Gordon v. Sequeira et al

Filing 162

ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT re 62 , 145 - Signed by JUDGE DERRICK K. WATSON on 6/17/2020. For the reasons set forth herein, Defendants' motion for summary judgment regarding alleged violations of the Eighth Amendment, Dkt. No. 62, and Defendants' motion for summary judgment on Gordon's negligence claim, Dkt. No. 145, are both DENIED. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
SCOTT LEE GORDON,
Plaintiff,
vs.

Case No. 17-cv-00541-DKW-KJM
ORDER DENYING
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

PAUL NIESEN, et al.,
Defendants.

Within the span of two weeks, inmate Scott Gordon was brutally assaulted by
inmates belonging to two prison gangs in a Hawaii state prison, despite Gordon
having requested—after the first assault—to be separated from gang members
associated with his attackers. Alleging negligence and violations of his Eighth
Amendment right to be free from cruel and unusual punishment, Gordon brought
suit against Defendants Paul Niesen, a prison social worker; Keone Morreira, a
corrections supervisor; and Thomas Craig, a prison doctor.1 Over a year ago, Niesen
and Morreira moved for summary judgment on Gordon’s Eighth Amendment
failure-to-protect claim, Dkt. No. 62, and later moved for summary judgment on
Gordon’s negligence claim. Dkt. No. 145.

1

Gordon asserts challenges with finding and serving Defendant Craig. Dkt. No. 151 at 1 n.1.

Viewing the record in the light most favorable to Gordon, a jury could find
that Niesen and Morreira knew there was a substantial risk of a second assault on
Gordon and, despite that knowledge, failed to take reasonable measures to avert it;
namely, in processing Gordon’s separation request and failing to ensure Gordon was
housed in a unit where he would not have contact with members of the very prison
gang intent on harming him. Accordingly, Defendants’ motions, Dkt. Nos. 62, 145,
are DENIED.
FACTUAL & PROCEDURAL BACKGROUND
A.

The First Assault – June 6, 2016

At all times relevant to this suit, Defendant Paul Niesen was employed by the
Hawaii Department of Public Safety (DPS) as a social worker at Halawa
Correctional Facility (HCF). Dkt. No. 146-1, ¶¶ 1, 4. Niesen worked under the
direction of Defendant Keone Morreira, who was employed by DPS as a corrections
supervisor at HCF. Dkt. No. 146-2, ¶¶ 1, 4; Dkt. No. 119-16 at 5. Morreira’s
supervisor was the HCF Residency Section Administrator, Dovie Borges. Dkt. No.
146-2, ¶ 12.
In May 2016, Gordon was an inmate at HCF, where he was housed in Module
3:B:2, a few cells away from inmates Shalom Tuimalealiifano (Shalom) and John
Talo (Talo). Dkt. No. 159, ¶¶ 3–4; see also Dkt. No. 113-7. It was common
knowledge among inmates and HCF staff that Shalom and Talo were prison gang
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leaders. Dkt. No. 159, ¶¶ 4, 18. Gordon, and at least some of HCF’s staff, knew
that Shalom and Talo had directed “hits” or attacks on other inmates through their
gang member comrades at HCF. Id. at ¶ 18; see also Dkt. No. 152-12 (noting a
January 2016 incident that occurred at the direction of Talo as the “Enforcer”). HCF
records specifically note that Shalom was a member of the “Sons of Samoa Crips”
or “SOS Crips,” and Talo was a member of the “SOS/USO Family.” Dkt. No. 15211 at 1–2; Dkt. No. 149-23 at 75, 137. Around July 2015, when Shalom was moved
from a “special holding unit,” Morreira completed Shalom’s housing “classification”
form and spoke with Shalom. Dkt. No. 149-23 at 26–27; Dkt. No. 152-11 at 4. In
doing so, Morreira noted that Shalom was “assaultive” and recommended housing
Shalom in Module 6, a “special needs facility” that is “separated from the general
[prison] population.” Dkt. No. 149-23 at 90–91; Dkt. No. 152-11at 4.
On the evening of June 6, 2016, Gordon was walking back to his cell when he
was pulled into a cell and beaten by Shalom and Talo. Dkt. No. 159, ¶¶ 5–7. They
threatened Gordon and told him not to tell anyone. Id. at ¶ 7. Gordon and his
cellmate called for help, but Gordon refused to tell the guards what happened for
fear of retaliation. Id. at ¶¶ 8–9, 11. Gordon was transported to the emergency room
at an off-site hospital where he remained under the medical care of Dr. Thomas Craig
from June 7 through June 14, 2016. Id. at ¶¶ 10, 13–14. On June 14, 2016, Gordon
underwent surgery to repair multiple fractures in his jaw, which required inserting
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metal plates and screws. Id. at ¶¶ 12, 15; Dkt. No. 149-4. The next day, Gordon
returned to the medical unit at HCF. Dkt. No. 159, ¶ 15.
B.

The Separatee Request

On Friday, June 17, 2016, HCF Module 3 Unit Manager Lauri Lee-Zidek
initiated a Separatee Request on Gordon’s behalf. Lee-Zidek signed and dated the
Separatee Request, noted Shalom as the inmate Gordon was to be separated from,
and indicated the reason for the request. See Dkt. No. 146-2, ¶¶ 6–7; Dkt. No. 159,
¶¶ 24–25. Gordon asserts that he did not initiate this request or speak with LeeZidek. Dkt. No. 159, ¶¶ 23–24. Nonetheless, that day, the Separatee Request was
routed to Defendant Morreira, the supervisor of the case manager for the medical
unit. Dkt. No. 146-2, ¶ 6; Dkt. No. 113, ¶ 10.
On June 19, 2016, while Gordon was still recovering in the HCF medical unit,
he submitted an “Informal Resolution” regarding the June 6 assault. Dkt. No. 159,
¶ 19. In the Informal Resolution, Gordon asked that he “be kept safe and out of
harms [sic] way during the healing process” and “be put in a Module like 4 when
[he] healed,” not “back in a hostile situation.” See Dkt. No. 149-16. Gordon did not
identify his attackers or refer to specific inmates.2

2

Morreira did not respond to Gordon’s Informal Resolution until June 27, 2016 (after the second
assault), stating “you are currently housed in SHU [Special Holding Unit] med[ium] for PC
[Protective Custody] assessment. A formal [S]eparatee has been filled out for 2 inmates. Seek
the help of the UTM [Unit Manager] of the SHU.” See Dkt. No. 149-16 at 2; Morreira Dep.,
Dkt. No. 149-23 at 38:19–24. Contrary to what Morreira indicated on the form, Morreira has
since admitted that he never “discussed” the Informal Resolution with Gordon. See Morreira
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On Monday morning, June 20, 2016, Morreira believes he received Gordon’s
Separatee Request. Dkt. No. 149-23 at 79–81. That same morning, Morreira asked
Niesen to meet with Gordon regarding the Separatee Request. Dkt. No. 146-2, ¶ 8.
Gordon avers that Niesen arrived at the medical unit that morning with a piece of
paper and “a notebook.” Dkt. No. 159, ¶ 20. Although Gordon assumed the visit
was in response to the June 19 Informal Resolution he had submitted, Gordon soon
learned otherwise. Id. Niesen had brought a partially filled out Separatee Request,
dated June 17, 2016, which included Gordon’s name, Lee-Zidek’s name, and
Shalom’s name. See Dkt. No. 159, ¶¶ 20, 24–25; Dkt. No. 149-18 (Separatee
Request).3 When Gordon asked Niesen “how he got Shalom’s name and who had
put his name on [the Separatee Request] form,” Niesen allegedly responded that he
had his “sources.” Dkt. No. 159, ¶ 25. Niesen further explained that “everyone
knew what had happened” and asked Gordon if he wanted protection from certain
inmates. Id. at ¶ 20. Gordon was initially “skeptical” whether the guards could
protect him and worried that he might be labeled a “rat” for simply talking to Niesen.
Id. According to Gordon, Niesen stated that “unless [he] told him what happened

Dep., 149-23 at 38; Dkt. No. 149-16.
3
Gordon avers that before meeting with Niesen on June 20, 2016, he “never met with or talked to
Laura Lee-Zidek, Monica Chun, or Keone Morreira regarding [his June 6] attack”; “had not
disclosed to anyone the names of the persons who had attacked and beaten [him] on June 6,
2016”; and other than medical staff, “did not meet with any case manager or unit manager or
prison staff.” See Dkt. No. 159, ¶¶ 22–25.
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and signed the form that [he] would be sent back into the general population and
most likely right back into Module 3.” Id. at ¶ 21.
Believing that the only way to be protected from Shalom, Talo, and their
cohorts was to sign the Separatee Request, id. at ¶ 26, Gordon obliged and told
Niesen the details of the June 6, 2016 attack, including that Talo was the other inmate
involved. Id. at ¶ 27. At Gordon’s request, Niesen added Talo’s name to the
Separatee Request. Id. at ¶ 24. Gordon then wrote the following on the form as his
reason for the request: “These two gentlemen [Shalom and Talo] were involved in
the incident that put me in the medical unit and I need to be separated from them
other USO’s.” Dkt. No. 149-6 at 2 (emphasis added); Dkt. No. 159, ¶ 29. Gordon
signed and dated the form, as Niesen directed. Id.4
After meeting with Gordon, Niesen completed an Incident Report, Dkt. No.
149-19, which included the information Gordon provided that morning in the
medical unit. Dkt. No. 146-1, ¶ 10. In the report, Niesen noted that “Gordon
expressed repeated concerns that providing this information would make him a
target for retaliation by IM [Shalom], IM Talo, and other members of the STG group
[“security threat group”] USO Family, which IM Gordon believes that the other

4

The parties dispute whether Niesen promised that the Separatee Request would be granted.
Gordon maintains that he “trusted in [Niesen]’s representations that a separatee request would be
granted and [he] would be kept separate and away from Talo and Shalom, as well as their gang
members.” Dkt. No. 159, ¶ 30. Niesen contends, however, that he “did not promise that [he]
could ensure [Gordon]’s safety” and he “did not have the authority to ensure [Gordon]’s safety,
or the authority to make any promises about [Gordon]’s safety.” Dkt. No. 146-1, ¶ 9.
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inmates listed in his report are affiliated with.” Dkt. No. 149-19.5 Niesen then
personally delivered to Morreira (1) his Incident Report, and (2) Gordon’s Separatee
Request, which was the last time Niesen claims he saw the Separatee Request. See
Dkt. No. 146-1, ¶ 12; Dkt. No. 119-16 at 7; Dkt. No. 149-23 at 32, 42, 69.
After receiving the Incident Report and Separatee Request, Morreira read
Niesen’s Incident Report. Dkt. No. 149-23 at 32:20–22. Morreira wrote his name
on the Incident Report in the space labeled “Thru” and “Watch Supervisor,” and
wrote “Dovie Borges” in the space labeled “To” and “Administrator/Section
Supervisor.” Dkt. No. 149-19; Dkt. No. 149-23 at 70–72:13.6 Morreira then

5

Staff at HCF use the term “security threat group,” instead of “gang,” when referring to prison
gang affiliations. Dkt. No. 149-23 at 74–75.
6
Morreira claims that he was not actually the “watch supervisor” at the time and, rather than
change the words on the form, he simply wrote his name in the space provided for the “Watch
Supervisor” because, according to Morreira, “[the request] went through me to [Borges].” Dkt.
No. 149-23 at 72:15–20. In any event, DPS correctional facility policies and procedures state:
Grievances of an exigent nature requiring an immediate resolution or a more
expedited process may be given emergency status, and put on a fast-track process.
No stage of the grievance program should be deleted as each step provides a level
at which administrative action can be taken . . .; however, each step can be
accelerated.
Emergency grievances might include, but would not be limited to grievances
related to . . . [t]he risk of death or serious harm, and . . . [o]ther matters for which
delay would significantly prejudice or harm the inmate, if not immediately
resolved.
Dkt. No. 149-20 at 6. As Morreira explains it, a separatee request may be granted in an emergency
by “the watch supervisor at that time, if there’s no other authority higher than him at the time of
that call. So, the captain can make the call. Then it goes to the administrative captain, the chief of
security, the deputy warden, the warden. So, depending on how you want to state it, it -- a watch
supervisor, which would be the captain or higher, could make an emergency decision.” Dkt. No.
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accessed Offendertrak, DPS’s computer database that contains the correctional
facility information for inmates, e.g., security identifier (SID), release status, custody
level, housing classification evaluations, “Alerts,” and STG “gang” affiliation. See
Dkt. No. 149-23 at 33–34, 57, 76, 84, 86–87.
Using Offendertrak, Morreira located the records for Shalom and Talo. On
the Separatee Request, Dkt. No. 149-18, Morreira wrote the inmate number for
Shalom and Talo and (based on the Incident Report) noted that they “assaulted
[Gordon].” Dkt. No. 149-23 at 33–34, 66; Dkt. No. 119-16 at 7. Next to Talo’s
name and inmate number, Morreira wrote “medium” (referring to medium-security
status) and “SOS/USO.” Dkt. No. 149-23 at 75, 82; Dkt. No. 113-12 at 10–11. Next
to Shalom’s name and inmate number, Morreira wrote “medium” and “SOS crips.”
Dkt. No. 149-23 at 82; Dkt. No. 119-16 at 7; Dkt. No. 125-4 at 5–6. Morreira signed
and dated Gordon’s Separatee Request and wrote “Recommend Separatee” on the
first page.

Dkt. No. 149-23 at 61–62.

Morreira stated that he made the

recommendation “[b]ased on his professional experience” because Gordon had
“stated that he was allegedly assaulted by the two inmates mentioned on the request.”
See id. at 41, 43–44.

According to Morreira, he is “required” to provide a

recommendation “with an explanation” on a separatee request. Id. at 44.

149-23 at 73:14–74:2.
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At about 12:30 PM on Monday, June 20, 2016, Morreira placed Gordon’s
Separatee Request and the Incident Report in the office of Dovie Borges, Morreira’s
supervisor. Dkt. No. 149-23 at 42, 45; Dkt. No. 125-4 at 6–7. Under “Statement of
Action” on the Separatee Request, Dkt. No. 149-18 at 2, Borges wrote: Interviewed
Shalom . . . on 6/16/16 in module 3 regarding kites and complaints by inmates. IM
Shalom is threatening or terrorizing certain inmates. Shalom denies complaints.
Separatee is recommended. See attached CM [case manager] report. D. Borges
6/20/2016.” See id.; Dkt. No. 149-23 at 62:6–16.
Warden Sequiera approved Gordon’s Separatee Request by signing at the
bottom of the second page. Dkt. No. 149-18 at 2; Dkt. No. 113-12 at 12. The parties
dispute when this approval was issued, as the date next to Sequiera’s signature is
illegible.7 Morreira interpreted the date as “maybe 6-21-16,” Dkt. No. 149-23 at
62:21, and Offendertrak records for Shalom and Talo mention Gordon in a
segregation note with the “date from” as “06/21/2016.” Dkt. No. 152-11 at 1–2.

7

DPS represents that it is Warden Sequiera’s signature at the bottom of page two of Gordon’s
Separatee Request. Dkt. No. 113-12 at 12. However, Defendants’ only evidence regarding the
approval date is the testimony of HCF Program Control Administrator Gary Kaplan. Dkt. No.
63-3, ¶ 10; cf. Dkt. No. 63, ¶ 24. Gordon contends Kaplan’s testimony is inadmissible and based
on hearsay. Dkt. No. 113, ¶ 24. Gordon is on solid ground. Although Kaplan states that he has
“personal knowledge,” his declaration is devoid of “evidence . . . sufficient to support a finding
that [he] has personal knowledge of the matter.” Fed.R.Evid. 202 (emphasis added). Indeed, the
date on the Separatee Request is illegible, and Kaplan does not allege that he witnessed Sequiera
approve the request on June 20, 2016. To the extent Kaplan is simply relaying what is perhaps
stated in other documents in his possession, his testimony is based on hearsay. Fed.R.Evid. 505.
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In Gordon’s final approved Separatee Request, under the heading “Reason
For Request,” a mark or “1” was placed next to the option for “Threat to . . . Life or
Limb.” Dkt. No. 119-6. According to DPS, it is “unknown” who made the mark.
Dkt. No. 113-12 at 11.8
C.

The Second Assault – June 20, 2016

On the evening of June 20, 2016, Gordon was transferred out of the HCF
medical unit. Dkt. No. 159, ¶ 31. Gordon believed the move was a result of the
Separatee Request he had filled out with Niesen earlier that morning. Id. Upon his
release from the medical unit, Gordon was immediately taken to Module 1, which
allegedly housed members of Shalom’s gang. Id. Shortly thereafter, Gordon was
confronted in Module 1 by members of Shalom’s gang. Id. at ¶ 33. Gordon was
directed upstairs and pulled into one of the cells where he was violently attacked by
Kevin Govea and another unidentified inmate. Id. Gordon sustained multiple
closed-fist blows to his head and body, and the inmates threatened Gordon with
further harm if he told anyone about the source of his injuries. See id.
On June 21, 2016, Gordon was taken to the medical unit for his prescribed
narcotics. Dkt. No. 159, ¶ 34. When the nurse asked Gordon about the deep cut
above his eye, Gordon lied and said that he had fainted and fallen while using the

8

Morreira, for instance, denies that he made the mark next to “Life or Limb.” Dkt. No. 149-23 at
68.
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toilet. See id. at ¶ 35; Dkt. No. 113-13. After receiving stitches at an off-site
hospital, later that night Gordon followed the directions of Sergeant Dixon and
requested to be placed in protective custody. See Dkt. No. 159, ¶¶ 37–39; Dkt. No.
149-7 (Gordon’s statement); Dkt. No. 149-8 (Captain Su‘apaia’s completed
administrative segregation request). Pending a determination on his protective
custody request, Gordon was temporarily placed in a segregated, special housing
unit. See Dkt. No. 159, ¶ 41; 149-23 at 27. In the subsequent Administrative
Remedy form Gordon submitted on June 25, 2016, Dkt. No. 149-11, Gordon noted
the two recent assaults, his previous request “to be separated from two individuals
and USO” gang members, that USOs were housed in Module “1B1,” and that he
only felt he would be safe in Module 4. Id.; Dkt. No. 159, ¶¶ 43.9
On June 30, 2016, Gordon followed up on his protective custody request and
received a response denying his request because his “application was too vague.”
Dkt. No. 159, ¶¶ 45–47; Dkt. No. 149-9. Gordon was notified on July 7, 2016, that
he would be moved back into the general prison population. Dkt. No. 159, ¶ 48. To
avoid this result, Gordon refused to accept the transfer and was placed in solitary
confinement where he remained until July 22, 2016. Id. at ¶¶ 49–50.

9

Two months later, on August 11, 2016, Morreira denied Gordon’s Administrative Remedy
request, stating “Module 4 is reserved for workline inmates in programs. You do not have the
luxury of choosing your housing unit. . .You are currently in Module 6/PC quad where
separation from GP is warranted at this time. Seek assistance from your assigned case manager
or correctional officers of the module for further help if any conflicts occur or your safety is
being jeopardized. Be safe!” Dkt. No. 149-11 at 2; Dkt. No. 159, ¶ 44.
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In November 2016, Gordon underwent a second surgery to repair the damage
caused to his jaw bones when they were healing. Id. at ¶ 53. Although Gordon was
transferred to Saguaro Correctional Center in Arizona in 2017, Gordon has since
been transferred back to HCF, where he is currently housed. Id. at ¶¶ 1, 56.
D.

Procedural History

Gordon filed this action under 42 U.S.C. § 1983 on October 30, 2017. Dkt.
No. 1. In Gordon’s second amended complaint (SAC), Dkt. No. 34, he names
Morreira, Niesen, and Dr. Craig as Defendants, and asserts a failure-to-protect claim
under the Eighth Amendment, as well as a negligence claim, arising from the second
inmate attack on June 20, 2016. See id. at ¶¶ 2, 42, 52, 59.
Over a year ago, on March 5, 2019, Defendants moved for summary judgment
on Gordon’s Eighth Amendment claim, Dkt. No. 62, arguing that they did not know
there was a substantial risk of harm to Gordon, did not have the authority to approve
or deny Gordon’s Separatee Request, and did not have authority over or involvement
in Gordon’s housing placement after he was released from the medical unit on June
20, 2016. See Dkt. No. 62-1 at 1–2, 11–12. After the Court appointed counsel for
Gordon, Dkt. Nos. 68, 86, 101, the briefing schedule on Defendants’ summary
judgment motion was continued multiple times, Dkt. Nos. 73, 90, 97, 105. On
January 15, 2020, Gordon filed his opposition, Dkt. No. 112, and a concurrent Rule
56(d) motion to defer summary judgment until he received further discovery from
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Defendants, such as correctional facility documents and classification records. Dkt.
No. 114. After hearing oral argument on both motions, Dkt. No. 128, on February
27, 2020, the Court granted Gordon’s Rule 56(d) motion and ordered Gordon to file
his supplemental brief and concise statement of facts by April 13, 2020 and
Defendants to do the same by April 23, 2020. Dkt. No. 134. Each party’s deadline
was later extended by a month. Dkt. No. 144. In the interim, Defendants filed a
motion for summary judgment on Gordon’s negligence claim. Dkt. No. 145.
Defendants’ motions for summary judgment, Dkt. Nos. 62, 145, have been
fully briefed by all concerned and are now ripe for resolution.
STANDARD OF REVIEW
Summary judgment under Rule 56 is appropriate only when the Court,
viewing the record as a whole and in the light most favorable to the nonmoving
party, determines that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” See Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248–50 (1986). A genuine dispute of material fact exists when “there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Anderson, 477 U.S. at 249; Scott v. Harris, 550 U.S. 372, 380 (2007).

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DISCUSSION
Niesen and Morreira advance two principal arguments in support of their
motions for summary judgment. First, with respect to Gordon’s Eighth Amendment
failure-to-protect claim under 42 U.S.C. § 1983, Defendants maintain that they are
entitled to qualified immunity. Second, as to Gordon’s negligence claim, Defendants
contend they are shielded by qualified privilege under Hawaii law. Addressing each
of Defendants’ defenses seriatim, the Court concludes that a jury trial is warranted.
I.

Qualified Immunity as to Gordon’s Eighth Amendment Claim
The doctrine of qualified immunity shields government officials from liability

for civil damages unless the plaintiff establishes: “(1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). These inquiries may be
addressed in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“‘[W]hether a constitutional right was violated . . . is a question of fact’ for the jury,
while ‘whether the right was clearly established . . . is a question of law’ for the
judge.” Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017) (quoting Tortu v. Las
Vegas Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th Cir. 2009)). This “bifurcation
of duties is unavoidable: only the jury can decide the disputed factual issues, while
only the judge can decide whether the right was clearly established once the factual
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issues are resolved.” Reese v. Cty. of Sacramento, 888 F.3d 1030, 1037 (9th Cir.
2018) (quoting Morales, 873 F.3d at 824–25)). Because there is a genuine dispute
as to various material facts here, Defendants are not entitled to summary judgment
on qualified immunity.
A.

Legal Framework: Eighth Amendment Failure-to-Protect Claim

A jury could conclude that Defendants violated Gordon’s Eighth Amendment
right to be protected from assault by fellow inmates. “[P]rison officials have a duty
[under the Eighth Amendment’s prohibition of cruel and unusual punishment] to
protect prisoners from violence at the hands of other prisoners” because “[b]eing
violently assaulted in prison is simply not part of the penalty that criminal offenders
pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 833–34
(1994) (citations and internal quotation marks omitted). “It is not, however, every
injury suffered by one prisoner at the hands of another that translates into
constitutional liability for prison officials responsible for the victim’s safety.” Id. at
834. For a failure-to-protect claim to lie against a prison official, the plaintiff must
show that: (1) he was “objectively” exposed to a “substantial risk of serious harm”;
and (2) the official was “subjectively aware of the risk” and responded with
“deliberate indifference” by “failing to take reasonable measures to abate it.” See
Farmer v. Brennan, 511 U.S. 825, 834, 828–29 (1994); id. at 847; Lemire v. Cal.

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Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013); Hearns v. Terhune,
413 F.3d 1036, 1040 (9th Cir. 2005). Both requirements are met here.
1. Substantial Risk of Serious Harm
There is no question that -- “objectively” -- there was a “substantial risk of
serious harm” to Gordon before the June 20, 2016 assault. See Farmer, 511 U.S. at
834, 846. On June 6, 2016, Gordon was violently assaulted by two known gang
leaders at HCF, Shalom and Talo, both of whom had a propensity for violence
toward other inmates and had threatened to harm Gordon again in the future if he
told anyone about the June 6 assault. Dkt. No. 152-11 at 1–2; Dkt. No. 149-23 at
75, 137. Gordon suffered a broken jaw from the assault that required off-site surgery
and rehabilitation. On June 20, Gordon spoke directly with Niesen about the assault
and made a written request to be separated from Shalom, Talo, and “them other
USOs.” Dkt. No. 149-18. Based on these objective facts, there was a substantial
risk that Gordon would be attacked by Shalom, Talo, or a member of one of the
gangs with which they were affiliated.
2. Subjective Knowledge of the Risk to Gordon’s Safety
With respect to the subjective component, a jury could also conclude that
Morreira and Niesen acted with deliberate indifference toward Gordon’s health and
safety. The deliberate indifference standard requires that “the official acted or failed
to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S.
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at 842. In other words, “a prison official may be held liable under the Eighth
Amendment . . . if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Clem v.
Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (emphasis omitted) (quoting Farmer v.
Brennan, 511 U.S. at 847). “Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence, . . . and a factfinder may conclude
that a prison official knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842 (emphasis added; internal citation omitted).
Here, a reasonable jury could find that Defendants subjectively knew of the
risk that Gordon would be assaulted by Shalom, Talo, or USO/SOS gang members
because that risk was “obvious.” See Farmer, 511 U.S. at 842. Several prominent
facts lead to this conclusion: Gordon was still in the medical unit following the first
assault when he told Niesen about the assault and his attackers; Niesen allegedly
promised to ensure Gordon’s safety; Gordon wrote in the Separatee Request that he
wished to be separated from Shalom, Talo, and “them other USOs”; all the
information was documented in the Separatee Request and Niesen’s Incident Report;
Morreira reviewed both documents; Morreira himself accessed Offendertrak and
noted the gang affiliations for Shalom and Talo; and Morreira obviously believed
that Gordon was at risk of harm because Morreira recommended that the Separatee
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Request be granted. As such, there are ample facts in the record for a jury to find
that Defendants actually knew there was a substantial risk to Gordon’s safety.
Defendants maintain, however, that “they could not have subjectively
recognized the risk that [Gordon] would be assaulted by Kevin Govea on June 20,
2016” because “Govea’s name was never brought up by [Gordon].” See, e.g., Dkt.
No. 158 at 3–4. According to Defendants, the only “risk that could be said to have
been known” to them “was the risk of assault from Shalom and Talo.” Dkt. No. 158
at 8. But that argument is hollow under Farmer. A prison official cannot “escape
liability for deliberate indifference by showing that, while he was aware of an
obvious, substantial risk to inmate safety, he did not know that the complainant was
especially likely to be assaulted by the specific prisoner who eventually committed
the assault.” Farmer, 511 U.S. at 843 (emphasis added); Thomas v. Ponder, 611
F.3d 1144, 1151 (9th Cir. 2010) (“Farmer’s obviousness requirement does not
necessitate a showing that an individual prison official had specific knowledge that
harsh treatment of a particular inmate, in particular circumstances, would have a
certain outcome.”). “[A]nd it does not matter whether the risk comes from a single
source or multiple sources, any more than it matters whether a prisoner faces an
excessive risk of attack for reasons personal to him or because all prisoners in his
situation face such a risk.” Farmer, 511 U.S. at 843.

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Here, it bears emphasis that Gordon did not merely request to be separated
from Shalom and Talo, as Defendants seemingly imply; Gordon also stated, “I need
to be separated from them other USOs.”

Dkt. No. 149-18.

Indeed, Niesen

understood this, and passed his understanding on to Morreira, because Niesen noted
in his Incident Report: “Gordon expressed repeated concerns that providing this
information would make him a target for retaliation by IM [Shalom], IM Talo, and
other members of the STG group [“security threat group”] USO Family . . .” Dkt.
No. 149-19. Contrary to Defendants’ narrow view regarding what constitutes an
obvious risk, “obviousness” is measured “in light of reason and the basic general
knowledge that a prison official may be presumed to have obtained regarding the
type of deprivation involved.” Thomas, 611 F.3d at 1151. Based on the facts in the
record, transferring Gordon from the medical unit to a housing unit where Shalom,
Talo, or USO/SOS gang members also had access was sure to result in a second
assault on Gordon that, in this case, came almost immediately. Because Gordon has
“present[ed] evidence of very obvious and blatant circumstances indicating that
[Defendants] knew [a substantial risk of serious harm] existed, . . . it is proper to
infer that [Defendants] must have known of the risk.” Thomas, 611 F.3d at 1152
(9th Cir. 2010) (quoting Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009)). Any
further argument to the contrary is one that must be presented to a jury.

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3. Reasonableness of Defendants’ Actions
The remaining question is whether Defendants Niesen and Morreira are
entitled to avoid liability, as a matter of law, because they “responded reasonably to
the risk, even if the harm ultimately was not averted.” See Farmer, 511 U.S. 844.
This inquiry is “fact-intensive and typically should not be resolved at the summary
judgment stage.” See, e.g., Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062,
1078 (9th Cir. 2013); Thomas, 611 F.3d at 1152. Defendants assert that they did not
have the authority to approve Gordon’s Separatee Request, or authority over
Gordon’s housing placement, and thus, they contend their actions were reasonable.10
The Court disagrees, as Defendants’ declarations amount to little more than a bald
denial of any authority to immediately provide Gordon with protection.
Defendants have not cited to any description of their job duties or DPS policy
constraining their authority. Morreira, in particular, testified that he did not know
of any written guidelines or procedures regarding: (1) the granting or denying of a
separatee request, Dkt. No. 149-23 at 19; (2) how informal requests are to be
handled, id. at 56–57; and (3) who had the authority to move an inmate from the
medical unit to a housing unit, other than to merely assert that “it’s known that [he]
cannot, as a unit manager, make that call,” only the “chief of security or higher” may
do so, id. at 47:11–50:12. In the absence of any formal policy regarding these

10

Dkt. No. 62-1 at 12; Dkt. No. 146-1, ¶¶ 13; Dkt. No. 146-2, ¶ 14.
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matters, a jury may find that under the circumstances, Defendants could, and should,
have done more than simply forward the Separatee Request and Incident Report to
the next official in the HCF hierarchy. If it were otherwise, there would indeed be a
perverse incentive to insulate prison officials from liability by leaving the official to
determine their duties and the prison’s policies on an ad-hoc basis after the official
is sued. The Court declines to endorse that approach or facilitate that result here.
The Court is also not persuaded by Morreira’s contention that “[o]nly HCF
Warden Francis Sequiera had the authority to approve or deny Separatee Requests.”
Dkt. No. 146-2, ¶ 12. Morreira’s statement is called into question by his previous
deposition testimony. Morreira testified that a “watch supervisor” may grant a
separatee request in an emergency if no higher authority is present at the time. Dkt.
No. 149-23 at 73:14–74:2. The threat to “Life or Limb” here would certainly qualify
as such an emergency, and Morreira signed the Incident Report as the “watch
supervisor.” Dkt. No. 149-19. While Morreira may not have formally held such a
title, Morreira nonetheless was the individual through whom the Separatee Request
was submitted to Borges, giving rise to the reasonable inference that Morreira was,
effectively, the “watch supervisor” at the time. Moreover, Morreira admitted that he
has the authority, with approval, to make “module-to-module” housing assignment
moves for inmates in the general population, i.e., moves between Modules 1, 2, 3,
and 4. See Dkt. No. 149-23 at 47:19–48:7. As such, Gordon’s contention that
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Niesen or Morreira or both of them could have acted under the exigent circumstances
to expedite the Separatee Request and ensure proper implementation, Dkt. No. 151
at 7, is not “blatantly contradicted by the record, so that no reasonable jury could
believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Nor is it of any import, as Defendants assert, that they did not participate in
Gordon’s transfer or know where he was transferred. Dkt. No. 158 at 2, 6; Dkt. No.
146-1, ¶ 14; Dkt. No. 146-2, 14. “[I]t is enough that [Defendants] acted or failed to
act despite [their] knowledge of a substantial risk of serious harm.” Farmer, 511
U.S. at 842 (emphasis added). Thus, “a prison official’s act or omission” may form
the basis for an Eighth Amendment failure-to-protect claim when the official knows
that an inmate “face[s] a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 834, 847
(emphasis added); Clem v. Lomeli, 566 F.3d at 1181–82.
Here, the evidence regarding what was “reasonable” at the time Gordon was
moved to a module where members of Shalom’s gang were housed is essentially the
parties’ competing assertions. There are several different ways a jury may conclude
that it was unreasonable for Niesen or Morreira to have failed to: note which housing
modules contained known USO/SOS gang members; recommend housing Gordon
in Module 4; recommend keeping Gordon in the medical unit where he appeared to
have no issues during his rehabilitation; immediately grant the Separatee Request
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and move Gordon from medical to a segregated holding unit until a suitable cell
could be identified; or follow up on the Separatee Request.

Thus, although

Defendants forwarded the Separatee Request and Incident Report to their respective
supervisor, a jury may find that that was not enough.
In sum, there are material issues of fact regarding whether Defendants knew
that Gordon was at a substantial risk of being assaulted a second time by USO or
SOS gang members, and whether Defendants acted with deliberate indifference by
failing to take reasonable measures to avert that risk. A jury could reasonably
conclude that Defendants violated Gordon’s Eighth Amendment rights by failing to
protect him from violence at the hands of fellow inmates.
B.

Clearly Established Law

Government officials who violate citizens’ constitutional rights may still be
entitled to qualified immunity unless “the unlawfulness of their conduct was ‘clearly
established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)
(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “A clearly established
right is one that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (citation and internal quotation marks omitted). “It is not necessary,
of course, that the very action in question has previously been held unlawful.” Ziglar
v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (citations and internal quotation marks
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omitted). And “general statements of the law are not inherently incapable of giving
fair and clear warning to officers.” See, e.g., White v. Pauly, 137 S. Ct. 548, 552
(2017) (citation and internal quotation marks omitted); Hope v. Pelzer, 536 U.S. 730,
741–46 (2002). This differs from other contexts, such as in law enforcement
excessive force cases, an area of the law where the Court has been more exacting in
requiring that “existing precedent ‘squarely governs’ the specific facts at issue.”
Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (citing Mullenix, 136 S. Ct. at. 310).
Viewing the facts here in the light most favorable to Gordon, Gordon’s Eighth
Amendment right was clearly established. “The Supreme Court need not catalogue
every way in which one inmate can harm another . . . to conclude that a reasonable
official would understand that his actions violated [the Eighth Amendment].” Wilk
v. Neven, 956 F.3d 1143, 1148 (9th Cir. 2020) (quoting Castro v. County of Los
Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (en banc)). “Once an official is
subjectively aware of a substantial risk of serious harm, ‘clearly established’ law
requires . . . ‘that the [official] take reasonable measures to mitigate the substantial
risk.’” Id. (citation omitted).
In Wilk v. Neven, the Ninth Circuit denied qualified immunity to a prison
warden, an associate warden, and a prison caseworker. 956 F.3d at 1145, 1149–50.
There, the plaintiff had been threatened by another inmate and filled out documents
for protection, requesting that the inmate be placed on plaintiff’s “enemy list.” Id.
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at 1145–46. Plaintiff was moved, but the other inmate was not placed on plaintiff’s
enemy list. Id. at 1146. Plaintiff was attacked by the other inmate “over three
months later” while in the yard. Id. at 1146, 1149. As for what went wrong, the
warden and the associate warden disputed whether they attended the classification
meetings or had knowledge of the threat after receiving plaintiff’s documents. Id. at
1146–47. The prison caseworker, as relevant here, attended the classification
meeting but argued that although he may have made “a clerical mistake regarding
assigning [the threatening-inmate] to the enemy list,” it was “not his job to update
the prison’s records system.” Id. at 1146. Although there were facts in dispute,
viewing the record in the light most favorable to the plaintiff, the court concluded
that a jury could find in favor of plaintiff. Id. at 1149–50. Because the right at issue
had “been clearly established since the Supreme Court’s decision in Farmer v.
Brennan in 1994,” the court denied qualified immunity to all three defendants. 956
F.3d at 1150.
As in Wilk, and based on the principles announced in Farmer, Defendants are
not entitled to qualified immunity. Moreover, Defendants’ “claims of qualified
immunity hardly present ‘purely legal’ issues capable of resolution ‘with reference
only to undisputed facts.’” See Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 530 n.10 (1985)). “Cases fitting that bill typically
involve contests not about what occurred, or why an action was taken or omitted,
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but disputes about the substance and clarity of pre-existing law.” Id. “[T]he preexisting law [is] not in controversy.” Id. (citing Farmer, 511 U.S. at 834, 847).
Rather, what is disputed are “the facts that could render [Niesen and Morreira]
answerable for crossing a constitutional line.” Id. As noted, these disputed facts
include: “Was [Niesen and Morreira] adequately informed, after the first assault, of
the identity of the assailant . . . ? What, if anything, could [Defendants] have done
to distance [Gordon] from the assailant, thereby insulating [him] against a second
assault?” Id.
For these reasons, Defendants are not entitled to qualified immunity on
Gordon’s Eighth Amendment failure-to-protect claim. See Reese, 888 F.3d at 1037
(quoting Morales, 873 F.3d at 824–25)).
II.

Qualified Privilege as to Gordon’s Negligence Claim
With respect to Gordon’s negligence claim, the Court concludes that

Defendants are not entitled to the qualified privilege under Hawaii law. Under
Hawaii law, non-judicial employees acting in the performance of their duties enjoy
a “qualified privilege” that generally protects them from individual liability for
tortious acts. See Awakuni v. Awana, 165 P.3d 1027, 1041–42 (Haw. 2007) (quoting
Medeiros v. Kondo, 522 P.2d 1269, 1272 (Haw. 1974)); Towse v. State, 647 P.2d
696, 702 (Haw. 1982). If, however, “in exercising his or her official authority the
public official was motivated by malice, and not by an otherwise proper purpose, the
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cloak of immunity is lost and the official must defend the suit the same as any other
defendant.” Marshall v. University of Hawaii, 821 P.2d 937, 946 (Haw. 1991).
Here, Defendants contend there is no evidence to support a finding that they acted
with “malice.” Dkt. No. 145-1 at 5, 8; Dkt. No. 155 at 4–7. The Court disagrees.
A jury could find that Defendants acted with malice. “Malice,” in this context,
is defined in its “ordinary and usual sense” as “[t]he intent, without justification or
excuse, to commit a wrongful act[,]” “reckless disregard of the law or of a person’s
legal rights[,]” and “[i]ll will; wickedness of heart.” Awakuni, 165 P.3d at 1041–42
(alterations in original) (quoting BLACK’S LAW DICTIONARY 977 (8th ed. 2004)).
“The existence of malice is generally for the jury, and summary judgment is only
proper on the issue when it has been removed from the case by uncontroverted
affidavits or depositions.” Marshall, 821 P.2d at 946 (internal citation omitted).
Having concluded above that Defendants are not entitled to qualified immunity
because a jury could find that Defendants acted with deliberate indifference toward
a substantial risk of harm to Gordon, it follows that the facts are sufficient to support
a finding of “malice” in that a jury could conclude that Defendants acted with
“reckless disregard of the law or of [Gordon]’s legal rights.” Awakuni, 165 P.3d at
1042; Farmer, 511 U.S. at 836 (“It is, indeed, fair to say that acting or failing to act
with deliberate indifference to a substantial risk of serious harm to a prisoner is the

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equivalent of recklessly disregarding that risk.”). Accordingly, Defendants are not
entitled to immunity under Hawaii law at this juncture.
In sum, issues of material fact preclude summary judgment because
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a
judge[.]” Anderson, 477 U.S. at 255; see also Bourjaily v. United States, 483 U.S.
171, 179–80 (1987) (“[I]ndividual pieces of evidence, insufficient in themselves to
prove a point, may in cumulation prove it.”). Having carefully reviewed the record
in the light most favorable to Gordon, the Court is convinced that a jury trial is
warranted. Defendants’ motions are, therefore, DENIED.
CONCLUSION
For the reasons set forth herein, Defendants’ motion for summary judgment
regarding alleged violations of the Eighth Amendment, Dkt. No. 62, and
Defendants’ motion for summary judgment on Gordon’s negligence claim, Dkt. No.
145, are both DENIED.
IT IS SO ORDERED.
DATED: June 17, 2020 at Honolulu, Hawai‘i.

Scott Lee Gordon v. Paul Niesen, et al.; Civil No. 17-00541-DKW-KJM; ORDER DENYING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT

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