Jones v. Shinn

Filing 11

ORDER DISMISSING COMPLAINT IN PART re 1 Complaint, filed by Opherro Gary Jones. Signed by JUDGE LESLIE E. KOBAYASHI on 02/23/2016. -- 1. The Complaint is DISMISSED IN PART for Plaintiff's failure t o state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Specifically,(a) Count I, naming Warden Shinn, states a cognizable claim for relief and is appropriate for service, and (b) Count II, against Dr.Ackley, is DISMISSED without prejudice. -- 2. Plaintiff may file an amended complaint on or before March 24, 2016, curing the deficiencies noted in Count II, if possible. In the alternative, Plaintiff may stand on his claims against Defendant Shinn in Count I and it will be served. If Plaintiff elects to stand on these claims, he should notify the court of his decision on or before March 24, 2016. If Plaintiff fails to notify the court or file a timely amended complaint, the court will order the C omplaint, Count I only, served on Defendant Shinn. -- 3. The Clerk is DIRECTED to send Plaintiff a copy of the court's prisoner civil rights complaint form so that he may comply with this order. (eps) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served with this document and the prisoner's civil rights complaint form by first class mail on February 24, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OPHERRO GARY JONES, FED.
REG. #02902-122,
Plaintiff,
vs.
WARDEN SHINN, DOCTOR
ACKLEY,
Defendants.
________________________

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CIV. NO. 15-00486 LEK-BMK
ORDER DISMISSING COMPLAINT
IN PART

ORDER DISMISSING COMPLAINT IN PART
Before the court is pro se Plaintiff Opherro Gary
Jones’ prisoner civil rights Complaint brought pursuant
to Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971).

See Doc. No. 1.

Plaintiff is

incarcerated at the United States Penitentiary, USP
Canaan.

Plaintiff alleges that while he was housed at

the Federal Detention Center-Honolulu (“FDC-Honolulu”)
in 2013-2014, FDC-Honolulu Warden David Shinn and FDCHonolulu physician Dr. Ackley denied him timely and
appropriate medical care.

The court has screened the Complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b)(1), and finds that it
states a cognizable claim for relief in part.
Plaintiff’s claims against Warden Shinn state a claim
and shall be served.

Plaintiff’s claims against Doctor

Ackley fail to state a claim and are DISMISSED with
leave to amend.
I.

STATUTORY SCREENING

The court must screen all civil actions brought by
prisoners regarding prison conditions or seeking
redress from a government entity, officer, or employee.
28 U.S.C. § 1915A(a).

Complaints or claims that are

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

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint fails to state a claim if it (1) lacks
a cognizable legal theory; or (2) contains insufficient
facts under a cognizable legal theory.

Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990).

A pleading must contain a “short and plain
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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-defendantunlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“Threadbare recitals of the

elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

A

sufficient complaint must plead “enough facts to state
a claim to relief that is plausible on its face.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable
for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task
that requires . . . judicial experience and common
sense.”

Id. at 679. “[W]here the well-pleaded facts do

not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged —
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but it has not ‘show[n]’ — ‘that the pleader is
entitled to relief.’”

Id. (quoting Fed. R. Civ. P.

8(a)(2)).
The court construes pro se complaints liberally, in
the light most favorable to the plaintiff, and accepts
all allegations of material fact as true.

See Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hebbe
v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010).

A pro

se prisoner’s complaint is “held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson, 551 U.S. at 94.

Leave to amend should be

granted unless it appears that amendment is futile.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II. BACKGROUND
This suit stems from Plaintiff’s previous civil
rights action against Defendants Shinn and Ackley in
Jones v. Shinn, Civ. No. 14-00231 LEK/BMK (D. Haw.
May 14, 2014), filed in 2014 while Plaintiff was a pretrial detainee at FDC-Honolulu.

Plaintiff alleged,

inter alia, that he had informed Warden Shinn, on or
about “9/24/13,” that his numerous requests for medical
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attention for his flu symptoms were denied.
Compl., Doc. No. 1, PageID #5.

Id.,

Plaintiff alleged that

Dr. Ackley “refused to see [him] for any medical issues
dispite [sic] repeated requests for medical attention,”
until Lieutenant Cline “made the Doctor Ackley [come]
and see me Jan. 2014.”

Id., PageId #6.

On September 26, 2014, this Court ordered Plaintiff
to serve the Amended Complaint on Shinn and Ackley.
Doc. No. 25.

Plaintiff, however, failed to perfect

service and after two extensions of time, the court
dismissed the action without prejudice on April 8,
2015.

See Doc. Nos. 30-32.

Five months later, on November 6, 2015, Plaintiff
submitted a document in Civ. No. 14-00231, titled
“Reinstatement of Amended Complaint In Alternative
Construing Into a New Notice of Complaint.”1
35.

Doc. No.

To the extent Plaintiff sought reconsideration of

the dismissal of Civ. No. 14-00231, it was denied.

1

See

Plaintiff signed this document on October 27, 2015, and
tendered it to prison authorities on November 3, 2015. See Doc.
Nos. 35, PageID #153, 35-1 (envelope).
5

Order, Doc. No. 37.

The Court directed the Clerk to

open the present action.
Plaintiff provides somewhat less detail and the
time periods are considerably more vague in the present
Complaint than those set forth in Civ. No. 14-00231.
Plaintiff alleges that he began to experience flu
symptoms, such as a sore throat, painful chest, nausea,
and weakness, “[o]n or about October in 2013.”

Civ.

No. 15-00486, Compl. ¶ 14.
Plaintiff says he submitted three or four weekly
request for treatment to Counselor Potts, but says
“nothing happened,” and alleges he was not seen for his
flu symptoms until January 2014.

Id. ¶ 15.

Plaintiff

states that he notified Warden Shinn at least once that
he was being denied medical attention for his flu
symptoms, and Shinn assured him that he would look into
the issue.

Id. ¶¶ 17-18.

At some point in January 2014, Plaintiff submitted
a medical request slip to Lieutenant Cline.

Plaintiff

says Dr. Ackley then came to the Special Housing Unit
(“SHU”), examined him, and prescribed him ibuprofen.
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While there, Dr. Ackley allegedly said, “as long as you
are remaining [in] the SHU, you will not get any
medical attention.”

Id. ¶ 21.

In February 2014, Dr. Pierce examined Plaintiff in
the SHU and prescribed a different pain medication.
Dr. Pierce allegedly told Plaintiff that ibuprofen was
ineffective to treat chronic pain stemming from a flu
infection that began in October 2013.

Id. ¶ 22.

Plaintiff has recovered.
Plaintiff alleges jurisdiction under 42 U.S.C.
§ 1983 and Bivens, and names Warden Shinn and Dr.
Ackley in their individual capacities only.
PageID #1.

See id.,

He seeks compensatory, punitive, and

consequential damages.
III. DISCUSSION
Because Plaintiff is and was a federal prisoner at
all relevant times and asserts civil rights claims
against federal agents, the Court construes Plaintiff’s
claims as brought only pursuant to Bivens.

To state a

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

Van Strum v. Lawn, 940

F.2d 406, 409 (9th Cir. 1991); see also Hartman v.
Moore, 547 U.S. 250, 254 n.2 (2006); Karim–Panahi v.
Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir.
1988); Daly–Murphy v. Winston, 837 F.2d 348, 355 (9th
Cir. 1988).
A.

Count I: Warden Shinn
Plaintiff was a pretrial detainee during the time

alleged here.

His claims therefore arise under the Due

Process Clause rather than the Eighth Amendment.

See

Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)
(holding the Eighth Amendment provides a minimum
standard of care for determining the rights of pretrial
detainees).

That is, the Eighth Amendment’s

“‘deliberate indifference’ standard applies to claims
that correction facility officials failed to address
the medical needs of pretrial detainees.”

Clouthier v.

Cty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir.
2010) (internal citations omitted).

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Prison officials violate the Constitution when
they are “deliberately indifferent” to an inmate’s
serious medical needs.

See Farmer v. Brennan, 511 U.S.

825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104
(1976) (same); Simmons v. Navajo Cty., Ariz., 609 F.3d
1011, 1017 (9th Cir. 2010).

To state a viable claim,

Plaintiff must allege facts showing (1) “‘a serious
medical need’ by demonstrating that ‘failure to treat
[his] condition could result in further significant
injury or the unnecessary and wanton infliction of
pain’” and (2) “the defendant’s response to the need
was deliberately indifferent.”

Jett v. Penner, 439

F.3d 1091, 1096 (9th Cir. 2006)(citing Estelle, 429
U.S. at 104) (further citations omitted).

Deliberate

indifference “is satisfied by showing (a) a purposeful
act or failure to respond to a prisoner’s pain or
possible medical need and (b) harm caused by the
indifference.”

Id.

Plaintiff says he had the flu, with accompanying
sore throat, chest pain, nausea, and weakness, for
approximately three months, but was given no medical
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attention despite repeated requests.

Plaintiff alleges

that he personally told Warden Shinn that he was sick
and his medical requests were being denied, and Shinn
assured him that he would look into it.

Yet nothing

happened for several more weeks or months.

This

supports the inference that Shinn (1) knew that
Plaintiff had a potentially serious medical condition
that posed a risk of further serious injury, (2) was
being denied medical attention, yet (3) did nothing to
ensure that Plaintiff received medical care.

Count I

states a claim and shall be served on Warden Shinn.
B.

Count II: Dr. Ackley
Plaintiff alleges that he submitted numerous

medical request slips to Counselor Potts for his flu
symptoms.

As noted, he says that he personally alerted

Warden Shinn to his medical needs.

Plaintiff states

that “nothing happened again and again.

It seemed like

no one got his medical attention of flu infection.”
Compl., Doc. No. 1 ¶ 16.

Plaintiff speculates that his

medical slips were “trashed or laid somewhere in a
mystery, no one paid attention to them because
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Plaintiff was remaining in the SHU.”

Id. ¶ 36.

Plaintiff does not allege that Dr. Ackley received,
denied, or even saw his medical slips.
In January 2014, Plaintiff submitted a medical
request to Lieutenant Cline.

Plaintiff says Cline

alerted Dr. Ackley, and soon thereafter, Dr. Ackley
examined Plaintiff in the SHU and prescribed him
ibuprofen.

Plaintiff states that Dr. Pierce treated

him in the SHU one month later, in February 2014.2

Yet

despite acknowledging that he received medical care in
the SHU from Dr. Ackley and Dr. Pierce within one month
of each other, Plaintiff alleges that Dr. Ackley told
him, “as long as you are remaining [in] the SHU, you
will not get any medical attention.”

Compl., Doc. No.

1 ¶ 21.
Although Plaintiff stated a claim against
Dr. Ackley in Civ. No. 14-00231, he fails to do so

2

Plaintiff complained that Dr. Ackley gave him ibuprofen,
but he never received naproxen. See Pl. Aff., Doc. No. 1-1,
PageID #25, Grievance Appeal No. 771091-R1 (att. to Compl.).
Ibuprofen and naproxen are generic, over-the-counter nonsteroidal anti-inflammatory drugs. See WebMD, avail. at:
http://www.webmd.com/drug-medication/otc-pain-relief. (last visit
02/20/2016).
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here.

Plaintiff’s facts do not plausibly suggest that

Dr. Ackley received his medical slip requests, knew
that he required care, and with deliberate indifference
to Plaintiff’s possible serious medical needs, refused
to treat Plaintiff.

Rather, it appears that when

Lieutenant Cline alerted Dr. Ackley to Plaintiff’s
condition in January 2014, he came immediately and
treated Plaintiff with ibuprofen.

This recitation of

facts does not show a purposeful failure to respond to
Plaintiff’s medical needs.

See Jett, 439 F.3d at 1096.

And, even accepting that Dr. Ackley told Plaintiff that
he would not receive medical care while he was housed
in the SHU, Plaintiff clearly acknowledges that both
Dr. Ackley and Dr. Pierce treated him while he was in
the SHU.

These facts do not plausibly suggest that Dr.

Ackley acted with deliberate indifference to
Plaintiff’s serious medical needs.

Count II is

DISMISSED.
IV.

LEAVE TO AMEND

Count II is DISMISSED with leave to amend.
Plaintiff may file an amended complaint on or before
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March 23, 2015 curing the deficiencies noted in his
claims against Dr. Ackley, if possible.

If Plaintiff

elects to file an amended complaint, it must (1)
contain short, plain statements explaining how Dr.
Ackley violated his rights in light of the discussion
above; (2) be designated as the “First Amended
Complaint;” (3) be retyped or rewritten in its
entirety, both Count I and II, on a court-approved
prisoner civil rights complaint form.

Plaintiff may

not incorporate any part of the original Complaint by
reference into the amended pleading without court
approval.
1992).

Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.

Claims “that have been dismissed with leave to

amend and are not repled in the amended complaint will
be considered waived.”

Id. at 928.3

If Plaintiff does not file an amended complaint on
or before March 24, 2016, the court will direct service

3

Claims that have been dismissed without leave to amend
need not be repled in an amended complaint to preserve them for
appeal. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925, 928 (9th
Cir. 2012).
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of the Complaint, Count I, on Defendant Shinn and Count
II will remain dismissed.
IV.
1.

CONCLUSION

The Complaint is DISMISSED IN PART for

Plaintiff’s failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(a).
(a)

Specifically,

Count I, naming Warden Shinn, states a

cognizable claim for relief and is appropriate
for service, and (b) Count II, against Dr.
Ackley, is DISMISSED without prejudice.
2.

Plaintiff may file an amended complaint on or

before March 24, 2016, curing the deficiencies noted in
Count II, if possible.

In the alternative, Plaintiff

may stand on his claims against Defendant Shinn in
Count I and it will be served.

If Plaintiff elects to

stand on these claims, he should notify the court of
his decision on or before March 24, 2016.

If Plaintiff

fails to notify the court or file a timely amended
complaint, the court will order the Complaint, Count I
only, served on Defendant Shinn.

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3.

The Clerk is DIRECTED to send Plaintiff a copy

of the court’s prisoner civil rights complaint form so
that he may comply with this order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 23, 2016.

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

Jones v. Shinn, 1:15-cv-00486 LEK/BMK; Order Dismissing Complaint in Part

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