Hurst v. Derr et al

Filing 6

ORDER DISMISSING COMPLAINT IN PART WITH PARTIAL LEAVE TO AMEND re 1 - Signed by JUDGE DERRICK K. WATSON on 5/6/2022. (1) Hurst's access-to-court claim in Count I against Robl is DISMISSED with prejudice. (2) Hurst states a denial-of-adequate-medical-care claim in Count III against Nurse Dayton that may proceed. (3) Hurst's threat-to-safety claim in Count II against Warden Derr and Robl is DISMISSED with leave to amend . Hurst may file an amended pleading that attempts to cure the noted deficiencies in this claim, if possible, on or before May 31, 2022. (4) If he chooses to file an amended pleading, Hurst must comply with the Federal Rule s 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 Ru le 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 dismiss ed. (5) IN THE ALTERNATIVE, Hurst may notify the Court in writing on or before May 31, 2022 that he elects to proceed with only his denial-of-adequate-medical-care claim in Count III against Nurse Dayton, and thi s claim shall be served. If Hurst fails to timely 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 Hurst a prisoner civ il rights complaint form so that he may comply with the directions of this Order if he elects to file an amended pleading. (eta)COURT'S CERTIFICATE OF SERVICE - Eric Hurst shall be served by First Class Mail to the address of record listed on the Notic of Electronic Filing (NEF) on May 9, 2022. 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
ERIC HURST,
#06325-122,
Plaintiff,
v.

CIVIL NO. 22-00171 DKW-RT
ORDER DISMISSING COMPLAINT
IN PART WITH PARTIAL LEAVE
TO AMEND

ESTELA DERR, et al.,
Defendants.
Before the Court is a Prisoner Civil Rights Complaint, ECF No. 1, filed by
pro se Plaintiff Eric Hurst pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Hurst alleges that three
officials 1 at the Federal Detention Center in Honolulu, Hawaii (“FDC Honolulu”)
violated his constitutional rights by refusing to provide him with administrative
remedy program forms (Count I), threatening his safety (Count II), and denying
him adequate medical care (Count III). ECF No. 1 at PageID #5–10. For the
following reasons, the Court DISMISSES the Complaint in part pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A(b), albeit with partial leave to amend.

1

Hurst names as Defendants Warden Estela Derr, Unit Manager Kris Robl, and Nurse Dayton.
ECF No. 1 at PageID # 1–2.

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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
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
2

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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. BACKGROUND 2
Hurst commenced this suit on April 12, 2022. ECF No. 1 at PageID # 11.
He alleges in Count I that Robl violated his right to access the court under the First
Amendment by refusing to provide him with administrative remedy program
forms. Id. at PageID # 5–6. According to Hurst, Robl’s actions “delayed” his
access to the court, apparently in connection with this suit. Id. at PageID # 5.
Hurst alleges in Count II that Warden Derr and Robl violated the Eighth
Amendment’s prohibition against cruel and unusual punishment by failing to
protect him from harm. Id. at PageID # 7–9. Hurst was housed at FDC Honolulu
in “unit 5A” with “gang members . . ., pretrial inmates, presentence inmates[,] and
sentenced . . . inmates.” Id. at PageID # 7. On July 12, 2021, a “gang riot”
involving more than thirty inmates broke out in unit 5A following a gambling
dispute. Id. at PageID # 7–8. During the disturbance, three gang members
attacked Hurst, with one of them wielding a “lock in a sock.” Id. at PageID # 8.
The on-duty officer and ten additional officers responded to the disturbance and

2

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

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stopped the fighting. Id. The inmates involved in the disturbance were moved to
the special housing unit the next day. Id. These inmates eventually returned to
unit 5A. Id.
Hurst alleges in Count III that Nurse Dayton violated the Eighth Amendment
by denying him adequate medical care after the disturbance. Id. at PageID # 10.
As a result of being “severely beaten” by the three gang members, Hurst “suffered
head trauma” and “numerous injuries all over his body.” Id. at PageID # 9. Hurst
met with Dayton, told him about his “severe head pain,” and showed Dayton the
“obvious head and body injuries.” Id. at PageID # 8. According to Hurst, his
injuries were “documented,” but he “was not offered medical treatment.” Id.
X-rays were not taken, and Hurst was not evaluated for a concussion. Id. Hurst
continues to experience “headaches and dizziness” because of his injuries. Id. at
PageID # 10.
Hurst seeks $3,000,000 for “jeopardizing [his] safety and depriving medical
attention.” Id. at PageID # 11.
III. DISCUSSION
A. 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, 137 S. Ct. 2003, 2006 (2017) (per
4

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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. 403 U.S. at 389–90. Since Bivens, the
Supreme Court has expanded this implied cause of action twice. See 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). “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.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).
The Supreme Court “has made clear that expanding the Bivens remedy is
now a ‘disfavored’ judicial activity.” Id. 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.’” 3 Abbasi,

3

The Court declined to create a Bivens remedy in the following cases: a First Amendment suit
against a federal employer, Bush v. Lucas, 462 U.S. 367, 390 (1983); a race-discrimination suit
against military officers, Chappell v. Wallace, 462 U.S. 296, 297 (1983); a substantive due
process suit against military officers, United States v. Stanley, 483 U.S. 669, 671–72 (1987); a
procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U.S.
412, 414 (1988); a procedural due process suit against a federal agency for wrongful termination,
FDIC v. Meyer, 510 U.S. 471, 473–74 (1994); an Eighth Amendment suit against a private
prison operator, Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001); a due process suit against
officials from the Bureau of Land Management, Wilkie v. Robbins, 551 U.S. 537, 547–548, 562
(2007); an Eighth Amendment suit against prison guards at a private prison, Minneci v. Pollard,
5

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137 S. Ct. at 1857 (quoting Malesko, 534 U.S. at 68). Indeed, the Court has
suggested that “the analysis in [its] three Bivens cases might have been different if
they were decided today.” Abbasi, 137 S. Ct. at 1856.
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.
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, the Court then applies a
two-step test.
At step one, the Court determines whether the plaintiff is seeking a Bivens
remedy in a new context. Ioane v. Hodges, 939 F.3d 945, 951 (9th Cir. 2018). “A
new Bivens context is defined broadly.” Hoffman v. Preston, 26 F.4th 1059, 1064
(9th Cir. 2022). The context is new “[i]f the case is different in a meaningful way
from previous Bivens cases decided by [the Supreme Court].” Abbasi, 137 S. Ct.
at 1859. If the plaintiff is seeking a Bivens remedy in a new context, then the court
proceeds to the second step.
At step two, the Court may extend Bivens only if two conditions are met.
“First, the plaintiff must not have any other adequate alternative remedy.” Ioane,

565 U.S. 118, 120 (2012); and a Fifth Amendment suit against Department of Justice officials,
Abbasi, 137 S. Ct. at 1860–63.
6

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939 F.3d at 951. “Second, there cannot be any ‘special factors’ that lead [the
Court] to believe that Congress, instead of the courts, should be the one to
authorize a suit for money damages.” Id. at 951–52 (internal quotation marks
omitted). Although the Supreme Court has yet to define the term, “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,
137 S. Ct. at 1857–58.
B. Official Capacity Claims Under Bivens
Hurst names Warden Derr, Robl, and Dayton in both their individual and
official capacities. See ECF No. 1 at PageID # 1–2.
“[A] Bivens action can be maintained against a defendant in his or her
individual capacity only, and not in his or her official capacity.” Consejo de
Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173
(9th Cir. 2007) (quotation marks and citation omitted) (brackets in original). “This
is because a Bivens suit against a defendant in his or her official capacity would
merely be another way of pleading an action against the United States, which
would be barred by the doctrine of sovereign immunity.” Id. Thus, “[t]here is no
such animal as a Bivens suit against a public official tortfeasor in his or her official

7

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capacity.” Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016) (quotation
marks and citation omitted).
Any Bivens claims against Warden Derr, Robl, ant Dayton in their official
capacities are therefore DISMISSED with prejudice.
C. Supervisory liability
Hurst names as Defendants two supervisory officials at FDC Honolulu—that
is, the warden and a unit manager. ECF No. 1 at PageID # 1–2.
“In the limited settings where Bivens does apply . . . Government officials
may not be held liable for the unconstitutional conduct of their subordinates under
a theory of respondeat superior.” Iqbal, 556 U.S. at 676. This is because “[t]he
purpose of Bivens is to deter the officer.” Abbasi, 137 S. Ct. at 1860 (quotation
marks and citation omitted). “Bivens is not designed to hold officers responsible
for acts of their subordinates.” Id.
A Bivens claim, therefore, must be “brought against the individual official
for his or her own acts, not the acts of others.” Id.; see also Jones v. McFadden,
No. 1:09–cv–00957–DLB (PC), 2010 WL 2196849, at *3 (E.D. Cal. May 28,
2010) (“[W]hen a named defendant holds a supervisorial position, the causal link
between him and the claimed constitutional violation must be specifically
alleged.”). Thus, to state a claim for relief under Bivens based on a theory of
supervisory liability, the plaintiff must allege facts showing that supervisory
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defendants: (1) personally participated in the alleged deprivation of constitutional
rights; (2) knew of the violations and failed to act to prevent them; or (3)
promulgated or implemented a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the constitutional
violation. Id. (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).
Any claims against Warden Derr and Robl solely based on their supervisory
positions are DISMISSED with prejudice. See Fries v. Kernan, 2018 WL
11260954, at *8 (E.D. Cal. Dec. 5, 2018) (“[A]ny allegation that supervisory
personnel [are] . . . somehow liable solely based on the acts of those under his or
her supervision, does not state a cognizable claim.”). For a claim against Warden
Derr or Robl to proceed, Hurst must plausibly allege that each one of them violated
his rights through their own actions. See Chavez v. United States, 683 F.3d 1102,
1109 (9th Cir. 2012) (“Bivens claims cannot proceed on a theory of respondeat
superior, but must instead plead that a supervisor, by her ‘own individual actions,’
violated the Constitution.” (citation omitted)).
D. First Amendment
Hurst alleges in Count I that Robl violated his First Amendment right to
access the court by refusing to provide him with administrative remedy program
forms. Id. at PageID # 5–6.

9

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“The First Amendment guarantees a prisoner a right to seek redress of
grievances from prison authorities and as well as a right of meaningful access to
the courts.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015). The Supreme
Court, however, has not recognized a Bivens remedy for First Amendment claims,
Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012); Vega v. United States, 881 F.3d
1146, 1153 (9th Cir. 2018), and the Ninth Circuit has declined to extend Bivens to
access-to-court claims, Schwarz v. Meinberg, 761 F. App’x 732, 733–34 (9th Cir.
2019) (“We decline to extend Bivens remedies to [the plaintiff’s] claims—
unsanitary cell conditions, access to courts, and request for placement in a camp
facility—because these claims do not fall within claims authorized by the Supreme
Court.”).
District courts, therefore, have consistently concluded that no Bivens remedy
exists for access-to-court claims. See, e.g., Camillo-Amisan v. Fed. Bureau of
Prisons, 2019 WL 8138040, at *5 (C.D. Cal. Oct. 4, 2019) (“The Court declines to
find a private right of action for Plaintiff’s denial of access to courts claim under
Bivens.”), report and recommendation adopted sub nom. Camillo-Amisano v. Fed.
Bureau of Prisons, 2019 WL 8137708 (C.D. Cal. Nov. 12, 2019); Moore v. United
States, 2020 WL 3265874, at *4 (E.D. Cal. June 17, 2020) (“[T]he Court . . .
declines to find an implied Bivens cause of action under the First Amendment for
the denial of access to the courts.”), report and recommendation adopted, 2020
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WL 6060869 (E.D. Cal. Oct. 14, 2020). Given the Ninth Circuit’s conclusion that
Bivens does not extend to access-to-court claims, Hurst’s claim in Count I cannot
proceed. See Lanuza, 899 F.3d at 1025 (noting that courts must first consider
whether providing a Bivens remedy is precluded by prior Ninth Circuit decisions).
Even if a Bivens remedy did exist, Hurst fails to state a claim. “To establish
a violation of the right of access to the courts, a prisoner must establish that he or
she has suffered an actual injury.” Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014,
1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 U.S. 341, 349 (1996)). “Actual
injury is a jurisdictional requirement that flows from the standing doctrine and may
not be waived.” Greene, 48 F.3d at 1018. “It is actual prejudice with respect to
contemplated or existing litigation, such as the inability to meet a filing deadline or
to present a claim.” Id. (internal quotation marks and citation omitted).
Here, Hurst alleges that Robl only “delayed” his access to the court. ECF
No. 1 at PageID # 5. Hurst does not allege that he suffered actual injury because
of Robl’s actions. Nor could he. Although Robl’s purported actions might have
impeded Hurst’s access to the BOP’s administrative remedy program and
prevented Hurst from exhausting his administrative remedies, Hurst successfully
filed his Complaint in court. Because Hurst has not suffered any actual injury, he
cannot state an access-to-court claim. See Kerch v. Johnson, 2018 WL 844416, at
*2 n.4 (M.D. Ga. Feb. 13, 2018) (“[B]ecause the alleged interference with the
11

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grievance procedure did not prevent the Plaintiff from bringing suit in court, he has
suffered no actual injury.”); Jose-Nicolas v. Butler, 2016 WL 2643347 (S.D. Ill.
May 10, 2016) (dismissing access-to-court claim where the plaintiff “was not
prevented from filing [an] action in a timely manner, and he describe[d] no actual
legal detriment that he suffered as a result of [the defendant’s] conduct”).
The Court concludes that granting leave to amend would be futile because
the flaws in Count I cannot be cured by amendment. Hurst’s access-to-court claim
in Count I against Robl is 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. Cnty. 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).

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1. Threat to Safety
Hurst alleges in Count II that Warden Derr and Robl threatened his safety by
housing “gang members . . ., pretrial inmates, presentence inmates[,] and
sentenced . . . inmates” together, and allowing inmates to gamble. Id. at PageID #
7.
The Supreme Court has not explicitly held that a Bivens remedy is available
under the Eighth Amendment for a threat-to-safety claim. The Ninth Circuit,
however, has allowed a Bivens claim under the Eighth Amendment for a federal
prison official’s deliberate indifference to prisoner safety. See Doreh v. Rodriguez,
723 F. App’x 530, 530 (9th Cir. 2018) (“[T]hese allegations are sufficient to state a
deliberate indifference to safety claim.”). Several district courts have also
recognized failure-to-protect claims under Bivens. See McDaniels v. United States,
No. 5:14-cv-02594-VBF-JDE, 2018 WL 7501292, at *5–6 (C.D. Cal. Dec. 28,
2018), report and recommendation adopted, 2019 WL 1045132 (C.D. Cal. Mar. 5,
2019); Lee v. Matevousian, No. 1:18-cv-00169-GSA-PC, 2018 WL 5603593, at
*7–8 (E.D. Cal. Oct. 26, 2018); Marquez v. United States, Case No.: 3:18-cv-0434CAB-NLS, 2018 WL 1942418, at *4 (S.D. Cal. Apr. 25, 2018).
Assuming the existence of a Bivens remedy, however, Hurst fails to state a
plausible claim. See Hernandez, 137 S. Ct. at 2007 (“[D]isposing of a Bivens
claim by resolving the constitutional question, while assuming the existence of a
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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.”).
Prison officials “have a duty . . . to protect prisoners from violence at the
hands of other prisoners.” Id. at 833 (quotation marks and citation omitted)
(ellipsis in original). A prison official violates the Eighth Amendment when two
requirements are met. “First, the deprivation must be objectively, sufficiently
serious[.]” Id. at 834. “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. Second, the plaintiff must show deliberate indifference—
that is, that “the [prison] official [knew] 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.
Here, Hurst has not plausibly alleged that he faced a “substantial risk of
serious harm” prior to the July 12, 2021 disturbance. Farmer, 511 U.S. at 834.
Although prison officials housed various groups together in unit 5A, nothing
suggests that doing so posed a substantial risk of serious harm. For example, Hurst
does not allege that there were any issues between the various groups housed in
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unit 5A prior to July 12. Likewise, Hurst has not plausibly alleged a substantial
risk of serious harm because of the gambling between inmates in unit 5A. To the
extent Hurst notes that different gangs were housed together in unit 5A, this does
not necessarily amount to an Eighth Amendment violation. See Labatad v. Corr.
Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (“[A]mong other problems,
‘[t]he 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) (second alteration in original)); Wilson v. Pierce Cnty.,
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.”).
Hurst also has not plausibly alleged that any Defendant acted with deliberate
indifference to his safety prior to July 12, 2021. Hurst does not say, for instance,
whether or how any prison official knew of a substantial risk of serious harm and
disregarded that risk. Hurst does not allege that anyone complained to Warden
Derr or Robl about the composition of the inmate population in unit 5A prior to
July 12, nor does he allege that any inmate voiced concern about the gambling that
was taking place in the unit. In short, Hurst has not plausibly alleged that Warden
Derr or Robl knew of and disregarded an excessive risk to his safety. See M.G. v.
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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.”). Count II is
therefore DISMISSED with leave to amend.
2. Medical Care
Hurst alleges in Count III that Nurse Dayton denied him adequate medical
care immediately after the July 12, 2021 disturbance. ECF No. 1 at PageID # 5–6.
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) (internal quotation marks 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 and brackets 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
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course in conscious disregard of an excessive risk to the plaintiff’s health.” Id.
(internal quotation marks and brackets omitted). “Deliberate indifference is a
‘high legal standard’ beyond malpractice or gross negligence.” Balla v. Idaho, 29
F.4th 1019, 1025–26 (9th Cir. 2022) (citation omitted).
After being “severely beaten” by the three gang members, one of whom used
a “lock in a sock,” Hurst “suffered head trauma” and “numerous injuries all over
his body.” ECF No. 1 at PageID # 9. Hurst met with Dayton, told him about his
“severe head pain,” and showed Dayton the “obvious head and body injuries.” Id.
at PageID # 8. While Hurst’s injuries were “documented,” he “was not offered
medical treatment.” Id. X-rays were not taken, and Hurst was not evaluated for a
concussion. Id. Hurst continues to experience “headaches and dizziness” because
of his injuries. Id. at PageID # 10. Liberally construed, Hurst states a plausible
denial-of-adequate-medical-care claim in Count III against Dayton.
IV. CONCLUSION
(1) Hurst’s access-to-court claim in Count I against Robl is DISMISSED
with prejudice.
(2) Hurst states a denial-of-adequate-medical-care claim in Count III against
Nurse Dayton that may proceed.
(3) Hurst’s threat-to-safety claim in Count II against Warden Derr and Robl
is DISMISSED with leave to amend. Hurst may file an amended pleading that
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PageID #: 47

attempts to cure the noted deficiencies in this claim, if possible, on or before May
31, 2022.
(4) If he chooses to file an amended pleading, Hurst 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, Hurst may notify the Court in writing on or
before May 31, 2022 that he elects to proceed with only his denial-of-adequatemedical-care claim in Count III against Nurse Dayton, and this claim shall be
served. If Hurst fails to timely 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 Hurst a prisoner civil rights complaint
form so that he may comply with the directions of this Order if he elects to file an
amended pleading.

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PageID #: 48

IT IS SO ORDERED.
DATED: May 6, 2022 at Honolulu, Hawaii.

D~
United States District Judge

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Hurst v. Derr, et al.; Civil No. 22-00171 DKW-RT; ORDER DISMISSING
COMPLAINT IN PART WITH PARTIAL LEAVE GRANTED TO AMEND

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