Gordon v. Sequeira et al

Filing 11

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION AND/OR TO ALTER OR AMEND JUDGMENT re 10 - Signed by JUDGE DERRICK K. WATSON on 2/22/2018. "The Motion for Reconsideration and/or to Alter or Amend Judgment is GRANTED IN PART AND DENIED IN PART. Reconsideration of the dismissal of declaratory and injunctive relief claims against all Defendants in their official capacities is DENIED. Claims alleged under the Eighth Amendment against Defendants Dr. Thomas Craig, III, Paul Neeson, Gary Kaplan, and Keoni Morreira in their individual capacities state a plausible claim for relief as limited by this Order and will be permitted to proceed. All other claims, even when viewed through the lens of the Eighth Amendment, remain DISMISSED as set forth in the January 24 Order. Gordon may file an amended pleading that cures the deficiencies in those claims that were dismissed with leave to amend on or before March 23, 2018." (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). Scott Gordon shall be served by first class mail to the address of record on February 23, 2018. A copy of the court's Prisoner Civil Rights Complaint form and its instructions shall be included in the mailing to Mr. Gordon.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SCOTT GORDON, #A1080674,

)
)
Plaintiff,
)
)
vs.
)
)
FRANCIS SEQUEIRA, et al.,
)
)
Defendants.
)
_______________________________ )

CIV. NO. 1:17-cv-00541 DKW-KJM
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
RECONSIDERATION AND/OR TO
ALTER OR AMEND JUDGMENT

Pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure,
Plaintiff Scott Gordon seeks reconsideration of the January 24, 2018 Order
Dismissing Amended Complaint in Part (“January 24 Order”). See Mot., ECF No.
10; see also January 24 Order, ECF No. 9. Gordon seeks reconsideration of the
dismissal with prejudice of his claims for declaratory and injunctive relief as
alleged against Defendants in their official capacities. He also seeks
reconsideration of the dismissal with prejudice of his claims under the Eighth
Amendment, because he clarifies that he was not a pretrial detainee when the
incidents at issue occurred, and therefore asserts that his failure-to-protect and
inadequate medical care claims arise under the Eighth, rather than under the
Fourteenth, Amendment.

For the following reasons, Gordon’s Motion for Reconsideration and/or to
Alter or Amend Judgment is GRANTED IN PART and DENIED IN PART.
I. LEGAL STANDARDS
A district court can reconsider final judgments or appealable interlocutory
orders pursuant to Federal Rules of Civil Procedure 59(e) (governing motions to
alter or amend judgments) and 60(b) (governing motions for relief from a final
judgment). See Balla v. Idaho Bd. of Corr., 869 F.2d 461, 466-67 (9th Cir. 1989).
A district court can also reconsider non-final partial judgments pursuant to Rule
54(b). Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016). “[A]s long as a district
court has jurisdiction over the case, then it possesses the inherent procedural power
to reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254
F.3d 882, 886 (9th Cir. 2001); see also Fed. R. Civ. Proc. 54(b).
“Reconsideration is appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch.
Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993) (citing All Hawaii Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645,

2

648 (D. Haw. 1987), rev’d on other grounds, 855 F.2d 860 (9th Cir. 1988)).
Local Rule 60.1 states in relevant part:
Motions for reconsideration of interlocutory orders may be brought
only upon the following grounds:
(a) Discovery of new material facts not previously available;
(b) Intervening change in law;
(c) Manifest error of law or fact.
Motions asserted under Subsection (c) of this rule must be filed not
more than fourteen (14) days after the court’s written order is filed.
LR60.1; see also Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)
(discussing the district court’s discretion to reconsider a prior order under the
Federal Rules of Civil Procedure when there is newly discovered evidence, clear
error, or an intervening change in controlling law).
A successful motion for reconsideration must demonstrate a reason why the
court should reconsider its prior decision and set forth facts or law of a strongly
convincing nature that induces the court to reverse its prior decision. See White v.
Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006); Davis v. Abercrombie,
2014 WL 2468348, at *2 (D. Haw. June 2, 2014). Whether to “grant
reconsideration is committed to the sound discretion of the court.” White, 424 F.

3

Supp. 2d at 1274 (citing Navajo Nation v. Confederated Tribes & Bands of the
Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).
II. DISCUSSION
Gordon is incarcerated at the Saguaro Correctional Center (“SCC”), located
in Eloy, Arizona. He complains of incidents that allegedly occurred in June 2016
while he was incarcerated at the Halawa Correctional Facility (“HCF”), located in
Aiea, Hawaii. Gordon alleges that Defendants failed to protect him from assault
from other inmates, provided him inadequate medical care, and retaliated against
him in violation of federal and state law. The facts underlying these claims are set
forth in detail in the January 24 Order, and the Court will reiterate them here only
as necessary.
A.

Reconsideration of the Dismissal of Declaratory and Injunctive Relief
The January 24 Order dismissed Gordon’s damages claims against all

Defendants sued in their official capacities with prejudice. Gordon argues that
Defendants may be sued in their official capacities because he seeks injunctive
relief declaring that inmate “Tuimalealiifano [is] extremely dangerous” and an
order removing Tuimalealiifano from the general population. Mot., ECF No. 10,
PageID #84.

4

As previously explained, official capacity Defendants may be sued under 42
U.S.C. § 1983 only “for prospective declaratory and injunctive relief . . . to enjoin
an alleged ongoing violation of federal law.” 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) (“[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).
First, Gordon does not allege that Defendants violated his rights after he was
released from HCF disciplinary segregation on July 30, 2016, or since he
transferred to SCC. Gordon therefore does not allege an ongoing violation of
federal law and does not state a claim for prospective declaratory or injunctive
relief.
Second, Gordon transferred to SCC in January 2017, before he commenced
this action. When a prisoner seeks injunctive relief regarding the conditions of his
confinement, that prisoner’s transfer to another prison renders a request for
injunctive relief moot, unless he can “demonstrate ‘a reasonable expectation that he
[would be] subjected again’” to the policies or conditions that he challenges.
5

Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015) (quoting Dilley v. Gunn, 64
F.3d 1365, 1367 (9th Cir. 1995); Williams v. Lozano, 2018 WL 558765, at *5
(E.D. Cal. Jan. 25, 2018) (same). Gordon does not allege ongoing constitutional
violations at SCC stemming from the policies or conditions at HCF. Nor does he
allege facts showing that he will inevitably be subjected to the same conditions that
he challenges, assuming he is transferred back to HCF.
Third, Gordon unequivocally states that Tuimalealiifano “has forever and
finally been removed from the [general population] and now is being pursued by
state officials on multiple counts of assaults.” Am. Compl., ECF No. 8, PageID
#41. His request for declaratory relief has therefore been satisfied, and as
explained in the January 24 Order, is also subsumed by his request for damages.
See Rhodes v. Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005).
Gordon’s claims for prospective declaratory and injunctive relief regarding
violations that allegedly occurred at HCF are moot or satisfied and are
DISMISSED. The Motion for Reconsideration and/or to Alter or Amend
Judgment regarding these claims is DENIED.
B.

Deliberate Indifference - Eighth Amendment
The January 24 Order mistakenly assumed Gordon was a pretrial detainee at

the time the alleged violations occurred and determined that Gordon’s deliberate
6

indifference claims therefore arose under the Fourteenth Amendment, rather than
under the Eighth Amendment. See January 24 Order, ECF No. 9, PageID #66.
Gordon clarifies that he was a convicted felon when the incidents at issue occurred,
not a pretrial detainee. See State v. Gordon, Cr. No. 07-1-002329 (1st Cir. Haw
2007). See http://www.courts.state.hi.us/legal_references/records/jims
(1PC071002329) (last visited Feb. 21, 2018).1
In light of this, the Court must review Gordon’s failure-to-protect and
inadequate medical care claims under the Eighth Amendment (rather than under
the Fourteenth Amendment) to determine whether they state a claim. See 28
U.S.C. §§ 1915(e) and 1915A(a) (requiring pre-answer screening of all inmate
complaints filed in forma pauperis or against government officials).
Screening under §§ 1915(e)(2) & 1915A(a) 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). 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 v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

1

While Gordon was on probation in State v. Gordon, 1PC071002329, he was arrested on
new charges on Dec. 4, 2015, in State v. Gordon, 1PC151001930, resulting in his reincarceration
at HCF in 2016. See http://www.courts.state.hi.us/legal_references/records/jims.
7

2012). “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 common sense.” Iqbal, 556 U.S. at 679.
C.

Count III – Inadequate Medical Care
In Count III, Gordon alleges that Defendant Dr. Craig denied him medical

care by releasing him from the Medical Unit on June 20, 2016, despite the
“intimate and confidential information” that Gordon had told Craig regarding his
fear of assault by inmate Tuimalealiifano and other gang members if he was
released to the general population. See Am. Comp., ECF No. 8, PageID #51.
In the January 24 Order, the Court held that, regardless of whether Count III
arose under the Eighth or Fourteenth Amendment,
Gordon fails to allege that he had an objectively serious medical need
that could result in further significant injury or unnecessary pain that
Dr. Craig refused or failed to treat. See Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006). This objective element is required under both
[Eighth and Fourteenth Amendment] standards. See Lau [v.
Kekuaokalani], 2017 WL 3187216, at *4 [(D. Haw. July 25, 2017)].
Rather, Gordon is attempting to transform his failure-to-protect claim
into a separate claim against Dr. Craig for the denial of medical care.
While Dr. Craig may have failed to protect Gordon, as discussed
below, nothing suggests that he failed to provide Gordon medical care
for his injuries.
January 24 Order, ECF No. 9, PageID #69. The Court dismissed Count III with
leave to amend for Gordon’s failure to state a colorable claim for the denial of
8

medical care. Thus, substituting the Eighth for the Fourteenth Amendment has no
affect on the dismissal of Count III, and it remains DISMISSED with leave to
amend.
D.

Failure-to-Protect Claims Under the Eighth Amendment
“[P]rison officials have a duty . . . to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations
and quotations omitted). Prison officials are liable under the Eighth Amendment
for failing to protect an inmate from assault only if they demonstrate deliberate
indifference to conditions posing a substantial risk of 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 serious harm. Id., at 834, 841; Clem
v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d 1036,
1040 (9th Cir. 2005). 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. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).
The obviousness of the risk may be sufficient to establish knowledge. 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 at the hands of other
9

prisoners do not rise to a sufficiently substantial risk of serious harm.” Williams v.
Wood, 223 F. App’x 670, 671 (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 inference.” Farmer, 511 U.S. at 837.
1.

Count I – June 6, 2016 Assault

In Count I, Gordon claims that Doe Defendants 1-10 (HCF Correctional and
Supervisory Officers) should have known that Tuimalealiifano was an extremely
violent inmate who required separation from other inmates before Tuimalealiifano
attacked him on June 6, 2016. Gordon states that Doe Defendants 1-5 knew or
should have known of the likelihood that Tuimalealiifano would attack someone
from information contained in Tuimalealiifano’s institutional records. He says
they failed “to appropriately classify Tuimalealiifano as ‘extremely dangerous’ and
certified ‘STG’ due to his reign of violence, terror, and multiple savage assaults.”
10

Am. Comp., ECF No. 8, at PageID #47. Gordon alleges that Supervisory Does 610 failed to remove Tuimalealiifano from the general population “pursuant to
Policy,” establishing their deliberate indifference.2 Id.
Gordon was incarcerated at HCF from January 8 to June 6, 2016 without
incident. Gordon does not identify what specific information was available to Doe
Defendants 1-10 before Tuimalealiifano’s attack on June 6, 2016. He does not
explain when Tuimalealiifano allegedly assaulted other inmates and staff or what
information was available in Tuimalealiifano’s institutional files or criminal
history that should have alerted Doe Defendants 1-10 to Tuimalealiifano’s threat to
other inmates. Gordon does not state what his own classification status was, what
the classification of inmates housed in Module 3 was, or why Tuimalealiifano was
incorrectly housed in Module 3. He does not allege that he protested his transfer to
Module 3 (where he was assaulted by Tuimalealiifano), or informed Doe
Defendants 1-10 of his fear of Tuimalealiifano specifically, or of gang members in
general, before that transfer.
Further, Gordon indiscriminately names Doe Defendants 1-10 without any
individualized or specific explanation as to how each individual officer violated his
rights. This is insufficient to show their personal participation in his alleged

2

Gordon does not state to which prison policy he refers.
11

violation or to state a failure-to-protect claim under the Eighth Amendment against
Doe Defendants 1-10. Count I remains DISMISSED with leave to amend.3
2.

Count II – June 20, 2016 Assault

Gordon was housed in the Medical Unit after the June 6, 2016 attack and
remained there until June 20, 2016. While there, he told Defendants Dr. Craig and
Counselor Neeson of his specific fears regarding Tuimalealiifano and his gang
associates. He alleges that Neeson and Dr. Craig failed to relay this information to
anyone or do anything to prevent his June 20, 2016 transfer from the Medical Unit
to Module 1, where Tuimalealiifano’s gang associates were housed, and he was
assaulted again.4 This sufficiently states a claim that Neeson and Craig acted with
deliberate indifference to a known, substantial risk of harm that Gordon might be
assaulted if he was housed with Tuimalealiifano or his gang associates.
Gordon alleges that Defendant Program Administrator Kaplan authorizes all
movements at HCF, and Unit Team Manager Morreira reviews and files all
documentation pertaining to Gordon that form the basis for such housing decisions.

3

If Gordon elects to amend this claim, he must refer to any unknown defendant as John
Doe 1, John Doe 2, John Doe 3, and so on, and allege facts showing how each Doe defendant
individually violated his rights. He may then identify them during discovery and substitute those
names in the Complaint. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
4

Although Gordon alleged Dr. Craig’s action constituted the denial of medical care, the
Court construes this as a failure-to-protect claim.
12

Gordon says that Kaplan and Morreira should have seen his “Separatee”
memorandum against inmates Tuimalealiifano, Talo, and other gang members in
his file, were clearly aware of his June 6, 2016 assault, and should have known that
he faced danger from Tuimalealiifano’s gang associates, yet they authorized his
transfer to Module 1, regardless of this knowledge. This states a colorable claim
that Kaplan and Morreira acted with deliberate indifference to a substantial risk of
serious harm to Gordon when they authorized his transfer to Module 1.
Gordon’s failure-to-protect claims under the Eighth Amendment against Dr.
Craig, Neeson, Kaplan, and Morreira state a claim and will be permitted to
proceed.
3.

Count II – Sergeant Dixon and Captain Su’apaia

At Gordon’s request, Sergeant Dixon and Captain Su’apaia housed him in
administrative segregation after he returned from the Pali Momi Medical Center on
June 21, 2016, pending an investigation for protective custody. Warden Sequeira
conducted an investigation and thereafter denied Gordon protective custody on
June 30, 2016. These allegations fail to state a colorable claim under the Eighth
Amendment against Dixon or Su’apaia and remain DISMISSED with leave to
amend.

13

4.

Count II – Sequeira and Kimoto

Gordon alleges that Defendants Warden Sequeira and Shari Kimoto failed to
protect him in their supervisory positions at HCF and with the Department of
Public Safety. For the reasons stated in the January 24 Order, Gordon fails to state
a colorable failure-to-protect claim under the Eighth Amendment against Warden
Sequeira or Kimoto based on their supervisory positions. That is, Gordon sets
forth no facts showing that Sequeira and Kimoto acquiesced in, were personally
involved in, failed to properly train or supervise Defendants Craig, Neeson,
Kaplan, and Morreira, or promulgated policies or procedures that led to Gordon’s
assaults. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1085 (9th
Cir. 2013). Claims against Warden Sequeira and Kimoto remain DISMISSED
with leave to amend. See Order, ECF No. 9, PageID #75-78.
III. CONCLUSION
The Motion for Reconsideration and/or to Alter or Amend Judgment is
GRANTED IN PART AND DENIED IN PART. Reconsideration of the dismissal
of declaratory and injunctive relief claims against all Defendants in their official
capacities is DENIED. Claims alleged under the Eighth Amendment against
Defendants Dr. Thomas Craig, III, Paul Neeson, Gary Kaplan, and Keoni Morreira
in their individual capacities state a plausible claim for relief as limited by this
14

Order and will be permitted to proceed. All other claims, even when viewed
through the lens of the Eighth Amendment, remain DISMISSED as set forth in the
January 24 Order.
Gordon may file an amended pleading that cures the deficiencies in those
claims that were dismissed with leave to amend on or before March 23, 2018.
IT IS SO ORDERED.
DATED: February 22, 2018 at Honolulu, Hawaii.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Gordon v. State of Hawaii, et al.; Civil No. 17-00541 DKW-KJM; ORDER GRANTING IN
PART AND DENYING IN PART MOTION FOR RECONSIDERATION AND/OR TO
ALTER OR AMEND JUDGMENT
Gordon v. State, 1:17-cv-00367 DKW-KJM; recon ‘18 Gordon 17-367 (recon 8 n 11 Am cl)

15