Pitts v. Espinda et al

Filing 18

ORDER DISMISSING COMPLAINT IN PART re: 1 . Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 2/8/2016. (afc) Excerpt of conclusion:"The Complaint is DISMISSED IN PART for failure to s tate a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, Plaintiff states excessive force and state common law claims of assault and battery against Defendants Botelho, Taylor, Gernler, Keolanui, Magdadaro, Aguon, and Ke nt and these claims shall proceed and be answered after service is perfected.""Plaintiff fails to state a claim against (a) the DPS Sheriff's and Internal Affairs Offices and these claims are DISMISSED with prejudice; an d (b)Defendants Nolan Espinda, Lyle Antonio, Lieutentant Ho, Keoni Morreira, J. Tabali, Manumaleuna, Janice Villalobos, Ueda, Francis Tuifau, and Val DeMello, RN, and claims against them are DISMISSED with leave to amend." "P laintiff may file an amended complaint curing the deficiencies in his dismissed claims on or before March 4, 2016. Plaintiff SHALL use the court'sprisoner civil rights complaint form if he chooses to amend his pleadings.""In th e alternative, Plaintiff may NOTIFY the court in writing on or before March 4, 2016, that he elects to stand on his excessive force and state common law assault and battery claims against Defendants Botelho, Taylor,Gernler, Keolanui, Magdadaro, Aguon , and Kent. If Plaintiff chooses this option,the court will order the U.S. Marshal to serve the Complaint at Plaintiff's direction as to those claims." CERTIFICATE OF SERVICEParticipants registered to recei ve electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. A copy of the instant order and a copy of the "Prisoner Civil Rights Complaint" form with its instructions will be served this date by first class mail to the address of record for Mr. Joseph Pitts.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH PITTS, #A0259019,

)
)
Plaintiff,
)
)
vs.
)
)
NOLAN ESPINDA, et al.,
)
)
Defendants.
)
_____________________________ )

CIV. NO. 15-00483 JMS/BMK
ORDER DISMISSING COMPLAINT
IN PART

ORDER DISMISSING COMPLAINT IN PART
Before the court is pro se Plaintiff Joseph Pitts’ civil rights Complaint.
Compl., Doc. No. 1. Plaintiff is a convicted, unsentenced felon who is
incarcerated at the Halawa Correctional Facility (“HCF”).1 He alleges Hawaii
Department of Public Safety (“DPS”) and HCF prison officials violated the Eighth
and Fourteenth Amendments, and Hawaii Revised Statutes (“HRS”) §§ “707711(A) [sic], 707-712(1)(A),” and 710-1063, during and after a cell extraction and
during two disciplinary proceedings.2 Id., PageID #18-19.
1

See Compl., Doc. No. 1, PageID #21; see also State v. Pitts, 131 Haw. 537, 544, 319
P.3d 456, 463 (2014) (vacating judgment on appeal and remanding for appointment of counsel
“for the purposes of filing a motion for a new trial and for resentencing”).
2

Plaintiff names DPS Director and former HCF Warden Nolan Espinda; HCF Chief of
Security (“COS”) Lyle Antonio; DPS Sheriff’s and Internal Affairs Offices; HCF Adult
Correctional Officers (“ACO”) Russel Botelho, Gernler, Magdadaro, Taylor, J. Tabali, Keolanui,
Captain Aguon, Lieutentant Ho, and Lieutenant Kellie Kent; First Adjustment Committee
(continued...)

Plaintiff’s Complaint is DISMISSED in part pursuant to 28 U.S.C.
§§ 1915(e)(2) & 1915A(b). Specifically, Plaintiff’s excessive force and state
common law assault and battery claims against Defendants Botelho, Taylor,
Gernler, Keolanui, Magdadaro, Kent, and Captain Aguon state a claim and require
an answer.
Plaintiff fails to state excessive force and state common law assault and
battery claims against Defendants Lieutenant Ho and J. Tabali, and they are
DISMISSED.
Plaintiff’s claims against the DPS Sheriff’s and Internal Affairs Offices and
their unidentified officers fail to state a claim and are DISMISSED.
Plaintiff’s claims against Director Espinda and COS Antonio for failure to
supervise, discipline, or enforce prison policies and procedures are DISMISSED.
Plaintiff’s due process claims against Adjustment Committee members
Morreira, Villalobos, Ueda, Manumaleuna, and Tuifau are DISMISSED.
Plaintiff’s unsworn falsification and delay of medical care claims against
Defendant Val DeMello, RN, are DISMISSED.

2

(...continued)
Members Keoni Morreira (Chair), Manumaleuna, and Janice Villalobos; Second Adjustment
Committee Members Ueda (Chair) and Francis Tuifau; HCF Nurse Val DeMello, RN; and
unidentified Doe Defendants (collectively, “Defendants”).
2

Plaintiff may file an amended complaint curing the deficiencies in claims
dismissed by this order on or before March 4, 2016. In the alternative, Plaintiff
may notify the court in writing on or before March 4, 2016, that he will stand on
his excessive force and common law assault and battery claims against Defendants
Botelho, Taylor, Gernler, Keolanui, Magdadaro, Aguon, and Kent and proceed on
those claims only. In that event, the court will order the United States Marshal to
serve the Complaint as directed by Plaintiff and those Defendants will be directed
to answer.
I. BACKGROUND
These facts are taken from the Complaint and accepted as true, but should
not be construed as findings by the court. Plaintiff alleges that on or about July 9,
2014, he returned to his cell in HCF’s “high SHU,”3 and discovered that his
commissary items had not been delivered and that someone had apparently
tampered with his food tray. Compl., Doc. No. 1, PageID #6. Plaintiff
“immediately” began yelling and kicking his cell door. Id. When he received no
response, Plaintiff told ACO Costello to move away because he intended “to throw
bodily waste on the floor and window” outside the cell. Id. Plaintiff then threw
feces through his tray access slot onto the window, table, and floor outside his cell.
3

High SHU apparently refers to HCF’s highest level special or segregated housing unit.
3

Plaintiff then packed his belongings and awaited an unidentified captain’s arrival,
anticipating removal from the cell. Plaintiff alleges that while he waited, someone
repeatedly slammed his arm in his tray slot, because he “refused to move it and
requested to speak to a captain.” Id., PageID #4. He says he then locked his tray
slot. Id., PageID #7.
After approximately four hours, Sergeant Segich addressed Plaintiff over
the intercom; Plaintiff asked her to come speak with him. Segich arrived covered
in plastic for protection and asked Plaintiff if he would lie on the floor and prepare
to be handcuffed for removal. Plaintiff became suspicious, and requested to be
taken to suicide watch. He then lay on the floor while Defendants Gernler,
Magdadaro, Taylor, Botelho, and Keolanui cuffed and carried him outside the cell,
while Lieutenant Kent filmed the extraction. Plaintiff was willing to walk, but
was later told that he was not allowed to do so because there was feces on the floor
and cell door. Plaintiff walked to a van where he was ordered to kneel with his
face and chest facing the seat bottom.
Once inside the van, Plaintiff claims “he was immediately attacked till he
almost died and defecated on himself.” Id., PageID #10. Plaintiff says a van
driver was present during the assault, and asserts that Lieutenant Kent turned the
camera off inside the van. Plaintiff alleges that Captain Aguon was “in charge
4

during the extraction,” and told Plaintiff that he “gave the order to assault” him.
Id., PageID #3, #9. Plaintiff says he received a gash inside his mouth, had
difficulty breathing, injured his back and shoulder, and now suffers from
migraines and dizziness.
Plaintiff was taken to the medical unit, where Nurse Ricky and Defendant
DeMello examined him and took pictures. Plaintiff says DeMello failed to record
his statements verbatim, note the gash in his mouth, or record that he had
defecated on himself in the van. See id., PageID #9-10. He says that when Ricky
and DeMello left the examination room, ACO Gernler struck him again. Plaintiff
was taken to the Medium SHU, where he was stripped and, after he indicated that
he still wanted to be put on suicide watch, he was escorted there. Plaintiff claims
that he was not treated for his injuries for “over sixty days.”4 Id., PageID #9, ¶ 73.
He says he filed a grievance regarding the cell extraction on July 16, 2014,
#269906, but says the grievance officer refused to process it.
Ten days after the cell extraction, on or about July 19, 2014, ACOs Botelho
and Kepa escorted Plaintiff to the medical unit for asthma treatment. Plaintiff says
Botelho squeezed his arm tightly and, when they were left alone, said “go ahead

4

Plaintiff later claims that he was not examined until on or about January 22, 2015, more
than six months after the extraction. Id., PageID #12, ¶ 111.
5

and write it up I don’t care,” referring to the cell extraction. Id., PageID #10.
Plaintiff immediately called for a nurse, Kepa came back into the room, and Kepa
and Botelho escorted Plaintiff back to his cell. Plaintiff reported this to Captain
Aguon, apparently upset that he had contact with Botelho, but Aguon told Plaintiff
that he had not received a complaint from Plaintiff regarding the cell extraction or
any other alleged misconduct by Botelho against Plaintiff. Id., PageID #11.
Plaintiff lists grievances and letters that he submitted between July 16,
2014, and May 2015: (1) reporting the July 9, 2014 assault and the July 19, 2014
incident with Botelho; (2) requesting medical attention for his shoulder on
September 6, 2014; (3) notifying Director Espinda of the alleged assault;
(4) requesting orthopedic care; (5) complaining of harassment and denial of
medical care; (6) grieving ACO Thomas Liu’s alleged refusal to process Plaintiff’s
grievances; and (7) challenging the denial of his grievances and the approval of
the two adjustment committee findings of guilt. See id., PageID #11-14. It
appears that prison officials responded to most, if not all, of Plaintiff’s
submissions. See id. Plaintiff says he filed complaints regarding the July 9, 2014
cell extraction with the DPS Sheriff’s and Internal Affairs Offices on or about
February 27, 2015, but neither pursued charges. Id., PageID #13-14.

6

Plaintiff alleges he was denied due process during two separate disciplinary
proceedings. See id., PageID #14-17. In the first, Plaintiff was charged with
several infractions regarding the July 9, 2014 incident. ACO Sheridan
investigated the incident and reviewed statements from Defendants Aguon, Ho,
Botelho, Taylor, Magdaro, Keolanui, and Gernler, and from non-defendants
Sergeants Christianson and Segich. Plaintiff complains these statements were
identical but for their signatures, suggesting collusion. Id., PageID 14-15.
Plaintiff says Sheridan failed to speak with Plaintiff’s inmate witnesses despite
assurances that he would. Plaintiff admits, however, that Sheridan dismissed one
charge of disobeying staff orders after his investigation.
On October 16, 2014, Defendants Morreira and Villalobos and committee
member Meagan Owens presided over Plaintiff’s First Adjustment Committee
hearing. Plaintiff was by then housed in the HCF psychiatric ward. Chairperson
Morreira told Plaintiff that he would interview Plaintiff’s witnesses after the
hearing and then speak with him. Morreira denied Plaintiff’s request to read all of
the witness statements at the hearing, although they were summarized. On
December 5, 2014, Morreira and Villalobos met with Plaintiff, and again refused
to allow him to read each statement. On December 9, 2014, the First Adjustment
Committee found Plaintiff guilty of the remaining three charges (described below),
7

sentenced him to time served in the High SHU, and raised his custody level. Id.,
PageID #16. Plaintiff remained in the Medium SHU or the psychiatric ward until
February 11, 2015, when he was returned to the High SHU. Id., PageID #13.
Plaintiff alleges that he saw ACO Botelho on duty the day after he
transferred back to the High SHU. He does not detail what occurred, but he
immediately sought a separation order against Botelho.
On March 4, 2015, Botelho charged Plaintiff with threatening him,
destroying or damaging government property, and refusing to obey an order.
Plaintiff responded to the charges and requested witnesses, but alleges his
witnesses were not contacted. On March 9, 2015, Second Adjustment Committee
members Tuifau and Ueda held a hearing at which they denied Plaintiff’s request
to call witnesses. Plaintiff was apparently found guilty, because he complains that
he has never received a response to his appeal, but this is not explicit. Plaintiff
provides no other details.
Plaintiff alleges four claims for relief: (1) “Misuse of Force;” (2) “Collusion
and Falsifying Injury Records;” (3) “Violation of Plaintiff’s Right to Be
Protected;” and (4) “Denial of Due Process.” He seeks declaratory and injunctive
relief and compensatory and punitive damages.

8

II. SCREENING
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 seek relief from a defendant who is immune
from 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 “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 plaintiff must
plead facts that allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.

9

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 must identify and disregard allegations that “are not entitled to the
assumption of truth,” that is, allegations that are legal conclusions, bare assertions,
or merely conclusory. Iqbal, 556 U.S. at 679-80. Then, the court must 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.
The court is not 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 ordinarily be granted if the plaintiff can correct the
defects in the complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en
banc). If it is clear the complaint cannot be saved by amendment, dismissal

10

without leave to amend is appropriate. Sylvia Landfield Trust v. City of L.A., 729
F.3d 1189, 1196 (9th Cir. 2013).
III. DISCUSSION
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).
Section 1983 requires a connection between a defendant’s actions and a
plaintiff’s allegations. See Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978);
Rizzo v. Goode, 423 U.S. 362 (1976). “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).
A.

DPS Sheriff’s and Internal Affairs Offices and Unidentified Officers
“[I]n the absence of consent a suit in which the State or one of its agencies

or departments is named as the defendant is proscribed by the Eleventh
Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). “This jurisdictional bar applies regardless of the nature of the relief
11

sought.” Id.; Alabama v. Pugh, 438 U.S. 781, 782 (1978); see also In re Jackson,
184 F.3d 1046, 1048 (9th Cir. 1999) (holding that the court may raise Eleventh
Amendment immunity sua sponte). The State of Hawaii and DPS have not waived
their immunity from suit.
Additionally, states, state agencies, and state officials sued in their official
capacities are not persons subject to civil rights claims for damages under 42
U.S.C. § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-66 (1989); see
also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment
does not bar suits against state officials in their individual capacities or suits for
prospective injunctive relief against state officials in their official capacities). The
DPS Sheriff’s and Internal Affairs Offices are not persons within the meaning of
42 U.S.C. § 1983.
Finally, Plaintiff has no constitutional right to have DPS or its officers
charge others on his behalf. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S.
748, 768 (2005) (“[T]he benefit that a third party may receive from having
someone else arrested for a crime generally does not trigger protections under the
Due Process Clause, neither in its procedural nor in its ‘substantive’
manifestations.”); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A]
private citizen lacks a judicially cognizable interest in the prosecution or
12

nonprosecution of another.”); Smith v. Ark. State Highway Emps., Local 1315, 441
U.S. 463, 465 (1979) (per curiam) (noting the Constitution “does not impose any
affirmative obligation on the government to listen [or] to respond” to grievances);
see also Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th Cir.
1994); Mancini v. City of Cloverdale Police Dep’t, 2015 WL 4512274, at *4 (N.D.
Cal. July 24, 2015); Doe v. Cty. of San Mateo, 2009 WL 735149, at *8 (N.D. Cal.
Mar. 19, 2009).
The DPS Corrections Division investigated Plaintiff’s claims, regardless of
whether that investigation was conducted by Internal Affairs or the Sheriff’s
Office. DPS is not required to bring charges at Plaintiff’s behest, however. See,
e.g., Boldt v. Myers, 376 F. App’x. 800, 801 (9th Cir. 2010); Hason v. Beck, 2013
WL 6732672, at *5 (C.D. Cal. Dec. 19, 2013); Sexual Sin De Un Abdul Blue v.
City of L.A., 2010 WL 890172, at *6 (C.D. Cal. Mar. 8, 2010). Plaintiff fails to
state a claim against the DPS Sheriff’s and Internal Affairs Offices and/or their
unidentified personnel and these claims are DISMISSED.
B.

“Misuse of Force”
Plaintiff alleges Defendants Botelho, Taylor, Gernler, Keolanui,

Magdadaro, Tabali, Ho, Aguon, and Kent violated his constitutional rights and
state law during his cell extraction and transport to the medical unit. See Compl.,
13

Doc. No. 1, PageID #7-9, 18. He alleges that DPS Director and former HCF
Warden Espinda and COS Antonio are liable based on their supervisory positions.
1.

Unconstitutional Excessive Force

The Eighth Amendment’s prohibition against the malicious or sadistic use
of force, see Hudson v. McMillian, 503 U.S. 1, 7 (1992), does not apply “until
after conviction and sentence.” Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)
(emphasis added). Unsentenced inmates like Plaintiff derive protection from
excessive force under the Fourteenth Amendment’s Due Process clause, if that
force amounts to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979)
(“[U]nder the Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.”); Ingraham v.
Wright, 430 U.S. 651, 671 n.40 (1977) (“Eighth Amendment scrutiny is
appropriate only after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions.”). Pre-trial detainees and
unsentenced inmates like Plaintiff “retain at least those constitutional rights that
. . . are enjoyed by convicted prisoners.” Bell, 441 U.S. at 545; Redman v. Cty. of
San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991) (en banc).
To state a claim, Plaintiff “must show only that the force purposely or
knowingly used against him was objectively unreasonable,” rather than prove a
14

subjective standard that takes into account a defendant’s state of mind. Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015) (discussing excessive force standards
as applied to pretrial detainee’s claims). To determine the reasonableness or
unreasonableness of the force used, courts consider:
the relationship between the need for the use of force and the amount
of force used; the extent of the plaintiff's injury; any effort made by
the officer to temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably perceived by the
officer; and whether the plaintiff was actively resisting.
Id. (citing Graham, 490 U.S. at 396).
Plaintiff states a cognizable excessive force claim against Defendants
Botelho, Gernler, Keolanui, Magdadaro, Taylor, Aguon, and Kent and these
claims shall be served and will require an answer.
Plaintiff, however, alleges no facts showing Defendants Ho or Tabali’s
involvement in the cell extraction or subsequent assault. He explicitly states that
Tabali was not part of the extraction team, yet provides no other facts linking
Tabali to his claims. See Compl., Doc. No. 1, PageID #3. Similarly, beyond
Plaintiff’s allegation that Ho submitted a report to the First Adjustment Committee
regarding the cell extraction, he sets forth no facts regarding Ho. See Compl.,
Doc. No. 1, PageID #14. Plaintiff fails to state a claim against Tabali and Ho and
such claims are DISMISSED.
15

2.

Assault and Battery

Plaintiff has no private right of action for his criminal assault and battery
claims under HRS §§ “707-711(A)” or 707-712(1)(A). See Linda R.S., 410 U.S. at
619. Liberally construing this claim, however, a person commits the common law
tort of assault if he acts with intent to cause another harmful or offensive contact
or apprehension thereof, and the other person apprehends imminent contact. See
McCormack v. City & Cty. of Honolulu, 762 F. Supp. 2d 1246, 1253 (D. Haw.
2011) (citations omitted). A person commits the common law tort of battery if he
acts with intent to cause nonconsensual harmful or offensive contact, or
apprehension thereof, and the contact occurs. Id.; Williams v. Aona, 121 Haw. 1,
13, 210 P.3d 501, 513 (2009).
Plaintiff states common law assault and battery claims against Botelho,
Gernler, Keolanui, Magdadaro, Taylor, Aguon, and Kent and these claims shall be
served and require an answer. For the same reasons as discussed above, Plaintiff
fails to state a claim against Tabali and Ho for assault and battery and these claims
are DISMISSED.
C.

Supervisor Liability
Plaintiff claims there is a clear and unmistakable “pattern of excessive

force” at HCF, about which Director and former Warden Espinda and COS
16

Antonio “were and are fully aware.” Compl., Doc. No. 1, PageID #4, 9. Plaintiff
alleges that Espinda, Antonio, and Aguon failed to (1) discipline or “curb the
known pattern of physical abuse of inmates” by Botelho, Gernler, Keolanui,
Magdadero, and Taylor; and (2) institute clear policies, enforce procedures, and
install cameras to prevent the misuse of force. Id., PageID #18.
1.

Legal Standards

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 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”). Supervisors
may be held liable under § 1983 only if they (1) were personally involved in the
constitutional deprivation, or (2) there is a sufficient causal connection between
the supervisor’s wrongful conduct and the constitutional violation. Starr v. Baca,
652 F.3d 1202, 1207 (9th Cir. 2011); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989). In general, a plaintiff “must allege that every government defendant -supervisor or subordinate -- acted with the state of mind required by the
underlying constitutional provision.” OSU Student Alliance v. Ray, 699 F.3d

17

1053, 1070 (9th Cir. 2012). Supervisors may therefore be held liable under
§ 1983:
(1) for setting in motion a series of acts by others, or knowingly
refusing to terminate a series of acts by others, which they knew or
reasonably should have known would cause others to inflict
constitutional injury; (2) for culpable action or inaction in training,
supervision, or control of subordinates; (3) for acquiescence in the
constitutional deprivation by subordinates; or (4) for conduct that
shows a reckless or callous indifference to the rights of others.
Moss v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th Cir. 2012) (citation and
quotation marks omitted), rev’d on other grounds, Wood v. Moss, 134 S. Ct. 2056
(2014).
A claim based on an allegedly unconstitutional policy is generally brought
against the municipality. Monell, 436 U.S. at 691; Gillette v. Delmore, 979 F.2d
1342, 1346 (9th Cir. 1992) (“A section 1983 plaintiff may establish municipal
liability . . . [by showing] that the individual who committed the constitutional tort
was an official with ‘final policy-making authority’ and that the challenged action
itself thus constituted an act of official governmental policy.”) (citing Pembaur v.
City of Cincinnati, 475 U.S. 469, 480-81 (1986)).
2.

Claims Against Aguon

Plaintiff alleges that Captain Aguon ordered the extraction team to assault
him; it is unclear whether Aguon was present during the extraction. Nonetheless,
18

this is sufficient to show Aguon’s personal involvement, causal connection,
knowledge of, and acquiescence in the extraction team’s alleged misconduct. This
states a claim against Aguon as a supervisor and he is required to answer.
3.

Claims Against Espinda and Antonio

In Starr, the Ninth Circuit held that the complaint stated a claim against Los
Angeles County Sheriff Baca because it contained extensive, detailed factual
allegations that identified what Baca knew or should have known and what Baca
did or failed to do, as well as “sufficient facts to plausibly suggest Sheriff Baca’s
‘knowledge of’ and ‘acquiescence in’ the unconstitutional conduct of his
subordinates.”5 Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 2012) (quoting
Starr, 652 F.3d at 1207, 1209). “[T]he absence of specifics is significant” when
alleging supervisor liability, because Iqbal makes clear that a complaint against a
government official must show that the official’s own individual actions violated

5

Allegations against Baca included a letter and weekly reports that Baca received
regarding inmate abuse; a memorandum of understanding (“MOU”) between Baca and the
Department of Justice (“DOJ”) addressing constitutional violations against inmates; a DOJ report
finding Baca failed to comply with the MOU; several reports provided to Baca by a special
counsel, which noted inmate abuse and problems at the jail; and instances when Baca was
specifically informed of (1) the failure to investigate a deputy’s attack resulting in an inmate’s
death; (2) inmate-on-inmate attacks and the failure to provide reasonable security (pursuant to a
settlement in a separate civil action); and (3) inmate beatings and killings that resulted from the
failure of deputies to provide reasonable security. See Starr, 652 F.3d at 1209-11; see also
Hydrick, 669 F.3d at 941.
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the Constitution. Id. at 941-42 (finding complaint’s allegations bald and
conclusory, “devoid of specifics” and insufficient to plausibly infer defendant’s
knowledge of and/or acquiescence in the allegedly unconstitutional conduct by
subordinate employees).
In support of his claims against Espinda and Antonio, Plaintiff alleges that
inmates Jose Nievis Baez, Jeffery Diaz, Mark Berteleson, and Raphael Hernandez
were assaulted at HCF; he provides Baez’s and Hernandez’s affidavits. He also
alleges that Sheriff F. Villoso told him that “out of 300 reports of excessive force
complaints in 2014, less than three percent of the officers implicated recieved [sic]
any type of discipline.” Compl., Doc No, 1, PageID #4.
Plaintiff’s conclusory assertions regarding assaults in general at HCF,
however, and in particular regarding inmates Baez, Diaz, Bertelesen, and
Hernandez, are insufficient to show that Espinda and Antonio knew or should
have known that Plaintiff’s cell extraction would likely result in harm to Plaintiff.
Iqbal, 556 U.S. at 679-80. Baez was allegedly assaulted in 2015, after Plaintiff’s
cell extraction. Baez Decl., Doc. Nos. 5-1, 5-2. Hernandez provides no details
about the alleged assaults he experienced, see Hernandez Decl., Doc. No. 5-3, but
his pending civil rights action alleges ACO Maitland Spencer assaulted him in
2013, and does not allege this occurred during a cell extraction. See Hernandez v.
20

Spencer, Civ. No. 15-00256 SOM/RLP (D. Haw. 2015). Spencer is not a named
Defendant here. Bertelesen was allegedly assaulted “by the extraction team” in
September 2014, also after Plaintiff’s extraction, and Plaintiff provides few details
regarding Diaz’s alleged assaults. See Compl., Doc. No. 1, PageID #5.
Plaintiff’s bare assertions are insufficient to show that Espinda or Antonio
knew of a “pattern of abuse” by Botelho, Gernler, Keolanui, Magdadero, Kent,
Aguon, and Taylor, or of cell extraction teams in general. See Compl., Doc. No. 1,
PageID #18. Plaintiff’s allegations do not show Espinda’s or Antonio’s,
knowledge of and failure to address a pervasive culture of violence at HCF.
Nor does Sheriff Villoso’s alleged comment to Plaintiff that DPS received
300 complaints in 2014 and only 3% resulted in discipline establish a pervasive
culture of violence at HCF, or show a causal connection between Espinda and
Antonio’s action or inaction and Plaintiff’s alleged assault. Accepting that there
were 300 prisoner complaints of guard-on-inmate violence at HCF in 2014, the
fact that only 3% resulted in discipline against guards also plausibly suggests that
97% of these complaints were determined to be unfounded.
Further, Plaintiff identifies no policies or procedures that Espinda and
Antonio failed to enforce to prevent such assaults during cell extractions or
otherwise. The existence of such policies cuts against a finding that Espinda or
21

Antonio failed to take action to prevent violence during cell extractions. Rather,
such policies show that prison officials are attempting to curb violence at HCF.
For example, although Plaintiff complains that there were no closed circuit
cameras installed in the High SHU when the incident occurred, he asserts that
Kent filmed his cell extraction inside the facility and only turned the camera off in
the van. This shows that (1) there existed a policy of filming at least some cell
extractions; and (2) the extraction team attempted to hide the assault from prison
authorities. Without more, Espinda and Antonio cannot be liable for a failure to
take measures to ensure inmate safety at HCF if their subordinates purposely
violated DPS policies to cover up misconduct.
Fourth, Plaintiff’s primary complaint is that Espinda and Antonio failed to
discipline the extraction team members after the incident, and thereafter upheld
the Adjustment Committees’ decisions and denied his grievances. A supervisor’s
inaction after an alleged violation cannot plausibly allege “a sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional
violation” when it occurred. Starr, 652 F.3d at 1207. Although a supervisor may
be personally liable based on the supervisor’s “knowledge of and acquiescence in
unconstitutional conduct by his or her subordinates,” a plaintiff must still allege at
least some conduct before the unconstitutional incident that shows the supervisor
22

knew or should have known that his conduct could cause the constitutional
violation the plaintiff suffered. See Jones v. Cty. of Sacramento, 2010 WL
2843409, at *7 (E.D. Cal. July 20, 2010); see also Starr, 652 F.3d at 1208.
Plaintiff fails to state a supervisor liability claim against Director Espinda or COS
Antonio and these claims are DISMISSED.
D.

Collusion and Falsifying Injury Records
Plaintiff alleges that DeMello colluded with Botelho, Gernler, Taylor,

Magdadaro, Kent, Aguon, and Keolanui to cover up the alleged assault when she
failed to record his statements verbatim, neglected to note a gash inside his mouth
and that he had defecated on himself, and stated he was “carried, refused to
ambulate” on his medical intake report in violation of HRS § 710-1063(1)(A-B).
Compl., Doc. No. 1, PageID #9-10, 19. He suggests this led to a delay in medical
care in violation of the Eighth Amendment. Id., PageID #19.
1.

Conspiracy

To state a conspiracy claim, a plaintiff “must show ‘an agreement or
‘meeting of the minds’ to violate constitutional rights.’” Franklin v. Fox, 312 F.3d
423, 441 (9th Cir. 2002) (citation omitted). A court need not “accept as true
allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988
23

(9th Cir.), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001). “A mere
allegation of conspiracy without factual specificity is insufficient.” Karim Panahi
v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988); see also Woodrum
v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989) (conclusory allegations of
conspiracy did not support a § 1983 claim).
Plaintiff alleges no facts supporting an agreement or meeting of the minds
between DeMello and the extraction team. Moreover, DeMello’s observations do
not materially contradict Plaintiff’s own facts and may include what she was told
by the extraction team when Plaintiff was brought to the medical unit. Plaintiff
fails to state a conspiracy claim and this claim is DISMISSED.
2.

Delay of Medical Care6

Plaintiff alleges DeMello’s report led to a delay of medical care because it
was not signed by a doctor and he was not examined until “months after the
assault.” Id., PageID #10. To state a § 1983 medical claim, a plaintiff must show
that the defendant acted with “deliberate indifference to serious medical needs.”
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)). “Deliberate indifference is a high legal standard.”

6

To be clear, Plaintiff confines his claims to DeMello’s allegedly false intake report and
alleges no claims against Nurse Ricky or any other prison medical staff.
24

Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Deliberate indifference
requires that “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 v. Brennan, 511 U.S. 825, 837 (1994). Deliberate
indifference may be shown (1) by a purposeful act or failure to respond to a
prisoner’s pain or possible medical need and harm caused by the indifference;
(2) when a prison official intentionally denies, delays, or interferes with medical
treatment; or (3) by the way prison medical personnel respond to a prisoner’s
medical needs. See Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
DeMello’s allegedly inaccurate report does not support that she acted with
deliberate indifference to Plaintiff’s health or serious medical needs. Nurse Ricky
and DeMello triaged Plaintiff immediately after the cell extraction before sending
him to suicide watch. Ricky examined Plaintiff and DeMello photographed him
and wrote the intake report. Plaintiff does not allege that he told either of them
about the gash in his mouth or his shoulder and back pain, or that they refused to
treat his pain or obvious injuries. DeMello’s failure to note a cut inside of
Plaintiff’s mouth, or specify that he defecated on himself in the van, as opposed to
in his cell, does not support a claim that she acted with deliberate indifference to
his serious medical needs.
25

Additionally, Plaintiff’s transport to a suicide watch cell suggests that he
was medically monitored while there. Plaintiff does not allege that he informed
anyone while he was on suicide watch that he required care for his mouth,
shoulder, or back and was denied such care.
Plaintiff admits that he received asthma treatment at the medical unit ten
days after the cell extraction. He does not allege that he requested care for his
mouth, back, or shoulders then, or explain why he was unable to do so. Plaintiff
requested care for his shoulder in September 2014, and admits Antonio told him
that he was scheduled for an appointment. Plaintiff states that he received two
injections for his shoulder within sixty days of the cell extraction.
Plaintiff was also in the psychiatric ward for at least part of the time while
awaiting his disciplinary hearing, but does not explain why he did not request care
for his mouth, shoulder, or back then. Finally, Plaintiff says he “checked in
suicide watch on February 17, 2015,” to get away from Botelho in the High SHU,
indicating he was able to access medical care if needed. Id., PageID #13. These
facts do not plausibly show that DeMello’s allegedly false or inadequate intake
report led to a delay in medical care for Plaintiff’s serious injury and this claim is
DISMISSED.

26

3.

Unsworn Falsification to Authorities: HRS § 710-1063

Plaintiff alleges DeMello violated HRS § 710-1063, a criminal
misdemeanor, by failing to record his statements verbatim.7 Plaintiff has no
private right of action to enforce a criminal statute and this claim is DISMISSED.
See Linda R.S., 410 U.S. at 619.
E.

Failure to Protect
Plaintiff alleges that HCF “management” violated DPS COR. 10.1B.05,

when Botelho was allowed to escort him to the medical unit on July 19, 2014, and
they were alone for several minutes. Compl., Doc. No. 1, PageID #10-11.
Plaintiff also complains that Botelho was assigned to the High SHU where
Plaintiff was rehoused on or about February 11, 2015. Id., PageID #13.
DPS policy requires separation of an inmate and a correctional officer when
the officer is alleged to have assaulted the inmate. See Policy No. COR.

7

An individual violates HRS § 710-1063, if, with “intent to mislead a public servant in
the performance of the public servant’s duty,” he:
(a) Makes any statement, in written, printed, or electronic form, which the person does
not believe to be true, in an application for any pecuniary or other benefit or in a record or
report required by law to be submitted to any governmental agency;
(b) Submits or invites reliance on any statement, document, or record, in written, printed,
or electronic form, which the person knows to be falsely made, completed, or altered; or
(c) Submits or invites reliance on any sample, specimen, map, boundary-mark, or other
object the person knows to be false.
27

10.1B.05.13.8 Plaintiff concedes, however, that although he filed a grievance
regarding the extraction on July 16, 2014, the grievance officer had “refused to
process” it. Id. If HCF management was unaware of an assault during the cell
extraction, they did not violate DPS policy by failing to separate Plaintiff from
Botelho.
To the extent Plaintiff alleges that his transfer back to the High SHU after
his disciplinary proceedings and grievances were resolved violated DPS policy,
because Botelho worked at the High SHU, Plaintiff fails to state a claim. Prison
policy specifically mandates separation only “until the case is resolved.” See DPS
Policy No. COR10.1B.05. This claim is DISMISSED.
Plaintiff only alleges a violation of DPS policy regarding the July 19, 2014,
“Botelho escort,” and makes no constitutional claim. But to the extent a
constitutional claim can be liberally construed from Plaintiff’s confusing

8

Policy No. COR.10.1B.05, deals with procedures following a reported sexual or
physical assault on an inmate, and states in pertinent part:
If the alleged assailant is a correctional employee, that employee shall not be
involved in any proceedings involving the victim, including medical care
rendered, counseling, hospital duty or transport. The victim and the alleged
assailant shall have no contact with each other, until the case is resolved and the
victim’s safety can be assessed by the Chief of Security.
COR.10.1B.05.13. See http://dps.hawaii.gov/wp-content/uploads/2014/11/COR.10.1B.05 (last
visited Jan. 27, 2016).
28

allegation of facts, he fails to state a claim. The Constitution requires prison
officials to take reasonable measures to guarantee inmates’ safety. Farmer, 511
U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A
prisoner must show that prison officials acted with deliberate indifference to the
threat of serious harm or injury. Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187
(9th Cir. 2002).9 That is, prison officials must “be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists and . . .
must also draw the inference.” Farmer, 511 U.S. at 837. Liability follows only if
a prison official “knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.
Because HCF prison officials had not received Plaintiff’s grievance alleging
that Botelho assaulted him during the cell extraction, they could not have acted
with deliberate indifference to a substantial threat to Plaintiff’s safety when
Botelho was assigned to escort him to the medical unit on July 19, 2014. See
Taylor v. Barkes, — U.S. —, 135 S. Ct. 2042, 2045 (2015) (noting that Farmer
holds that “liability requires actual awareness of risk”). And, prison officials
9

The court recognizes that Ninth Circuit law governing this issue may be revisited
following Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). See Hatter v. Dyer, ¯ F. Supp. 3d
¯, 2015 WL 9613769 (C.D. Cal. Dec. 31, 2015) (discussing tension between Kingsley and
Castro v. Cty. of Los Angeles, 797 F.3d 654 (9th Cir. 2015), r’hrg en banc granted, 808 F.3d.
536 (Dec. 28, 2015), regarding whether a pretrial detainee asserting a Fourteenth Amendment
failure-to-protect claim must show deliberate indifference).
29

cannot be held deliberately indifferent for transferring Plaintiff back to the High
SHU after the incident was investigated and Plaintiff’s claims were denied. Prison
officials cannot be required to separate an inmate from a guard forever when an
inmate alleges the guard assaulted him, after such claims have been investigated
and denied. Plaintiff fails to state a claim under state or federal law and this claim
is DISMISSED.
F.

Due Process
Plaintiff alleges that he was denied due process at two Adjustment

Committee disciplinary hearings based on a denial of his right to call witnesses.
1.

Legal Standard

The Fourteenth Amendment protects prisoners against deprivation or
restraint of “a protected liberty interest” under the Constitution or through
imposition of an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation
marks omitted). Determination of an atypical hardship is guided by:
(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

30

imposed; and (3) whether the state’s action will invariably affect the
duration of the prisoner’s sentence.
Id. at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has a protected
liberty interest, or “[i]f the hardship is sufficiently significant, then the court must
determine whether the procedures used to deprive that liberty satisfied Due
Process.” Id. at 860.
Due process during a prison disciplinary hearing requires: (1) written notice
of charges at least 24 hours before the disciplinary hearing; (2) a written statement
by the factfinders as to the evidence relied on and reasons for the disciplinary
action; (3) the right to call witnesses and present documentary evidence if this will
not jeopardize institutional safety or correctional goals; (4) the right to appear
before an impartial body; and (5) assistance from fellow inmates or prison staff in
complex cases when necessary. Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974).
Confrontation and cross examination are not generally required. Id. at 567;
Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), overruled on other grounds
by Sandin, 515 U.S. at 483-84.
Additionally, due process during a prison disciplinary hearing only requires
that “some evidence” exists to support the findings. Superintendent v. Hill, 472
U.S. 445, 455 (1985); Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003).

31

Whether there is “some evidence” to support imposition of discipline “is a
question of law.” Castro v. Terhune, 712 F.3d 1304, 1313-14 (9th Cir. 2013)
(discussing a gang validation determination). The “some evidence” standard is
“minimally stringent.” Castro, 712 F.3d at 1314 (quoting Powell v. Gomez, 33
F.3d 39, 40 (9th Cir. 1994)). The relevant inquiry is whether “there is any
evidence in the record that could support the conclusion reached.” Hill, 472 U.S.
at 455-56.
2.

First Adjustment Committee Hearing

The First Adjustment Committee found Plaintiff guilty of violating DPS
Policy Nos. COR. 13.03.4.2a.6(14 & 15) and COR. 13.03.4.2a.7(1).10 The
committee sentenced Plaintiff to time served in the High SHU and raised his

10

Policy No. COR.13.03.4.2a.6(14) prohibits:

Possession, tampering, compromising or manufacturing of any security equipment
or locking mechanism, such as, but not limited, to handcuffs, handcuff keys, or
any tool designed to lock or unlock any type of locking mechanism.
Policy No. COR. 13.03.4.2a.6(15) prohibits:
Throwing or attempting to throw feces, urine, blood, or other types of bodily
fluids (including spitting) at or on staff.
Policy No. COR. 13.03.4.2a.7(1) 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.
32

custody level. Compl., Doc. No. 1, PageID #16. Plaintiff alleges this meant
twenty-three hours daily lockdown, no mail or telephone privileges, and being
“served less food.” Id. He also says the cell was unsanitary and “urine
saturated.”11 Id.
First, Plaintiff has no protected liberty interest in his custody level, see
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (citing Meachum v. Fano, 427 U.S.
215 (1976)), or in freedom from transfer to a less amenable housing unit or prison.
Hewitt v. Helms, 459 U.S. 460, 468 (1983), abrogated on other grounds by
Sandin, 515 U.S. 472.
Second, Plaintiff fails to allege atypical or significant hardship. Plaintiff
was already housed in the High SHU, either in administrative or protective
custody or pursuant to some other discipline, when the cell extraction occurred.
Plaintiff does not contest this earlier housing decision and the court therefore
infers it comported with the prison’s discretionary authority. See Sandin, 515 U.S.
at 486-87. Sandin explicitly held that segregated confinement that mirrors the
conditions imposed in administrative segregation and protective custody does not
present the type of atypical and significant deprivation that rises to a state created

11

Plaintiff also alleges he was retaliated against and his food was tampered with, but fails
to explain how these incidents were exclusive to his confinement in the High SHU.
33

liberty interest. Id. at 472 (holding that disciplinary segregation in HCF’s SHU for
30 days did not give rise to a state created liberty interest or violate due process).
Plaintiff does not explain how the imposition of time already served in the High
SHU subjected him to atypical and significant hardship as compared to the normal
incidents of prison life that he otherwise experienced. That is, Plaintiff does not
allege how his sentenced time served in the High SHU failed to mirror his time in
segregated administrative or protective custody in the High SHU before the
extraction.
Third, Plaintiff does not allege the duration of his “time served” sentence in
HCF SHU. It is therefore impossible to determine whether the degree of restraint
was significant and atypical based on its length. Plaintiff claims he was served
less food, but he does not compare the amount of food in the High SHU with the
amounts provided in other housing units. As long as Plaintiff received a
nutritionally adequate amount of food, however, a smaller portion or the inability
to purchase extra commissary food does not equal a significant hardship. Plaintiff
says he was denied mail and telephone privileges; without facts showing the
duration of this punishment, or allegations that he was denied all means of contact
with the outside, this statement is meaningless. Plaintiff also fails to allege that

34

his “time served” sentence in the High SHU will inevitably affect the duration of
his sentence, which has not yet been imposed.12
Finally, Plaintiff’s own admissions support the “some evidence” standard.
Plaintiff admits he threw feces on the floor, window, table, and door outside his
cell. This constitutes some evidence that Plaintiff knew that prison staff would be
exposed to or come into contact with his bodily waste, in violation of COR.
13.03.4.2a.6(15). Plaintiff also states that he intentionally blocked his tray access
slot with his arm and then locked it. Clearly, this constitutes “compromising . . . a
locking mechanism,” and physically interfering or obstructing a prison guard’s
performance of his duties in violation of COR. 13.03.4.2a.6(14) and COR.
13.03.4.2a.7(1).
Plaintiff fails to state sufficient facts for the court to plausibly infer that
First Adjustment Committee Members Keoni Morreira, Manumaleuna, or Janice
Villalobos denied him due process by failing to call his requested witnesses.
These claims are DISMISSED for failure to state a claim.

12

Plaintiff is awaiting sentencing for attempted murder in the state circuit court. See
State v. Pitts, Cr. No. 1PC09-000097, available at: http://hoohiki1.courts.state.hi.us/jud/Hoohiki/
main.htm. (last visited Jan. 28, 2016).
35

3.

Second Adjustment Committee Hearing

Plaintiff alleges the Second Adjustment Committee violated his due process
rights when they denied him the right to call witnesses. Plaintiff alleges no facts
regarding the outcome of that hearing. The court cannot plausibly infer an
atypical and significant hardship that gave rise to a protected liberty interest.
Plaintiff’s due process claim against Ueda and Tuifau fails to state a claim and is
DISMISSED.
IV. LEAVE TO AMEND
Plaintiff may file an amended complaint on or before March 4, 2016, that
cures the deficiencies noted above. An amended complaint generally supersedes
the previous complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 907, n.1 (9th
Cir. 2012) (en banc). Thus, an amended complaint should stand on its own
without incorporation or reference to a previous pleading. Defendants not named
and claims dismissed without prejudice that are not realleged in an amended
complaint may later be deemed voluntarily dismissed. Id. at 928 (stating claims
dismissed with prejudice need not be repled in an amended complaint to preserve
them for appeal, but claims that are “voluntarily dismissed” are considered
“waived if not repled”).

36

In the alternative, Plaintiff may notify the court in writing on or before
March 4, 2016 that he will stand on his excessive force and state law assault and
battery claims against Defendants Botelho, Taylor, Gernler, Keolanui, Magdadaro,
Aguon, and Kent. In that event, the court will order the Complaint served and
require those Defendants to answer Plaintiff’s claims against them.
IF Plaintiff chooses to amend his pleadings, he is REQUIRED to do so on
the court’s prisoner civil rights complaint form. Although the court allowed
Plaintiff to forgo using the form for his original Complaint because of his stated
nerve damage and consequent difficulty writing, see Doc. No. 9, it will not do so
for any amended pleading.
V. CONCLUSION
(1) The Complaint is DISMISSED IN PART for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, Plaintiff states
excessive force and state common law claims of assault and battery against
Defendants Botelho, Taylor, Gernler, Keolanui, Magdadaro, Aguon, and Kent and
these claims shall proceed and be answered after service is perfected.
Plaintiff fails to state a claim against (a) the DPS Sheriff’s and Internal
Affairs Offices and these claims are DISMISSED with prejudice; and

37

(b) Defendants Nolan Espinda, Lyle Antonio, Lieutentant Ho, Keoni Morreira, J.
Tabali, Manumaleuna, Janice Villalobos, Ueda, Francis Tuifau, and Val DeMello,
RN, and claims against them are DISMISSED with leave to amend.
(2) Plaintiff may file an amended complaint curing the deficiencies in his
dismissed claims on or before March 4, 2016. Plaintiff SHALL use the court’s
prisoner civil rights complaint form if he chooses to amend his pleadings.
(3) In the alternative, Plaintiff may NOTIFY the court in writing on or
before March 4, 2016, that he elects to stand on his excessive force and state
common law assault and battery claims against Defendants Botelho, Taylor,
Gernler, Keolanui, Magdadaro, Aguon, and Kent. If Plaintiff chooses this option,
the court will order the U.S. Marshal to serve the Complaint at Plaintiff’s direction
as to those claims.
///
///
///
///
///
///
///
38

(4) The Clerk is directed to mail Plaintiff the court’s prisoner civil rights
complaint form so that he can comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 8, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Pitts v. Espinda, 1:15-cv-00483 JMS/BMK; scrn 2016 Pitts 15-483 jms(prt dsm 8 14 A dp)

39