Leialoha v. State of Hawaii, Department of Public Safety et al

Filing 7

ORDER DISMISSING COMPLAINT IN PART WITH PARTIAL LEAVE TO AMEND AND DENYING MOTION FOR APPOINTMENT OF COUNSEL re #1 , #5 - Signed by JUDGE JILL A. OTAKE on 11/17/2021. Excerpt of conclusion: (1) Leialoha's claims against the State of Hawaii, the Department of Public Safety, and Defendants in their official capacities, as well as those on behalf of third parties are DISMISSED with prejudice. (2) Leialoha's threat-to-safety claim in Count II against Sergeant Sugitan and ACO Lee, and his excessive force claim in Count III against ACO Wise, ACO Alo, ACO Auau, and Warden Mahoe may proceed. (3) Leialoha's remaining claims are DISMISSED with leave granted to amend. Leialoha may file an amended pleading that attempts to cure the noted deficiencies in these claims, if possible, on or before December 17, 2021. (5) IN THE ALTERNATIVE, Leialoha may notify the Court in writing on or before December 17, 2021, that he elects to proceed only with his threat-to safety claim in Count II against Sergeant Sugitan and ACO Lee, and his excessive force claim in Count III against ACO Wise, ACO Alo, ACO Auau, and Warden Mahoe, and these claims shall be served. If Leialoha fails to file either an amended pleading or a notice of election, the Court will direct that the Complaint be served as limited by this Order. (eta)COURT'S CERTIFICATE OF SERVICE - Iokepa K. Leialoha served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on November 17, 2021. A blank prisoner civil rights complaint form shall be included in the mailing to Plaintiff.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IOKEPA K. LEIALOHA,
#A5017639,
Plaintiff,
v.

Civil No. 21-00411 JAO-RT
ORDER DISMISSING COMPLAINT
IN PART WITH PARTIAL LEAVE TO
AMEND AND DENYING MOTION
FOR APPOINTMENT OF COUNSEL

STATE OF HAWAII, DEPARTMENT
OF PUBLIC SAFETY, et al.,
Defendants.
ORDER DISMISSING COMPLAINT IN PART
WITH PARTIAL LEAVE TO AMEND AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
Before the Court is Plaintiff Iokepa K. Leialoha’s (“Leialoha”) prisoner civil
rights complaint (“Complaint”) brought pursuant to 42 U.S.C. § 1983, ECF No. 1,
and his motion for appointment of counsel under 28 U.S.C. § 1915(e)(1), ECF No.
5. In his Complaint, Leialoha alleges that Defendants,1 including prison officials at

1

Leialoha names the State of Hawaii and the Department of Public Safety, and in
their individual and official capacities, Acting Director Fred Hyun, Warden
Kramer Mahoe, Adult Corrections Officer (“ACO”) Auau, ACO Tabar, ACO Kyle
Wise, Lieutenant Kahapea, ACO Sanchez, Sergeant Sam Kaeo, Sergeant Chong,
ACO Alo, ACO Lee, and Sergeant Sugitan. ECF No. 1 at 1–7.

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the Hawaii Community Correctional Center (“HCCC”),2 violated the Eighth
Amendment to the United States Constitution by threatening his safety, using
excessive force, and denying him medical care. After screening the Complaint, the
Court concludes that Leialoha states a plausible threat-to-safety claim against
Sergeant Sugitan and ACO Lee, and he states a plausible excessive force claim
against ACO Wise, ACO Alo, ACO Auau, and Warden Mahoe. Leialoha’s
remaining claims are DISMISSED with partial leave granted to amend. Leialoha’s
motion for appointment of counsel is DENIED without prejudice.
I. STATUTORY SCREENING
The Court is required to screen all in forma pauperis prisoner pleadings
against government officials pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
See Byrd v. Phx. Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018). Claims or
complaints that are frivolous, malicious, fail to state a claim for relief, 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); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

2

Leialoha is currently incarcerated at the Halawa Correctional Facility. See
VINE, https://www.vinelink.com/classic/#/home/site/50000 (select “Find an
Offender”; then enter “Leialoha” in “Last Name” field and “Iokepa” in “First
Name” field) (last visited Nov. 16, 2021).
2

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Screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(a) involves the same
standard of review as that used under Federal Rule of Civil Procedure 12(b)(6).
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). 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 id.
In conducting this screening, the Court liberally construes pro se litigants’
pleadings and resolves all doubts in their favor. See Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010) (citations omitted). The Court must grant leave to amend if it
appears the plaintiff can correct the defects in the complaint. See Lopez, 203 F.3d
at 1130. When a claim cannot be saved by amendment, dismissal with prejudice is
appropriate. See Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196
(9th Cir. 2013).
II. LEIALOHA’S CLAIMS3
Leialoha alleges in Count I that he spent approximately two hours in the rain
outside the HCCC’s Waianuenue building on September 8, 2020. ECF No. 1 at

3

Leialoha’s factual allegations are accepted as true. See Nordstrom v. Ryan, 762
F.3d 903, 908 (9th Cir. 2014).
3

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10–11. When Leialoha reentered Side A of the Waianuenue building (“Side A”),
he discovered that his clothes, towel, and blanket were gone. Id. at 11. Leialoha
asked Sergeant Chong for some dry, clean clothes because his uniform was
“soaking wet.” Id. Sergeant Chong told Leialoha that he needed to wait. Id.
Leialoha did not receive a dry uniform until approximately twelve hours later. Id.
Leialoha alleges in Count II that soon after speaking with Sergeant Chong he
smelled something burning. Id. at 12. Leialoha saw sparks near Side A’s fire exit
door, and he concluded that the door was being welded shut from the outside. Id.
A fire then started within Side A. Id. According to Leialoha, Side A’s fire exit
door would not open, and Side A’s only other exit was barricaded with chairs and
tables. Id. Leialoha saw Sergeant Sugitan and ACO Lee inside the control station
“monitoring the situation/fire.” Id. Side A’s twenty-five inmates were trapped and
forced to huddle in a cubicle. Id. As Side A filled with smoke, someone began
breaking windows to circulate fresh air. Id. at 13. Leialoha estimated that he was
trapped in the cubicle for between one and two hours. Id. According to Leialoha,
“none of the H.C.C.C. staff made any attempt to help or evacuate” him and the
other inmates. Id.
Leialoha alleges in Count III that prison officials fired pepper spray into
Side A and ordered the prisoners to leave. Id. at 14. The barricade blocking the
exit was removed, and prisoners began moving from Side A to Side B of the
4

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Waianuenue building (“Side B”). Id. Prison officials secured the prisoners’ hands
behind their backs using zip ties. Id. As prison officials dragged these prisoners
further into Side B, they were punched and kicked by ACO Wise, ACO Auau,
ACO Alo, and Warden Mahoe. Id. 14–15. According to Leialoha, the prison
officials also taunted and yelled at the prisoners. Id. at 15. Seeing all of this,
Leialoha and other prisoners retreated to Side A. Id. A few minutes later, ACO
Tabar entered Side A with a fire hose. Id. Instead of using the hose to extinguish
the fire that was still burning in Side A, however, ACO Tabar turned the hose on
Leialoha and the other inmates. Id. Water from the hose hit Leialoha’s head,
body, and legs. Id. As Leialoha made his way to Side B, he was ordered to lay
down. Id. Leialoha complied and his hands were secured behind his back using
zip ties. Id. While Leialoha was defenseless, ACO Wise, ACO Alo, ACO Auau,
and Warden Mahoe punched his face and body. Id. Some of them also kicked
him. Id. One of the blows knocked out one tooth of Leialoha’s. Id.
Leialoha alleges in Count IV that Sergeant Kaeo decided which prisoners
received medical treatment as they reached Side B. Id. at 16. These prisoners
included the elderly and those who had lost consciousness. Id. Leialoha told
Sergeant Kaeo that he was having difficulty breathing, and he was experiencing
sharp pains in his chest and blurred vision. Id. Leialoha’s mouth was also

5

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“bleeding profusely.” Id. According to Leialoha, Sergeant Kaeo denied him
medical care. Id. Leialoha’s symptoms continued for four or five days. Id.
Leialoha seeks $30,000 in punitive damages, $15,000 in compensatory
damages, and $5,000 in nominal damages. Id. at 17.
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 color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988). 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); Rizzo v.
Goode, 423 U.S. 362, 371–72, 377 (1976); May v. Enomoto, 633 F.2d 165, 167
(9th Cir. 1980). “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) (citation omitted). Thus, a plaintiff must allege
that he suffered a specific injury as a result of a particular defendant’s conduct and
must affirmatively link that injury to the violation of his rights.
6

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B.

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Eleventh Amendment Immunity
“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) (citation
omitted); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–03
(1984). It does not bar official-capacity suits 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). Nor does it 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).
Leialoha names the State of Hawaii and the Department of Public Safety as
Defendants. ECF No. 1 at 1. Any claims against these Defendants are barred by
the Eleventh Amendment and therefore DISMISSED with prejudice. See Neal v.
Shimoda, 131 F.3d 818, 832 n.17 (9th Cir. 1997) (“We . . . agree with the district
court that the State of Hawaii is entitled to the protections of sovereign immunity
under the Eleventh Amendment.” (citation omitted)); Blaisdell v. Haw. Dep’t of
Pub. Safety, 621 F. App’x 414, 415 (9th Cir. 2015) (mem.) (“The district court
properly dismissed [plaintiff’s] action against the Hawaii Department of Public
Safety because it is barred by the Eleventh Amendment.” (citation omitted)).
7

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Leialoha names each other Defendant in his or her individual and official
capacities. See ECF No. 1 at 1–7. To the extent Leialoha seeks damages from
state officials in their official capacities, these claims are also 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.”
(citation omitted)). The Eleventh Amendment does not bar Leialoha’s claims for
damages against the individual Defendants in their personal capacities. See id.
(“[The Eleventh Amendment] does not, however, bar claims for damages against
state officials in their personal capacities.” (citation omitted)).
C.

Supervisory Liability
There is no respondeat superior liability under 42 U.S.C. § 1983. See

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
8

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and citation 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 citation 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).
Leialoha names Fred Hyun, the acting director of the Department of Public
Safety (“DPS”), as a Defendant. ECF No. 1 at 1. Leialoha does not allege,
however, that Hyun was personally involved in any constitutional violation. Nor
does he allege a causal connection between Hyun’s conduct and a constitutional
violation. Indeed, Leialoha does not even mention Hyun in any of the Complaint’s
9

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four counts. See id. at 10–16. Leialoha cannot state a claim against Hyun solely
because of his supervisory position at the DPS. See DePaepe v. White, Civil No.
20-00198 JAO-WRP, 2020 WL 6531006, at *4 (D. Haw. Nov. 5, 2020) (“Because
[Plaintiff] alleges no facts showing [the DPS Director’s] personal involvement in
his claims, he fails to state a colorable claim against [him].”). Any claims against
Hyun are therefore DISMISSED with leave granted to amend.
D.

Allegations on Behalf of Third Parties
Pro se litigants have no authority to represent anyone other than themselves.

See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[W]e are
bound by our general holding . . . that a non-lawyer has no authority to appear as
an attorney for others than himself.” (internal quotation marks and citation
omitted)); C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987)
(“Although a non-attorney may appear in propria persona in his own behalf, that
privilege is personal to him. He has no authority to appear as an attorney for others
than himself.” (citations omitted)).
At various points in the Complaint, Leialoha makes allegations based on the
experiences of other prisoners at the HCCC. For example, Leialoha alleges in
Count I that Lieutenant Kahapea ordered another prisoner to be handcuffed and
taken to “the hole.” ECF No. 1 at 10. Leialoha further alleges in Count III that
ACO Wise, ACO Auau, ACO Alo, and Warden Mahoe punched and kicked other
10

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prisoners. Id. at 14–15. Leialoha may not assert claims on behalf of other
prisoners. See Robinson v. Joya, Civil No. 1:08-1339-JLS (BLM), 2010 WL
890437, at *13 (E.D. Cal. Mar. 8, 2010) (“Pro se litigants have no authority to
represent anyone other than themselves; therefore, they lack the representative
capacity to file motions and other documents on behalf of other prisoners.”
(citation omitted)). Any claims based on the experiences of other prisoners at the
HCCC are therefore DISMISSED with prejudice.
E.

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). Although the
Constitution “‘does not mandate comfortable prisons,’” it does not “permit
inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted).
Prison officials, therefore, may not use excessive physical force against prisoners,
they “must ensure that inmates receive adequate food, clothing, shelter, and
medical care, and [they] must ‘take reasonable measures to guarantee the safety of
the inmates.’” Id. (citations omitted).
“An Eighth Amendment claim that a prison official has deprived inmates of
humane conditions of confinement must meet two requirements, one objective and
one subjective.” Norbert v. City & County of San Francisco, 10 F.4th 918, 927
11

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(9th Cir. 2021) (internal quotation marks and citation omitted). Under the
objective requirement, “[b]ecause routine discomfort is part of the penalty that
criminal offenders pay for their offenses against society, only those deprivations
denying the minimal civilized measure of life’s necessities are sufficiently grave to
form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503
U.S. 1, 9 (1992) (internal quotation marks and citations omitted). Thus, “extreme
deprivations are required to make out a conditions-of-confinement claim.” Id.; see
LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). The subjective
requirement, relating to the prison official’s state of mind, requires “deliberate
indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal
quotation marks and citations omitted). This is a “high legal standard.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “[A] prison official may be held
liable under the Eighth Amendment for denying humane conditions of confinement
only 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.” Farmer, 511 U.S. at
847.
1.

Clothing

Leialoha alleges in Count I that Sergeant Chong denied him a clean, dry
uniform for approximately twelve hours. ECF No. 1 at 11.

12

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The denial of adequate clothing may, under certain circumstances, rise to the
level of an Eighth Amendment violation. See Walker v. Sumner, 14 F.3d 1415,
1421 (9th Cir. 1994) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)),
abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).
“The circumstances, nature, and duration of a deprivation of [clothing, however,]
must be considered in determining whether a constitutional violation has
occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). For example,
requiring inmates to remain outdoors in subfreezing temperatures for less than two
hours can violate the Eighth Amendment, even where the inmates are provided
with hip-length, lined denim coats and they can move freely. See id. Requiring an
inmate to wear the same clothes for forty-five days also satisfies the objective
element of an Eighth Amendment claim. See Seagrave v. Hennessey, No.
92-17121, 1994 WL 68276, at *2 (9th Cir. Mar. 2, 1994). “More modest
deprivations can also form the objective basis of a violation, but only if such
deprivations are lengthy or ongoing.” Johnson, 217 F.3d at 731 (citation omitted).
According to Leialoha, he asked Sergeant Chong for “some dry clean
clothes” because his uniform was “soaking wet” after spending two hours outside
in the rain.4 ECF No. 1 at 11. Leialoha, however, does not account for the

4

Although Leialoha alleges that ACO Sanchez was “present” when Leialoha
discovered that his clothes, towel, and blanket were gone, ECF No. 1 at 11,
(continued . . .)
13

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circumstances surrounding the alleged delay in providing him with a dry uniform.
According to Leialoha, there was a significant disturbance in Side A soon after he
spoke with Sergeant Chong. That disturbance included a fire, a barricaded door,
use of tear gas, and physical confrontations between prisoners and guards. ECF
No. 1 at 12–15. Leialoha does not say when this disturbance was finally resolved
or how long it took for him to receive a dry uniform once the disturbance was over.
Without accounting for these circumstances, Leialoha has not plausibly alleged an
extreme deprivation that would satisfy the objective element of an Eighth
Amendment claim. See Adkins v. Shinn, Civil No. 14-00156 LEK/KSC, 2014 WL
2738531, at *6 (D. Haw. June 16, 2014) (“Failure to provide Plaintiff a change of
clothes every three days, and on one occasion requiring him to wear the same
clothes for five days, while perhaps unhygienic, uncomfortable, and restrictive,
does not constitute cruel and unusual punishment.”).
Even if Leialoha could satisfy the objective requirement of an Eighth
Amendment claim, he has not plausibly alleged that Sergeant Chong acted with
deliberate indifference to his health or safety. Leialoha alleges no facts suggesting
that Sergeant Chong should have immediately provided with a new uniform.

(. . . continued)
Leialoha does not allege that he asked ACO Sanchez for a new uniform. Leialoha
therefore fails to state a plausible claim against ACO Sanchez. Any claim against
ACO Sanchez is DISMISSED with leave granted to amend.
14

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Although Leialoha initially told Sergeant Chong that he “wasn’t feeling well,”
ECF No. 1 at 11, this is not enough to show that Sergeant Chong knew of and
disregarded an excessive risk to Leialoha’s health or safety. Moreover, Leialoha
does not allege that Sergeant Chong was in any position to provide him with a new
uniform after the disturbance began.
If Leialoha wants to pursue this claim, he must allege facts showing that he
experienced an extreme deprivation despite the serious disturbance at the HCCC.
He must also plausibly allege that Sergeant Chong acted with deliberate
indifference to his health or safety. Leialoha’s claim based on his clothing is
therefore DISMISSED with leave granted to amend.
2.

Safety

Leialoha alleges in Count II that prison officials did not make “any attempt
to help or evacuate” him after the fire started in Side A. ECF No. 1 at 13.
Prison officials “must take reasonable measures to guarantee the safety of
the inmates.” Farmer, 511 U.S. at 832 (internal quotation marks and citations
omitted). According to Leialoha, Side A quickly filled with smoke after the fire
started. ECF No. 1 at 12. The smoke was so thick that Leialoha could barely see a
hand held in front of his face. Id. at 13. Leialoha could not escape the fire and
smoke because the fire exit door would not open, and the only other exit was
barricaded by chairs and tables. Id. at 12. Leialoha estimated that he remained
15

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trapped in Side A for between one and two hours. Id. at 13. According to
Leialoha, Sergeant Sugitan and ACO Lee were “monitoring the situation/fire from
the control station,” but they made no “attempt to help or evacuate” him.5 Id. at
12–13. Leialoha states a plausible claim against Sergeant Sugitan and ACO Lee
that may proceed.
3.

Excessive Force

Leialoha alleges in Count III that ACO Tabar used excessive force by
spraying him with water from a fire hose, and ACO Wise, ACO Alo, ACO Auau,
and Warden Mahoe used excessive force by punching and kicking him while he
was defenseless with his hands secured behind his back. ECF No. 1 at 14–15.
“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 (citation omitted); see
Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020). “[W]henever prison
officials stand accused of using excessive physical force in violation of the Cruel
and Unusual Punishments Clause, the core judicial inquiry is . . . whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously

5

Although Leialoha alleges that Sergeant Chong and ACO Sanchez were in the
control station at one point, he does not allege that they were still there when the
fire began. Nor does Leialoha allege Sergeant Chong and ACO Sanchez observed
the conditions he and the other prisoners experienced in Side A after the fire
started.
16

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and sadistically to cause harm.” Hudson, 503 U.S. at 6–7; see Hoard v. Hartman,
904 F.3d 780, 788 (9th Cir. 2018). In determining whether the use of force was
wanton and unnecessary, relevant considerations include “the extent of injury
suffered by an inmate,” “the need for application of force, the relationship between
that need and the amount of force used, the threat ‘reasonably perceived by the
responsible officials,’ and ‘any efforts made to temper the severity of a forceful
response.’” Hudson, 503 U.S. at 7 (citation omitted); see Bearchild, 947 F.3d at
1141. Not “every malevolent touch by a prison guard gives rise to a federal cause
of action.” Hudson, 503 U.S. at 9 (citation omitted). “The Eighth Amendment's
prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use
of force is not of a sort repugnant to the conscience of mankind.” Id. at 9–10
(internal quotation marks and citation omitted). “An inmate who complains of a
‘push or shove’ that causes no discernible injury almost certainly fails to state a
valid excessive force claim.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (some
internal quotation marks and citation omitted).
a.

ACO Tabar

When prison officials ordered the prisoners to leave Side A, Leialoha and
other inmates retreated to Side A after seeing other prisoners being punched and
kicked by officers as they were dragged into Side B. ECF No. 1 at 14–15. ACO
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Tabar entered Side A a few minutes later and sprayed water at Leialoha from a fire
hose. Id. at 15.
Leialoha fails to state a plausible excessive force claim based on ACO
Tabar’s use of the fire hose for several reasons. First, Leialoha does not allege that
the water caused him any injury. See Hudson, 503 U.S. at 7 (“[T]he extent of
injury suffered by an inmate is one factor that may suggest whether the use of force
could plausibly have been thought necessary in a particular situation, or instead
evinced such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.” (internal quotation marks and
citation omitted)). Although Leialoha alleges that water hit him in the head, body,
and legs, he does not identify any resulting injury. ECF No. 1 at 15.
Second, Leialoha does not describe the amount of force used. See Hudson,
503 U.S. at 7 (identifying as a relevant consideration the relationship between the
need for force and the amount of force used). Leialoha does not describe the
strength of the stream from the fire hose, he does not say how far ACO Tabar was
standing from him at the time he was sprayed, and he does not say how many times
or how long he was sprayed.
Finally, Leialoha has not plausibly alleged any other facts showing that
ACO Tabar used the fire hose maliciously and sadistically to cause harm. See
Hoard, 904 F.3d at 790 (noting that the “‘core judicial inquiry’” in an Eighth
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Amendment excessive force case is “whether the defendant officers acted in bad
faith with the intent to harm the inmate” (citations omitted)). Instead, Leialoha’s
allegations suggest that ACO Tabar used the fire hose in an attempt to quell the
disturbance and restore discipline in Side A. See Greer v. Works, No. Civ.A.4:01CV-232-Y, 2003 WL 21246081, at *4 (N.D. Tex. Mar. 31, 2003) (“Because the
measures taken by Defendants were only done to restore discipline, and not to
cause harm, [Plaintiff] has failed to establish a violation of a constitutional right on
his excessive force allegation.”). Leialoha’s excessive force claim against ACO
Tabar is therefore DISMISSED with leave granted to amend.
b.

ACO Wise, ACO Alo, ACO Auau, and Warden Mahoe

When Leialoha ultimately complied with the prison officials’ instruction to
leave Side A, he was ordered to lay down. ECF No. 1 at 15. Leialoha complied,
and his hands were secured behind his back with zip ties. Id. ACO Wise, ACO
Alo, ACO Auau, and Warden Mahoe then dragged Leialoha further into Side B.
Id. While doing so, they punched a defenseless Leialoha in his face and body. Id.
Some of them also kicked him. Id. One blow knocked out a tooth of Leialoha’s.
Id. Leialoha’s excessive force claims against ACO Wise, ACO Alo, ACO Auau,
and Warden Mahoe may proceed.6

6

To the extent Leialoha alleges that these Defendants also yelled at him and called
him names, “verbal harassment generally does not violate the Eighth Amendment.”
(continued . . .)
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4.

PageID #: 53

Denial of Medical Care

Leialoha alleges in Count IV that Sergeant Kaeo denied him medical care
after he was moved to Side B. ECF No. 1 at 16.
“Individuals in state custody have a constitutional right to adequate medical
treatment.” Sandoval, 985 F.3d at 667 (citing Estelle v. Gamble, 429 U.S. 97,
104–05 (1976)). “For inmates serving custodial sentences following a criminal
conviction, that right is part of the Eighth Amendment’s guarantee against cruel
and unusual punishment.” Id. (citation omitted).
“In order to prevail on an Eighth Amendment claim 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) (citation omitted). “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. (internal quotation marks and citation omitted).
To meet the objective element, a plaintiff must first demonstrate the
existence of a serious medical need. See Estelle, 429 U.S. at 104. Such a need

(. . . continued)
Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citation omitted); see also
Towles v. Dzurenda, 735 F. App’x 440, 441 (9th Cir. 2018) (mem.) (“The district
court properly dismissed [Plaintiff’s] claim based on alleged verbal abuse by
prison personnel because ‘verbal harassment generally does not violate the Eighth
Amendment.’” (quoting id.)).
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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, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (per curiam) (internal quotation
marks and citation omitted). “Examples of serious medical needs include the
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, 203 F.3d at 1131 (internal quotation marks, brackets, and
citation omitted). “Serious medical needs can relate to physical, dental and mental
health.” Edmo, 935 F.3d at 785 (internal quotation marks and citation omitted).
If a prisoner “establishes a sufficiently serious medical need, [he] must then
show the official’s response to the need was deliberately indifferent.” Id. at 786
(internal quotation marks, brackets, and citation omitted). “The indifference to a
prisoner’s medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or
‘medical malpractice’ will not support [a denial-of-medical-care] claim.” Lemire
v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1081–82 (9th Cir. 2013) (some
internal quotation marks, brackets, and citation omitted). “Even gross negligence
is insufficient to establish deliberate indifference to serious medical needs.” Id. at
1082. “To show deliberate indifference, the plaintiff must show that the course of
treatment the official chose was medically unacceptable under the circumstances
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and that the official chose this course in conscious disregard of an excessive risk to
the plaintiff’s health.” Edmo, 935 F.3d at 786 (internal quotation marks, brackets,
and citation omitted).
Liberally construed, Leialoha plausibly alleges a serious medical need.
According to Leialoha, after spending between one and two hours in a smoke-filled
room, he had difficulty breathing, experienced sharp pains in his chest, had blurred
vision, and was “bleeding profusely” from his mouth. ECF No. 1 at 16. This is
enough to state a serious medical need.
Leialoha has not alleged sufficient facts, however, to show that Sergeant
Kaeo was deliberately indifferent to his needs. Instead, Leialoha’s allegations
describe a situation in which Sergeant Kaeo confronted dozens of prisoners with
serious medical needs, including elderly prisoners and those who had lost
consciousness. Id. Although Leialoha may disagree with Sergeant Kaeo’s
prioritization of those needing medical care, this is not enough to state an Eighth
Amendment claim because “[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).
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Leialoha also alleges that he was served dinner and moved to another
building on the day of the fire, but he does not allege that he requested medical
care at any other time during that day. According to Leialoha, his symptoms
persisted for “about 4–5 days after the event.” ECF No. 1 at 16. While Leialoha
says that he made “numerous request[s]” for medical treatment, id., Leialoha does
not say when he spoke to a prison official about his medical needs, what he told
them, or how they responded.7 Leialoha’s claim based on the medical care he
received is DISMISSED with leave granted to amend.
IV. MOTION FOR APPOINTMENT OF COUNSEL
Leialoha moves for an appointment of counsel because he cannot afford
counsel, he is incarcerated, and the issues in this case are “complex.” ECF No. 5 at
1.
“Generally, a person has no right to counsel in civil actions.” Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted). Although a federal
court “may request an attorney to represent any person unable to afford counsel,”
28 U.S.C. § 1915(e)(1), it does not have the authority “to make coercive

7

Leialoha briefly alleges that he submitted numerous requests for a grievance.
ECF No. 1 at 16. “The First Amendment guarantees a prisoner a right to seek
redress of grievances from prison authorities[.]” Jones v. Williams, 791 F.3d 1023,
1035 (9th Cir. 2015). Leialoha fails to allege a plausible claim based on his access
to a grievance form because he does not say who he asked for the form, when he
did so, and how that person responded.
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appointments of counsel.” Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490
U.S. 296, 310 (1989). A court may appoint counsel pursuant to 28 U.S.C. §
1915(e)(1) in cases presenting “exceptional circumstances.” Palmer, 560 F.3d at
970. In determining whether “exceptional circumstances” exist, courts consider
“the likelihood of success on the merits as well as the ability of the [plaintiff] to
articulate his claims pro se in light of the complexity of the legal issues involved.”
Id. (internal quotation marks and citation omitted). Neither of these considerations
is dispositive, so they must be viewed together. See id.
Leialoha has not demonstrated exceptional circumstances. “[A]t this early
stage when the parties have not yet completed discovery and have not proffered
any evidence to the Court in support of their claims, the Court cannot determine
whether or not Plaintiff is likely to succeed on the merits of his claims.”
Rademaker v. Paramo, No. 3:17-cv-02406-BTM-JLB, 2018 WL 3303172, at *1
(S.D. Cal. July 5, 2018) (citations omitted). Thus, Leialoha has not shown that he
is likely to succeed on the merits.
Moreover, Leialoha has not shown that he is unable to articulate his claims.
Indeed, the Court has already concluded that Leialoha stated a plausible Eighth
Amendment threat-to-safety claim against Sergeant Sugitan and ACO Lee, and an
excessive force claim against ACO Wise, ACO Alo, ACO Auau, and Warden
Mahoe. “These alleged constitutional violations are typical in prison litigation,
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straightforward, and not demonstrably complex.” Lucero v. Armale, No. 3:17-cv00957-BTM-RBB, 2018 WL 5962673, at *2 (S.D. Cal. Nov. 14, 2018) (citations
omitted).
Leialoha’s motion for appointment of counsel is therefore DENIED without
prejudice. See Wilkins v. Gonzales, No. 2:16-cv-0347-KJM-KJN, 2017 WL
3333989, at *2 (E.D. Cal. Aug. 7, 2017) (Order) (“At this early stage in the
litigation, it is difficult to gauge plaintiff’s likelihood of success on the merits, but
he has demonstrated ample ability to articulate his claims and advance his
positions; several of his claims have survived statutory screening[.] Consequently,
plaintiff has not demonstrated exceptional circumstances warranting the
appointment of counsel.”).
V. CONCLUSION
(1) Leialoha’s claims against the State of Hawaii, the Department of Public
Safety, and Defendants in their official capacities, as well as those on behalf of
third parties are DISMISSED with prejudice.
(2) Leialoha’s threat-to-safety claim in Count II against Sergeant Sugitan
and ACO Lee, and his excessive force claim in Count III against ACO Wise, ACO
Alo, ACO Auau, and Warden Mahoe may proceed.

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(3) Leialoha’s remaining claims are DISMISSED with leave granted to
amend. Leialoha may file an amended pleading that attempts to cure the noted
deficiencies in these claims, if possible, on or before December 17, 2021.
(4) If he chooses to file an amended pleading, Leialoha must comply with
the Federal Rules of Civil Procedure and the Local Rules for the District of
Hawaii, particularly LR10.4, which require an amended complaint to be complete
itself, without reference to any prior pleading. An amended complaint must be
short and plain, comply with Rule 8 of the Federal Rules of Civil Procedure, and
be submitted on the court’s prisoner civil rights form. An amended complaint will
supersede the preceding complaint. Claims not realleged in an amended complaint
may be deemed voluntarily dismissed.
(5) IN THE ALTERNATIVE, Leialoha may notify the Court in writing on
or before December 17, 2021, that he elects to proceed only with his threat-tosafety claim in Count II against Sergeant Sugitan and ACO Lee, and his excessive
force claim in Count III against ACO Wise, ACO Alo, ACO Auau, and Warden
Mahoe, and these claims shall be served.
If Leialoha fails to file either an amended pleading or a notice of election,
the Court will direct that the Complaint be served as limited by this Order.
(6) The Clerk is DIRECTED to send Leialoha a prisoner civil rights
complaint form so that he may comply with the directions of this Order if he elects
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to file an amended pleading rather than immediately stand on his threat-to-safety
claim in Count II against Sergeant Sugitan and ACO Lee, and his excessive force
claim in Count III against ACO Wise, ACO Alo, ACO Auau, and Warden Mahoe.
(7) Leialoha’s motion for appointment of counsel is DENIED without
prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaiʻi, November 17, 2021.

Leialoha v. State of Hawaii, Department of Public Safety, et al., Civil No. 21-00411 JAO-RT; ORDER
DISMISSING COMPLAINT IN PART WITH PARTIAL LEAVE TO AMEND AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL

27