Watanabe v. Derr et al

Filing 9

ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART AND DIRECTING SERVICE re 8 - Signed by JUDGE JILL A. OTAKE on 8/2/2022. (1) Watanabe states a denial of adequate medical care claim in Count II against Nielsen in his indi vidual capacity that may proceed.(2) Watanabe's failure to protect claims in Count I and his other denial of adequate medical care claim in Count II are DISMISSED without prejudice. Dismissal of these claims does not foreclose Watanabe from l ater filing an amended pleading, subject to the requirements of Federal Rule of Civil Procedure 15 and any applicable orders of this Court.(3) The United States Marshal is ORDERED to serve the FAC, ECF No. 8, and a summons on Defendant Francis Nie lsen, in addition to the United States, as directed by Watanabe, according to the requirements of Federal Rule of Civil Procedure 4(i). After service is perfected, Defendant Nielsen shall file a responsive pleading within the time allowed under Fed. R. Civ. P. 12.COURT'S CERTIFICATE OF SERVICE - Kekai Watanabe shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on 8/3/2022. (jni)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KEKAI WATANABE,
#94102-022,
Plaintiff,

Civil No. 22-00168 JAO-RT
ORDER DISMISSING FIRST
AMENDED COMPLAINT IN PART
AND DIRECTING SERVICE

v.
ESTELA DERR, et al.,
Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART AND
DIRECTING SERVICE
Before the Court is a First Amended Prisoner Civil Rights Complaint
(“FAC”), ECF No. 8, filed by pro se Plaintiff Kekai Watanabe (“Watanabe” or
“Plaintiff”) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).1 Watanabe alleges that four officials2 at FDC
1

On May 19, 2021, Watanabe pleaded guilty to being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See United
States v. Watanabe, Cr. No. 21-00066 HG (D. Haw.), ECF Nos. 25, 29. Watanabe
is currently scheduled to be sentenced on October 6, 2022. See id., ECF No. 36.
Watanabe is presently in custody at the Federal Detention Center in Honolulu,
Hawaiʻi (“FDC Honolulu”). See Federal Bureau of Prisons,
https://www.bop.gov/inmateloc/ (select “Find By Number”; enter “94102-022” in
“Number” field; and select “Search”) (last visited August 2, 2022).
2

Watanabe names as Defendants Warden Estela Derr (“Warden Derr”), Unit
(continued . . .)

Honolulu violated the Eighth Amendment by threatening his safety and denying
him adequate medical care. ECF No. 8 at 6–9. After screening the FAC pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the Court again concludes that
Watanabe states a plausible denial of adequate medical care claim against Nurse
Nielsen in his individual capacity. That claim shall be served and requires a
response. Watanabe’s remaining claims are DISMISSED 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).
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

(. . . continued)
Manager K. Robl (“Robl”), Staff Nurse Francis Nielsen (“Nielsen”), and Chief
Doctor Nathan Kwon (“Dr. Kwon”) in their individual capacities. ECF No. 8 at 1–
3.
2

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.

BACKGROUND3

In 2021, Watanabe was housed in “unit 5A” at FDC Honolulu with members
of various gangs including “Uso,” “Murder Inc,” “La Familia,” “Paisa’s,”
“Tango’s,” “MS-13,” “Northeno,” and “Soreno’s.” ECF No. 8 at 6–7. Unit 5A’s
inmate population also included “deportable aliens, pre-sentence inmates, pre-trial
inmates, high security inmates through minimum security inmates[,] and inmates

3

At screening, Watanabe’s well-pleaded factual allegations are accepted as true.
See, e.g., Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
3

that have pending orders for civil commitment due to psychiatric issues.” Id. at 6.
Watanabe has a “history of gang (Uso) affiliation,” and Robl and other “staff at
FDC Honolulu” were aware of this affiliation. Id.
On July 12, 2021, Watanabe was sitting at a table in unit 5A when four
members of the Paisa’s gang attacked him. Id. at 7. The disturbance eventually
included more than 35 “combatants.” Id. Watanabe was “severely beaten” during
the disturbance by the four gang members who initially attacked him and also
“other Latino gang members.” Id. At one point, Watanabe was beaten by
someone wielding a “lock in a sock.” Id.
After order was restored in unit 5A, approximately 20 inmates including
Watanabe were moved to the special housing unit (“SHU”). Id. Watanabe’s
injuries were “documented,” and he was told “that he would be put on ‘Sick Call.’”
Id. At 8 p.m. on the day of the disturbance, Watanabe asked correctional officers
Noni and Woodson (who are not named as defendants) to be seen by medical staff
because he was experiencing “severe pain and headaches.” Id. Watanabe
described his symptoms to Nurse Nielsen, and Nielsen responded by telling
Watanabe “‘to stop being a cry baby.’” Id. Nielsen denied Watanabe’s request to
be taken to the hospital. Id.
Watanabe remained in the SHU for more than two months. Id. During this
time, Watanabe “submitted multiple sick call and ‘COP OUT’ requests for medical
4

attention.” Id. According to Watanabe, he was given “over the counter pain
medication” but “no actual treatment.” Id. Watanabe was later diagnosed with a
“fractured [coccyx] with bone chips in soft tissue around his tailbone.” Id. These
injuries caused Watanabe “severe pain.” Id. Upon his release from the SHU,
Watanabe returned to unit 5A along with the other inmates involved in the July 12,
2021 disturbance. Id.
Watanabe alleges Dr. Kwon had an “opportunity to properly diagnose [his]
injuries” between July 2021 and January 2022, but he failed to do so. Id. at 9.
During this period, “Health Services ignored multiple request[s] for treatment.” Id.
When Health Services identified Watanabe’s fractured coccyx in February 2022, it
agreed to send Watanabe to a specialist. Id. According to Watanabe, he had
submitted to Dr. Kwon “11 emails and COP OUTS” seeking medical attention. Id.
at 8.
Watanabe commenced this action by signing the original Complaint on
March 31, 2022. ECF No. 1 at 10. In the original Complaint, Watanabe alleged
that Warden Derr, Robl, Nielsen, and Dr. Kwon violated the Eighth Amendment
by threatening his safety and denying him adequate medical care. Id. at 6–8.
On May 19, 2022, the Court issued an Order Dismissing Complaint in Part
with Partial Leave Granted to Amend. ECF No. 5. The Court concluded, in
relevant part, that Watanabe failed to allege a plausible failure to protect claim
5

based on events either before or after the July 12, 2021 disturbance. Id. at 11–16.
The Court further concluded that Watanabe stated a plausible denial of medical
care claim against Nielsen but no other Defendant. Id. at 16–18. The Court gave
Watanabe the choice of proceeding with his claim against Nielsen or filing an
amended pleading that cured the deficiencies in his other claims. Id. at 20–21.
The Court received the FAC on July 7, 2022. ECF No. 8. In the FAC,
Watanabe maintains that Warden Derr, Robl, Nielsen, and Dr. Kwon violated the
Eighth Amendment by threatening his safety and denying him adequate medical
care. Id. at 6–9. Watanabe seeks “$3,000,000 for pain and suffering at the hands
of the Defendants.” Id. at 11.
III.
A.

DISCUSSION

Legal Framework For Bivens Claims
In Bivens, the Supreme Court “recognized for the first time an implied right

of action for damages against federal officers alleged to have violated a citizen’s
constitutional rights.” Hernandez v. Mesa, 582 U.S. ___, 137 S. Ct. 2003, 2006
(2017) (per curiam) (internal quotation marks and citation omitted). Bivens
involved a suit against individual federal agents who violated the Fourth
Amendment’s prohibition against unreasonable searches and seizures. See Bivens,
403 U.S. at 389–90. Since Bivens, the Supreme Court has expanded this implied
cause of action only twice. See Ziglar v. Abbasi, 582 U.S. ___, 137 S. Ct. 1843,
6

1855 (2017) (“These three cases — Bivens, Davis, and Carlson — represent the
only instances in which the Court has approved of an implied damages remedy
under the Constitution itself.”); Davis v. Passman, 442 U.S. 228 (1979) (suit under
the Fifth Amendment’s Due Process Clause for gender discrimination by a United
States Congressman); Carlson v. Green, 446 U.S. 14 (1980) (suit under the Eighth
Amendment’s Cruel and Unusual Punishment Clause for failure to provide
adequate medical treatment by federal prison officials).
The Supreme Court “has made clear that expanding the Bivens remedy is
now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at ___, 137 S. Ct. at 1857
(quoting Iqbal, 556 U.S. at 675). “This is in accord with the Court’s observation
that it has ‘consistently refused to extend Bivens to any new context or new
category of defendants.’”4 Id. (quoting Malesko, 534 U.S. at 68). Indeed, the

4

The Supreme Court declined to create a Bivens remedy in the following cases: a
First Amendment suit against a federal employer, see Bush v. Lucas, 462 U.S. 367
(1983); a race discrimination suit against military officers, see Chappell v.
Wallace, 462 U.S. 296 (1983); a substantive due process suit against military
officers, see United States v. Stanley, 483 U.S. 669 (1987); a procedural due
process suit against Social Security officials, see Schweiker v. Chilicky, 487 U.S.
412 (1988); a procedural due process suit against a federal agency for wrongful
termination, see FDIC v. Meyer, 510 U.S. 471 (1994); an Eighth Amendment suit
against a private halfway house operator under contract with the BOP, see Corr.
Servs. Corp. v. Malesko, 534 U.S. 61 (2001); a claim of retaliation by Bureau of
Land Management officials against plaintiff for his exercise of Fifth Amendment
property rights, see Wilkie v. Robbins, 551 U.S. 537 (2007); a suit under the Fifth,
Eighth, and Fourteenth Amendments against United States Public Health Service
personnel, see Hui v. Castaneda, 559 U.S. 799 (2010); an Eighth Amendment suit
(continued . . .)
7

Supreme Court has indicated that “if [the Court] were called to decide Bivens
today, [it] would decline to discover any implied causes of action in the
Constitution.” Egbert, 596 U.S. ___, 142 S. Ct. at 1809 (citation omitted).
In deciding whether a Bivens remedy is available, courts first consider
whether providing such a remedy is precluded by prior cases in which the Supreme
Court or the Ninth Circuit has declined to recognize an implied right of action. See
Lanuza v. Love, 899 F.3d 1019, 1025 (9th Cir. 2018). If a claim is precluded, that
is the end of the matter. If a claim is not precluded, courts then apply a two-step
test.
At step one, courts determine whether a plaintiff is seeking a Bivens remedy
in a new context. See Ioane v. Hodges, 939 F.3d 945, 951 (9th Cir. 2018). The
context is new “[i]f the case is different in a meaningful way from previous Bivens
cases decided by [the Supreme Court].” Abbasi, 582 U.S. at ___, 137 S. Ct. at
1859. If the plaintiff is seeking a Bivens remedy in a new context, then courts
proceed to the second step.

(. . . continued)
against prison guards at a private prison, see Minneci v. Pollard, 565 U.S. 118
(2012); a Fifth Amendment suit against Department of Justice officials, see Abbasi,
582 U.S. ___, 137 S. Ct. 1843; a Fourth and Fifth Amendment suit against a
United States Border Patrol agent, see Hernandez v. Mesa, 589 U.S. ___, 140 S.
Ct. 739 (2020); and a First and Fourth Amendment suit against a United States
Border Patrol Agent, see Egbert v. Boule, 596 U.S. ___, 142 S. Ct. 1793 (2022).
8

At step two, courts may extend Bivens only if two conditions are met. First,
“a court may not fashion a Bivens remedy if Congress already has provided, or has
authorized the Executive to provide, ‘an alternative remedial structure.’” Egbert,
596 U.S. at ___, 142 S. Ct. at 1804 (citations omitted)). “So long as Congress or
the Executive has created a remedial process that it finds sufficient to secure an
adequate level of deterrence, the courts cannot second-guess that calibration by
superimposing a Bivens remedy.” Id. at ___, 142 S. Ct. at 1807. “Second, if a
claim arises in a new context, a Bivens remedy is unavailable if there are ‘special
factors’ indicating that the Judiciary is at least arguably less equipped than
Congress to ‘weigh the costs and benefits of allowing a damages action to
proceed.’” Id. at ___, 142 S. Ct. at 1803 (citation omitted). “If there is even a
single ‘reason to pause before applying Bivens in a new context,’ a court may not
recognize a Bivens remedy.” Id. (citation omitted). Although the Supreme Court
has yet to define “special factors,” it has explained that “the inquiry must
concentrate on whether the Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of allowing a damages
action to proceed.” Abbasi, 582 U.S. at ___, 137 S. Ct. at 1857–58.
The Supreme Court has stated that this two-step test often resolves to a
single question: “whether there is any rational reason (even one) to think that
Congress is better suited to ‘weigh the costs and benefits of allowing a damages
9

action to proceed.’” Egbert, 596 U.S. at ___, 142 S. Ct. at 1805 (citation omitted).
“Put another way, ‘the most important question is who should decide whether to
provide for a damages remedy, Congress or the courts?’” Id. at ___, 142 S. Ct. at
1803 (citation omitted). “If there is a rational reason to think that the answer is
‘Congress’ — as it will be in most every case, no Bivens action may lie.” Id.
(citation omitted). Thus, “if there is any reason to think that ‘judicial intrusion’
into a given field might be ‘harmful’ or ‘inappropriate,’” or “even if there is the
‘potential’ for such consequences, a court cannot afford a plaintiff a Bivens
remedy.” Id. at ___, 142 S. Ct. at 1805–06 (citations omitted).
B.

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) (citations
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).

10

1.

Failure To Protect

Watanabe alleges in Count I that FDC Honolulu officials violated the Eighth
Amendment because they failed to protect him from harm by other inmates.5 ECF
No. 8 at 6–8.
The Supreme Court has not explicitly held that a Bivens remedy is available
under the Eighth Amendment for a failure to protect claim. The Court declines to
decide whether Watanabe’s failure to protect claims arise in a new context or if
“special factors” caution against extending Bivens to those claims during screening
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, without briefing by the parties
upon either a motion to dismiss or for summary judgment. See Williams v.
Kobayashi, Civ. No. 1:18-cv-00336 DKW-RLP, 2018 WL 5258614, at *7 (D.
Haw. Oct. 22, 2018) (declining to decide during screening whether special factors

5

At various points, Watanabe alleges that Defendants violated Bureau of Prisons
policies. See ECF No. 8 at 6–8. The Supreme Court has never recognized a
Bivens cause of action for purported violations of BOP policies. See Islaam v.
Kubicki, 838 F. App’x 657, 661 (3d Cir. 2020). Indeed, as one court has stated,
“[t]o allow a damages remedy for violations of BOP policy that do not amount to
unconstitutional conduct would exceed the bounds of judicial function.” Id.
(citation omitted); see also deWilliams v. Groves, No. ED CV 17-356-GW (PLA),
2019 WL 994407, at *5 (C.D. Cal. Jan. 16, 2019) (“[T]he mere failure of a
correctional officer to follow BOP rules, procedures, or policies does not rise to the
level of a federal civil rights violation.” (citation omitted)); Williams v. Rios, No.
1:10-cv-01207-AWI-GBC (PC), 2011 WL 1627177, at *3 (E.D. Cal. Apr. 28,
2011) (“[A] Bivens action must be founded upon a violation of constitutional
rights, and a failure to adhere to administrative regulations does not equate to a
constitutional violation.” (internal quotation marks and citations omitted)).
11

cautioned against extending Bivens to substantive due process claims).
Even assuming the existence of a Bivens remedy, however, Watanabe fails
to state a plausible claim. See Hernandez, 582 U.S. at ___, 137 S. Ct. at 2007
(“[D]isposing of a Bivens claim by resolving the constitutional question, while
assuming the existence of a Bivens remedy — is appropriate in many cases.”);
Ansari v. Martinez, 859 F. App’x 842, 842 (9th Cir. 2021) (“The district court
properly dismissed [the plaintiff’s] Eighth Amendment claims because, even if a
Bivens remedy is available for these claims, [the plaintiff] failed to allege facts
sufficient to state a plausible claim.” (citations omitted)).
The Eighth Amendment imposes on prison officials a duty to “take
reasonable measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at
832 (internal quotation marks and citation omitted). Prison officials, therefore,
“have a duty to protect prisoners from violence at the hands of other prisoners.”
Id. at 833 (internal quotation marks, alteration, and citation omitted).
A prison official violates the Eighth Amendment, however, only when two
requirements are met. “First, the deprivation alleged must be objectively,
sufficiently serious.” Id. at 834 (citations omitted). “For a claim . . . based on a
failure to prevent harm, the inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm.” Id. (citation and footnote
omitted). Second, the plaintiff must show deliberate indifference — that is, that
12

“the [prison] official kn[ew] of and disregard[ed] an excessive risk to
inmate . . . safety.” Id. at 837. “[T]he official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id.
a.

Prior To The July 12, 2021 Disturbance

Watanabe has not plausibly alleged that he faced a substantial risk of serious
harm prior to July 12, 2021. Although prison officials housed in unit 5A various
groups including “members from rival gangs,” “deportable aliens,” “pre-sentence
inmates,” “pre-trial inmates,” “high security inmates through minimum security
inmates,” and inmates with “pending orders for civil commitment due to
psychiatric issues,” ECF No. 8 at 6, Watanabe has not plausibly alleged that there
was a substantial risk of serious harm prior to July 12. For example, Watanabe
does not allege that there was any gang-on-gang violence in unit 5A prior to July
12. Nor does he allege that his gang — that is, Uso — had previous issues with the
Paisa’s. Moreover, Watanabe has not plausibly alleged that he was specifically
targeted for harm by Paisa’s members because of his “history of
gang . . . affiliation.” Id. Indeed, it is unclear if the four attackers were motivated
by Watanabe’s gang membership or something else on July 12.
To the extent Watanabe is suggesting that housing members of different
gangs together necessarily amounts to an Eighth Amendment violation, he is
13

mistaken. See Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013)
(“[A]mong other problems, ‘the number of gang members housed and the high
representation of certain gangs would place an unmanageable burden on prison
administrators were they required to separate inmates by gangs.’” (quoting
Mayoral v. Sheahan, 245 F.3d 934, 939 (7th Cir. 2001) (alterations omitted));
Wilson v. Pierce County, Case No. 16-5455 RJB, 2017 WL 3876625 (W.D. Wash.
Sept. 5, 2017) (“The Ninth Circuit has held that a jail’s policy of housing rival
gang members together does not amount to a per se violation of the Eighth
Amendment.” (citing Labatad, 714 F.3d at 1160)).
Even if prison officials knew both of Watanabe’s historical affiliation with
the Uso gang and that rival gangs were being housed together in unit 5A, this is not
enough to satisfy the first requirement of a failure to protect claim. See Murphy v.
Shelby, No. C 07-02299 JF (PR), 2009 WL 773499, at *4 (N.D. Cal. Mar. 23,
2009) (“Even assuming that Defendants knew that Plaintiff and [another inmate]
were members of rival gangs, this information alone is not sufficient to raise the
inference that putting them in the same cell would create a substantial risk of
serious harm[.]”).
Moreover, Watanabe has not plausibly alleged that any Defendant acted with
deliberate indifference to his safety prior to July 12, 2021. Although Watanabe
alleges that Warden Derr housed together “rival gang members,” pretrial detainees,
14

and convicted inmates, and Robl placed “violent individuals” in the same housing
unit and, sometimes, in the same cell, ECF No. 8 at 8, he does not say how any
prison official knew of and disregarded an excessive risk to inmate safety.
Watanabe does not allege that he complained to any prison official about his
placement in unit 5A prior to July 12, nor does he allege that any other inmate
voiced concern about gang-on-gang violence prior to the July 12 disturbance.
At one point, Watanabe alleges that Warden Derr and Robl “discussed the
issue of housing rival gang members in the same units and cells with staff.” Id.
Watanabe does not say, however, when this discussion allegedly occurred. He also
does not say what conclusion Warden Derr and Robl reached at the end of that
discussion. In short, Watanabe has not plausibly alleged that Warden Derr and
Robl knew of and disregarded an excessive risk to his safety prior to July 12
disturbance.
b.

After The July 12, 2021 Disturbance

Watanabe appears to assert that his safety is currently threatened because
prison officials returned him to unit 5A after he spent two months in the SHU.
ECF No. 8 at 7.
Watanabe has not plausibly alleged that he currently faces a substantial risk
of serious harm in unit 5A. Watanabe does not allege that the four men who

15

attacked him on July 12 or anyone else has harmed him since he returned to unit
5A. Nor does he allege that anyone has attempted or even threatened to harm him.
Watanabe notes that two inmates in unit 5A — one a member of a
“Northeno gang” and the other a member of a “Hawaiian gang” — got into a fight
on March 24, 2022. Id. This single incident between two inmates, however, falls
short of showing a substantial risk of serious harm to Watanabe. See Hudson v.
Palmer, 468 U.S. 517, 526 (1984) (“Prisons, by definition, are places of
involuntary confinement of persons who have a demonstrated proclivity for
antisocial criminal, and often violent, conduct.”). Indeed, nothing suggests that
these two inmates got into a fight because of their respective gang associations.
In addition, Watanabe has not plausibly alleged that a prison official is
acting with deliberate indifference to his safety. Watanabe does not allege that he
has ever complained to prison officials about his safety in unit 5A. Thus,
Watanabe has not alleged that any Defendant knows of the purported danger that
he faces. See M.G. v. United States, 603 F. App’x 616, 617 (9th Cir. 2015) (“To
plead deliberate indifference, [the plaintiff] must allege nonconclusory facts from
which we can infer defendants . . . actually knew of the danger [the plaintiff]
faced.” (citations omitted)).
Watanabe’s failure to protect claims in Count I are therefore DISMISSED
without prejudice.
16

2.

Denial Of Adequate Medical Care

Watanabe alleges in Count II that he was denied adequate medical care
following the July 12, 2021 disturbance. ECF No. 8 at 9.
As already noted, “Carlson recognized an implied claim under the Eighth
Amendment’s cruel and unusual punishment clause for prison officials’ failure to
provide adequate medical care.” Hoffman v. Preston, 26 F.4th 1059, 1064 (9th Cir.
2022) (citation omitted). “To establish a claim of inadequate medical care, a
prisoner must first show a ‘serious medical need’ by demonstrating that failure to
treat a prisoner’s condition could result in further significant injury or the
unnecessary and wanton infliction of pain.” Edmo v. Corizon, Inc., 935 F.3d 757,
785 (9th Cir. 2019) (per curiam) (some internal quotation marks and citation
omitted). “If . . . a prisoner establishes a sufficiently serious medical need, that
prisoner must then show the official’s response to the need was deliberately
indifferent.” Id. at 786 (internal quotation marks, brackets, and citation omitted).
“To show deliberate indifference, the plaintiff must show that the course of
treatment the official chose was medically unacceptable under the circumstances
and that the official chose this course in conscious disregard of an excessive risk to
the plaintiff’s health.” Id. (internal quotation marks, brackets, and citation
omitted). “Deliberate indifference is a ‘high legal standard’ beyond malpractice or

17

gross negligence.” Balla v. Idaho, 29 F.4th 1019, 1025–26 (9th Cir. 2022)
(citation omitted).
a.

Nurse Nielsen

Watanabe alleges that he was “severely beaten” by four members of the
Paisa’s gang and “other Latino gang members” on July 12, 2021. ECF No. 8 at 7.
During the attack, someone beat Watanabe with a “lock in a sock.” Id. Later that
evening, Watanabe was suffering from “severe pain and headaches,” and he asked
to be seen by medical staff. Id. Watanabe “discussed his medical condition” with
Nurse Nielsen, but Nielsen told him “‘to stop being a cry baby.’” Id. Nielsen also
refused to send Watanabe to the hospital. Id.
Months later, Watanabe was diagnosed with a fractured coccyx and “bone
chips in soft tissue around his tailbone.” Id. These injuries caused Watanabe
“severe pain.” Id. As the Court has already concluded, see ECF No. 5 at 17–18,
Watanabe’s allegations plausibly state a denial of adequate medical care claim
against Nielsen in his individual capacity that may proceed.
b.

Dr. Kwon

Watanabe also alleges in Count II that Dr. Kwon denied him adequate
medical care in the months after the July 12 disturbance. ECF No. 8 at 9.
According to Watanabe, “[f]rom July through January 2022, [Dr. Kwon] had
an opportunity to properly diagnose [Watanabe’s] injuries, but failed to do so.” Id.
18

Watanabe alleges that he submitted at least eleven informal complaints to Dr.
Kwon. Id. at 8.
Watanabe does not say, however, when he submitted the informal
complaints to Dr. Kwon or what he said in them. In addition, although Watanabe
alleges that he “received no actual treatment,” id. at 7, he acknowledges that he did
receive over-the-counter pain medication. Id. Watanabe also admits that someone
diagnosed his fractured coccyx and that Health Services agreed to send him to see
a specialist. Id. at 7, 9. It is unclear if Dr. Kwon played a role in providing this
care. Thus, Watanabe has not plausibly alleged that Dr. Kwon consciously
disregarded a serious medical need. See Lemire v. Cal. Dep’t of Corr. & Rehab.,
726 F.3d 1062, 1081–82 (9th Cir. 2013) (“The indifference to a prisoner’s medical
needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical
malpractice’ will not support this claim.” (quoting Broughton v. Cutter Labs., 622
F.2d 458, 460 (9th Cir. 1980)) (brackets and some internal quotation marks
omitted). Watanabe’s denial of adequate medical care claims against Dr. Kwon
are therefore DISMISSED without prejudice.
IV.

CONCLUSION

(1) Watanabe states a denial of adequate medical care claim in Count II
against Nielsen in his individual capacity that may proceed.

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(2) Watanabe’s failure to protect claims in Count I and his other denial of
adequate medical care claim in Count II are DISMISSED without prejudice.
Dismissal of these claims does not foreclose Watanabe from later filing an
amended pleading, subject to the requirements of Federal Rule of Civil Procedure
15 and any applicable orders of this Court.
(3) The United States Marshal is ORDERED to serve the FAC, ECF No. 8,
and a summons on Defendant Francis Nielsen, in addition to the United States, as
directed by Watanabe, according to the requirements of Federal Rule of Civil
Procedure 4(i). After service is perfected, Defendant Nielsen shall file a
responsive pleading within the time allowed under Fed. R. Civ. P. 12.
V. SERVICE ORDER
IT IS HEREBY ORDERED:
(1) For Defendant Francis Nielsen, the Clerk is directed to send to Plaintiff:
one copy of the FAC, ECF No. 8; one completed summons; one USM-285 form;
one Notice of Lawsuit and Request for Waiver of Service of Summons form (AO
398); two Waiver of Service of Summons forms (AO 399); and an instruction
sheet.
(2) For the United States, see Fed. R. Civ. P. 4(i)(3), the Clerk is directed to
send to Plaintiff two additional copies of the FAC, ECF No. 8; two completed
summonses; and two USM-285 forms.
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(3) The Clerk shall also send a copy of this Order to the U.S. Marshal at
P.O. Box 50184, Honolulu, HI 96850.
(4) For Defendant Nielsen, Plaintiff shall complete the forms as directed
and submit the following documents to the U.S. Marshal in Honolulu, Hawaiʻi: a
completed USM-285 form; a copy of the FAC, ECF No. 8; the completed
summons; a completed Notice of Lawsuit and Request for Waiver of Service of
Summons form (AO 398); and two completed Waiver of Service of Summons
forms (AO 399). For the United States, Plaintiff shall complete the forms as
directed and submit to the U.S. Marshal: two completed USM-285 forms; two
copies each of the FAC, ECF No. 8; and the two completed summonses.
(5) Upon receipt of these documents from Plaintiff, the U.S. Marshal shall
mail to Defendant Nielsen: a copy of the FAC, ECF No. 8; a completed Notice of
Lawsuit and Request for Waiver of Service form (AO 398); and two completed
Waiver of Service of Summons forms (AO 399), as directed by Plaintiff without
payment of costs. See Fed. R. Civ. P. 4(c)(3). The U.S. Marshal shall deliver a
copy of the completed summons, the FAC, ECF No. 8, to the United States
Attorney for the District of Hawaii and the Attorney General of the United States
as directed by Plaintiff without payment of costs.
(6) For Defendant Nielsen, the U.S. Marshal shall retain the completed
summons and a copy of the FAC, ECF No. 8. The U.S. Marshal shall file a
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returned Waiver of Service of Summons form as well as any Waiver of Service of
Summons form that is returned as undeliverable, as soon as it is received.
(7) If Defendant Nielsen does not return a Waiver of Service of Summons
form within sixty days from the date that such forms are mailed, the U.S. Marshal
shall:
a. Personally serve such Defendant pursuant to Federal Rule of Civil
Procedure 4 and 28 U.S.C. § 566(c).
b. Within ten days after personal service is effected, file the return of
service for such Defendant, along with evidence of any attempts to secure a waiver
of service of summons and of the costs subsequently incurred in effecting service.
Said costs shall be enumerated on the USM-285 form and shall include the costs
incurred by the U.S. Marshal’s office in photocopying additional copies of the
summons, the FAC, and for preparing new USM-285 forms, if required. Costs of
service will be taxed against the personally served Defendant in accordance with
the provisions of Federal Rule of Civil Procedure 4(d)(2).
(8) Plaintiff is cautioned that if he fails to comply with this Order and his
non-compliance prevents timely and proper service as set forth in Federal Rule of
Civil Procedure 4(m), this action is subject to dismissal for failure to serve.
(9) Defendant Nielsen shall file a responsive pleading to the FAC, ECF No.
8, within the time set forth in Federal Rule of Civil Procedure 12.
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(10) Plaintiff shall inform the Court of any change of address by filing a
“NOTICE OF CHANGE OF ADDRESS.” The 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).
(11) After the FAC, ECF No. 8, is served and Defendant Nielsen has filed
an answer or responsive pleading, Plaintiff’s documents are deemed served when
they are electronically filed by the court. The United States Marshal is not
responsible for serving these documents on Plaintiff’s behalf.
(12) Until the FAC, ECF No. 8, is served and Defendant Nielsen or his
attorneys file a notice of appearance, Plaintiff SHALL NOT FILE MOTIONS OR
OTHER DOCUMENTS with the Court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaiʻi, August 2, 2022.

Jill A. Otake
United States District Judge

Watanabe v. Derr, et al., Civil No. 22-00168 JAO-RT; ORDER DISMISSING FIRST AMENDED COMPLAINT
IN PART AND DIRECTING SERVICE

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