Long v. John Doe ACO # 1 et al

Filing 5

ORDER DISMISSING 1 COMPLAINT IN PART PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) filed by Dewitt Lamar Long. Signed by JUDGE DERRICK K. WATSON on 7/25/2016. -- (1) Longs claims against CO John Does 1-3 state a clai m and shall be served when he sufficiently identifies these Defendants. (2) Long is GRANTED forty-five 45 days, as calculated from the date of this Order, to conduct expedited discovery to identify CO John Does 1-3, as discussed above. Failure to do so may result in dismissal of this action for failure to prosecute. (3) Long's retaliation and due process claims against Defendants DPS Director Nolan P. Espinda and OCCC Warden Michael Hoffman are DISMISSED for failure to state a cla im pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (4) Long may file an amended complaint curing the deficiencies noted above regarding his claims on or before October 14, 2016. (5) The Clerk of Court is directed to mail Long a prisoner civil rights complaint form that may be used to comply with the directions in this Order if Long chooses to file an amended complaint. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electron ic 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. Long also provided a CV rights form and instructions as directed.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DE WITT LAMAR LONG,
#A1024631,
Plaintiff,
vs.
JOHN DOES 1-3, NOLAN P.
ESPINDA, MICHAEL
HOFFMAN,
Defendants.
____________________________

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CIV. NO. 16-00372 DKW/RLP
ORDER DISMISSING COMPLAINT
IN PART PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) & 1915A(b)

ORDER DISMISSING COMPLAINT IN PART
PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
Before the court is pro se Plaintiff De Witt Lamar Long’s prisoner civil
rights Complaint. Compl., Doc. No. 1. Long is incarcerated at the Halawa
Correctional Facility (“HCF”), but challenges events that occurred at the Oahu
Community Correctional Center (“OCCC”) between July 3-10, 2014. Long names
OCCC Correctional Officers (“CO”) John Does 1-3, the Hawaii Department of
Public Safety (“DPS”) Director Nolan P. Espinda, and OCCC Warden Michael
Hoffman as Defendants. Long alleges Defendants violated his rights under the
First and Fourteenth Amendments to the United States Constitution.

For the following reasons, the Complaint is DISMISSED in part with
instructions to identify CO John Does 1-3 and leave granted to amend those claims
that are dismissed without prejudice.
I. BACKGROUND
Long is a practicing Muslim. In 2014, OCCC and/or DPS prison officials
authorized Long to receive his morning meals before sunrise during the month of
Ramadan, which is an Islamic religious holiday during which Muslims are
encouraged to fast between sunrise and sundown. On July 3, 2014, Long says he
awoke before sunrise and requested his morning meal. Compl., Doc. No. 1,
PageID #7 (Count I). Long alleges CO John Doe 1 told him he would receive his
morning meal at 6:30 a.m., when the next shift arrived. Long explained that, if he
was not given his meal before the sun rose, he would be unable to eat until after
sunset, nearly twenty-four hours after his last meal. CO John Doe 1 did not
provide Long with a morning meal, and Long submitted an informal grievance.
On July 5, 2014, Long again requested an early morning meal before
sunrise. Id., PageID #8 (Count II). Long says he explained to CO John Doe 2 that
he was a practicing Muslim and that his name was on a list circulated throughout
OCCC permitting early distribution of meals to those inmates observing the
Ramadan fast. Long alleges CO John Doe 2 nonetheless refused to provide him an
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early meal, stating that he would receive a meal when the next shift came on duty.
Long went another twenty-four hours before being fed.
On July 9, 2014, Long alleges that CO John Doe 3 refused to provide him an
early morning meal. Id., PageID #9 (Count III). Long states that John Does 1-3
refused to identify themselves. He alleges that CO John Does 1-3 violated the First
Amendment when they refused to accommodate his request for an early meal
during Ramadan.
On or about July 10, 2014, Long was transferred to the Federal Detention
Center-Honolulu (“FDC-Honolulu). Id., PageID #10-11 (Counts IV & V).1 Long
alleges he was transferred because he filed grievances regarding CO John Does 13’s alleged actions. Long states that he was required to sign up for Ramadan again
at FDC-Honolulu, but he alleges no claims against any FDC-Honolulu prison
officials or regarding his incarceration there. Long alleges, however, that the
OCCC grievance specialist informed him that his transfer to FDC-Honolulu
rendered his grievances at OCCC against CO John Does 1-3 moot. Long alleges
this unidentified grievance specialist told him he could no longer pursue his

1

Although Long does not identify his fourth and fifth causes of action as Counts IV and
V, the court will refer to them as such for clarity.
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grievances while he was confined at FDC-Honolulu. Long therefore alleges his
transfer to FDC-Honolulu was a ruse to impede the grievance procedure.
Long seeks compensatory damages and prospective injunctive relief in the
form of training for all OCCC staff regarding how to properly accommodate
Muslim inmates during Ramadan.
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
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
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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)). To state a plausible claim, a plaintiff must plead facts that allow “the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
First, 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. Second, 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. Plausibility requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id. at 678 (internal quotation
marks omitted). 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)).
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).
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“[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 it is clear the complaint cannot be saved by amendment, dismissal
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).
Additionally, a plaintiff must allege that he suffered a specific injury as a
result of the conduct of a particular defendant, and he must allege an affirmative
link between the injury and the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).

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A.

Immunities and Prospective Injunctive Relief
“The Eleventh Amendment bars suits for money damages in federal court

against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Defendants
named in their official capacities are subject only to suit “for prospective
declaratory and injunctive relief . . . to enjoin an alleged ongoing violation of
federal law” under § 1983. Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir.
2007) (citation omitted); Will v. Mich. Dept. of State Police, 491 U.S. 58, 70-71
(1989) (“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office.”); Ex parte
Young, 209 U.S. 123 (1908).
Because Long is no longer housed at OCCC, which generally houses pretrial
detainees or detainees with a short amount of time remaining on their sentences,2
and because there is no indication or information that Long might return to OCCC,
his claims for injunctive relief regarding training at OCCC are moot. See Andrews
v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (stating prisoner’s claims for
injunctive relief generally become moot upon transfer) (citing Johnson v. Moore,

2

“The Oahu Community Correctional Center (OCCC) . . . houses pre-trial detainees . . .
[and] provides reintegration programming for male sentenced felons.” See
http://dps.hawaii.gov/blog/2012/09/18/oahu-community-correctional-center.
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948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding claims for injunctive relief
“relating to [a prison’s] policies are moot” when the prisoner has been moved and
“he has demonstrated no reasonable expectation of returning to [the prison]”));
Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995) (holding that inmate’s
transfer to another prison while his claims are pending generally moots claims for
injunctive relief).
Long’s claims for injunctive relief regarding training at OCCC and his
claims for damages against all Defendants in their official capacities are
DISMISSED.
B.

First Amendment Claims
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. I.
1.

Defendants CO John Does 1-3

To state a First Amendment, free-exercise-of-religion claim, a prisoner must
allege that a defendant substantially burdened the practice of his religion by
preventing him from engaging in a sincerely held religious belief, and that the
defendant did so without any justification reasonably related to legitimate
penological interests. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).
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Thus, a prisoner must identify the sincerely held religious belief, the defendant
who substantially burdened the practice of his religion, and the actions that
particular defendant took to substantially burden the practice of his religion. Jones
v. Arizona Dep’t of Corr., 2016 WL 2606990, at *7 (D. Ariz. May 6, 2016). Long
states a cognizable claim against CO John Does 1-3, who were on duty on July 3,
5, and 9, 2014, at or about 5:00-5:30 a.m. in Long’s housing unit. These claims
shall go forward after Long identifies CO John Does 1-3 sufficiently to be served.
The court cannot direct the U.S. Marshal to serve Defendants CO John Does
1-3, however. See Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980)
(noting that “doe” pleadings are generally disfavored in the federal courts due to
the nearly impossible task of serving unidentified defendants). Unknown
defendants may be included in a complaint, however, when their identities are
unknown prior to the filing of the complaint and they may later be identified
through discovery. Id.; see also Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th
Cir. 1999) (holding plaintiff should be given an opportunity to identify unknown
defendants, unless it is clear that discovery would not uncover their identities, or
that the complaint will be dismissed on other grounds) (citing Gillespie, 629 F.2d
at 642); cf. Cobbler Nevada, LLC v. Gonzales, 2016 WL 3392368, at *3 (D. Or.
June 8, 2016) (granting plaintiff’s motion to issue a subpoena to a non-party
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pursuant to Fed. R. Civ. P. 45, to enable plaintiff to identify the only defendant);
Peralta v. Doe, 2005 WL 357358, at *2 (W.D.N.Y. Jan. 24, 2005) (permitting
plaintiff time to investigate and then amend his complaint to name a defendant for
service and discovery).
Long is GRANTED forty-five days as calculated from the date of this Order,
to submit a motion to subpoena a non-party to respond to interrogatories designed
to identify CO John Does 1-3. The motion shall explain the steps Long has taken
to identify these Defendants since 2014 and include the proposed interrogatories.
Long is NOTIFIED that he is ultimately responsible for identifying CO John Does
1-3, seeking substitution of their actual identities, and requesting the court to issue
a summons and direct service upon them.
Long is cautioned that “authorities clearly support the proposition that John
Doe defendants must be identified and served within 90 days of the
commencement of the action,” and they may be dismissed for failure to effect
service after that time, unless he can show good cause for his failure to timely

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serve them.3 Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (N.D.
Ill.1995) (citing Gillespie, 629 F.2d at 643); Fed. R. Civ. P. 4(m) & 15(c)(1).
2.

Retaliation

Long alleges he was transferred to FDC-Honolulu because he filed
grievances against CO John Does 1-3. See Compl., Doc. No. 1, PageID #10, Count
I. Inmates have a First Amendment right to file grievances against prison officials
without retaliation. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).
“Within the prison context, a viable claim of First Amendment retaliation entails
five basic elements: (1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’s protected conduct, and that
such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5)
the action did not reasonably advance a legitimate correctional goal.” Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).
Liberally construed, Long’s fourth and fifth causes of action in Counts IV
and V may state a cognizable retaliation claim against the unnamed OCCC

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Section § 1915A’s required screening procedures suspend service and have the practical
effect of causing delay in service that is not attributable to the indigent litigant. Additionally, if a
court dismisses the complaint with leave to amend, the defendants will not receive formal notice
of the lawsuit until the court requests waiver of service, or serves them with the summons and
amended complaint. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2). Thus, service is generally
not required in prisoner pro se cases until 90 days after the court issues an order finding the
complaint states a claim and directing the U.S. Marshal to effect service. See e.g., Warren v.
Ruffcorn, 2001 WL 34043449, at *3 (D. Or. Sept. 18, 2001).
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grievance specialist who allegedly told him his grievances became moot upon his
transfer to FDC-Honolulu, and against whomever told him he may go to the “hole”
if he resisted the transfer. Long fails to allege any facts tying Director Espinda or
Warden Hoffman to these claims, however. Long appears to name them based
solely on their positions as DPS Director and OCCC Warden. Government
officials may not be held liable for the actions of their subordinates under a theory
of respondeat superior. Iqbal, 556 U.S. at 673. To state a claim under § 1983,
Long must plead that Espinda and Hoffman violated the Constitution through their
own individual actions. Id. at 673. In other words, to state a claim for relief under
§ 1983, Long must link Espinda and Hoffman with some affirmative act or
omission that demonstrates a violation of his federal rights. Long does not even
claim that Espinda or Hoffman were aware of the grievance specialist’s statements
or the alleged threats that Long would be confined in the “hole” if he resisted the
transfer.
Rather, Long states that DPS and/or OCCC authorities approved him to
receive early morning meals during Ramadan. He asserts that his name was on a
list circulated throughout OCCC to notify guards which inmates were approved for
early meal distribution. He claims that despite this official accommodation to
prisoners observing the Ramadan fast, CO John Does 1-3 denied him early meals
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in clear contravention of prison policies and directives. These facts do not support
a finding that Director Espinda or Warden Hoffman transferred Long to the FDCHonolulu within one week of the alleged violations to prevent him from grieving
John Does 1-3’ s allegedly improper conduct. Long’s retaliation claims, to the
extent they are directed at Director Espinda and Warden Hoffman, fail to state a
claim and are DISMISSED.
C.

Due Process Claims
To the extent Long alleges Espinda, Hoffman, or any other OCCC prison

official violated his right to due process by transferring him to FDC-Honolulu, he
fails to state a claim. It is well-settled that prisoners have no constitutional right to
incarceration in a particular institution. See Olim v. Wakinekona, 461 U.S. 238,
244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224 (1976). A state may
generally confine or transfer a prisoner to any of its institutions, to prisons in
another state, or to federal prisons, without offending the Constitution. See Rizzo
v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (citing Meachum, 427 U.S. at 225)
(intrastate prison transfer does not implicate Due Process Clause), and Olim, 461
U.S. at 244-48 (interstate prison transfer does not implicate Due Process Clause)).
To the extent Long alleges that Espinda and Hoffman violated due process
by denying him the ability to exhaust the OCCC grievance procedure after he
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transferred, he fails to state a claim. There is no federal constitutional right to a
prison administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d
850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988);
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (prison grievance
procedure is procedural right that does not give rise to protected liberty interest
requiring procedural protections of Due Process Clause); Smith v. Noonan, 992
F.2d 987, 989 (9th Cir. 1993). Prison officials are not liable for a due process
violation for failing to process a grievance or appeal or for failing to find in the
prisoner’s favor.4 Long’s due process claims in Counts IV and V are DISMISSED.
IV. LEAVE TO AMEND
Long may file an amended complaint on or before October 14, 2016 that
cures the deficiencies in his claims as 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). An amended complaint should stand on its own without
incorporation or reference to a previous pleading. Defendants not named in the
4

This is not to say that Long’s claim that an OCCC grievance specialist informed him that
his grievances became moot upon his transfer, and apparently denied him the ability to fully
exhaust his claims, are unimportant. If Long identifies and serves CO John Does 1-3, and if they
move for summary judgment for his failure to exhaust his claims against him, see 42 U.S.C.
§ 1997e(a), he may use any evidence he has supporting this claim to defeat such a motion.
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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 (stating that 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 they are not repled).
V. CONCLUSION
(1) Long’s claims against CO John Does 1-3 state a claim and shall be
served when he sufficiently identifies these Defendants.
(2) Long is GRANTED forty-five [45] days, as calculated from the date of
this Order, to conduct expedited discovery to identify CO John Does 1-3, as
discussed above. Failure to do so may result in dismissal of this action for failure
to prosecute.
(3) Long’s retaliation and due process claims against Defendants DPS
Director Nolan P. Espinda and OCCC Warden Michael Hoffman are DISMISSED
for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
(4) Long may file an amended complaint curing the deficiencies noted
above regarding his claims on or before October 14, 2016.
(5) The Clerk of Court is directed to mail Long a prisoner civil rights

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complaint form that may be used to comply with the directions in this Order if
Long chooses to file an amended complaint.
IT IS SO ORDERED.
DATED: July 25, 2016 at Honolulu, Hawai’i.

---------------------------------------------------------------------------------------------------Long v. John Does, et al.; Civil No. 16-00372 DKW-RLP; ORDER DISMISSING
COMPLAINT IN PART PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
Long v. John Does 1-3, 1:16-cv-00372 DKW-RLP; scrng 2016 16-372 (st cl. Doe Defs)

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