McGinnis v. Halawa Correctional Facility et al
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH PARTIAL LEAVE TO AMEND re 10 - Signed by JUDGE DERRICK K. WATSON on 4/28/2021. (1) The Second Amended Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). (2) McGinnis' claims against the Halawa Correctional Facility are DISMISSED with prejudice, as are his official capacity claims for damages against the individual defendants. McGinnis 039; remaining claims are DISMISSED with leave to amend on or before May 26, 2021. (3) The Clerk is DIRECTED to send McGinnis a blank prisoner civil rights complaint form so that he can comply with this order if he wants to p ursue these claims. (4) Failure to timely file an amended pleading may result in AUTOMATIC DISMISSAL of this suit without further notice, and McGinnis may incur a strike under 28 U.S.C. § 1915(g). (emt, )COURT'S CERTIFICATE of Service - Thomas Kelly McGinnis served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on April 28, 2021. A blank prisoner civil rights complaint form shall be included in the mailing to Plaintiff.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THOMAS KELLY MCGINNIS,
CIVIL NO. 20-00567 DKW-KJM
ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
PARTIAL LEAVE TO AMEND
FACILITY, et al.,
Before the court is Plaintiff Thomas Kelly McGinnis’ (“McGinnis”) Second
Amended Prisoner Civil Rights Complaint (“SAC”) brought pursuant to 42 U.S.C.
§ 1983. ECF No. 10. McGinnis alleges that Defendants,1 prison officials at the
Halawa Correctional Facility (“HCF”), violated the Eighth Amendment to the
United States Constitution by using excessive force and denying him medical care.
Id. at 1–3, 5–7. For the following reasons, the Complaint is DISMISSED pursuant
to 28 U.S.C. §§ 1915(e) and 1915A(a), with partial leave to amend.
McGinnis names Adult Corrections Officer (“ACO”) Tavale, Licensed Practical Nurse (“LPN”)
Christina, and Warden Espinda in their individual and official capacities. ECF No. 10 at 1–2.
McGinnis also includes the HCF as a defendant in the caption of the SAC. Id. at 1.
The court is required to conduct a pre-Answer screening of any case in
which a prisoner seeks redress from a governmental entity, or officer or employee
of a governmental entity, or in which a plaintiff proceeds in forma pauperis.
28 U.S.C. §§ 1915(e)(2), 1915A(a). During this screening, the court must dismiss
any complaint, or any portion thereof, that is frivolous, malicious, fails to state a
claim on which relief may be granted, or seeks damages from defendants who are
immune from suit. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Andrews v.
Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (noting that 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b) “are directed at screening out meritless suits early
on”); see also Harris v. Harris, 935 F.3d 670, 675 (9th Cir. 2019) (describing
screening under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a)–(b)).
In determining whether a complaint or any portion thereof should be
dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) or
1915A(b), the court applies the same standard as that under Federal Rule of Civil
Procedure 12(b)(6) (“Rule 12”). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th
Cir. 2015) (per curiam). Under this standard, 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 and
citation omitted); Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018)
(per curiam). A claim is “plausible” when the facts alleged support a reasonable
inference that the plaintiff is entitled to relief from a specific defendant for specific
misconduct. See Iqbal, 556 U.S. at 678. Although this plausibility standard does
not equate to a “probability requirement,” “it asks for more than sheer possibility
that a defendant has acted unlawfully.” Id.; see also Dent v. Nat’l Football
League, 968 F.3d 1126, 1130 (9th Cir. 2020) (same).
Rule 12 is read in conjunction with Federal Rule of Civil Procedure 8(a)
(“Rule 8”) when screening a complaint. Rule 8 “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)). Although Rule 8 does not require detailed factual
allegations, “it demands more than an unadorned
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citation
omitted). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id. (citation omitted).
“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (citation omitted) (brackets in original); see also
Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016) (same).
The court construes pro se litigants’ pleadings liberally and affords them the
benefit of any doubt. See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th
Cir. 2018) (per curiam). Liberal construction of a pro se civil rights complaint,
however, “may not supply essential elements of the claim that were not initially
pled.” Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (internal quotation
marks and citation omitted). Nor do district court judges have an “obligation to act
as counsel or paralegal to pro se litigants.” Pliler v. Ford, 42 U.S. 225, 231
(2004); see also Eblacas v. Agbulos, Civ. No. 18-00376 DKW-RLP, 2018 WL
5621954, at *2 (D. Haw. Oct. 30, 2018) (“While the court construes [the
plaintiff’s] allegations liberally and affords him the benefit of any doubt, it will not
speculate about [the plaintiff’s] claims, and has no obligation to act as counsel or
paralegal to pro se litigants.” (internal quotation marks and citation omitted)).
The court cannot dismiss a pro se litigant’s pleading without leave to amend
unless it is absolutely clear that the deficiencies of the complaint cannot be cured
by amendment. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per
curiam). Before dismissing a pro se complaint, the court must provide the litigant
with notice of the deficiencies in his complaint “to ensure that the litigant uses the
opportunity to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012) (internal quotation marks and citations omitted).
II. MCGINNIS’ CLAIMS2
McGinnis alleges in Count I that ACO Tavale “push[ed]” him in the chest in
May 2019, while McGinnis was handcuffed and showering. ECF No. 10 at 1, 5.
According to McGinnis, ACO Tavale’s push caused him to fall to the floor and hit
his head. Id. at 1, 5. He further claims that ACO Tavale denied him medical care
after the incident. Id. at 5. McGinnis alleges in Count II that LPN Christina has
denied him medical care since he arrived at the HCF in March 2019, despite his
“serious heart and liver conditions.” Id. at 2, 6. According to McGinnis, LPN
Christina and other staff members “just laugh[ed] at [him.]” Id. at 6. Finally,
McGinnis alleges in Count III that Warden Espinda “has not done anything” for
McGinnis during his incarceration at the HCF. Id. at 7. McGinnis seeks $800,000
in damages. Id. at 8.
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 color of state
McGinnis’ factual allegations are accepted as true for purposes of screening. See Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
law. See West v. Atkins, 487 U.S. 42, 48 (1988); Park v. City & County of
Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020). Section 1983 requires a
connection or link between a defendant’s actions and the plaintiff’s alleged
deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Harper
v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action,
the plaintiff must also demonstrate that the defendant’s conduct was the actionable
cause of the claimed injury.” (citation omitted)). “‘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 County, 693 F.3d 896, 915 (9th
Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
B. The Halawa Correctional Facility is not a “person”
McGinnis names the HCF as a defendant in the SAC’s caption. ECF No. 10
at 1. The HCF, however, is not a “person” within the meaning of 42 U.S.C.
§ 1983. See Allison v. Cal. Adult Auth., 419 F.2d 822, 822–23 (9th Cir. 1969)
(concluding that state prison was not a “person” for purposes of 42 U.S.C. § 1983);
see also Kehano v. Harrington, No. 20-00013 SOM-KJM, 2020 WL 826033, at *4
n.7 (D. Haw. Feb. 19, 2020) (“HCF is a prison and cannot be considered a person
within the meaning of § 1983.”). McGinnis’ claims against the HCF are therefore
DISMISSED with prejudice.
C. Eleventh Amendment
McGinnis names ACO Tavale, LPN Christina, and Warden Espinda in both
their individual and official capacities. ECF No. 10 at 1–2.
“The Eleventh Amendment bars suits for money damages in federal court
against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations
omitted); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–03
(1984). It does not bar suits for damages against state officials in their personal
capacities. See Hafer v. Melo, 502 U.S. 21, 30–31 (1991); Porter v. Jones, 319
F.3d 483, 491 (9th Cir. 2003). Nor does it bar official-capacity suits against state
officials for prospective relief to enjoin alleged ongoing violations of federal law.
See Wolfson v. Brammer, 616 F.3d 1045, 1065–66 (9th Cir. 2010); see also Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989).
McGinnis’ claims for money damages against ACO Tavale, LPN Christina,
and Warden Espinda in their official capacities are barred by the Eleventh
Amendment and DISMISSED with prejudice. See Mitchell v. Washington, 818
F.3d 436, 442 (9th Cir. 2016) (“The Eleventh Amendment bars claims for damages
against a state official acting in his or her official capacity.”). The Eleventh
Amendment does not bar McGinnis’ claims for money damages against these
Defendants in their individual capacities. Id. (noting that the Eleventh Amendment
“does not . . . bar claims for damages against state officials in their personal
D. Eighth Amendment
The Eighth Amendment governs the treatment of convicted prisoners and
forbids “cruel and unusual punishments.” U.S. Const. amend. VIII; see Sandoval
v. County of San Diego, 985 F.3d 657, 667 (9th Cir. 2021). It imposes duties on
prison officials to “provide humane conditions of confinement[.]” Farmer v.
Brennan, 511 U.S. 825, 832–33 (1994); Foster v. Runnels, 554 F.3d 807, 812 (9th
Cir. 2009). “[P]rison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must take reasonable measures to
guarantee the safety of the inmates[.]” Farmer, 511 U.S. at 832–33 (internal
quotation marks and citations omitted); Foster, 554 F.3d at 812.
1. Excessive force
McGinnis alleges in Count I that ACO Tavale used excessive force against
him. ECF No. 10 at 5. McGinnis claims that ACO Tavale “push[ed]” him in the
McGinnis does not seek to enjoin alleged ongoing violations of federal law.
chest in May 2019, while McGinnis was handcuffed and showering. Id. at 1, 5.
According to McGinnis, ACO Tavale’s push caused him to fall and hit his head.
Id. at 1, 5.
“In its prohibition of ‘cruel and unusual punishments,’ the Eighth
Amendment places restraints on prison officials, who may not . . . use excessive
physical force against prisoners.” Farmer, 511 U.S. at 832. The Ninth Circuit has
said that there are two general components to an Eighth Amendment excessive
force claim: “(1) a ‘subjective’ inquiry into whether prison staff acted ‘with a
sufficiently culpable state of mind’; and (2) an ‘objective component’ that ask[s]
whether ‘the alleged wrongdoing was objectively harmful enough to establish a
constitutional violation.’” Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir.
2020) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). The subjective
inquiry “‘turns on whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very purpose of causing
harm.’” Bearchild, 947 F.3d at 1140 (quoting Hudson, 503 U.S. at 6). The
objective component is “‘contextual and responsive to ‘contemporary standards of
decency.’’” Bearchild, 947 F.3d at 1140 (quoting Hudson, 503 U.S. at 8).
The Ninth Circuit has also offered the following five factors that bear on the
excessive force analysis in connection with a typical Eighth Amendment claim:
(1) the extent of injury suffered by an inmate; (2) the need for application of force;
(3) the relationship between that need and the amount of force used; (4) the threat
reasonably perceived by the responsible officials; and (5) any efforts made to
temper the severity of a forceful response. Bearchild, 947 F.3d at 1141.
McGinnis has not plausibly alleged an excessive force claim against ACO
Tavale. Although McGinnis claims that ACO Tavale “push[ed]” him in the chest
while McGinnis was handcuffed and showering, and McGinnis “hurt” his head, he
does not describe the extent of his alleged injury. See Wilkins v. Gaddy, 559 U.S.
34, 38 (2010) (per curiam) (“An inmate who complains of a ‘‘push or shove’’ that
causes no discernible injury almost certainly fails to state a valid excessive force
claim.”). Moreover, McGinnis does not address if there was a need for ACO
Tavale’s use of force, the relationship between any such need and the force that
ACO Tavale used, any threat that ACO Tavale may have perceived, and if ACO
Tavale made any effort to temper his response. See Hoard v. Hartman, 904 F.3d
780, 788 (9th Cir. 2018) (“Put simply, officer intent . . . serves as the core dividing
factor between constitutional and unconstitutional applications of force.”).
Without additional details, McGinnis has not sufficiently alleged that ACO Tavale
acted “maliciously and sadistically to cause harm” or “in a good-faith effort to
maintain or restore discipline.” Hudson, 503 U.S. at 6–7; see Hoard, 904 F.3d at
788 (“[A]n officer who harms an inmate as part of a good-faith effort to maintain
security has acted constitutionally, but an officer who harms an inmate for the very
purpose of causing harm . . . has engaged in excessive force[.] (internal quotation
marks and citation omitted)). McGinnis’ excessive force claim in Count I against
ACO Tavale is DISMISSED, albeit with leave to amend.
2. Denial of Medical Care
McGinnis further alleges in Count I that ACO Tavale denied him medical
care after he fell in the shower. ECF No. 10 at 5. McGinnis alleges in Count II
that LPN Christina also denied him medical care the entire time he has been
incarcerated at the HCF. Id. at 2, 6.
“Individuals in state custody have a constitutional right to adequate medical
treatment.” Sandoval v. County of San Diego, 985 F.3d 657, 667 (9th Cir. 2021)
(citing Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). “In order to prevail on a
claim under the Eighth Amendment for inadequate medical care, a plaintiff must
show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v.
Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). “This includes both an objective
standard—that the deprivation was serious enough to constitute cruel and unusual
punishment—and a subjective standard—deliberate indifference.” Id. (quotation
To meet the objective element, a plaintiff must demonstrate the existence of
a serious medical need. Estelle, 429 U.S. at 104. Such a need exists if failure to
treat the injury or condition “could result in further significant injury” or cause “the
unnecessary and wanton infliction of pain.” Edmo v. Corizon, 935 F.3d 757, 785
(9th Cir. 2019) (per curiam) (quotation marks omitted). “Examples of serious
medical needs include [t]he existence of an injury that a reasonable doctor or
patient would find important and worthy of comment or treatment; the presence of
a medical condition that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain.” Lopez v. Smith, 203 F.3d 1122, 1131
(9th Cir. 2000) (en banc) (internal quotation marks omitted). “Serious medical
needs can relate to physical, dental and mental health.” Edmo, 935 F.3d at 785
(quotation marks omitted).
If a prisoner “establishes a sufficiently serious medical need, he must then
show the [official’s] response to the need was deliberately indifferent.” Edmo, 935
F.3d at 786 (quotation marks omitted). “Deliberate indifference is a high legal
standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The
indifference to a prisoner’s medical needs must be “substantial.” Lemire v. Cal.
Dep’t of Corr. & Rehab., 726 F.3d 1062, 1081–82 (9th Cir. 2013). “Mere
‘indifference,’ ‘negligence’ or ‘medical malpractice’” will not support a denial-ofmedical-care claim. Id. at 1082. “Even gross negligence is insufficient to establish
deliberate indifference to serious medical needs.” Id.
Regarding McGinnis’ denial-of-medical-care claim in Count I against ACO
Tavale, McGinnis has not alleged a serious medical need. Although McGinnis
claims that ACO Tavale “hurt [him] when [his] head hit [the] tile” in the shower,
McGinnis does not describe the extent of his alleged injury. ECF No. 10 at 5. Nor
does McGinnis allege that ACO Tavale’s failure to treat the alleged injury could
have resulted “in further significant injury” or caused “the unnecessary and wanton
infliction of pain.” See Edmo, 935 F.3d at 785 (internal quotation marks and
citations omitted). Moreover, McGinnis does not allege that ACO Tavale was
deliberately indifferent to his medical needs. Indeed, McGinnis does not say what
he told ACO Tavale about his medical needs, when he did so, or how ACO Tavale
responded. See id. at 786 (“An inadvertent or negligent failure to provide adequate
medical care is insufficient to establish a claim under the Eighth Amendment.”).
McGinnis’ denial-of-medical-care claim in Count I against ACO Tavale is
DISMISSED with leave to amend.
Regarding McGinnis’ denial-of-medical-care claim in Count II against LPN
Christina, McGinnis also fails to state a plausible claim. Although McGinnis says
that he has “serious heart and liver conditions,” he does not describe these alleged
conditions or how they manifest. See ECF No. 10 at 6. More importantly,
McGinnis has not plausibly alleged that LPN Christina was deliberately indifferent
to a serious medical need. Again, McGinnis does not say when he spoke with LPN
Christina, what he allegedly told her, or what she already knew. See id.
McGinnis’ bare assertion that LPN Christina denied him medical care “since [he]
arrived at H.C.F.” is not enough. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006) (noting that the deliberate indifference standard is satisfied by showing “(a)
a purposeful act or failure to respond to a prisoner’s pain or possible medical need
and (b) harm caused by the indifference.”). To the extent McGinnis claims that he
did not receive the “right” medical care, “[a] difference of opinion between a
physician and the prisoner—or between medical professionals—concerning what
medical care is appropriate does not amount to deliberate indifference.” Snow v.
McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240,
242 (9th Cir. 1989)), overruled on other grounds by Peralta v. Dillard, 744 F.3d
1076, 1083 (9th Cir. 2014) (en banc). McGinnis’ denial-of-medical-care claim
against LPN Christina is DISMISSED with leave to amend.
E. Supervisory Liability
McGinnis alleges in Count III that Warden Espinda “has not done anything
for [him]” during McGinnis’ incarceration at the HCF. ECF No. 10 at 7.
There is, however, no respondeat superior liability under 42 U.S.C. § 1983.
Vazquez v. County of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020). “Because
vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676.
“A supervisory official may be held liable under § 1983 only if there exists
either (1) his or her personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018)
(internal quotation marks and citations omitted). “The requisite causal connection
can be established by setting in motion a series of acts by others, or by knowingly
refusing to terminate a series of acts by others, which the supervisor knew or
reasonably should have known would cause others to inflict a constitutional
injury.” Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (internal
quotation marks and citations omitted).
“Thus, a supervisor may be liable in his individual capacity for his own
culpable action or inaction in the training, supervision, or control of his
subordinates; for his acquiescence in the constitutional deprivation; or for conduct
that showed a reckless or callous indifference to the rights of others.” Rodriguez v.
County of Los Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (internal quotation marks
and citation omitted). A “claim that a supervisory official knew of unconstitutional
conditions and culpable actions of his subordinates but failed to act amounts to
acquiescence in the unconstitutional conduct of his subordinates and is sufficient to
state a claim of supervisory liability.” Keates, 883 F.3d at 1243 (internal quotation
marks and citation omitted).
It appears that McGinnis names Warden Espinda solely because of the
warden’s supervisory position at the HCF. See ECF No. 10 at 7 (alleging that
Warden Espinda “has not done anything” despite his position as the “head of
H.C.F.”). McGinnis does not allege that Warden Espinda was personally involved
in a constitutional deprivation. Nor does he allege that Warden Espinda caused
such a deprivation. This, like many of McGinnis’ other claims, is not sufficient.
See Ybarra v. Mee, Civ. No. 20-00167 LEK-WRP, 2020 WL 6087631, at *7 (D.
Haw. Oct. 15, 2020) (“An individual’s general responsibility for supervising the
operations of a prison is insufficient to establish personal involvement.” (internal
quotation marks and citation omitted)). If McGinnis chooses to file an amended
pleading, he must clarify how Warden Espinda was personally involved in a
constitutional deprivation or how Espinda’s conduct caused a constitutional injury.
See OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (“[E]ach
government official, his or her title notwithstanding, is only liable for his or her
own misconduct.” (internal quotation marks omitted and alteration in original)).
McGinnis’ claim in Count III against Warden Espinda is DISMISSED with leave
IV. LEAVE TO AMEND
The Second Amended Complaint is DISMISSED with leave to amend. If
McGinnis wants to pursue his claims, he is required to file an amended pleading on
or before May 26, 2021. He must comply with the Federal Rules of Civil
Procedure and the Local Rules for the District of Hawaii. Local Rule 10.4 requires
that an amended complaint be complete in itself, without reference to any prior
pleading. An amended complaint must be short and plain and comply with Rule 8
of the Federal Rules of Civil Procedure. See LR99.2(a). An amended complaint
will supersede the preceding complaint. See Ramirez v. County of San Bernadino,
806 F.3d 1002, 1008 (9th Cir. 2015). Defendants not renamed and claims not
realleged in an amended complaint may be deemed voluntarily dismissed. See
Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).
V. 28 U.S.C. § 1915(g)
If McGinnis fails to file an amended complaint or is unable to amend his
claims to cure their deficiencies, this dismissal may count as a “strike” under
28 U.S.C. § 1915(g). Under this “3-strikes” provision, a prisoner may not bring a
civil action or appeal a civil judgment in forma pauperis,
if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
28 U.S.C. § 1915(g).
(1) The Second Amended Complaint is DISMISSED for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).
(2) McGinnis’ claims against the Halawa Correctional Facility are
DISMISSED with prejudice, as are his official capacity claims for damages against
the individual defendants. McGinnis’ remaining claims are DISMISSED with
leave to amend on or before May 26, 2021.
(3) The Clerk is DIRECTED to send McGinnis a blank prisoner civil rights
complaint form so that he can comply with this order if he wants to pursue these
(4) Failure to timely file an amended pleading may result in AUTOMATIC
DISMISSAL of this suit without further notice, and McGinnis may incur a strike
under 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: April 28, 2021 at Honolulu, Hawai’i.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
Thomas Kelly McGinnis v. Halawa Correctional Facility, et al.; Civil No.
20-00567 DKW-KJM; ORDER DISMISSING SECOND AMENDED
COMPLAINT WITH PARTIAL LEAVE TO AMEND
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