Gatewood v. Harrington et al
ORDER DISMISSING COMPLAINT IN PART AND DENYING ASSISTANCE OF COUNSEL re 5 MOTION to Appoint Counsel filed by John Leon Gatewood. Signed by JUDGE LESLIE E. KOBAYASHI on 04/11/2017. (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)(1). Specifically, Gatewood states a retaliation claim against ACOs Tui Faatea and April McNeil and these claims shall proceed and be answered after service is pe rfected. (2) Gatewood may file an amended complaint curing the deficiencies in his dismissed claims on or before April 25, 2017.(3) In the alternative, Gatewood may NOTIFY the Court in writing on or before April 25, 2017, that he elects to s tand on his retaliation claims against Defendants April McNeil and Tui Faatea. If Gatewood chooses this option, the Court will order the U.S. Marshal to serve the Complaint at Gatewood's direction as to those claims.(4) The Clerk of Court is DIRECTED to mail Gatewood a prisoner civil rights complaint form so that he can comply with the directions in 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 by first class mail on April 12, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOHN LEON GATEWOOD,
SCOTT HARRINGTON, APRIL
MCNEIL, TUI FAATEA,
CIV. NO. 17-00090 LEK-KJM
ORDER DISMISSING COMPLAINT
IN PART AND DENYING
ASSISTANCE OF COUNSEL
ORDER DISMISSING COMPLAINT IN PART AND
DENYING ASSISTANCE OF COUNSEL
Before the court is pro se Plaintiff John Leon
Gatewood’s prisoner civil rights complaint brought
pursuant to 42 U.S.C. § 1983, and Motion for Assistance
Compl., ECF. No. 1; Mot., ECF No. 5.
Gatewood is incarcerated at the Saguaro Correctional
Center (“SCC”), located in Eloy, Arizona, but complains
of events that allegedly took place while he was housed
in Hawaii at the Waiawa Correctional Facility (“WCF”).
Gatewood alleges WCF Warden Scott Harrington, Adult
Correctional Officers (“ACO”) April McNeil and
Tui Faatea (collectively, “Defendants”), violated his
constitutional rights in connection to disciplinary
proceedings at WCF in or about late 2015.
also complains of inadequate dental care while he at
Gatewood states a retaliation claim against
Defendants McNeil and Faatea and service of the
Complaint is appropriate for this claim only.
remaining claims in Gatewood’s Complaint are DISMISSED
in part for failure to state a claim, with leave
granted to amend as discussed below.
for Assistance of Counsel is DENIED.
Gatewood alleges that on or about September 18,
2015, he told ACO McNeil and other WCF staff that he
was pressing charges against ACO Faatea for “striking
and pushing” him.
Compl. ECF No. 1, PageID #6 (Count
Gatewood states that Honolulu Police Department
(“HPD”) officers came to WCF and investigated his
He claims that McNeil and Faatea then wrote a
false disciplinary report against him, alleging that
Gatewood had threatened and elbowed ACO Faatea, to
retaliate against him and ensure that he would be found
guilty at his disciplinary proceedings.
a civil suit against WCF, Faatea, and McNeil in the
Circuit Court of the First Circuit, State of Hawaii, on
January 26, 2016, Gatewood v. State, 1CC161000128.
Id., PageID #3; see also Ho’ohiki, avail. at:
http://www.courts.state.hi.us. (last visited Mar. 23,
This suit is pending.
Gatewood claims that Warden Harrington negligently
upheld ACO Faatea’s “accusation and report.”
ECF No. 1, PageID #5 (Count I).
He says he was then
denied parole on January 24, 2017, as a result of his
disciplinary proceedings, for which he claims a “Loss
of Liberty,” suggesting he raises a due process claim.
Finally, Gatewood claims that on or about
September 18, 2015, an unidentified dentist “performed
a partial root-canal,” that was allegedly unauthorized.
Id., PageID #7 (Count III).
Gatewood developed an
abscess for which he was given pain medication and was
allegedly told by unidentified hospital staff that he
would need antibiotics.
Gatewood claims that he was
denied antibiotics by the WCF “medical unit.”
Gatewood seeks compensatory damages and release
Because Gatewood is a prisoner and is proceeding in
forma pauperis, the Court screens his Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
Court must dismiss a complaint or any portion of it
that is frivolous, malicious, fails to state a claim,
or seeks damages from defendants who are immune.
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes
v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)).
Screening under §§ 1915(e)(2) and 1915A(b) involves
the same standard of review as that used under Federal
Rule of Civil Procedure 12(b)(6).
Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm
v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)
(discussing screening pursuant to § 1915A).
12(b)(6), a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief
that is plausible on its face.”
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks
omitted); Wilhelm, 680 F.3d at 1121.
whether a complaint states a plausible claim for relief
[is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and
Iqbal, 556 U.S. at 678.
Rule 8 of the Federal Rules of Civil Procedure
requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
Iqbal, 556 U.S. at 678.
possibility of misconduct” or an “unadorned, the
defendant-unlawfully-harmed me accusation” falls short
of meeting this plausibility standard.
Id.; see also
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
Pro se litigants’ pleadings must be liberally
construed and all doubts should be resolved in their
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010) (citations omitted).
Leave to amend must 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 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).
To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege two essential elements: (1) that
a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged
violation was committed by a person acting under the
color of state law.
See West v. Atkins, 487 U.S. 42,
Due Process: Disciplinary Proceedings
Gatewood asserts that he suffered a “Loss of
Liberty,” when he was denied parole in January 2017.
An inmate’s liberty interests are “generally limited to
freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life.”
Sandin v. Conner, 515 U.S.
472, 484 (1995) (internal citations omitted); Chappell
v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013).
“There is no right under the Federal Constitution
to be conditionally released before the expiration of a
valid sentence, and the States are under no duty to
offer parole to their prisoners.”
Swarthout v. Cooke,
562 U.S. 216, 220 (2011); (citing Greenholtz v. Inmates
of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)).
There is no state-created liberty interest in release
on parole in Hawaii.
See Mujahid v. Apao, 795 F. Supp.
1020, 1024 (D. Haw. 1992) (determining that Hawaii’s
parole regime creates no liberty interest in parole);
Rideout v. Haw. Paroling Auth., 2014 WL 1571286, at *3
(D. Haw. Apr. 17, 2014) (collecting District of Hawaii
Gatewood therefore fails to state a due
process claim regarding the denial of parole.
To the extent Gatewood alleges that he had a
liberty interest in remaining at WCF or in Hawaii, he
See Olim v. Wakinekona, 461 U.S. 238,
244-48 (1983) (holding prisoners have no right to
remain in prison of choice or prevent a transfer).
To the extent Gatewood alleges he is otherwise
entitled to due process regarding his disciplinary
sanctions, the Court looks to the particular
restrictions imposed and asks whether they “present the
type of atypical, significant deprivation in which a
state might conceivably create a liberty interest.”
Sandin, 515 U.S. at 486.
“Atypicality” requires not
merely an empirical comparison, but turns on the
importance of the right taken away from the prisoner.
See Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir.
Thus, to determine whether disciplinary
sanctions create atypical and significant hardship, the
court looks to the prisoner’s conditions of
confinement, the duration of the sanction, and whether
the sanction will affect the duration of the prisoner’s
See Chappell, 706 F.3d at 1063; Keenan v.
Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996).
First, although Gatewood mentions that he was in
solitary confinement, he alleges no facts showing how
this segregation imposed atypical and significant
hardship in relation to the ordinary incidents of
See Serrano v. Francis,
345 F.3d 1071, 1078 (9th Cir. 2003) (“Typically,
administrative segregation in and of itself does not
implicate a protected liberty interest.”); cf. Sandin,
515 U.S. at 486 (finding thirty days in disciplinary
segregation did not constitute atypical or significant
Gatewood does not state how long he
remained in solitary confinement, where he was
segregated, or how this confinement differed from
conditions imposed in administrative segregation.
Short durations of segregation are rarely considered
excessive or a major disruption to an inmate’s
Wilkinson v. Austin, 545 U.S. 209, 223
(2005) (holding short durations in segregation rarely
excessive) (citing Sandin, 515 U.S. at 486); Richardson
v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (finding
fifteen days disciplinary segregation did not invoke a
Second, Gatewood fails to allege
what process he was denied.
Gatewood fails to state a due process claim against
any Defendant regarding the denial of parole or his
disciplinary proceedings and such claims are DISMISSED
with leave granted to amend.
To the extent Gatewood alleges that Warden
Harrington violated his right to due process by
upholding his disciplinary sanction, he fails to state
A prison official’s participation in an
administrative appeal process is an insufficient basis
on which to state a federal civil rights claim.
e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (holding that a prisoner has no constitutional
right to an effective grievance or appeal procedure);
Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988);
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996) (stating prison grievance procedure is procedural
right that does not give rise to protected liberty
interest requiring procedural protections); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (same).
This is because “[r]uling against a prisoner on an
administrative complaint does not cause or contribute
to the [underlying] violation.”
George v. Smith, 507
F.3d 605, 609-10 (7th Cir. 2007) (holding that only
persons who cause or participate in civil rights
violations can be held responsible); Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding
that prison officials whose only roles involved the
denial of the prisoner’s administrative grievances
cannot be held liable under § 1983); Lagmay v. Nobriga,
2017 WL 539579, at *9 (D. Haw. Feb. 9, 2017); Moore v.
Horch, 2017 WL 35514, at *3 (E.D. Cal. Jan. 3, 2017);
Wright v. Shapirshteyn, 2009 WL 361951, *3 (E.D. Cal.
Feb. 12, 2009) (noting “where a defendant’s only
involvement . . . is the denial of administrative
grievances, the failure to intervene on a prisoner’s
behalf to remedy alleged unconstitutional behavior does
not amount to active unconstitutional behavior”);
Velasquez v. Barrios, 2008 WL 4078766, *11 (S.D. Cal.
Aug. 29, 2008) (“An official’s involvement in reviewing
a prisoner’s grievances is an insufficient basis for
relief through a civil rights action.”).
Warden Harrington did not violate due process when
he upheld Gatewood’s
disciplinary sanctions and this
claim is DISMISSED with leave to amend.
Gatewood alleges ACOs McNeil and Faatea retaliated
against him by falsifying disciplinary charges against
him after he pressed charges against Faatea with HPD.
“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); accord Watison v.
Carter, 668 F.3d 1108, 1114–15 (9th Cir. 2012);
Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
“[T]he mere threat of harm can be an adverse action,
regardless of whether it is carried out because the
threat itself can have a chilling effect.”
584 F.3d at 1270 (emphasis in original); see Rhodes,
408 F.3d at 568 n.11.
Gatewood states a retaliation claim against ACOs
McNeil and Faatea and this claim may proceed.
Denial of Appropriate Dental Care
To state a § 1983 medical claim, a plaintiff must
show (1) a “serious medical need” by demonstrating that
failure to treat the condition could result in further
significant injury or the unnecessary and wanton
infliction of pain and (2) the defendant’s response was
Jett v. Penner, 439 F.3d
1091, 1096 (9th Cir. 2006).
“Deliberate indifference is a high legal standard.”
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
To act with deliberate indifference, a prison official
must know of and disregard an excessive risk to inmate
health; “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
Farmer v. Brennan, 511 U.S. 825, 837
Deliberate indifference may be shown by a
purposeful act or failure to respond to a prisoner’s
pain or possible medical need and harm caused by the
Jett, 439 F.3d at 1096.
It may also be
shown when a prison official intentionally denies,
delays, or interferes with medical treatment or by the
way prison doctors respond to the prisoner’s medical
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976);
Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than
negligence or lack of ordinary due care for the
Farmer, 511 U.S. at 835.
negligence nor gross negligence will constitute
Clement v. Cal. Dep’t of
Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see
also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (stating “indifference,” “negligence,” or
“medical malpractice” do not support a claim under
A delay in medical care, without more, is
insufficient to state a claim against prison officials
for deliberate indifference.
See Shapley v. Nevada Bd.
of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.
The indifference must be substantial.
action must rise to a level of “unnecessary and wanton
infliction of pain.”
Estelle, 429 U.S. at 105.
Gatewood claims that an unidentified dentist
performed an unsuccessful and unauthorized root canal
on an unspecified date.
He says the procedure was
painful, but states that he was given pain medication.
He later developed an abscess and alleges that someone
at an unidentified hospital told him that he would need
Gatewood says he requested antibiotics
from the WCF medical unit on September 18, 2015, but an
unidentified individual or individuals denied his
request and sent him back to his housing unit.
Gatewood fails to explain how he, as a prisoner,
was given an “unauthorized” root canal procedure, or
what he means by this statement.
He does not indicate
when this allegedly unauthorized procedure took place.
Gatewood does not say that the dentist (or any other
medical provider) prescribed him antibiotics or
indicate when he was allegedly prescribed antibiotics
and by whom.
Finally, he does not identify who at the
WCF medical unit staff consciously disregarded this
medical order or explain why they did so.
fails to provide sufficient details to nudge this claim
beyond a possibility of unconstitutional conduct to a
plausible claim that a dentist and/or WCF medical unit
staff acted with wanton and deliberate indifference to
his pain or serious medical need.
allegations as written may support a claim for
negligence; they do not state a claim for deliberate
Moreover, Gatewood fails to assert facts connecting
this claim to his claims against Defendants Harrington,
Faatea, or McNeil.
That is, Gatewood’s medical claims
in Count III appear completely unrelated to his
retaliation claims in Counts I and II, beyond the date
that he alleges these incidents occurred.
claims against unconnected defendants must be brought
in separate lawsuits.
See Fed. R. Civ. P. 18
(governing joinder of claims) and 20 (governing joinder
In prisoner civil rights cases, this rule
prevents confusion, ensures that prisoners pay the
filing fees for their lawsuits, and prevents
circumvention of the three-strikes rule set forth under
the Prison Litigation Reform Act (“PLRA”).
507 F.3d at 607; 28 U.S.C. § 1915(g).
The court may sever misjoined parties as long as no
substantial right is prejudiced by such severance.
Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011);
Coughlin v. Rogers, 130 F.3d 1348, 1350-51 (9th Cir.
1997); Tagle v. Nev. Dep’t of Corr., 2016 WL 910174, at
*2 (D. Nev. Mar. 9, 2016); Washington v. Cal.
Corr., 2016 WL 6599812, at *1 (E.D. Cal. Nov. 7, 2016).
Gatewood fails to state a claim for deliberate
indifference or show any connection between his medical
care claims in Count III and his cognizable claims
against Defendants Faatea and McNeil.
He may be able
to do so, however, and Gatewood’s claims in Count III
are DISMISSED with leave to amend.
LEAVE TO AMEND
Gatewood may file an amended complaint that cures
the deficiencies in his claims as noted above on or
before April 25, 2017.
To properly amend, Gatewood
must allege facts that show Warden Harrington violated
his right to due process in light of the court’s
He must also show that a specific
individual or individuals denied him appropriate dental
care with deliberate indifference to his serious
He may refer to these individuals as
John or Jane Doe Number 1, 2, and 3.
He must, however,
provide details that indicate who these unidentified
specific individuals are, such as when the events at
issue happened, where these individuals worked within
the prison, and facts showing what each individual said
or did to deny his rights.
Gatewood must also clearly
explain how his claim regarding the denial of dental
care is related to his cognizable claims against
Defendant ACOs McNeil and Faatea.
If Gatewood is
unable to connect these claims, he must file his denial
of dental care claims in a separate civil lawsuit.
An amended complaint generally supersedes the
See Ramirez v. Cty. of San
Bernadino, 806 F.3d 1002, 1008 (9th Cir. 2015); Lacey
v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (en
Thus, an amended complaint should stand on its
own without incorporation or reference to a previous
Defendants not named and claims dismissed
without prejudice that are not realleged in an amended
complaint may later be deemed voluntarily dismissed.
See Lacey, 693 F.3d at 928 (stating claims dismissed
with prejudice need not be repled to preserve them for
appeal, but claims that are “voluntarily dismissed” are
considered “waived if not repled”).
In the alternative, Gatewood may notify the Court
in writing on or before April 25, 2017 that he will
stand on his retaliation claims against Defendants
McNeil and Faatea and voluntarily dismiss the claims
dismissed without prejudice by this Order.
event, the Court will direct the U.S. Marshal to serve
the Complaint on McNeil and Faatea and they will be
required to file an Answer or responsive motion.
MOTION FOR ASSISTANCE OF COUNSEL
There is no constitutional right to counsel in a
See Lassiter v. Dep’t of Soc. Serv., 452
U.S. 18, 25 (1981).
The Court has screened Plaintiff’s
Complaint and determined that it states a claim in
Plaintiff is able to articulate his claims pro
The issues presented here are straightforward and
not particularly complex.
Although Plaintiff is indigent, this court declines
to appoint counsel, because this case fails to present
Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991) (requiring an
evaluation of the likelihood of success on the merits
and the ability of the plaintiff to articulate his
claims pro se in light of the complexity of the legal
Neither the interests of justice
nor exceptional circumstances warrant appointment of
counsel at this time.
LaMere v. Risley, 827 F.2d 622,
626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
Gatewood’s request for assistance of counsel is
DENIED without prejudice.
The Complaint is DISMISSED IN PART for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)
Specifically, Gatewood states a
retaliation claim against ACOs Tui Faatea and April
McNeil and these claims shall proceed and be answered
after service is perfected.
Gatewood fails to state a due process or denial of
adequate dental care claim against any Defendant and
these claims are DISMISSED with leave to amend as
discussed and limited above.
(2) Gatewood may file an amended complaint curing
the deficiencies in his dismissed claims on or before
April 25, 2017.
(3) In the alternative, Gatewood may NOTIFY the
Court in writing on or before April 25, 2017, that he
elects to stand on his retaliation claims against
Defendants April McNeil and Tui Faatea.
chooses this option, the Court will order the U.S.
Marshal to serve the Complaint at Gatewood’s direction
as to those claims.
The Clerk of Court is DIRECTED to mail
Gatewood a prisoner civil rights complaint form so that
he can comply with the directions in this Order.
IT IS SO ORDERED.
Honolulu, Hawaii, April 11, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Gatewood v. Harrington, 1:17-cv-00090 LEK-KJM; scrn 2017 Gatewood 17-90 (dsm prt,
retal srv notify ct.)
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