Aquino v. Hawaii, State of et al
ORDER DISMISSING AMENDED COMPLAINT PURSUANT TO 28 USC §§ 1915(E) & 1915a(A). Signed by JUDGE LESLIE E. KOBAYASHI on 11/13/2017. (1) The Amended Complaint, ECF No. 14 , is DISMISSED for failure to state a cl aim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).(2) Aquino may file an amended complaint that cures the deficiencies noted above on or before December 13,2017.(3) The Clerk of Court is DIRECTED to mail Aquino a prisoner civi l 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 ele ctronically 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 as directed by the order (Prisoner Civil Rights Form) on November 14, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN AQUINO, #A5018716,
WARDEN SCOTT HARRINGTON,
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, a prisoner incarcerated at
the Halawa Correctional Facility (“HCF”), brings this
action pursuant to 42 U.S.C. § 1983.
ECF. No. 14.
See Am. Compl.,
Aquino states that Defendant HCF Warden
Scott Harrington denied his request to be moved to
He alleges this violated his
rights under the Eighth Amendment.
Harrington in his individual and official capacities
and seeks damages and a transfer from HCF.
For the following reasons, Aquino’s amended
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.
Because Aquino is a prisoner and is proceeding in
forma pauperis, the court must screen his Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
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
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) (discussing
screening under § 1915(e)); see also Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (discussing
screening pursuant to § 1915A).
Under Rule 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.
“Determining 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 resolved in their favor.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
Leave to amend must be granted if
it appears the plaintiff can correct the defects in the
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
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).
Official Capacity Claims Against Harrington Are
“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).
The court lacks jurisdiction over Aquino’s claims
for prospective injunctive relief (a transfer to
Official capacity claims against
Warden Harrington are again DISMISSED with prejudice.
Failure to Protect
Aquino states that Warden Harrington “was & is
aware of the fear from my safety since 5/30/17 till
today,” and complains that Harrington has denied or
ignored his request for protective custody housing.1
Am. Compl., ECF No. 14, PageID #56.
that he has a right to be housed in the protective
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.
custody housing, that Harrington is the prison official
who has the ability to act on his request, yet
Harrington is ignoring Department of Public Safety
policies and procedures by denying his request.
alleges no other details regarding this claim.
The Eighth Amendment requires prison staff “to take
reasonable measures to guarantee the safety of the
inmates” in their care.
517, 526-27 (1984).
Hudson v. Palmer, 468 U.S.
Prison officials are required to
protect prisoners from violence because being assaulted
in prison is simply not part of the penalty that
criminal offenders pay for their offenses against
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 Cir.
To state a cognizable Eighth Amendment failure-toprotect 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
Id. at 834 (quoting Wilson, 501 U.S. at
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 inference.”
Id. at 837.
A prison 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.
Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).
obviousness of the risk may be sufficient to establish
See Farmer, 511 U.S. at 842; Wallis v.
Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).
“speculative and generalized fears of harm . . . do not
rise to a sufficiently substantial risk of serious
Williams v. Wood, 223 F. App’x 670, 671, 2007
WL 654223, at *1 (9th Cir. 2007); Ware v. Bitter, 2017
WL 117863, at *4 (E.D. Cal. Jan. 11, 2017) (dismissing
inmate’s conclusory claim that alleged only a
generalized fear of assault).
First, Aquino alleges no facts from which the Court
can reasonably infer that Warden Harrington acted with
deliberate indifference to his health or safety when he
denied Aquino’s request for protective custody.
vaguely alleges conclusory, speculative fears that he
is in danger from unnamed prison officials, but
provides no concrete, non-speculative facts from which
these fears can be inferred.2
That is, Aquino again
alleges insufficient facts to show that he had a
reasonable, concrete fear for his safety, that he
informed Warden Harrington of that fear, and that
Warden Harrington denied him protective custody despite
knowledge of a threat to Aquino’s safety.
Second, to the extent Aquino alleges that he has a
constitutional right to be housed in protective
In Aquino’s previous two pleadings he alleged that his
fears stemmed from filing the present suit and grievances against
unnamed prison officials, and because one piece of his mail
identified him as an escapee. The Court found that these claims
were insufficient to support a claim of deliberate indifference
to his safety by any prison official. See Order, ECF No. 13.
custody, he is mistaken.
Prisoners have no
constitutional right to be housed in the institution of
their choice, Olim v. Wakinekona, 461 U.S. 238, 249
(1983), or in a particular section of a prison.
McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well
settled that the decision where to house inmates is at
the core of prison administrators’ expertise.”)
Aquino’s failure-to-protect claim as alleged
against Warden Harrington is again DISMISSED for
failure to state a claim.
Because it is possible that
Aquino can allege additional facts that will nudge his
claim from possible to plausible, he is granted to
LEAVE TO AMEND
Aquino may file another amended complaint that
cures the deficiencies noted above on or before
December 13, 2017.
An amended complaint generally
supersedes the original complaint.
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 banc).
An amended complaint should stand on
its own without incorporation or reference to a
Defendants not named and claims
dismissed without prejudice that are not realleged in
an amended complaint may be deemed voluntarily
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”).
28 U.S.C. § 1915(g)
If Aquino fails to file an amended complaint, or is
unable to sufficiently amend his Complaint to cure its
deficiencies, this dismissal shall count as a “strike”
under 28 U.S.C. § 1915(g).3
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, ECF No. 14, is
DISMISSED 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 that cures
the deficiencies noted above on or before December 13,
(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, November 13, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Aquino v. Harrington, 1:17-cv-00300 LEK-RLP
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