Bullock v. Honolulu Police Department et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BENJAMIN ALLEN BULLOCK,
#A1079054,
Plaintiff,
v.
CITY AND COUNTY OF
HONOLULU, et al.,
Defendants.
Civ. No. 23-00394 JMS-KJM
ORDER DISMISSING IN PART
SECOND AMENDED PRISONER
CIVIL RIGHTS COMPLAINT, ECF
NO. 10, AND DIRECTING SERVICE
ORDER DISMISSING IN PART SECOND AMENDED PRISONER CIVIL
RIGHTS COMPLAINT, ECF NO. 10, AND DIRECTING SERVICE
Before the court is pro se Plaintiff Benjamin Allen Bullock’s
(“Bullock”) Second Amended Prisoner Civil Rights Complaint (“SAC”) brought
pursuant to 42 U.S.C. § 1983.1 In the SAC, Bullock alleges that Honolulu Police
Department (“HPD”) officers used excessive force during a March 3, 2023 arrest
(Count I), retaliated against him (Count II), subjected him to unconstitutional
conditions of confinement (Count III), deprived him of property without due
process (Count IV), violated his equal protection rights (Count V), and denied him
1 As of January 8, 2024, an online inmate locator reflected that Bullock is incarcerated at
the Oahu Community Correctional Center. See VINELink, https://vinelink.vineapps.com/search/
HI/Person (select “ID Number”; enter “A1079054”; and select “Search”) (last visited Jan. 8,
2024); see also ECF No. 10 at PageID.79.
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adequate medical care (Count VI).2 After conducting the required screening
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a), the court concludes that
Bullock’s excessive force claims in Count I against Officers Adiniwin, Baba, and
Duvall in their individual capacities require a response. Bullock’s remaining
claims are DISMISSED.
I. STATUTORY SCREENING
The court is required to screen all in forma pauperis prisoner
complaints filed 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,
2 Bullock names as Defendants the City and County of Honolulu (“City and County”),
Jonathan Daniel Baba, Richard Adiniwin, Jonathan Torres, Seth Duvall, Richard Townsend, and
Ming Wang. See ECF No. 10 at PageID.79–PageID.83. The individual defendants are named in
both their individual and official capacities. Id.
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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, however,
dismissal with prejudice is appropriate. See Sylvia Landfield Tr. v. City of Los
Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013).
II. BACKGROUND3
On March 3, 2023, Bullock was arrested for sleeping at an Ala Moana
bus stop. ECF No. 10 at PageID.86. During the arrest, Adiniwin elbowed Bullock
in the nose and “whack[ed]” Bullock’s arm. Id. Adiniwin also broke Bullock’s
cell phone by throwing it on the ground. Id. at PageID.89. Baba and Duvall
pinned Bullock against a wall, body-slammed him, and dragged him by his arms.
3 Bullock’s factual allegations are accepted as true for purposes of screening. See
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
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Id. at PageID.86. According to Bullock, all of this happened even though he was
not endangering himself or others, nor did he attempt to evade arrest. Id.
During the preceding two months, Bullock had been arrested three
additional times. Id. at PageID.87. After learning of these prior arrests, the
officers “retaliated” against Bullock by arresting him on March 3, 2023. Id. At
some point, Townsend and Wang “approved” two reports submitted by Duvall and
Baba relating to the March 3, 2023 arrest. Id. at PageID.86; see also id. at
PageID.87.
While being transported to the police station, Torres left Bullock
handcuffed in a hot, stalled car with the windows up. Id. at PageID.86 Torres
laughed at, mocked, and teased Bullock. Id.
Once at the police station, unnamed HPD officers stripped Bullock
naked, did not provide him with a hot meal, and left him in a “freezing” air-
conditioned cell, without a bed or blanket, for an entire weekend. Id. at PageID.88.
The window to Bullock’s cell was “blocked,” and an industrial fan blew cold air
under his cell door on the fan’s highest setting. Id. When Bullock complained, he
was told that the fan “couldn’t be moved per the ‘higher ups.’” Id.
Bullock alleges that Torres, Townsend, and Wang did not ensure that
he received his prescribed medications. Id. at PageID.91. Bullock further alleges
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that he should have been provided pain medication for injuries sustained during his
arrest. Id.
According to Bullock, the HPD officers discriminated against him
because he is disabled, LGBT, and African American. Id. at PageID.90.
Bullock commenced this suit by signing the original Complaint on
September 12, 2023. ECF No. 1 at PageID.11. The court granted Bullock’s
Application to Proceed In Forma Pauperis by a Prisoner, ECF No. 2, on September
25, 2023, ECF No. 4. On October 10, 2023, the court dismissed the original
Complaint with partial leave granted to amend. ECF No. 5.
The court received the FAC on November 7, 2023. ECF No. 6. On
November 27, 2023, the court dismissed the FAC with leave granted to amend.
ECF No. 7.
The court received the SAC on December 15, 2023. ECF No. 10. In
the SAC, Bullock alleges that the HPD officers used excessive force during the
March 3, 2023 arrest (Count I), retaliated against him (Count II), subjected him to
unconstitutional conditions of confinement (Count III), deprived him of property
without due process (Count IV), violated his equal protection rights (Count V), and
denied him adequate medical care (Count VI). Id. at PageID.86–PageID.91.
Bullock seeks $1,000,000 in damages. Id. at PageID.92.
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III. DISCUSSION
A. 	Legal Framework for Claims under 42 U.S.C. § 1983
“Section 1983 provides a cause of action against ‘[e]very person who,
under color of’ law deprives another of ‘rights, privileges, or immunities secured
by the Constitution.’” Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022)
(quoting 42 U.S.C. § 1983) (alteration in original). 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); Park v. City & County of Honolulu, 952 F.3d 1136, 1140 (9th
Cir. 2020).
B. 	HPD Officers in their Official Capacities
Bullock names as defendants six HPD officers in both their individual
and official capacities. ECF No. 10 at PageID.80–PageID.83.
To the extent the officers are named in their official capacities, “[a]n
official capacity suit against a municipal officer is equivalent to a suit against the
entity.” Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780,
799 (9th Cir. 2008) (citation omitted). “When both a municipal officer and a local
government entity are named, and the officer is named only in an official capacity,
the court may dismiss the officer as a redundant defendant.” Id. (citation omitted).
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Because Bullock also names the City and County of Honolulu as a defendant, his
claims against Baba, Adiniwin, Torres, Duvall, Townsend, and Wang in their
official capacities are DISMISSED with prejudice. See Flores v. City & County of
Honolulu, 2019 WL 5848058, at *2–3 (D. Haw. Nov. 7, 2019) (dismissing as
“redundant” claim against officer in his official capacity where municipal
defendant was also named).
C. 	City and County of Honolulu
Bullock also names as a defendant the City and County of Honolulu.
ECF No. 10 at PageID.79.
Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), a
municipality can be “sued directly under § 1983 for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers” or is “visited pursuant
to governmental ‘custom’ even though such a custom has not received formal
approval through the body’s official decisionmaking channels.” Id. at 690–91. In
addition, a municipality can be liable under Section 1983 for a “failure to train”
when “the failure to train amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378,
388 (1989). A municipality cannot be held liable under Section 1983 “solely
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because it employs a tortfeasor—or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691
(italics omitted).
Thus, a plaintiff can allege municipal liability under Section 1983 in
any of three ways. First, a municipality can be liable when it or a person with final
policymaking authority within the municipality expressly enacts or authorizes a
policy respecting a challenged action. Id. at 690; Pembaur v. City of Cincinnati,
475 U.S. 469, 482–83 (1986) (“The official must also be responsible for
establishing final government policy respecting such activity before the
municipality can be held liable.”). In this regard, a municipality can also be liable
when a final policymaker “ratifie[s]” a subordinate’s conduct and the basis for it.
Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066–67 (9th Cir. 2013). Second, a
municipality can be liable for a custom that, although not expressly enacted, is “so
permanent and well settled” it operates with the force of law. Monell, 436 U.S. at
691 (internal quotation marks omitted). Third, a municipality can be liable for a
failure to train its employees when such failure amounts to deliberate indifference
towards the rights of its inhabitants. City of Canton, 489 U.S. at 388–89. In
addition, a plaintiff must allege that a policy, custom, or failure to train actually
caused a municipality’s employee to commit the constitutional deprivation. Id. at
391; Monell, 436 U.S. at 694.
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Here, Bullock has not plausibly alleged that a final policymaker
expressly enacted or authorized a policy regarding any of the complained-of
conduct. To the extent Bullock alleges that it was “common practice” for HPD
officers to punish pretrial detainees, ECF No. 10 at PageID.86, to retaliate against
the disabled, LGBT people, and African Americans, id. at PageID.87, to deprive
people of their property without due process, id. at PageID.89, to violate
individuals’ equal protection rights, id. at PageID.90, and to deny adequate medical
care, id. at PageID.91, such conclusory allegations are not enough to state a claim.
Other than describing his own experiences, Bullock alleges no facts describing any
well-settled and permanent practices within the HPD. See Melton v. County of
Maricopa, 2022 WL 3031319, at *2 (9th Cir. Aug. 1, 2022) (concluding that
pleading was “too conclusory and formulaic” because it included “no specific
allegations concerning other instances of excessive force sufficient to allege a
custom, policy, or practice”); see also Sabra v. Maricopa Cnty. Cmty. Coll. Dist.,
44 F.4th 867, 884 (9th Cir. 2022) (“Plaintiffs cannot allege a widespread practice
or custom based on isolated or sporadic incidents; [liability] must be founded upon
practices of sufficient duration, frequency and consistency that the conduct has
become a traditional method of carrying out policy.”) (quotation marks and
citations omitted) (alteration in original).
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Likewise, Bullock’s conclusory allegations that training of HPD’s
officers was inadequate, see ECF No. 10 at PageID.86–PageID.91, are insufficient
to state a claim. Bullock does not describe any of the HPD’s training practices, say
how they were deficient, or directly link the HPD’s training to his experiences.
See Hyer v. City & County of Honolulu, 2020 WL 3440934, at *8 (D. Haw. June
23, 2020) (“Allegations of inadequate training are insufficient where they do not
identify what the training practices were, how the training practices were deficient,
or how the training caused the specific Plaintiff's harm.”). Thus, Bullock’s claims
against the City and County are DISMISSED.
D. 	Fourth Amendment—Excessive Force
Bullock alleges in Count I that HPD officers used excessive force
during his March 3, 2023 arrest. ECF No. 10 at PageID.86.
“In addressing an excessive force claim brought under § 1983,
analysis begins by identifying the specific constitutional right allegedly infringed
by the challenged application of force.” Graham v. Connor, 490 U.S. 386, 394
(1989). “In most instances, that will be either the Fourth Amendment’s prohibition
against unreasonable seizures of the person, or the Eighth Amendment’s ban on
cruel and unusual punishments, which are the two primary sources of
constitutional protection against physically abusive governmental conduct.” Id.
The Supreme Court has held that “all claims that law enforcement officers have
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used excessive force—deadly or not—in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness’ standard.” Id. at 395.
The Fourth Amendment guarantees “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. “[R]easonableness is always the touchstone
of Fourth Amendment analysis.” Birchfield v. North Dakota, 579 U.S. 438, 477
(2016).
“The operative question in excessive force cases is whether the
totality of the circumstances justifie[s] a particular sort of search or seizure.”
County of Los Angeles, Calif. v. Mendez, 581 U.S. 420, 427–28 (2017) (quotation
marks and citation omitted) (brackets in original). “The reasonableness of the use
of force is evaluated under an ‘objective’ inquiry that pays careful attention to the
facts and circumstances of each particular case.” Id. at 428 (quotation marks
omitted). “Whether a use of force was reasonable will depend on the facts of the
particular case, including, but not limited to, whether the suspect posed an
immediate threat to anyone, whether the suspect resisted or attempted to evade
arrest, and the severity of the crime at issue.” S.R. Nehad v. Browder, 929 F.3d
1125, 1132 (9th Cir. 2019). In addition, “[t]he ‘reasonableness’ of a particular use
of force must be judged from the perspective of a reasonable officer on the scene,
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rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “That
inquiry is dispositive: When an officer carries out a seizure that is reasonable,
taking into account all relevant circumstances, there is no valid excessive force
claim.” Mendez, 581 U.S. at 428.
Here, Bullock alleges that he was arrested for sleeping at an Ala
Moana bus stop on March 3, 2023. ECF No. 10 at PageID.86. During the arrest,
Adiniwin elbowed Bullock in the nose and whacked Bullock’s arm. Id. Baba and
Duvall pinned Bullock against a wall, body-slammed him, and dragged him by his
arms. Id. According to Bullock, he was not endangering himself or others, nor did
he attempt to evade arrest. Id. Based on these allegations, Bullock’s excessive
force claims against Adiniwin, Baba, and Duvall may proceed.
Bullock further alleges that Torres left him handcuffed in a hot, stalled
police car, with the windows up. Id. Although “unnecessary exposure to heat may
cause a constitutional violation, being briefly confined in uncomfortable
conditions, such as a hot patrol car, does not amount to a constitutional violation.”
Morgan v. County of Hawaii, 2016 WL 1254222, at *12 (D. Haw. Mar. 29, 2016)
(quotation marks and citations omitted). Thus, being detained in a patrol car for
more than four hours, with the windows rolled up, no air conditioning, and an
interior temperature of 115 degrees may be enough to proceed with an excessive
force claim. See Kassab v. San Diego Police Dep’t, 453 F. App’x 747, 748 (9th
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Cir. 2011). “In contrast, federal district courts have found that force was not
excessive when the confinement lasted thirty minutes or less.” Arias v. Amador,
61 F. Supp. 3d 960, 976 (E.D. Cal. 2014). Here, Bullock does not say how long he
was held in the car, nor does he say how hot it got in the car. His excessive force
claim against Torres is therefore DISMISSED.
Finally, although Bullock refers to Townsend and Wang in Count I,
he does not allege that they participated in his arrest. To the extent Bullock alleges
that Townsend and Wang approved reports written by Duvall and Baba, Bullock
does not describe what the reports said or how they related to the amount of force
used at the time of the arrest. Thus, Bullock’s excessive force claims against
Townsend and Wang are also DISMISSED.
E. 	First Amendment—Retaliation
Bullock alleges in Count II that Adiniwin, Torres, Baba, Duvall,
Townsend, and Wang violated his First Amendment rights by retaliating against
him. ECF No. 10 at PageID.87.
“A plaintiff can bring a First Amendment claim against government
officials who retaliate for engaging in protected speech.” Hill v. City of Fountain
Valley, 70 F.4th 507, 518 (9th Cir. 2023) (citation omitted). To recover under
42 U.S.C. § 1983 for such retaliation, a plaintiff must prove: (1) he engaged in
constitutionally protected activity; (2) as a result, he was subjected to adverse
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action by the defendant that would chill a person of ordinary firmness from
continuing to engage in the protected activity; and (3) there was a substantial
causal relationship between the constitutionally protected activity and the adverse
action. Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (citation omitted).
The Supreme Court has held that, in general, a “plaintiff pressing a retaliatory
arrest claim must plead and prove the absence of probable cause for the arrest.”
Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019). “Absent such a showing, a
retaliatory arrest claim fails.” Id. at 1725.
Here, Bullock has not plausibly alleged that he engaged in any
constitutionally protected activity, that there was a substantial causal relationship
between such activity and his arrest, and that there was no probable cause for his
arrest. Indeed, Bullock has not plausibly linked his arrest to any protected activity.
Thus, Bullock’s retaliation claims in Count II are DISMISSED.
F. 	Fourteenth Amendment
1. Conditions of Confinement
Bullock alleges in Count III that he was stripped naked and kept for a
weekend in a “freezing” air-conditioned cell with no bed or blanket, and with an
industrial fan blowing under his cell door at its highest setting. ECF No. 10 at
PageID.88. Bullock further alleges that he was not provided a hot meal during this
period. Id.
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Pretrial detainees’ challenges to the conditions of their confinement
are analyzed under the Fourteenth Amendment’s Due Process Clause, rather than
under the Eighth Amendment. Norbert v. City & County of San Francisco,
10 F.4th 918, 928 (9th Cir. 2021). “[T]he Fourteenth Amendment is more
protective than the Eighth Amendment because the Fourteenth Amendment
prohibits all punishment of pretrial detainees.” Id. (quotation marks and citations
omitted). “For a particular governmental action to constitute punishment, (1) that
action must cause the detainee to suffer some harm or ‘disability,’ and (2) the
purpose of the governmental action must be to punish the detainee.” Id. (quotation
marks and citation omitted).
Here, however, Bullock has not plausibly linked any named defendant
to the conditions that he experienced. See Rowley v. Allison, 2023 WL 7004931, at
*1 (E.D. Cal. Oct. 24, 2023) (“There can be no liability under 42 U.S.C. § 1983
unless there is some affirmative link or connection between a defendant’s actions
and the claimed deprivation.”). Although Bullock alleges that Townsend and
Wang were “in charge” during “some of [his] stay” at HPD headquarters, this is
not enough to state a claim. Bullock does not allege that he ever complained to
Townsend or Wang about the conditions he experienced, what he said in doing so,
or how they responded. See id. (“[V]ague and conclusory allegations of official
participation in civil rights violations are not sufficient.”). Townsend and Wang’s
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supervisory positions, without more, are insufficient to state a claim against them.
See Jackson v. Dutra, 2023 WL 2064543, at *2 (9th Cir. Feb. 17, 2023)
(“Vicarious liability does not exist under § 1983, and a supervisor may be held
liable for the actions of subordinates only where there exists a sufficient causal
connection between the supervisor's wrongful conduct and the constitutional
violation.”) (quotation marks and citation omitted). Bullock’s claims based on the
conditions of his confinement are DISMISSED.
2. Deprivation of Property
Bullock alleges in Count IV that Adiniwin broke his cell phone during
the March 3, 2023 arrest by throwing it on the ground. ECF No. 10 at PageID.89.
The Fourteenth Amendment provides that “[n]o State shall . . . deprive
any person of life, liberty, or property without due process of law.” U.S. Const.
amend. XIV, § 1. Neither negligent nor “unauthorized intentional deprivation[s] of
property by a state employee . . . constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer,
468 U.S. 517, 533 (1984). Hawaii law provides an adequate post-deprivation
remedy for the loss of property. See Haw. Rev. Stat. § 663-1; Finefeuiaki v. Maui
Police Dep’t, 2018 WL 4839001, at *6 (D. Haw. Oct. 4, 2018); see also Lagmay v.
Nobriga, 2016 WL 4975198, at *6 (D. Haw. Sept. 16, 2016) (“Hawaii’s civil tort
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claim process provides an adequate post-deprivation remedy.”). Thus, Bullock’s
Fourteenth Amendment claim in Count IV based on damage to his cell phone is
DISMISSED with prejudice.
3. Equal Protection
Bullock alleges in Count V that Adiniwin, Torres, Baba, Duvall,
Townsend, and Wang discriminated against him “for being disabled, LGBT, [and]
African American.” ECF No. 10 at PageID.90.
The Fourteenth Amendment provides that “[n]o State shall . . . deny to
any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. “The Equal Protection Clause requires the State to treat all
similarly situated people equally.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th
Cir. 2013) (quotation marks and citation omitted).
In general, “[t]o state a claim under 42 U.S.C. § 1983 for a violation
of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show
that the defendants acted with an intent or purpose to discriminate against the
plaintiff based upon membership in a protected class.” Id. (quotation marks and
citation omitted).
Here, Bullock has not plausibly alleged that any defendant acted with
an intent or purpose to discriminate against him based on his membership in a
protected class. Although Bullock complains about the amount of force used
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during his arrest and his lack of access to certain medication, he alleges no facts
showing that he was treated differently because of his membership in a protected
class. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, . . . do not suffice.” O. L. v. Jara, 2022 WL 1499656, at *2
(9th Cir. May 12, 2022), cert. denied, 143 S. Ct. 227 (2022) (quotation marks
omitted); see also Andrews v. Torres, 594 F. App’x 450, 451 (9th Cir. 2015) (“The
district court properly dismissed the equal protection . . . claims on the separate
ground[] that [the plaintiff] presented only conclusory allegations of intentional
discrimination.”). Bullock’s equal protection claims in Count V are DISMISSED.
4. Medical Care
Bullock alleges in Count VI that he was denied psychiatric, blood-
pressure, anti-viral, and pain medications. ECF No. 10 at PageID.91.
Medical care claims brought by pretrial detainees arise under the
Fourteenth Amendment’s Due Process Clause. Gordon v. County of Orange,
888 F.3d 1118, 1124 (9th Cir. 2018). “[C]laims for violations of the right to
adequate medical care brought by pretrial detainees against individual defendants
under the Fourteenth Amendment must be evaluated under an objective deliberate
indifference standard.” Id. at 1124–25 (quotation marks omitted).
The elements of a pretrial detainee’s medical care claim are: (1) the
defendant made an intentional decision with respect to the conditions under which
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the plaintiff was confined; (2) those conditions put the plaintiff at substantial risk
of suffering serious harm; (3) the defendant did not take reasonable available
measures to abate that risk, even though a reasonable official in the circumstances
would have appreciated the high degree of risk involved—making the
consequences of the defendant's conduct obvious; and (4) by not taking such
measures, the defendant caused the plaintiff’s injuries. Id. at 1125.
Regarding the third element, “the defendant’s conduct must be
objectively unreasonable, a test that will necessarily turn[ ] on the facts and
circumstances of each particular case.” Id. (quotation marks and citation omitted)
(alteration in original). The “mere lack of due care by a state official does not
deprive an individual of life, liberty, or property under the Fourteenth
Amendment”; the plaintiff must “prove more than negligence but less than
subjective intent—something akin to reckless disregard.” Id. (internal quotation
marks and citation omitted).
Here, Bullock has not plausibly alleged that any named defendant
made an intentional decision regarding his access to medication. Bullock does not
allege that he spoke with any defendant about his medication, what he said in
doing so, or how that person responded. Although Bullock alleges that “all should
have been well aware of [his] medical health” because he had described himself as
“mental health,” Bullock does not allege any facts suggesting that any defendant
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knew of his medication needs. See Azdar v. Wreston, 2019 WL 4511495, at *2
(E.D. Cal. Sept. 19, 2019) (“[T]here are no facts alleged by which the Court can
reasonably infer that [defendants] objectively knew of Plaintiff’s medical needs
and made an intentional decision with respect to Plaintiff’s medical care.”), report
and recommendation adopted, 2019 WL 5307065 (E.D. Cal. Oct. 21, 2019).
Bullock’s claims in Count VI based on his medical care are therefore DISMISSED.
IV. CONCLUSION
(1) Bullock’s excessive force claims in Count I against Officers
Adiniwin, Baba, and Duvall shall be served as directed below. Adiniwin, Baba,
and Duvall are required to file a response after service is effected.
(2) Bullock’s remaining claims are DISMISSED for the reasons set
forth above. For claims not dismissed with prejudice, this dismissal does not
foreclose Bullock from later filing an amended pleading, subject to the
requirements of Federal Rule of Civil Procedure 15 and any applicable orders of
this court.
V. SERVICE ORDER
(1) For Officers Adiniwin, Baba, and Duvall each, the Clerk is
directed to send Bullock: one copy of the SAC, ECF No. 10; one completed
summons; one Form USM-285; one Notice of Lawsuit and Request for Waiver of
Service of Summons forms (AO 398); and two Waiver of Service of Summons
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forms (AO 399). The Clerk is further directed to send Bullock one instruction
sheet and one additional copy of the SAC (four total).
(2) Bullock shall complete these forms for Officers Adiniwin, Baba,
and Duvall, addressed to the Honolulu Police Department at 801 South Beretania
Street, Honolulu, HI 96813, and return the forms to the U.S. Marshal at P.O. Box
50184, Honolulu, HI 96850.
(3) Upon receipt of the above-completed forms from Bullock, the U.S.
Marshal shall mail to Officers Adiniwin, Baba, and Duvall each: a copy of the
SAC, ECF No. 10; 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), without payment of costs. See Fed. R. Civ. P. 4(c)(3). The U.S.
Marshal shall retain a completed summons for each Defendant and a copy of the
SAC, ECF No. 10.
(4) Officers Adiniwin, Baba, and Duvall are directed to return the
Waiver of Service forms to the U.S. Marshal, who will file the waiver(s) with the
court. If any Defendant does not return a Waiver of Service of Summons form
within 60 days from the date that the forms are mailed, the U.S. Marshal shall
personally serve that Defendant pursuant to Rule 4 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 566(c). Within ten days after personal service is
effected, the U.S. Marshal shall file the return of service for that Defendant, along
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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 SAC, and for
preparing new USM-285 forms, if required. Costs of service will be taxed against
a personally served Defendant in accordance with the provisions of Federal Rule of
Civil Procedure 4(d)(2).
(5) Alternatively, if Bullock does not wish to use the services of the
U.S. Marshal in effecting service of the Summons and SAC, as outlined above, he
may serve Defendants on his own according to the procedures set forth in Fed. R.
Civ. P. 4. Bullock 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.
(6) Once served, Officers Adiniwin, Baba, and Duvall shall file a
responsive pleading to the SAC, ECF No. 10, within the time set forth in Federal
Rule of Civil Procedure 12.
(7) After the SAC, ECF No. 10, is served and Officers Adiniwin,
Baba, and Duvall have filed an answer or responsive pleading, Plaintiff’s
documents will be deemed served when they are electronically filed by the court.
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The U.S. Marshal is not responsible for serving these documents on Plaintiff’s
behalf.
(8) Bullock shall immediately notify the court of any 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 timely
file such notice may result in the dismissal of the action for failure to prosecute
under Fed. R. Civ. P. 41(b).
(9) The Clerk shall also send a copy of this Order to the U.S. Marshal
at P.O. Box 50184, Honolulu, HI 96850.
(10) Until the SAC, ECF No. 10, is served and Officers Adiniwin,
Baba, and Duvall or their attorney(s) file a notice of appearance, Plaintiff SHALL
NOT FILE MOTIONS OR OTHER DOCUMENTS with the court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 12, 2024.
Bullock v. City and County of Honolulu, et al., Civ. No. 23-00394 JMS-KJM, Order Dismissing
in Part Second Amended Prisoner Civil Rights Complaint, ECF No. 10, and Directing Service
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
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