Kealoha v. Espinda et al

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART AND DIRECTING SERVICE - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 12/1/2020. (jo)COURT'S CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

KRISTOPHER KEALOHA,
#A0265817,
Plaintiff,

CIV. NO. 20-00309 JMS-RT
ORDER DISMISSING FIRST
AMENDED COMPLAINT IN PART
AND DIRECTING SERVICE

v.
SCOTT HARRINGTON, et al.,
Defendants.

ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART
AND DIRECTING SERVICE
Before the court is pro se Plaintiff Kristopher Kealoha’s First
Amended Complaint (“FAC”) brought pursuant to 42 U.S.C. § 1983. ECF No. 11.
Kealoha, a pretrial detainee, alleges that Department of Public Safety (“DPS”),
Halawa Correctional Facility (“HCF”), and Oahu Community Correctional Center
(“OCCC”) officials or staff 1 violated his rights under the First and Fourteenth
Amendments, and the Prison Rape Elimination Act (“PREA”), 34 U.S.C.
§§ 30301-30309, by allegedly: (1) retaliating against him; (2) threatening his

1

Kealoha names in their individual capacities ACO Utu, ACO Arcalas, Shelley
Harrington, Everett Kaninau, Scott Harrington, and Randy Galarsa. See ECF No. 11 at PageID
## 72-73. Although Kealoha also includes “Does 1-5” as defendants, id. at PageID # 73, he does
not make any factual allegations against these defendants. “Does 1-5” are TERMINATED as
defendants.

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safety; (3) using excessive force; (4) failing to process properly his PREA
complaint; and (5) failing to investigate a grievance. ECF No. 1 at PageID
## 78-81.
The court has screened the FAC pursuant to 28 U.S.C. §§ 1915(e) and
1915A(a), and finds that it states claims for relief in part against Defendants Utu,
Arcalas, and Kaninau. 2 Kealoha’s other claims are DISMISSED, as specified
below.
I. STATUTORY SCREENING
The court is required to screen complaints brought by prisoners
seeking relief against a governmental officer or employee of a governmental entity.
28 U.S.C. §§ 1915(e)(2), 1915A(a); Byrd v. Phoenix Police Dep’t, 885 F.3d 639,
641 (9th Cir. 2018) (per curiam). The court must dismiss any portion of a
complaint that: (1) is frivolous or malicious; (2) fails to state a claim upon which
relief can be granted; or (3) seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (en banc) (“It is . . . clear that section 1915(e) not only

2

In the Order dismissing Kealoha’s original Complaint in part, the Court concluded that
Kealoha had stated retaliation and excessive force claims against ACO Tai. See ECF No. 6 at
PageID ## 52-55. Kealoha states in the FAC, however, that ACO Tai is no longer a defendant.
See ECF No. 11 at PageID # 79. Tai and numerous other defendants who were named in the
original Complaint but not the FAC have been terminated from this action.
2

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permits but requires a district court to dismiss an in forma pauperis complaint that
fails to state a claim.”).
Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short
and plain statement of the claim showing that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Fed. R. Civ. P. 8(a)(2),
(d)(1). To state a claim, a complaint must contain more than “a formulaic
recitation of the elements of a cause of action”; it requires factual allegations
sufficient “to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation and footnote omitted).
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) (per curiam); Nordstrom v. Ryan,
762 F.3d 903, 908 (9th Cir. 2014). Under this standard, all allegations of material
fact in the complaint are taken as true and construed in the light most favorable to
the plaintiff. 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.
3

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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 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).
///
///
///
4

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II. BACKGROUND 3
Kealoha alleges in Count I that an unidentified individual assaulted
him at the Circuit Court of the First Circuit, State of Hawaii, on January 28, 2019.
ECF No. 11 at PageID # 78. Kealoha claims that ACO Utu and ACO Arcalas had
“handcuffed and shackled” him and “ordered and/or allowed” the unidentified
person to assault him. Id. According to Kealoha, the individual assaulted him
because ACO Utu and ACO Arcalas said that Kealoha was a “rat.” Id. Kealoha
filed a PREA complaint, but he claims that Shelley Harrington did not “properly
process” it. Id. at PageID # 79.
Kealoha alleges in Count II that Everett Kaninau choked him with a
towel on April 21, 2019, while Kealoha was handcuffed and shackled. Id. at
PageID # 80. Kealoha claims that Kaninau assaulted him after saying that Kealoha
was a “rat.” Id. After the incident, Kealoha filed another PREA complaint. Id.
Galarsa, a PREA coordinator, eventually notified Kealoha that the allegations in
his complaint were “unfounded.” Id. at PageID # 81. Kealoha claims that Galarsa
reached this conclusion because Scott Harrington, the warden of HCF, refused to
show Galarsa surveillance camera footage of the assault. Id. According to
Kealoha, he filed a grievance regarding Scott Harrington’s alleged “cover-up” of

3

Kealoha’s factual allegations are accepted as true. Nordstrom, 762 F.3d at 908.
5

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the video footage, but Shelley Harrington, another PREA coordinator and Scott
Harrington’s wife, “refused to investigate it further.” Id.
Kealoha further alleges that he filed additional PREA complaints
against Kaninau for “incidents” on or about June 19, 2019, June 23, 2019, June 24,
2019, and August 8, 2019. Id. Kealoha claims that Scott Harrington also refused
to show Galarsa video footage of these alleged incidents and Shelley Harrington
“refused to investigate it further.” Id. Finally, Kealoha claims that Shelley
Harrington called him a “rat” in front of other inmates and threatened him on
March 28, 2019. Id.
Kealoha demands a jury trial and seeks compensatory and punitive
damages. Id. at PageID # 83.
III. 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); Rawson v.
Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020). Additionally, a
plaintiff must allege that “the defendant’s conduct was the actionable cause of the
claimed injury.” Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008). “To
6

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meet this causation requirement, the plaintiff must establish both causation-in-fact
and proximate causation.” Id. “‘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.’”
Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
B.

Threat-to-Safety Claims
Kealoha alleges in Count I that ACO Utu and ACO Arcalas

threatened his safety by ordering or allowing an unidentified person to assault him
while he was handcuffed and shackled at the Circuit Court of First Circuit on
January 28, 2019. ECF No. 11 at PageID # 78. A pretrial detainee has the right,
under the Due Process Clause of the Fourteenth Amendment, to be free from
punishment prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535
(1979). A pretrial detainee may therefore allege a cause of action under the Due
Process Clause where conditions of confinement, such as food, clothing, shelter,
medical care, and reasonable safety, “amount to punishment.” Id.
The elements of a pretrial detainee’s failure-to-protect claim against
an individual officer are: (1) the defendant made an intentional decision with
respect to the conditions under which the plaintiff was confined; (2) those
7

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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 officer 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. Castro v. Cnty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc).
Kealoha states threat-to-safety claims against ACO Utu and ACO
Arcalas based on his allegations that they “ordered and/or allowed” another person
to assault Kealoha while his hands were in handcuffs and his legs were in shackles.
Kealoha’s threat-to-safety claims against ACO Utu and ACO Arcalas in Count I
may proceed.
Kealoha claims in Count II that Shelley Harrington called him a “rat”
in front of other inmates on March 28, 2019. ECF No. 11 at PageID # 81.
Allegations that prison officials called a prisoner a “snitch” in the presence of other
inmates may violate an inmate’s right to be free from harm. See Pinson v.
Unknown Party, 698 F. App’x 445, 446 (9th Cir. 2017) (mem.). Here, however,
Kealoha does not explain how Shelley Harrington’s alleged statements put him at
substantial risk of serious harm. See Williams v. Wood, 223 F. App’x 670, 671
(9th Cir. 2007) (mem.) (“[Plaintiff’s] speculative and generalized fears of harm at
the hands of other prisoners do not rise to a sufficiently substantial risk of serious
8

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harm to his future health.”). Indeed, Kealoha does not describe the context in
which Shelley Harrington made the alleged statements or how many people heard
them. Moreover, Kealoha does not allege that Shelley Harrington knew that her
statements might put his safety at risk. Kealoha does not claim that he has
experienced any mistreatment because of the alleged statements. Nor does he
claim that any other HCF inmate has experienced harm after a prison official called
him a rat. Kealoha’s threat-to-safety claim against Shelley Harrington is
DISMISSED without prejudice. 4
C.

Retaliation Claims
“Prisoners have a First Amendment right to file grievances [and

lawsuits] against prison officials and to be free from retaliation for doing so.”
Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry,
584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim
of First Amendment retaliation entails five basic elements: (1) [a]n 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.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

4

The dismissal of certain claims without prejudice does not prevent Kealoha from
moving to amend his pleading under Federal Rule of Civil Procedure 15 to reallege those claims
if he can cure the noted deficiencies in those claims.
9

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2005) (footnote and citations omitted). To state a cognizable retaliation claim, a
plaintiff must establish a nexus between the retaliatory act and the protected
activity. Grenning v. Klemme, 34 F. Supp. 3d 1144, 1153 (E.D. Wash. 2014)
(citing Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000)). The
adverse action need not be an independent constitutional violation. Watison, 668
F.3d at 1114.
1.

Alleged Assaults
Kealoha alleges retaliation claims against ACOs Utu, Arcalas, and

Kaninau in Counts I and II, who he alleges called him a “rat” and either personally
assaulted or ordered or allowed someone else to assault him on specific dates.5 See
ECF No. 11 at PageID ## 78, 80. Although Kealoha does not divulge any reasons
why ACOs Utu, Arcalas, and Kaninau called him a rat, liberally construing his
FAC, it is fair to assume that they acted in retaliation for Kealoha’s past lawsuits,
complaints, grievances, or cooperation with federal law enforcement. 6 Plaintiff’s
retaliation claims against ACOs Utu, Arcalas, and Kaninau may proceed.
///
///

Although Kealoha did not mark the box next to “Retaliation” on the FAC, the Court
liberally construes his pro se filing. See Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011).
5

6

In other lawsuits, Kealoha has claimed that prison officials labeled him as an FBI
informant. See, e.g., Kealoha v. Espinda, 2017 WL 741570, at *3 (D. Haw. Feb. 24, 2017).
10

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2.

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Alleged Threat
Kealoha alleges in Count II that Shelley Harrington called him a “rat”

and threatened him on March 28, 2019. Id. at PageID # 81. Again, although
Kealoha does not specify why Shelley Harrington allegedly called him a rat, it
appears that she did so because of Kealoha’s past protected conduct. Accordingly,
Kealoha’s retaliation claim against Shelley Harrington may proceed.
D.

Excessive Force Claims
Kealoha alleges that ACO Kaninau assaulted him on April 21, 2019.

Id. at PageID # 80. To establish an excessive force claim, a pretrial detainee must
show “that the force purposely or knowingly used against him was objectively
unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). The Court
does not apply this standard mechanically. Id.. “Rather, objective reasonableness
turns on the ‘facts and circumstances of each particular case.’” Id. (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). Relevant considerations may
include “the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff's injury; any effort made by the officer to
temper or to limit the amount of force; the severity of the security problem at issue;
the threat reasonably perceived by the officer; and whether the plaintiff was
actively resisting.” Id.

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Kealoha claims that ACO Kaninau choked him with a towel and said
he was a “rat.” ECF No. 11 at PageID # 80. During the incident, Kealoha claims
that his hands were handcuffed behind his back and his legs were shackled. Id.
Kealoha’s excessive force claim against ACO Kaninau may proceed.7
E.

Claims Under the PREA
Kealoha alleges in Counts I and II that his PREA complaints were not

properly processed. ECF No. 11 at PageID ## 79-81. These claims fail at the
starting gate, however, because the PREA provides no private cause of action. See
Hatcher v. Harrington, 2015 WL 474313, at *4 (D. Haw. Feb. 5, 2015) (“Nothing
in the PREA explicitly or implicitly suggests that Congress intended to create a
private right of action for inmates to sue prison officials for noncompliance with
the Act.”); Collen v. Yamaoka, 2015 WL 793085, at *2-4 (D. Haw. Feb. 25, 2015)
(same). Kealoha’s claims against Galarsa, Shelley Harrington, and Scott
Harrington based on the processing of his PREA complaints are DISMISSED with
prejudice.
///
///

7

Kealoha asserts that he filed PREA complaints against Kaninau based on other
“incidents” on June 19, 2019, June 23, 2019, June 24, 2019, and August 8, 2019. ECF No. 11 at
PageID # 81. Kealoha fails to provide, however, any details regarding these alleged incidents.
Any excessive force claims based on those incidents are DISMISSED without prejudice.
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F.

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Claims Based on Grievances
Kealoha alleges in Count II that Shelley Harrington did not adequately

investigate a grievance. ECF No. 11 at PageID # 81. Inmates have no
constitutional right to a grievance procedure, so the failure to properly investigate
or process a grievance does not state a claim. See generally Ramirez v. Galaza,
334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional
entitlement to a specific prison grievance procedure.” (citation omitted)); Mann v.
Adams, 855 F.2d 639, 640 (9th Cir. 1988) (stating that due process not violated
when defendant failed to properly process grievance because unpublished
administrative policy statements in establishing a grievance procedure did not
create a protected liberty interest); see also Shallowhorn v. Molina, 572 F. App’x
545, 547 (9th Cir. 2014) (holding the district court properly dismissed
§ 1983 claims against defendants who “were only involved in the appeals process”
because inmates are not entitled to a specific grievance procedure (citing Ramirez,
334 F.3d at 860)). Kealoha’s claim against Shelley Harrington based on her
investigation of his grievance is DISMISSED with prejudice.
///
///
///
///
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IV. CONCLUSION
(1) “Does 1-5” are TERMINATED as Defendants.
(2) Kealoha’s threat-to-safety claims against Utu and Arcalas in Count
I may proceed. His threat-to-safety claim against Shelley Harrington in Count II is
DISMISSED without prejudice.
(3) Kealoha’s retaliation claims against Utu, Arcalas, Kaninau, and
Shelley Harrington in Counts I and II may proceed.
(4) Kealoha’s excessive force claim against Kaninau in Count II may
proceed.
(5) Kealoha’s claims in Counts I and II against Galarsa, Shelley
Harrington, and Scott Harrington based on the processing of his PREA complaint
are DISMISSED with prejudice.
(6) Kealoha’s claim in Count II against Shelley Harrington based on
her investigation of his grievance is DISMISSED with prejudice.
V. SERVICE ORDER
IT IS HEREBY ORDERED:
(1) The Clerk shall send the U.S. Marshal a copy of this Order, the
First Amended Complaint, ECF No. 11, and one separate completed summons
each for Defendants Utu, Arcalas, Kaninau, and Shelley Harrington. The U.S.

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Marshal shall open a file and retain these documents for use in the event that any
Defendant declines to waive service of the summons.
(2) Per agreement with the Department of Public Safety, the Clerk
shall provide by electronic means to DPS litigation coordinators Laurie Nadamoto,
Esq. and Shelley Harrington, Esq.: (a) a copy of the First Amended Complaint,
ECF No. 11, and any exhibits, and a completed Notice of Lawsuit and Request for
Waiver of Service of Summons form separately addressed to Defendants Utu,
Arcalas, Kaninau, and Shelley Harrington; and (b) two completed Waiver of
Service of Summons forms each for Utu, Arcalas, Kaninau, and Shelley
Harrington.
(3) Defendants Utu, Arcalas, Kaninau, and Shelley Harrington 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
Defendants Utu, Arcalas, Kaninau, and Shelley Harrington fail 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 Defendants Utu,
Arcalas, Kaninau, and Shelley Harrington. A personally served Defendant will be
required to pay the costs of service.
(4) Defendants Utu, Arcalas, Kaninau, and Shelley Harrington shall
file a response to the First Amended Complaint within 60 days after electronic
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service if formal service is waived, or 45 days if service of the summons is not
waived.
(5) Kealoha shall notify the court within one week of any change of
address. 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 do
so may result in dismissal of the action for failure to prosecute under Federal Rule
of Civil Procedure 41(b).
(6) After Defendants Utu, Arcalas, Kaninau, and Shelley Harrington
have filed a response to the First Amended Complaint, Kealoha’s documents are
deemed served on any Defendant or their 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: Honolulu, Hawaii, December 1, 2020.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Kealoha v. Harrington, et al, Civ. No. 20-00309 JMS-RT, Order Dismissing First Amended
Complaint in Part and Directing Service
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