Davies v. Heick et al
Filing
17
ORDER DISMISSING SECOND AMENDED COMPLAINT IN PART AND DIRECTING SERVICE re 15 - Signed by JUDGE LESLIE E. KOBAYASHI on 9/29/2020. Plaintiff's First Amendment retaliation claim against Defendant Heick in Count I an d his First Amendment free-exercise claim against Warden Sequeira in Count III state a plausible claim for relief, shall be served, and require a response after service is perfected. Plaintiff's access-to-the-courts, failure-to protec t, denial-of-grievance, Eighth Amendment, and Fifth Amendment claims in Counts I, II, and III are DISMISSED with prejudice. Plaintiff's First Amendment retaliation claim against Defendant Willeamson in Count II, his conditions-of-confi nement claim in Count III, and his equal protection claims in Counts I, II, and III are DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1). Plaintiff's request for court-appointed counsel is DENIED without prejudice. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TOBIUS DAVIES, #A1014982,
Plaintiff,
v.
Civ. No. 20-00173-LEK-RT
ORDER DISMISSING SECOND
AMENDED COMPLAINT IN PART
AND DIRECTING SERVICE
SGT. LANA HEICK, et al.,
Defendants.
I. INTRODUCTION
Before the Court is Plaintiff Tobius Davies’ Second Amended Complaint
(“SAC”) brought pursuant to 42 U.S.C. § 1983. SAC, ECF No. 15.1 Plaintiff
alleges Defendants Oahu Community Correctional Center (“OCCC”) Warden
Francis Sequeira, Sergeant Lana Heick, and Case Manager Calvert Willeamson
violated his constitutional rights during his current confinement at OCCC.
The Court has screened the SAC pursuant to 28 U.S.C. §§ 1915(e) and
1915A(a). Plaintiff’s First Amendment claims against Defendant Heick in Count I
(retaliation) and against Warden Sequeira in Count III (free exercise of religion)
state plausible claims for relief, shall be served, and require a response.
1
The Court refers to the electronic numbering and pagination system used for all filings
in the District of Hawaii.
Plaintiff’s remaining claims in Counts I, II, and III fail to state a claim and
are DISMISSED as specified below.2
II. STATUTORY SCREENING
The Court must conduct a pre-Answer screening of all prisoners’ pleadings
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). During this screening, claims
or complaints that are frivolous, malicious, fail to state a claim on which relief may
be granted, or seek damages from defendants who are immune from suit must be
dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
In determining whether a complaint should be dismissed for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2) and 1915A(a), the Court applies the same
standard as that under Federal Rule of Civil Procedure 12(b)(6). See Rosati v.
Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). All allegations of material fact in
the complaint are taken as true and construed in the light most favorable to the
plaintiffs. Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020).
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). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
To the extent the Court dismisses some of Plaintiff’s claims without prejudice, he is not
prohibited from moving to amend these claims if he is able to allege facts stating a claim. See
Fed. R. Civ. P. 15.
2
2
inference that the defendant is liable for the misconduct alleged.” Id. (citation
omitted). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Likewise, the “mere possibility
of misconduct” or an “unadorned, the defendant-unlawfully-harmed me
accusation” does not meet this plausibility standard. Id. at 678-79; see also Moss
v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Determining whether a
complaint states a plausible claim for relief is a context-specific task that requires
the Court to draw on its judicial experience and common sense. Iqbal, 556 U.S. at
679.
The Court liberally construes a pro se litigant’s pleadings and affords him
the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Although the Court must grant leave to amend if it appears the plaintiff can correct
the defects in the complaint, Lopez, 203 F.3d at 1130, if a claim or complaint
cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia
Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
III. BACKGROUND
Plaintiff originally alleged that Defendants unlawfully retaliated against him
and violated his right of access to the courts. See generally, Compl., ECF No. 1.
The Court dismissed the Complaint with leave granted to amend. See Order, ECF
No. 7.
3
Plaintiff timely filed a First Amended Complaint (“FAC”) again alleging
Defendants unlawfully retaliated against him and violated his right of access to the
courts, and denied him the ability to practice freely his religion. See FAC, ECF
No. 8 at 55. Additionally, Plaintiff alleged that Defendants violated the Eighth and
Fourteenth Amendments due to the conditions of his confinement and their failure
to protect him. Id. at 55-62.
The Court dismissed Plaintiff’s denial of access to the courts claims, due
process claims for the denial of grievances, and conditions of confinement claims
alleged under the Eighth Amendment with prejudice. See Order, ECF No. 14 at
140-44. Plaintiff’s claims that Warden Sequeira violated the First Amendment
because his cell was too small to pray in, and his Fourteenth Amendment
conditions of confinement claims were dismissed with leave to amend. Id. at
149-50, 151-54. The Court decided Plaintiff’s retaliation claim against Heick
could proceed. Id. at 145-47.
On July 20, 2020, Plaintiff filed the SAC. See SAC, ECF No. 15. In Count
I, Plaintiff alleges that Heick retaliated against him for submitting grievances by
(1) denying him writing supplies and grievance forms when she was on duty in the
special holding unit (“SHU”); (2) instructing other officers to do the same;
(3) limiting him to filing one grievance per day; (4) moving him from the first floor
to a third-floor cell “where she knew [that] his life would be in danger;”
4
(5) throwing away Plaintiff’s “legal work” during this transfer; and (6) refusing
Plaintiff’s request for medical treatment the day after an alleged assault. Id. at
163-67.
In Count II, Plaintiff alleges that Willeamson denied him access to the courts
by (1) refusing to give him a pen, envelopes, “legal supplies,” or more than six
sheets of paper; (2) blocking some of his personal and legal calls; and (3) placing a
“pin block” on the facility telephone, which prevented Plaintiff from calling his
court-appointed counsel. Id. at 170-73.
In Count III, Plaintiff again claims that Warden Sequeira wrongfully denied
his grievance appeals and refuses to address his claims that the SHU has no lights,
no sheets, no pens, rusty pipes, cockroaches, and provides inadequate clean
clothes. Id. at 176. Plaintiff also claims Warden Sequeira failed to protect him
from violence, although he is aware of Plaintiff’s past association with the USO
Family gang. Id. at 174. Plaintiff claims that, on January 17, 2020, corrections
officers “put a hit” on him. Id. at 174. Plaintiff notes a February 12, 2020 incident
during which another inmate reached through the bars of Plaintiff’s third-floor cell
and bent back his finger, and he claims to have been assaulted in a van while being
taken to court on February 27, 2020. Id. at 175.
Plaintiff alleges that Warden Sequeira houses two inmates in a one-person
cell, which prevented him from being able to pray during Ramadan. Id. at 178.
5
Plaintiff also alleges that OCCC officials refused to provide him with additional
food before sunrise and after sunset, although they knew he was fasting during
Ramadan. Id. This resulted in Plaintiff being limited to one meal a day during
Ramadan. Id. Moreover, Plaintiff says that he was served pork although Muslims
generally do not eat pork. Id. He claims that Warden Sequeira refused to speak
with the kitchen staff at OCCC to resolve these issues. Id.
Plaintiff seeks monetary damages and other “relief the court deems proper.”
Id. at 179. Specifically, he seeks to have OCCC create a “protective custody
module” and complete repairs to the SHU. Id. He also seeks to have OCCC
provide pens and “legal supplies” to indigent inmates. Id. Finally, Plaintiff
requests a jury trial and that counsel be appointed. Id. at 159.
IV. DISCUSSION
A. Legal framework for claims under 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (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, 48 (1988). A plaintiff must also link a
defendant’s actions and the alleged deprivation. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377
(1976); May v. Enomoto, 633 F.2d 165, 167 (9th Cir. 1980).
6
“A person ‘subjects’ another to the deprivation of a constitutional right,
within the meaning of section 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). Thus, a plaintiff must allege that he suffered a
specific injury as a result of a particular defendant’s conduct and he or she must
affirmatively link that injury to the violation of his or her rights.
B. First Amendment claims
1. Prison grievances and retaliation
The First Amendment guarantees a prisoner the right to seek redress of
grievances from prison authorities. Jones v. Williams, 791 F.3d 1023, 1035 (9th
Cir. 2015). “Retaliation against prisoners for their exercise of this right is itself a
constitutional violation, and prohibited as a matter of ‘clearly established law.’”
Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). A retaliation claim has five
basic elements: (1) an assertion that a state actor took some adverse action against
an inmate; (2) because of; (3) that prisoner’s protected conduct, and that such
action; (4) chilled the inmate’s exercise of his First Amendment rights; and (5) the
action did not reasonably advance a legitimate correctional goal. Id.
7
a. Heick
Plaintiff alleges that Heick retaliated against him for filing grievances
against her. ECF No. 15 at 163-69. These allegations support a plausible
inference that Plaintiff’s grievances were a “substantial” or “motivating” factor
behind Heick’s alleged retaliation. See Brodheim, 584 F.3d at 1269, 1271.
Plaintiff’s retaliation claim in Count I against Heick shall be served and requires a
response.
b. Willeamson
In Count II, Plaintiff briefly suggests that Willeamson also retaliated against
him, by blocking his personal and legal calls. See ECF No. 15 at 172. Plaintiff
does not allege that Willeamson did these things because of Plaintiff’s protected
First Amendment conduct. See id. at 170-73. Thus, Plaintiff fails to state a
retaliation claim against Willeamson and this claim is DISMISSED without
prejudice.
2. Free exercise of religion
“Inmates clearly retain protections afforded by the First Amendment,
including its directive that no law shall prohibit the free exercise of religion.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted).
To establish a violation of the Free Exercise Clause, a prisoner must show that a
defendant burdened the practice of his religion without any justification reasonably
8
related to legitimate penological interests. See Shakur v. Schriro, 514 F.3d 878,
883-84 (9th Cir. 2008). To determine whether a prison condition or rule is
legitimate and reasonable, the Court looks at: (1) whether there is a “valid, rational
connection between the prison regulation and the legitimate governmental interest
put forward to justify it”; (2) “whether there are alternative means of exercising the
right that remain open to prison inmates”; (3) “the impact accommodation of the
asserted constitutional right will have on guards and other inmates and on the
allocation of prison resources generally”; and (4) the “absence of ready
alternatives”, or, in other words, whether the rule at issue is an “exaggerated
response to prison concerns.” Turner v. Safley, 482 U.S. 78, 89-90 (1987).
Plaintiff alleges Warden Sequeira houses two inmates in a one-person cell.
See ECF 15 at 178. Plaintiff alleges this provides insufficient room for him to pray
during Ramadan. Id. Plaintiff also alleges that he was denied sufficient food
during Ramadan, because he was given breakfast only and no food after sunset. Id.
He was also given pork, which Muslims generally do not eat. Id. Plaintiff says
Warden Sequeira refused to discuss these issues with the kitchen staff. Id.
Plaintiff’s First Amendment claims in Count III against Warden Sequeira state a
plausible claim for relief, shall be served, and require a response.
9
C. Fourteenth Amendment claims
1. Due process: Right of access the courts
Prisoners have a constitutional right of access to the courts. See Lewis v.
Casey, 518 U.S. 343, 346 (1996). A denial of access to the courts may arise from
the hindrance of “a litigating opportunity yet to be gained” or from the loss of a
suit that cannot now be tried. Christopher v. Harbury, 536 U.S. 403, 412-15
(2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (noting
“two types of access to court claims: those involving prisoners’ right to affirmative
assistance and those involving prisoners’ rights to litigate without active
interference”), overruled on other grounds by Richey v. Dahne, 807 F.3d 1202,
1209 n.6 (9th Cir. 2015).
An “actual injury” is a threshold requirement for an access-to-the-courts
claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Actual injury is
defined as “actual prejudice with respect to contemplated or existing litigation,
such as the inability to meet a filing deadline or to present a claim.” Id., 518 U.S.
at 348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual
injury as the “inability to file a complaint or defend against a charge”). The failure
to allege an actual injury to a “‘non-frivolous legal claim’” is “fatal.” Alvarez v.
Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (quoting Lewis, 518 U.S. at 353 &
n.4).
10
Plaintiff cannot state a claim for denial of access to the courts in proceedings
in which he is represented by counsel. United States v. Wilson, 690 F.2d 1267,
1271 (9th Cir. 1982) (holding access to a court-appointed attorney satisfies prison
authorities’ obligation to provide prisoners meaningful access to the courts); see
also Smith v. Cty. of Santa Clara, 223 F. App’x 701, 702 (9th Cir. 2007) (affirming
dismissal of a pretrial detainee’s claim that prison officials denied him adequate
access to a law library because he had court-appointed counsel); Lindquist v. Idaho
State Bd. of Corr., 776 F.2d 851, 855 (9th Cir. 1985) (holding that “a prison must
provide inmates with access to an adequate law library or, in the alternative, with
adequate assistance from persons trained in the law”); Senters v. Circuit Court of
Or. for Lane Cty., 2020 WL 1281233, at *2 (D. Or. Mar. 16, 2020) (same).
The Court has reviewed Plaintiff’s publicly available state court dockets in
Cr. Nos. 1PC151-001332 and 1DTA-19-02042. https://www.courts.state.hi. In
1DTA-19-02042, Plaintiff was referred to the public defender upon arrest and
released. See 1DTA-19-02042, Dkt. 3. Plaintiff was later arrested pursuant to a
bench warrant and was represented by Deputy Public Defender (“DPD”) J. Tanaka
at his December 18, 2019 initial hearing. Id., Dkts. 11-13. On December 26,
2019, Plaintiff moved to represent himself as a “sovereign citizen,” and DPD Sarah
M. Nishioka moved to withdraw. Id. at Dkt. 21. The court allowed Nishioka to
withdraw, but appointed Tae Won Kim, Esq., to represent Plaintiff the next day.
11
Id. at Dkt. 19. On January 2, 2020, Plaintiff stated that he did not want an attorney
with a bar license, and Kim moved to withdraw. Id. at Dkt. 25. The court granted
Kim’s motion, but appointed W. Li, Esq., to represent Plaintiff on January 22,
2020, who has represented Plaintiff since. Id. at Dkt. 37.
In 1PC151-001332, Plaintiff was arrested on December 19, 2019, pursuant
to a bench warrant issued for revocation of probation. See 1PC151-001332,
Dkt. 128-33. On January 7, 2020, the Office of the Public Defender, which had
represented Plaintiff in the original case, moved to withdraw because Plaintiff had
refused to be represented by a DPD in 1DTA-19-02042. Id. at Dkt. 134. On
January 22, 2020, the court appointed Aaron Wills, Esq., as substitute counsel in
Plaintiff’s revocation proceedings. Id. at Dkt. 137. On March 20, 2020, Plaintiff’s
revocation proceedings were continued for ninety days, pursuant to the Hawaii
Supreme Court’s emergency orders regarding COVID-19. Id. at Dkt. 141. Mr.
Wills filed motions for Plaintiff’s release and participated in status conferences.
Id. at Dkt. 144, 146. On July 24, 2020, the court appointed Randal Shintani, Esq.,
to represent Plaintiff. Id. at Dkt. 174. The court recently continued the matter until
January 8, 2021. Id. at Dkt. 192.
These public records make clear that Plaintiff has been represented by
counsel throughout both state court criminal cases since his arrest. Plaintiff cannot
show an actual injury to these ongoing state proceedings while he is represented by
12
counsel. Moreover, Plaintiff shows no actual injury, such as missed deadlines or
adverse decisions, regardless of whether he is represented by counsel.
To the extent Plaintiff alleges that he has suffered an actual injury because
he has been incarcerated for longer than the charges in 1DTA-19-02042 warrant,
he fails to state a claim. While Plaintiff’s criminal traffic charges may carry a
sentence of only thirty days, he was released on his own recognizance in 1DTA19-02042 on April 6, 2020. See 1DTA-19-02042, Dkt. 83. Plaintiff’s conviction
in 1PC151-001332, a Class C felony, carries the possibility of a five-year term if
his probation is revoked, however, and it is this case in which he is being held. See
HRS §§ 708-811, 706-660.
To the extent Plaintiff claims that he is unable to challenge the conditions of
his confinement in the SHU, that is not so. Plaintiff has filed two federal suits
against OCCC prison officials, in which he submitted complaints, in forma
pauperis applications, motions for appointment of counsel, amended pleadings, and
a TRO Motion. He has missed no deadlines in either of these cases.
Plaintiff fails to show that he has suffered any “actual prejudice” with
respect to any past, present, or contemplated case, and therefore fails to state a
colorable claim for the denial of access to the courts. Lewis, 518 U.S. at 348;
Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678. Plaintiff’s access-to-the-courts
claims in Counts I, II, and III, are again DISMISSED with prejudice.
13
2. Due process: conditions of confinement
Because Plaintiff is awaiting a decision on the revocation of probation, the
Court reviews his conditions-of-confinement claim under the Fourteenth
Amendment rather than the Eighth Amendment.3 See Ressy v. King Cty.,
520 F. App’x 554, 554-55 (9th Cir. 2013) (treating prisoner held in “pre-hearing
detention for a probation violation” as a “pretrial detainee”); see also Bell v.
Wolfish, 441 U.S. 520, 535 (1979) (holding pretrial detainees are protected under
the Fourteenth Amendment); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25
(9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct.
794 (2019) (holding pretrial detainees’ claims alleging v. inadequate medical care
arise under the Fourteenth Amendment, and are evaluated under an objective
deliberate indifference standard).
A pretrial detainee has a right under the Due Process Clause of the
Fourteenth Amendment to be free from punishment prior to an adjudication of
guilt. Bell, 441 U.S. at 535. Pretrial detainees, like convicted prisoners, are
entitled to “adequate food, clothing, shelter, sanitation, medical care, and personal
safety.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), overruled on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995). To state a claim for
3
Plaintiff cites the Eighth Amendment at various points in the SAC. See ECF No. 15 at 163, 170, 174.
Plaintiff’s Eighth Amendment claims remain DISMISSED with prejudice. See Order, ECF No. 14 at 150-51.
14
unconstitutional conditions of confinement against an individual defendant, a
pretrial detainee must allege facts that show: (1) the defendant made an intentional
decision with respect to the conditions under which the plaintiff was confined;
(2) those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) the defendant did not take reasonable available measures to abate that risk,
even though a reasonable official in the circumstances would have appreciated the
high degree of risk involved–making the consequences of the defendant’s conduct
obvious; and (4) by not taking such measures, the defendant caused the plaintiff’s
injuries. Gordon, 888 F.3d at 1125.
Determining whether a defendant’s conduct and the prisoner’s conditions of
confinement rise to the level of a constitutional violation is an objective assessment
that turns on the facts and circumstances of each particular case. Id.; Hearns v.
Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis level of
imposition” of punishment is insufficient. Bell, 441 U.S. at 539 n.21. The “‘mere
lack of due care by a state official’ does not deprive an individual of life, liberty, or
property under the Fourteenth Amendment.” Castro v. Cty. of L.A., 833 F.3d 1060,
1071 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)).
A pretrial detainee must “prove more than negligence but less than subjective
intent–something akin to reckless disregard.” Id.
15
a. Conditions in Plaintiff’s third-floor cell
Plaintiff alleges that Warden Sequeira ignored his complaints about the dim
lighting, lack of sheets, cockroaches, rusty pipes that cause drinking water to be
yellow, and lack of clean clothing and towels. ECF No. 15 at 176. These
allegations fail to state a claim for at least two reasons. First, Plaintiff does not
allege that Warden Sequeira intended these conditions to be punitive. Indeed,
Plaintiff does not claim that the conditions in his third-floor cell were any different
from those experienced by all other inmates on that floor.
Second, Plaintiff fails to allege facts articulating a plausible claim for relief.
Plaintiff admits that he has a desk, bed, mattress, a blanket, and a fresh uniform
each week. Id. at 176. These conditions do not constitute less than the minimal
civilized measure of life’s necessities. Plaintiff fails to show that Warden Sequeira
placed him at substantial risk of suffering serious harm. Nor does he show that
Warden Sequeira failed to take reasonable steps to abate any objectively high risk
to his health or safety. Plaintiff also fails to explain what serious harm or injury he
suffered, beyond being uncomfortable and unable to read at night.
Plaintiff fails to state a claim for relief against Warden Sequeira in Count III
regarding the conditions in his cell and these claims are DISMISSED without
prejudice.
16
b. Failure to protect
“[P]rison officials have a duty . . . to protect prisoners from violence.”
Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981) (further citations omitted)); Castro v. Cnty. L.A., 833
F.3d 1060, 1070 (holding the Fourteenth Amendment’s objective standard applies
to pretrial detainees’ failure-to-protect claims). While 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,” he 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. See Farmer, 511 U.S.
at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). But “speculative
and generalized fears of harm . . . do not rise to a sufficiently substantial risk of
serious harm.” Williams v. Wood, 223 F. App’x 670, 671 (9th Cir. 2007).
i.
Warden Sequeira
Plaintiff complains that OCCC has no protective housing unit and, although
prison officials knew of his past gang membership, he was placed in the SHU,
initially on the first floor and then on the third floor, rather than in protective
custody. ECF No. 15 at 174. Plaintiff fails to allege any facts showing that
Warden Sequeira intentionally placed him in the SHU, or specifically on the third
floor, knowing that this would put Plaintiff at a substantial risk of suffering serious
17
harm. Plaintiff does not say that Warden Sequeira had any involvement in his
move from the first floor to the third floor of the SHU. Nor does Plaintiff allege
that his cellmate on the third floor was a rival gang member or in the gang that
Plaintiff renounced. Plaintiff therefore fails to allege any facts showing that
Warden Sequeira knew of and failed to take reasonable measures to abate a risk
that Plaintiff would be seriously harmed on the third floor.
Likewise, Plaintiff fails to allege facts showing that his transfer to the third
floor SHU cell caused him serious injury. Plaintiff notes only the February 12,
2020 incident, during which another inmate allegedly reached through the bars of
Plaintiff’s cell and bent back his finger. See id. at 165, 167. Although Plaintiff
claims that he sought medical treatment the following day, id. at 167, he fails to
describe the extent of his injury, whether his finger was sprained, broken, or
simply sore. Nor does he allege facts showing that Warden Sequeira or any prison
official knew that this prisoner intended harm to Plaintiff. Accordingly, Plaintiff’s
failure-to-protect claim against Warden Sequeira in Count III is DISMISSED with
prejudice.
ii.
Heick
Plaintiff claims that Heick moved him to the third-floor cell knowing that
“his life would be in danger,” id. at 164, and “so [he] would get hurt,” id. at 168.
18
Plaintiff contends that, the day after Heick moved him to the third floor, another
inmate reached through the bars of his cell and bent back his finger. Id. at 165.
As discussed above, however, Plaintiff does not allege facts showing that his
relocation to the third floor created a substantial risk of serious harm to him.
While it is certainly concerning that another inmate bent back Plaintiff’s finger,
nothing in the SAC suggests that this resulted in serious harm to Plaintiff. Nor
does anything in the SAC otherwise plausibly support a finding that Plaintiff faces
a substantial risk of serious harm on the third floor. Moreover, Plaintiff fails to
allege facts showing that Heick failed to take reasonable available measures to
abate any risk to Plaintiff following the February 12, 2020 assault. As noted supra,
Plaintiff does not allege that his third-floor cellmate was a rival gang member or in
the gang that Plaintiff renounced. Accordingly, Plaintiff’s failure-to-protect claim
against Heick in Count I is DISMISSED with prejudice.
3. Due process: denial of grievance
A prison official’s denial of a grievance or allegedly improper processing of
a prisoner’s grievances or appeals, without more, is not a sufficient basis for
liability under 42 U.S.C. § 1983. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (stating prisoners have no “separate constitutional entitlement to a specific
prison grievance procedure.”) (citation omitted); Mann v. Adams, 855 F.2d 639,
640 (9th Cir. 1988) (holding no due process violation based on improperly
19
processed grievances); see also Todd v. Cal. Dep’t of Corr. and Rehabilitation,
615 F. App’x 415, 415 (9th Cir. 2015) (same); Shallowhorn v. Molina, 572 F.
App’x 545, 547 (9th Cir. 2014) (affirming dismissal of claims against defendants
who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at
860). “Ruling against a prisoner on an administrative complaint does not cause or
contribute to the violation.” George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)
(“A guard who stands and watches while another guard beats a prisoner violates
the Constitution; a guard who rejects an administrative complaint about a
completed act of misconduct does not.”).
The Court dismissed with prejudice Plaintiff’s denial of grievances claim
against Warden Sequeira. See Order, ECF No. 14 at 148-49. Plaintiff’s due
process claims based on Warden Sequeira’s denial of his grievance appeals remain
DISMISSED with prejudice.
4. Equal protection claims
The Equal Protection Clause of the Fourteenth Amendment requires the state
to treat all similarly situated people equally. Furnace v. Sullivan, 705 F.3d 1021,
1030 (9th Cir. 2013). “To state a claim under 42 U.S.C. § 1983 for a violation of
the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show
that the defendants acted with an intent or purpose to discriminate against the
20
plaintiff based upon membership in a protected class.” Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir.1998).
Although Plaintiff cites the Equal Protection Clause of the Fourteenth
Amendment, see ECF No. 15 at 163, he fails to allege that he is a member of a
protected class or that any Defendant acted with an intent or purpose to
discriminate against him based on his membership in such a class. Plaintiff’s equal
protection claims against Heick, Willeamson, and Warden Sequeira in Counts I, II,
and III, are DISMISSED without prejudice.
E. Fifth Amendment claims
Plaintiff also cites the Fifth Amendment at various points in the SAC. See
ECF No. 15 at 163, 170, 174. The Fifth Amendment’s Due Process Clause,
however, “only applies to the federal government.” Bingue v. Prunchak, 512 F.3d
1169, 1174 (9th Cir. 2008). Because Plaintiff is in state custody alleging
constitutional violations by state actors, the Fifth Amendment does not apply, and
his Fifth Amendment claims in Counts I, II, and III against Heick, Willeamson,
and Warden Sequeira are DISMISSED with prejudice.
F. Request for court-appointment counsel
Plaintiff again requests court-appointed counsel. ECF No. 15 at 159. There
is no constitutional right to counsel in a civil case where, as here, a litigant’s liberty
is not at issue. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). The
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court’s discretion to appoint pro bono counsel is governed by several factors,
including a plaintiff’s likelihood of success on the merits and ability to articulate
the claims in light of their complexity. A plaintiff must show “exceptional
circumstances” that support the appointment of counsel. Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991).
Plaintiff can read, write, and articulate his claims. His claims are not
particularly complex nor do they show exceptional circumstances supporting the
appointment of counsel. Until Defendants are served and have answered, the
Court cannot determine Plaintiff’s likelihood of success on the merits or whether
there are exceptional circumstances that justify the appointment of counsel.
Terrell, 935 F.2d at 1017. Plaintiff’s request for court-appointed counsel is
DENIED without prejudice to refiling after Defendants have filed an Answer or
other response to the SAC.
V. CONCLUSION
Plaintiff’s First Amendment retaliation claim against Defendant Heick in
Count I and his First Amendment free-exercise claim against Warden Sequeira in
Count III state a plausible claim for relief, shall be served, and require a response
after service is perfected.
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Plaintiff’s access-to-the-courts, failure-to protect, denial-of-grievance,
Eighth Amendment, and Fifth Amendment claims in Counts I, II, and III are
DISMISSED with prejudice.
Plaintiff’s First Amendment retaliation claim against Defendant Willeamson
in Count II, his conditions-of-confinement claim in Count III, and his equal
protection claims in Counts I, II, and III are DISMISSED without prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1).
Plaintiff’s request for court-appointed counsel is DENIED without prejudice.
VI. SERVICE ORDER
IT IS HEREBY ORDERED:
(1) The Clerk shall send the U.S. Marshal a copy of this Order, the Second
Amended Complaint, and one completed summons for Defendants Sergeant Lana
Heick, Case Manager Calvert Willeamson, and Warden Francis Sequeira. The
U.S. Marshals Service shall open a file and retain these documents for use in the
event that Heick, Willeamson, and Warden Sequeira decline to waive service of
the summons.
(2) Per agreement with the Hawaii Department of Public Safety (“DPS”),
the Clerk shall provide by electronic means to DPS liaisons Shelley Harrington and
Laurie Nadamoto: (a) a copy of the Second Amended Complaint, ECF No. 15,
copies of the First Amended Complaint and of this Order, and a completed Notice
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of Lawsuit and Request for Waiver of Service of Summons form addressed to
Defendants Heick, Willeamson, and Warden Sequeira; and (b) two completed
Waiver of Service of Summons forms for Heick, Willeamson, and Warden
Sequeira.
(3) Defendants shall have 30 days after the request for waiver of service of
summons is sent to return the waiver to the U.S. Marshal, who shall file the waiver
with the court. If any Defendant fails to do so within that time, the U.S. Marshal
shall NOTIFY THE COURT, who will direct the U.S. Marshal to personally serve
the summons and complaint on that Defendant. A personally served Defendant
will be required to pay the costs of service.
(4) Defendants Heick, Willeamson, and Warden Sequeira shall respond to
Davies’ Second Amended Complaint within 60 days after electronic service if
formal service is waived, or 45 days if service of the summons is not waived.
(5) Plaintiff shall, within one week of any change of address, notify the
court. This notice shall contain only information about the change of address and
its effective date and shall not include requests for other relief. Failure to file such
notice may result in the dismissal of the action for failure to prosecute under Fed.
R. Civ. P. 41(b).
(6) After Defendants have filed a response to the Second Amended
Complaint, Plaintiff’s documents are deemed served on any Defendant(s) or their
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attorney(s) who participate in the court’s Case Management Electronic Case Filing
(CM/ECF) system. The U.S. Marshal is not responsible for serving documents
after service of the operative pleading.
IT IS SO ORDERED.
DATED: September 29, 2020 at Honolulu, Hawaii.
Davies v. Heick, et al., No. 120-cv-00173-LEK-RT Scrg '20 (SAC serve retal., religious, dsm access, cond., protect,
8th, 5th) draft to chambers
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