Aquino v. Hawaii, State of et al
ORDER DISMISSING AMENDED COMPLAINT PURSUANT TO 28 USC 1915(e) & 1915A(a) re 10 Amended Complaint, filed by Brian Aquino. Signed by JUDGE LESLIE E. KOBAYASHI on 10/13/2017. (1) The Amended Complaint is DISMISS ED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). (2) Aquino may file an amended complaint curing the deficiencies noted above in those claims dismissed without prejudice on or before December 12, 201 7.(3) The Clerk of Court is DIRECTED to mail Aquino a prisoner civil rights complaint form so that he can comply with the directions in this Order. (eps, )CERTIFICATE OF SERVICEParticipants re gistered 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; Brian Aquino #A5018716 served by first class mail on October 16, 2017 with the Prisoner Civil Rights Complaint Form as directed by the Court's Order
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN AQUINO, #A5018716,
STATE OF HAWAII D.P.S,
FACILITY, WARDEN SCOTT
CIV. NO. 17-00300 LEK-RLP
ORDER DISMISSING AMENDED
COMPLAINT PURSUANT TO 28
U.S.C. §§ 1915(e) &
ORDER DISMISSING AMENDED COMPLAINT PURSUANT TO
28 U.S.C. §§ 1915(e) & 1915A(a)
Plaintiff Brian Aquino is incarcerated at the
Halawa Correctional Facility (“HCF”), and brings this
action pursuant to 42 U.S.C. § 1983.
Am. Compl., ECF.
Aquino alleges Defendants the Hawaii
Department of Public Safety (“DPS”), HCF, and HCF
Warden Scott Harrington denied him safe housing and
interfered with his mail.
Aquino names all Defendants
in their individual and official capacities and seeks
damages and a transfer from HCF.
For the following reasons, Aquino’s Complaint is
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) &
1915A(a-b) for his failure to state a plausible claim
for relief, with leave granted to amend as limited
Because Aquino is a prisoner and is proceeding in
forma pauperis, the court is required to screen his
Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
The court must dismiss a complaint or claim
that is frivolous, malicious, fails to state a claim
for relief, or seeks damages from defendants who are
immune from suit.
See 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,
Additionally, a plaintiff must allege that he
suffered a specific injury as a result of a particular
defendant’s conduct and an affirmative link between the
injury and the violation of his rights.
See Monell v.
Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v.
Goode, 423 U.S. 362, 371-72, 377 (1976).
‘subjects’ another to the deprivation of a
constitutional right, within the meaning of § 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).
HCF, DPS, and Claims Against Warden Harrington in
His Official Capacity Are Dismissed
“The Eleventh Amendment bars suits for money
damages in federal court against a state, its agencies,
and state officials acting in their official
Aholelei v. Dep’t of Pub. Safety, 488
F.3d 1144, 1147 (9th Cir. 2007).
Defendants named in
their official capacities are subject to suit under
§ 1983 only “for prospective declaratory and injunctive
relief . . . to enjoin an alleged ongoing violation of
Oyama v. Univ. of Haw., 2013 WL 1767710,
at *7 (D. Haw. Apr. 23, 2013) (quoting Wilbur v. Locke,
423 F.3d 1101, 1111 (9th Cir. 2005), abrogated on other
grounds by Levin v. Commerce Energy Inc., 560 U.S. 413
(2010)); see also Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70-71 (1989).
Aquino seeks damages, and his claims for
prospective injunctive relief (a transfer to another
facility) will not enjoin an alleged ongoing violation
of federal law.
Official capacity claims against
Warden Harrington are DISMISSED with prejudice.
Moreover, “state agencies . . . are not ‘persons’
within the meaning of § 1983, and are therefore not
amenable to suit under that statute.”
Harris, 370 F.3d 945, 951 (9th Cir. 2004) (citing Will,
491 U.S. at 70).
Nor is a jail or prison a “person”
amenable to suit under § 1983.
Allison v. Cal., 419
F.2d 822, 823 (9th Cir. 1969) (finding San Quentin
Prison is not a person subject to suit under § 1983);
Christman v. Micheletti, 302 F. App’x 742, 743 (9th
Cir. 2008) (affirming dismissal of claims against the
California Department of Corrections and
Claims against HCF and DPS are
DISMISSED with prejudice.
See Thompson v. Haw. Dep’t
of Pub. Safety, No. CV 17-00235 LEK-KSC, 2017 WL
2841700, at *2 (D. Haw. July 3, 2017).
Failure to Protect
In Count I, Aquino states that he has requested
protective custody housing for ninety-eight days “for
fear of backlash from naming H.C.F. staff members” as
parties to this suit and in administrative grievances.1
He says “staff continues to ignore me.”
ECF No. 10, PageID #25.
Aquino provides no other
details regarding this claim.
Aquino fails to link Warden Harrington to any act
In his original complaint, Aquino stated that he arrived at
HCF on May 3, 2017, and was housed in the high security
segregated holding unit pending investigation into his escape
from the Waiawa Correctional Facility. See ECF No. 1, PageID #2.
He complained that he was denied protective custody on May 30,
2017, because he had filed grievances and this lawsuit (although
he did not file this action until June 23, 2017). Aquino claimed
that HCF staff harassed him, tampered with mail from his wife,
and he was afraid to leave his cell because they might see his
legal papers. See Compl., ECF 1.
or omission showing that Harrington participated in or
directed the violation of his Constitutional rights.
He does not detail the harassment he faced (and from
whom), the prison’s responses to his requests for
protective custody, or what Warden Harrington (or any
other prison official) did or failed to do that
violated his rights.
He therefore fails to state a
claim for relief.
To the extent Aquino seeks to hold Warden
Harrington or any prison official liable based solely
on their supervisory positions at HCF or DPS, he may
not do so.
Liability may not be imposed on supervisory
personnel under § 1983 for the acts or omissions of
their subordinates under the theory of respondeat
Iqbal, 556 U.S. at 676–77; Simmons v. Navajo
Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010);
Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th
Supervisors may be held liable only if they
“participated in or directed the violations, or knew of
the violations and failed to act to prevent them.”
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);
accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir.
2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.
Supervisory liability may exist without
personal participation, but only if the official
implemented “a policy so deficient that the policy
itself is a repudiation of the constitutional rights
and is the moving force of the constitutional
Redman v. Cty. of San Diego, 942 F.2d
1435, 1446 (9th Cir. 1991) (citations and quotations
marks omitted), abrogated on other grounds by Farmer v.
Brennan, 511 U.S. 825 (1970).
Aquino fails to state a
supervisory liability claim against Warden Harrington
or any prison official.
Failure to Otherwise State a Claim
Prison officials have a duty under the Eighth
Amendment to protect prisoners from violence, because
being assaulted in prison is simply not part of the
penalty that criminal offenders pay for their offenses
Farmer v. Brennan, 511 U.S. 825,
833–34 (1994); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th
Cir. 2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th
Prison officials, however, are liable under the
Eighth Amendment only if they demonstrate deliberate
indifference to conditions posing a substantial risk or
serious harm to an inmate; deliberate indifference
occurs when an official acts or fails to act despite
his subjective knowledge of a substantial risk of
Farmer, 511 U.S. at 834, 841; Clem, 566
F.3d at 1181; Hearns, 413 F.3d at 1040.
official need not “believe to a moral certainty” that
an inmate is at risk of harm, “before [he] is obligated
to take steps to prevent such an assault,” but he or
she must have more than a “mere suspicion” that an
attack will occur.
Berg v. Kincheloe, 794 F.2d 457,
459 (9th Cir. 1986).
The obviousness of the risk may be sufficient to
See Farmer, 511 U.S. at 842;
Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).
However, “speculative and generalized fears of harm
. . . do not rise to a sufficiently substantial risk of
Williams v. Wood, 223 F. App’x 670,
671, 2007 WL 654223, at *1 (9th Cir. 2007).
To state a
cognizable Eighth Amendment failure-to-protect claim,
an inmate must establish that: (1) “the deprivation
alleged [is] objectively, ‘sufficiently serious,’”
Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501
U.S. 294, 298 (1991)); and (2) the prison official had
a “‘sufficiently culpable state of mind,’” that shows
“‘deliberate indifference’ to inmate health or safety.”
Id. at 834 (quoting Wilson, 501 U.S. at 297, 302–03).
The prison “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, 511 U.S. at 837.
Aquino provides no facts from which the Court can
reasonably infer that any prison official acted with
deliberate indifference to his health or safety.
Rather, he sets forth vague, conclusory, speculative
fears that he is in danger from unnamed prison
officials because he instituted this suit and filed
grievances against prison officials.
The only facts he
describes to support this claim is his allegation that
that unnamed mail staff harassed him when they marked a
letter to him from his wife with “ESCAPE” in red ink.
See Am. Compl., ECF No. 10, PageID #8.
If this can be
considered harassment, it is not only trivial but also
an apparently accurate assessment of Aquino’s admitted
status as an escapee.
He provides nothing else showing
that he had a reasonable, concrete fear for his safety,
informed prison officials of that fear, and was denied
protective custody despite any prison official’s
knowledge of a concrete, non-frivolous threat to his
That is, Aquino fails to show that he faced an
objective risk of serious harm and that any officer
subjectively knew of and disregarded this risk when he
was denied protective custody housing.
A complaint must allege “enough facts to state a
claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
plaintiff must plead sufficient, plausible “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the
Iqbal, 556 U.S. 662, 678 (2009).
A plausible claim provides more than “a sheer
possibility that a defendant has acted unlawfully.”
A claim that is possible, but is not supported by
enough facts to “nudge [it] across the line from
conceivable to plausible. . . must be dismissed.”
Twombly, 550 U.S. at 570.
Aquino’s failure-to-protect claim is DISMISSED for
failure to state a claim, with leave granted to amend.
Interference With Mail
In Count II, Aquino alleges that prison officials
wrote ESCAPE in red ink on a “suicide letter” that he
received from his wife.
He does not explain whether
this letter was marked as such and returned to his
wife, or given to him after he was recaptured.
fails to identify how this violated his constitutional
Prisoners retain a First Amendment right to send
and receive mail in a manner consistent with legitimate
Shaw v. Murphy, 532 U.S. 223,
231 (2001); Nordstrom v. Ryan, 856 F.3d 1265, 1271-72
(9th Cir. 2017); Witherow v. Paff, 52 F.3d 264, 265
(9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S.
401, 407 (1989)).
But an inmate’s right to send and
receive mail “is subject to ‘substantial limitations
and restrictions in order to allow prison officials to
achieve legitimate correctional goals and maintain
Prison Legal News v. Lehman,
397 F.3d 692, 699 (9th Cir. 2005) (citation omitted);
Nordstrom II, 856 F.3d at 1272 (citing Wolff v.
McDonnell, 418 U.S. 539, 577 (1974) (holding that
prison officials may open, but not read, incoming legal
mail in the presence of the inmate)).
Prison officials may inspect a prisoner’s mail for
contraband and for other security concerns.
Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir.
A jail or prison may even restrict an inmate’s
right to receive mail, but only if the regulations are
“reasonably related” to legitimate penological
See Beard v. Banks, 548 U.S. 521, 528
(2006); Turner v. Safely, 482 U.S. 78, 89-91 (1987);
Witherow, 52 F.3d at 265.
Aquino fails to identify any constitutional right
that restricts prison officials from identifying an
inmate’s personal mail regarding his status as an
escapee, and this Court is aware of no such right.
Aquino fails to state a claim regarding this trivial
alteration of his personal mail and Count II is
LEAVE TO AMEND
Aquino may file an amended complaint that cures the
deficiencies noted above on or before December 12,
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
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 be deemed voluntarily dismissed.
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”).
28 U.S.C. § 1915(g)
If Aquino fails to file an amended complaint, or is
unable to amend his claims to cure their deficiencies,
this dismissal shall count as a “strike” under 28
U.S.C. § 1915(g).
Under this “3-strikes” provision, a
prisoner may not bring a civil action or appeal a civil
judgment in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in
any facility, brought an action or appeal in a
court of the United States that was dismissed
on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may
be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
The Amended Complaint is DISMISSED for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)
(2) Aquino may file an amended complaint curing the
deficiencies noted above in those claims dismissed
without prejudice on or before December 12, 2017.
(3) The Clerk of Court is DIRECTED to mail Aquino a
prisoner civil rights complaint form so that he can
comply with the directions in this Order.
IT IS SO ORDERED.
Honolulu, Hawaii, October 13, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Aquino v. Harrington, 1:17-cv-00300 LEK-RLP; scrn 2017 Aquino 17-300 lek (dsm C lv
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