United States District Court, D. Hawaii
MARK ANTHONY SEINA, FED. REG. #13272-097, Plaintiff,
FEDERAL DETENTION CENTER HONOLULU, et al., Defendants.
ORDER DISMISSING COMPLAINT IN PART
LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE.
Before the court is pro se Plaintiff Mark Anthony Seina’s prisoner civil rights Complaint brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); the Federal Tort Claims Act (“FTCA”); the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12182 et seq.; and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq. Doc. No. 1. Plaintiff is incarcerated at the Federal Detention Center-Honolulu (“FDC-Honolulu”). He names as Defendants the Department of Justice (“DOJ”), the Federal Bureau of Prisons (“BOP”), FDC-Honolulu, FDC-Honolulu Health Center Services, and staff members Director S. Blackmon, Dr. Simon, Physician’s Assistant (“PA”) D. Smith, E. Dayton, RN. He also names John and Jane Doe and ABC Company.
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 Bivens claims as alleged under the Eighth Amendment against Defendants S. Blackmon, Dr. Simon, D. Smith, and E. Dayton in their individual capacities only, state a claim and shall proceed.
Plaintiff’s claims under the FTCA, ADA, RFRA, and the First and Fifth Amendments, and all claims in Counts II, III, IV, and V are DISMISSED with leave to amend as limited below.
I. STATUTORY SCREENING
The court must screen all civil actions brought by prisoners challenging 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).
These facts are taken from the Complaint and accepted as true. On October 17, 2015, Plaintiff entered FDC-HNL pursuant to a revocation of supervised release order. Defendant E. Dayton, RN, conducted a “pre-medical screening.” Compl., Doc. No. 1, PageID #8. Plaintiff told Dayton he had just been released from the Pali Momi Medical Center Emergency Department with a diagnosis of “terminal” Pulmonary Arterial Hypertension (“PAH”), and that he had a follow-up appointment on November 12, 2015. Id. Plaintiff asked Dayton how to obtain his medication and was told to “notify medical at intake” in “about 2 weeks.” Id.
After intake, Plaintiff told Officer Gonzalez that he was feeling faint and having difficulty breathing. He was immediately taken to the Health Services Center and seen by Defendant D. Smith, PA. Plaintiff informed Smith of his symptoms and PAH and asked that his doctor be notified. Smith allegedly replied there was no immediate medical emergency, but told Plaintiff to inform medical staff about his condition during his initial medical intake interview. Id., PageID #9.
On November 18, 2015, Defendant Dr. Simon reviewed Plaintiff’s medical records and requested an outside specialist consultation. It is unclear whether Dr. Simon met or examined Plaintiff at this time. Plaintiff says he tried to notify Dr. Simon of his continuing shortness of breath, dizziness, and faintness, but an unidentified “health service staff” member told Plaintiff to be patient as an appointment with a specialist was scheduled. Id.
On December 16, 2015, Plaintiff saw Defendant Dayton in the pill line and told her that he was experiencing dizziness and shortness of breath.
On December 17, 2015, specialist Gehan Devendra, MD, examined Plaintiff at The Queen’s Medical Center and prescribed him Tadaifill 10 mg. Id., PageID #11. Plaintiff alleges that he did not receive this medication for twelve days, during which time his symptoms grew worse. Id., PageID #12. Plaintiff informed his family that he had not received his prescription and they notified Dr. Devendra.
On December 27, 2015, Plaintiff asked Defendant Dayton about his Tadaifill prescription. Dayton allegedly replied, “everyone is on vacation.” Id., PageID #8. He told her his condition was worsening.
On December 29, 2015, Plaintiff received and began taking Tadaifill. Id., PageID #12.
On December 30, 2015, apparently in response to Plaintiff’s family’s concerns, Dr. Devendra wrote FDC-Honolulu officials to notify them of Plaintiff’s “serious heart lung condition that requires the use of medication chronically. Failure [to] take medications as directed will result in early worsening.” Id., PageID #16 (Dec. 30, 2016 Devendra letter).
Plaintiff says Dr. Devendra faxed another letter with a new prescription to the FDC-Honolulu the next day, December 31, 2015. Id., PageID #12. Plaintiff attaches a copy of this fax to his emergency motion, which states: “Please contact Jill at 808-691-5236 with update on prescription. Pt. needs medication asap.”See Pl. Ex., Doc. No. 6-4, PageID #40. Plaintiff says he was never told of or given this new medication.
On or about December 31, 2016, approximately two days after he began taking Tadaifill, Plaintiff began experiencing dizziness, headaches, joint swelling, and blurred vision. Id., PageID #11-12. Plaintiff says he notified “every Defendants: FDC Hon Health Service about whats [sic] going on since taking medication, ” but was told to continue taking the Tadaifill. Id., PageID #12.
On or about January 11, 2016, Plaintiff’s Tadaifill dosage was increased per Dr. Devendra’s prior order. Id. (“After 14 days Plaintiff’s dosage is to increase.”). Plaintiff voiced concerns about this increase because of his side effects, but nevertheless took the increased dose for three days, during which time his side effects worsened. Id.
Officer Burrell then observed Plaintiff’s condition and sent him to the medical unit. Id., PageId. #11-13. Plaintiff told Nurse Practitioner Dyer that Dr. Devendra left instructions that he should be contacted immediately if Plaintiff experienced dizziness or cloudy vision. Id. Plaintiff was told that he was scheduled to see a specialist within the week and sent back to his housing unit.
The next day, January 14, 2016, Plaintiff saw Dr. Devendra, who diagnosed a severe adverse reaction to Tadaifill and instructed Plaintiff to stop taking it. Dr. Devendra wrote a new prescription, for which there is no generic form. Dr. Devendra sent another letter to FDC-Honolulu officials regarding Plaintiff’s PAH diagnosis, explaining that without treatment, individuals with PAH have
a median life expectancy about 2.5 yrs. With proper treatment the median life expectancy is about 7 years. Furthermore [Plaintiff] will need frequent clinic visits on the range of every 3 months with sooner appointments in between as needed. ...