Long v. John Doe ACO # 1 et al
ORDER GRANTING DEFENDANT ANDREW MAKUA'S MOTION TO DISMISS COUNT I WITH LEAVE TO AMEND re 54 - Signed by JUDGE DERRICK K. WATSON on 11/15/2017. "Long is granted leave to file an amended complaint to attempt to cure the de ficiencies noted in this Order by December 22, 2017." (emt, )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 were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DE WITT LAMAR LONG,
CIVIL NO. 16-00372 DKW-RLP
SGT. A. MAKUA III, a Correctional
Officer; KALEONAHE E. WOO, a
Correctional Officer; B. ARAKAKI, a
Correctional Officer; and DWAYNE
K. HANEY, a Correctional Officer,
ORDER GRANTING DEFENDANT
ANDREW MAKUA’S MOTION TO
DISMISS COUNT I WITH LEAVE
De Witt Lamar Long alleges that several Adult Correctional Officers
(“ACOs”) violated his First Amendment rights to practice his Muslim faith while
incarcerated at Oahu Community Correctional Center (“OCCC”) by refusing, on
four occasions, to provide him with appropriate meals during his observance of
Ramadan. Defendant Andrew Makua moves to dismiss as untimely the single
count against him in Long’s Second Amended Complaint. Because Long’s claim
against Makua accrued more than two years prior to the filing of the Complaint
and because the continuing violation doctrine does not apply to the discrete acts
alleged against the ACOs, Makua’s Motion to Dismiss Count I is GRANTED.
Long is permitted leave to file an amended complaint consistent with the terms of
As a practicing Muslim, Long participates in the holy month of Ramadan,
during which time he is required to fast roughly from sunrise to sunset each day.
Second Amended Complaint (“SAC”) ¶ 11. When he arrived at OCCC, Long
requested that his name be placed on a list of inmates who observe Ramadan and
on a list of inmates who cannot consume pork. SAC ¶ 12. According to Long, to
ensure his ability to participate in Ramadan, each year he sent an inter-unit request
to the OCCC chaplain to confirm that his name was on the appropriate Ramadan
list. SAC ¶ 13.
Long alleges that ACOs Makua, Kaleonahe E. Woo, B. Arakaki, and
Dwayne K. Haney violated his First Amendment rights during both the 2013 and
Long, proceeding pro se, filed his initial Prisoner Civil Rights Complaint on June 30, 2016.
Dkt. No. 1. Long filed this Complaint while incarcerated at Halawa Correctional Facility
(“HCF”). However, at the time of the relevant conduct, he was housed at OCCC. Second
Amended Complaint ¶¶ 1, Dkt. No. 28. On July 25, 2016, the Court dismissed the Complaint, in
part, with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) (Dkt. No. 5), and,
having determined that Long’s case was suitable for pro bono representation, referred this matter
to the Civil Pro Bono Panel. Dkt. No. 9. While awaiting appointment of pro bono
representation, Long filed a First Amended Prisoner Civil Rights Complaint. Dkt. No. 12. The
Court appointed counsel on December 7, 2016, under Rule 3(E), Rules for Civil Pro Bono Panel
for the District Court for the District of Hawaii. Dkt. No. 17. On April 14, 2017, the Magistrate
Judge granted in part and denied in part Long’s Motion for Leave to File a Second Amended
Complaint (Dkt. No. 27), and, on April 18, 2017, Long filed his Second Amended Complaint
against the four ACOs named herein, each in their individual capacities. Dkt. No. 28.
2014 Ramadan observances by refusing to provide him with suitable meals during
appropriate hours. According to Long, each of the four counts in the SAC form
part of a pattern in which the four ACOs intentionally denied him one of the two
daily meals that he could eat while observing Ramadan, resulting in Long going
without food for twenty-four hour stretches. Long alleges that in 2013, Makua
refused his request for an evening meal without pork, as follows—
On July 15, 2013, during the month of Ramadan, Plaintiff was
provided with his dinner meal at approximately 7:00 p.m. The
meal contained pork, which Plaintiff could not eat because of
his religious beliefs. Plaintiff informed the correctional officer
on duty at the time, Sgt. Makua, that he could not eat the meal
provided because it contained pork. Sgt. Makua laughed and
told Plaintiff that he could take the pork out. Plaintiff explained
that taking out the pieces of pork would not make a difference
because the meal was cooked with pork in it. Plaintiff asked
Sgt. Makua to call the kitchen to request a non-pork meal and
explained that he was on the list of prisoners that could not eat
pork. Sgt. Makua refused, and told Plaintiff that he either had
to eat the meal with pork that had been provided or he would
not eat anything. Because Plaintiff’s religious beliefs bar him
from eating pork, Plaintiff had to wait until the next morning to
eat, leaving him without food for approximately twenty-four
SAC ¶ 14. Long alleges no other conduct by Makua or any other ACO during the
2013 Ramadan observance, the first year he was incarcerated at OCCC.
He alleges that, the next year, “a memorandum regarding prisoner
observance of Ramadan dated June 23, 2014 was circulated within OCCC [stating
that] all individuals participating in Ramadan beginning on June 28, 2014 were to
be provided breakfast before sunrise, at 5:00 a.m., and dinner after sunset, at 7:00
p.m.” SAC ¶ 15. The June 23, 2014 memorandum listed Long as a Ramadan
participant. SAC ¶ 15. On July 3, 2014, at approximately 5:15 a.m., Long
knocked on his cell door and asked the correctional officer on duty, ACO Woo, for
his morning meal because he had not yet received it. Woo, who had been sleeping,
told Long that he would receive his morning meal when the next shift of
correctional officers started at 6:30 a.m. SAC ¶ 16. Long explained to Woo that it
would be too late for him to eat at 6:30 a.m., and asked Woo to consult the
memorandum regarding prisoners participating in Ramadan. According to Long,
Woo then repeated that Plaintiff would eat at 6:30 a.m. and went back to sleep.
SAC ¶ 16. Long then had to wait until after sunset to eat, approximately twentyfour hours after he had last eaten, as a result of Woo’s refusal to make available a
morning meal before sunrise. SAC ¶ 17.
On July 5, 2014, Long was again denied his morning meal before sunrise.
At approximately 5:00 a.m., when he asked ACO Arakaki, the officer on duty, for
his morning meal, Arakaki refused and stated, “with use of explicit language, that
nobody cared about Plaintiff’s concerns and that Plaintiff would be fed during the
next shift.” SAC ¶ 19. Although Long attempted to explain that he could not eat
that late because of his religious beliefs, Arakaki made no effort to provide any
morning meal, and as a result, Long had to wait until after sunset to eat,
approximately twenty-four hours after he had last eaten. SAC ¶¶ 19–20.
This same course of events again unfolded on July 9, 2014, when Long was
not provided his morning meal before sunrise. Around 5:00 a.m., Long requested
his morning meal from ACO Haney, the officer on duty, who refused, despite
Long’s explanation that he needed to eat before sunrise to comply with his
religious beliefs. SAC ¶ 22. As a result of Haney’s refusal to provide the morning
meal before sunrise, Long, for the third time in a week, had to wait until after
sunset to eat, approximately twenty-four hours after he had last eaten. SAC ¶ 23.
Following each of the missed morning meals in July 2014, Long submitted
informal grievances the same day he was denied that meal. SAC ¶¶ 18, 21, 24.
After participating in informal attempts at resolution, Long filed formal grievances.
SAC ¶¶ 18, 21, 24. On July 10, 2014, the correctional officer on duty, ACO
Fonseca, told Long that he was being transferred to the Federal Detention CenterHonolulu (“FDC-Honolulu”). Long told Fonseca that he did not want to be
transferred because he had pending grievances that he wished to pursue at OCCC.
SAC ¶ 25. After placing a telephone call to intake, Fonseca instructed Long that, if
he refused the transfer to FDC-Honolulu, he would be placed in administrative
segregation. SAC ¶ 25. Long acquiesced and was not allowed to take his personal
property, including his legal materials, with him. SAC ¶ 25. Once he arrived at
FDC-Honolulu, Long sent a request to a grievance specialist at OCCC, asking for
the grievances that he had filed at OCCC to be forwarded to him at FDC-Honolulu,
but did not receive any response. SAC ¶ 26. He then sent another request to a
grievance specialist at OCCC, and was told that his grievances regarding the denial
of meals were moot as a result of his transfer. SAC ¶ 27.
Makua’s Motion To Dismiss Count I
Long’s SAC asserts four counts under 42 U.S.C. § 1983, one for each of the
four missed meals and against the corresponding ACO who allegedly deprived him
of that meal. Count I alleges that Makua burdened the practice of Long’s religion
by preventing him from engaging in a sincerely held religious practice without any
justification reasonably related to legitimate penological interests. SAC ¶¶ 29–30.
Long further alleges that Makua knew or should have known that he was violating
clearly established First Amendment rights and that Makua’s conduct was
motivated by malice or involved reckless or callous indifference to his rights. SAC
Makua moves to dismiss Count I against him because the acts complained of
occurred more than two years before Long filed his Complaint on June 30, 2016.
Long argues that all of the claims have been timely brought because, taken as a
whole, the Complaint pleads facts demonstrating a continuing violation of his First
Amendment rights that extends and is actionable beyond the two-year limitation
period ordinarily applicable to Section 1983 claims.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.” Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” 555 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[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.”
Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the
court to infer “the mere possibility of misconduct” do not constitute a short and
plain statement of the claim showing that the pleader is entitled to relief, as
required by Rule 8(a)(2). Id. at 679.
“A statute-of-limitations defense, if ‘apparent from the face of the
complaint,’ may properly be raised in a motion to dismiss.” Seven Arts Filmed
Entm’t Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting
Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)); see also
Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) (“When an
affirmative defense is obvious on the face of a complaint, . . . a defendant can raise
that defense in a motion to dismiss.”) (citing Cedars-Sinai Med. Ctr. v. Shalala,
177 F.3d 1126, 1128-29 (9th Cir. 1999)). That said, “a complaint cannot be
dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts
that would establish the timeliness of the claim.” Supermail Cargo, Inc. v. United
States, 68 F.3d 1204, 1206–07 (9th Cir. 1995) (citation and quotation marks
omitted). In making such a determination, the Court is not “required to accept as
true allegations that contradict . . . matters properly subject to judicial notice[.]”
Seven Arts, 733 F.3d at 1254 (internal quotation marks omitted). In this case, the
statute of limitations issues are apparent on the face of the Second Amended
As detailed below, the Court grants Makua’s Motion with respect to the
untimely allegations occurring more than two years before the filing of the initial
Complaint. Because the continuing violation doctrine does not apply to the
discrete acts alleged against Makua in 2013, and the other ACOs in 2014, and
because Long alleges no systemic violation or concerted action to violate his First
Amendment rights, Count I is barred by the statute of limitations. That is, Long’s
claims, as currently alleged, are based upon discrete acts taken by Makua on July
15, 2013, rather than a series of acts which collectively constitute one unlawful
practice during the limitations period. Makua’s Motion is therefore granted, but
with leave to amend consistent with the instructions below.
Count I, As Alleged, Is Time-Barred
Statute Of Limitations Legal Framework
Long’s Section 1983 claims are governed by the forum state’s statute of
limitations for personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 276
(1985). In Hawai‘i, the statute of limitations is two years. Beckstrand v. Read,
680 F. App’x 609, 610 (9th Cir. 2017) (citing Haw. Rev. Stat. § 657-7) (“Actions
for the recovery of compensation for damage or injury to persons or property shall
be instituted within two years after the cause of action accrued....”)). Although
state law determines the length of the limitations period, federal law determines
when a civil rights claim accrues and, hence, when the statute of limitations begins
to run. Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, accrual
occurs when the plaintiff has a complete and present cause of action and may file a
suit to obtain relief. Id.; see also Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.
1996) (“Under federal law, ‘the limitations period accrues when a party knows or
has reason to know of the injury’ which is the basis of the cause of action.”)
(quoting Golden Gate Hotel Ass’n v. San Francisco, 18 F.3d 1482, 1486 (9th Cir.
The continuing violation theory applies to Section 1983 actions, “allowing a
plaintiff to seek relief for events outside of the limitations period.” Knox v. Davis,
260 F.3d 1009, 1013 (9th Cir. 2001) (citing Gutowsky v. County of Placer, 108
F.3d 256, 259 (9th Cir. 1997), and Williams v. Owens–Illinois, Inc., 665 F.2d 918,
924 (9th Cir. 1982)). In Knox, the Ninth Circuit held that where a plaintiff “does
not allege a system or practice of discrimination, the only way she [or he] can hope
to show a continuing violation is to ‘state facts sufficient . . . [to] support a
determination that the alleged discriminatory acts are related closely enough to
constitute a continuing violation, and that one or more of the acts falls within the
limitations period.” Id. (quoting DeGrassi v. City of Glendora, 207 F.3d 636, 645
(9th Cir. 2000)).2 See also Knox, 260 F.3d at 1014 (9th Cir. 2001) (quoting Doe v.
R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994) (“‘[T]he purpose of
permitting a plaintiff to maintain a cause of action on the continuing violation
theory is to permit the inclusion of acts whose character as discriminatory acts was
not apparent at the time they occurred.’”)).
Courts applying the doctrine in the context of Section 1983 cases explain,
however, that “‘the statute of limitations runs separately from each discrete act,’
and ‘discrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.’” Kamar v. Krolczyk, 2008 WL
696929, at *5 (E.D. Cal. Mar. 13, 2008) (quoting RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1061 (9th Cir. 2002) (emphasis Kamar) (some citations
omitted)). With this framework in mind, the Court turns to the application of the
continuing violation theory in the context of Long’s Section 1983 claim against
The Continuing Violation Doctrine Does Not Apply To The
Discrete Acts Alleged Against ACO Makua And Others_______
Long agrees that the events underlying Count I are subject to a two-year
statute of limitations and occurred more than two years before he filed his
After Knox was decided, the Supreme Court invalidated the “related acts” method of
establishing a continuing violation, stating that “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Complaint. He contends, however, that the continuing violation doctrine should
apply to render Count I timely. That doctrine is applicable only in narrow
circumstances and Long’s claims against Makua, as currently alleged, do not fall
within its confines.
Because “the statute of limitations runs separately from each discrete act,”
RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 2002), any claim
based on a discrete act is untimely unless that discrete act—or discrete failure to
act—took place within the limitations period. Morgan, 536 U.S. at 113. One of
the only viable pathways to maintaining a cause of action for past acts occurring
outside the statute of limitations period is where a plaintiff’s claims are based, not
on discrete acts, but rather on “a series of separate acts that collectively constitute
one unlawful practice.” RK Ventures, Inc., 307 F.3d at 1061 n.13 (internal
quotation marks and alteration omitted).
In Pouncil v. Tilton, in which a Muslim state prisoner alleged a First
Amendment violation against prison officials under Section 1983, the Ninth Circuit
explained that “a court must determine whether a claim is based on an
independently wrongful, discrete act, and if it is, then the claim accrues, and the
statute of limitations begins to run, from the date of that discrete act, even if there
was a prior, related past act.” Pouncil v. Tilton, 704 F.3d 568, 578–79 (9th Cir.
2012) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002));
see also Carpinteria Valley Farms, Ltd. v. Cty. of Santa Barbara, 344 F.3d 822,
829 (9th Cir. 2003) (“Although Morgan was a Title VII case, and the present case
is a § 1983 action, we have applied Morgan to bar § 1983 claims predicated on
discrete time-barred acts, not-withstanding that those acts are related to timelyfiled claims.”). The court in Pouncil reasoned that, where the heart of the claim
“does not stem from the policy,” but rather from the individualized decisions that
resulted from implementation of a policy,” then these “individualized decisions are
best characterized as discrete acts, rather than as a pattern or practice of
discrimination.” Pouncil, 704 F.3d at 579 (citing Cherosky v. Henderson, 330 F.
3d 1243, 1247 (9th Cir. 2003)). Thus, the Court’s analysis turns on whether Long
alleges discrete acts that are separately actionable.
Under the Ninth Circuit’s formulation, derived from Morgan and applied in
the context of prisoner Section 1983 claims, each time Long’s request for a
suitable meal was denied by an individual ACO, “an independently wrongful,
discrete act occur[red], a claim accrues, and the limitations period begins to run.”
Pouncil, 704 F.3d at 579 (citing Cherosky and Morgan). That is, as was the case in
Pouncil, the “heart” of Long’s claims “does not stem from [a] policy regarding the
[denial of appropriate meals during Ramadan], but rather from the individualized
decisions,” by the Defendant ACOs. Pouncil, 704 F.3d at 781 (internal citation
and quotations omitted); see also Del Rosario v. Saade, 2015 WL 4404864, at *3
(D. Idaho July 17, 2015) (finding the continuing violation doctrine inapplicable
where prisoner alleged that a number of medical treatment decisions, “each of
which constitutes a discrete act—a choice of how to address, or not to address,
Plaintiff’s pain or other serious medical needs[,] cannot reasonably be considered a
collective unlawful practice to which the continuing violation doctrine might
Although Long argues that the claims against Makua arising from Ramadan
in 2013 are “related acts” to those occurring during Ramadan in 2014, these
violations are not a series of acts that together amount to a single pattern or
practice. Nor are “acts related to timely-filed claims,” without more, sufficient to
invoke the continuing violation doctrine. See Carpinteria Valley Farms, 344 F.3d
at 829 (The Ninth Circuit has “applied Morgan to bar § 1983 claims predicated on
discrete time-barred acts, not-withstanding that those acts are related to timelyfiled claims.”).
In short, Long’s claims against Makua are based upon discrete acts
occurring on July 15, 2013, which are actionable on their own, rather than “a series
of separate acts that collectively constitute one unlawful practice.” RK Ventures,
Inc., 307 F.3d at 1061. Long does not allege any systemic violation of his First
The district court in Del Rosario reasoned that “[e]ach time a prison medical provider makes a
discrete decision on how to treat an inmate going forward—whether to continue the current
course of treatment or to try something different—that medical provider engages in a discrete
action, triggering a new statute of limitations period.” 2015 WL 4404864, at *5.
Amendment rights or that OCCC did not have in place policies to protect those
rights. Nor does he presently allege any concerted action or conspiracy on the part
of the individual ACOs to violate his rights. See, e.g., Dowling v. Arpaio, 2011
WL 843942, at *7–*9 (D. Ariz. Mar. 8, 2011) (applying the “last overt act”
doctrine to the accrual of civil conspiracies for limitations purposes, and holding
with respect to Section 1983 claims, that “Plaintiffs set forth sufficient facts to
demonstrate that Defendants’ allegedly discriminatory or overt acts related closely
enough to constitute a continuing violation, and that one or more of these acts falls
within the two-year statute of limitations period”); Allen v. Iranon, 99 F. Supp. 2d
1216, 1238–39 (1999) (finding that the continuing violation doctrine applied to
plaintiff’s Section 1983 claims against state prison administrators because a
“systemic policy of discrimination is actionable even if some or all of the events
evidencing its inception occurred prior to the limitations period,” and concluding
that “the Defendants positively or tacitly came to a mutual understanding among
themselves to harass [plaintiff in order to] retaliate against [him] for exercising his
Constitutional right to free speech”). Cf. Pl.’s Mem. in Opp’n at 7, Dkt. No 59
(The SAC “supports the inference that all of these acts are related and part of
organized, ongoing actions by the guards to deny Mr. Long’s religious meal
Assuming the truth of the allegations in the SAC, Long does not plead facts
to support application of the continuing violation theory with respect to Count I.
Because the claim, as currently alleged, does not show a continuing violation,
Long’s Section 1983 claim against Makua is dismissed.
Long Is Granted Leave To Amend
Although the Court dismisses Count I, because amendment of the claim and
party dismissed by this Order may be possible, Long is granted leave to amend to
address the pleading deficiencies identified herein, by no later than December 22,
2017. Should he choose to amend the dismissed cause of action, Long must allege
additional facts as to each element required to state a timely claim. The Court
cautions Long to carefully consider whether he can allege facts stating a
cognizable claim in any amended complaint he considers filing with this Court.
For the foregoing reasons, Makua’s Motion to Dismiss Count I is
GRANTED. Long is granted leave to file an amended complaint to attempt to cure
the deficiencies noted in this Order by December 22, 2017.
IT IS SO ORDERED.
DATED: November 15, 2017 at Honolulu, Hawai‘i.
Long v. Makua, et al., Civil No. 16-00372 DKW-RLP; ORDER GRANTING
DEFENDANT ANDREW MAKUA’S MOTION TO DISMISS COUNT I
WITH LEAVE TO AMEND
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