for Defendant ACO Polloko, along with
evidence of any attempts to secure a waiver of service of summons and of
the costs subsequently incurred in effecting service on said defendant. Said
costs shall be enumerated on the USM-285 form and shall include the costs
incurred by the U.S. Marshal’s office for photocopying additional copies of
the summons and Complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the personally served
Defendant in accordance with the provisions of Fed. R. Civ. P. 4(d)(2).
Defendant ACO Polloko shall file an answer or other responsive
pleading to Plaintiff’s Complaint within sixty  days after the request for waiver
of service was sent (if formal service is waived), or twenty  days after personal
service. Failure to do so may result in the entry of default judgment.
Plaintiff shall inform the court of any change of address by filing a
“NOTICE OF CHANGE OF ADDRESS.” The notice shall contain only
information about the change of address and its effective date and shall not include
requests for other relief. Failure to file such notice may result in the dismissal of
the action for failure to prosecute under Fed. R. Civ. P. 41(b).
After the Complaint is served, Plaintiff’s documents are deemed
served on Defendant or his attorney(s) when they are electronically filed by the
court. The U.S. Marshal is not responsible for serving these documents on
(8) Until the Complaint is served and Defendant or his attorney files a
notice of appearance, Plaintiff SHALL NOT FILE MOTIONS OR OTHER
DOCUMENTS with the court.
IT IS SO ORDERED.
DATED: September 29, 2015 at Honolulu, Hawai’i.
--------------------------------------------------------------------------------------------------Florer v. Hoffman, Civ. No. 15-00308 DKW/RLP; SCREENING AND SERVICE ORDER;
scrng 2015 Florer 15-308 (scrn serve 8th p.c.).
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