United States District Court, D. Hawaii
OPHERRO GARY JONES, FED. REG. #02902-122, Plaintiff,
WARDEN SHINN, DOCTOR ACKLEY, Defendants.
ORDER DISMISSING COMPLAINT IN PART
Leslie E. Kobayashi United States District Judge
Before the court is pro se Plaintiff Opherro Gary Jones’ prisoner civil rights Complaint brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See Doc. No. 1. Plaintiff is incarcerated at the United States Penitentiary, USP Canaan. Plaintiff alleges that while he was housed at the Federal Detention Center-Honolulu (“FDC-Honolulu”) in 2013-2014, FDC-Honolulu Warden David Shinn and FDC-Honolulu physician Dr. Ackley denied him timely and appropriate medical care.
The court has screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1), and finds that it states a cognizable claim for relief in part. Plaintiff’s claims against Warden Shinn state a claim and shall be served. Plaintiff’s claims against Doctor Ackley fail to state a claim and are DISMISSED with leave to amend.
I. STATUTORY SCREENING
The court must screen all civil actions brought by prisoners regarding prison conditions or seeking redress from a government entity, officer, or employee. 28 U.S.C. § 1915A(a). Complaints or claims that are frivolous, malicious, fail to state a claim, or seek relief from a defendant who is immune from such relief must be dismissed. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint fails to state a claim if it (1) lacks a cognizable legal theory; or (2) contains insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This does not require detailed factual allegations, but “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A sufficient complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires . . . judicial experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Id. (quoting Fed.R.Civ.P. 8(a)(2)).
The court construes pro se complaints liberally, in the light most favorable to the plaintiff, and accepts all allegations of material fact as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010). A pro se prisoner’s complaint is “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. Leave to amend should be granted unless it appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
This suit stems from Plaintiff’s previous civil rights action against Defendants Shinn and Ackley in Jones v. Shinn, Civ. No. 14-00231 LEK/BMK (D. Haw. May 14, 2014), filed in 2014 while Plaintiff was a pre-trial detainee at FDC-Honolulu. Plaintiff alleged, inter alia, that he had informed Warden Shinn, on or about “9/24/13, ” that his numerous requests for medical attention for his flu symptoms were denied. Id., Compl., Doc. No. 1, PageID #5. Plaintiff alleged that Dr. Ackley “refused to see [him] for any medical issues dispite [sic] repeated requests for medical attention, ” until Lieutenant Cline “made the Doctor Ackley [come] and see me Jan. 2014.” Id., PageId. #6.
On September 26, 2014, this Court ordered Plaintiff to serve the Amended Complaint on Shinn and Ackley. Doc. No. 25. Plaintiff, however, failed to perfect service and after two extensions of time, the court dismissed the action without prejudice on April 8, 2015. See Doc. Nos. 30-32.
Five months later, on November 6, 2015, Plaintiff submitted a document in Civ. No. 14-00231, titled “Reinstatement of Amended Complaint In Alternative Construing Into a New Notice of Complaint.” Doc. No. 35. To the extent Plaintiff sought reconsideration of the dismissal of Civ. No. 14-00231, it was denied. See Order, Doc. No. 37. The Court directed the Clerk to open the present action.
Plaintiff provides somewhat less detail and the time periods are considerably more vague in the present Complaint than those set forth in Civ. No. 14-00231. Plaintiff alleges that he began to experience flu symptoms, such as a sore throat, painful chest, nausea, and weakness, “[o]n or about October in 2013.” Civ. No. 15-00486, Compl. ¶ 14.
Plaintiff says he submitted three or four weekly request for treatment to Counselor Potts, but says “nothing happened, ” and alleges he was not seen for his flu symptoms until January 2014. Id. ¶ 15. Plaintiff states that he notified Warden Shinn at least once that he was being denied medical attention for his flu ...