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Seina v. United States

United States District Court, D. Hawaii

May 19, 2016

MARK ANTHONY SEINA, BOP #13272-097, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



         Plaintiff Mark Anthony Seina, a Federal Detention Center-Honolulu (“FDC-Honolulu”) inmate, appearing pro se and in forma pauperis, brings this action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); the Federal Tort Claims Act (“FTCA”);[1]and Title II of the Americans With Disabilities Act (“ADA”), [2] against numerous federal Defendants.[3]

         The court screened Plaintiff’s original Complaint, Doc. No. 1, dismissed it in part, and ordered him to either file an amended complaint or notify the court of his willingness to proceed on his Eighth Amendment claims in Counts I and VI only, as alleged against Defendants Blackmon, Simon, Smith, and Dayton in their individual capacities. Doc. No. 18, (“March 7 Order”). On March 22, 2016, Plaintiff filed the First Amended Complaint (“FAC”), now before the court. FAC, Doc. No. 23.

         The court has screened the FAC pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1), and finds that it fails to state a claim for relief in part. Plaintiff’s Bivens claims as alleged against all Defendants in their official capacities are DISMISSED with prejudice.

         Plaintiff’s Bivens claims under the First, Fifth, and Eighth Amendments in Counts I, III, IV, V, VI, as alleged against all Defendants in their individual capacities fail to state a claim and are DISMISSED without prejudice.

         Plaintiff’s FTCA claims fail to state a claim and are DISMISSED without prejudice.

         Plaintiff’s ADA claim in Count II, as alleged against Defendant L. Boyd, regarding the denial of a DVD/TV to accommodate Plaintiff’s participation in a comparable exercise program as that afforded other inmates, states a claim and shall be served.

         Plaintiff’s remaining claims under the ADA in Count II are DISMISSED without prejudice.

         The court will direct service on Defendant L. Boyd regarding Plaintiff’s claims in Count II by separate order.


         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 that lacks a cognizable legal theory, or contains insufficient facts under a cognizable legal theory, fails to state a claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A sufficient pleading contains a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This requires more than a “the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals” of a cause of action, supported by conclusory statements, are insufficient. Id. A 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).

         Plausibility is “a context-specific” determination “that requires . . . judicial experience and common sense.” Iqbal, 556 U.S. at 679. When “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint fails to “‘show’ - ‘that the pleader is entitled to relief.’” Id. (quoting Fed.R.Civ.P. 8(a)(2)).

         Pro se complaints are construed liberally, in the light most favorable to the pleader, and all allegations of material fact are accepted 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 amendment appears futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).


         To state a cognizable Bivens claim, Plaintiff must allege that: (1) a right secured under the United States Constitution was violated, and (2) the violation was committed by a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991); see also Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006); Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988).

         A. Official Capacity Claims

         Plaintiff names all natural Defendants in their official and individual capacities, and otherwise names the United States and its agencies the DOJ, BOP, and FDC-Honolulu. Bivens recognizes “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (citing Bivens, 403 U.S. at 91). Bivens allows a claimant “to hold federal officers individually liable for constitutional violations.” Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011) (emphasis added); see Malesko, 534 U.S. 61, 70 (2001). As the March 7 Order explained, a “Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy, 837 F.2d at 355.

         Plaintiff’s Bivens claims as alleged against Defendants Blackmon, Simon, Smith, Dayton, Boyd, Cintron, Lazo, Pelton, John Doe 1-2, Jane Doe 1-2, in their official capacities, and against the United States, DOJ, BOP, and FDC-Honolulu are DISMISSED with prejudice.

         B. Eighth Amendment Claims: Counts I, VI

         To state a constitutional claim for the denial or delay of medical care, a plaintiff must show that the defendant acted with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To be held deliberately indifferent, a prison official must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, ” and “draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A prison official who should have been aware of the risk but was not, has not violated the Eighth Amendment. Gibson v. Cty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). Simple negligence, or even gross negligence, is not sufficient. Farmer, 511 U.S. at 835-36 & n.4.

         A prisoner may show deliberate indifference (1) when a prison official purposely acted or failed to respond to a prisoner’s pain or medical need, and harm caused by the indifference; (2) when a prison official intentionally denies, delays, or interferes with medical treatment; or (3) by the way prison medical personnel respond to a prisoner’s medical needs. See Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

         When a claim is based on delay in providing a specified treatment, a prisoner has no claim for deliberate medical indifference unless the delay was harmful. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

         1. Background

         Plaintiff arrived at FDC-Honolulu on October 17, 2015. He immediately informed Defendant RN Dayton at intake that he was diagnosed recently with Pulmonary Arterial Hypertension (“PAH”), and had just been released from the Pali Momi Medical Center emergency room that day, where he was seen for dizziness, difficulty breathing, and feeling faint.[4] Plaintiff told Dayton that he had a follow-up appointment with his specialist on November 12, 2015. Plaintiff asked how to receive his medicine, and Dayton told him to inform staff about his PAH at his initial medical evaluation in two weeks and ask about his medication at that time.

         When Plaintiff was moved to housing unit 5B, he told Officer Gonzalez that he was having difficulty breathing and feeling faint.[5] He was sent to the medical unit where Defendant PA Smith examined him. Smith knew of Plaintiff’s PAH diagnosis, and told Plaintiff that his symptoms were not life-threatening or a medical emergency. He reminded Plaintiff to inform the medical unit of his PAH at his initial medical evaluation.

         Plaintiff does not allege when his initial medical screening took place or detail what was discussed. His medical records allegedly arrived at FDC-Honolulu on or about November 6, 2015. Defendant Dr. Simon received and reviewed Plaintiff’s records on November 18, 2015. Dr. Simon immediately requested an outside consultation with a specialist, and notified Plaintiff that he had done so. This outside consultation required approval from a “utilization committee.” FAC, Doc. No. 23, PageID #185. Plaintiff complains that Dr. Simon did not contact his specialist earlier and disagrees with his level of care designation of Level 1.

         Plaintiff says he notified all FDC-Honolulu staff that he was “dying.”[6] He was told to be patient, that his outside consultation with a specialist had been approved. Id., PageID #170.

         On December 16, 2015, while waiting in the pill line, Plaintiff asked Defendant Dayton to see a doctor because of his pronounced PAH symptoms. Dayton said, “ok, ” but Plaintiff complains that she failed to write his request down. Plaintiff was sent to outside specialist Dr. Devendra the next day, however, who examined him and prescribed Tadaifill for his PAH symptoms. Plaintiff received his Tadaifill prescription on December 29, 2015. In the interim, however, Plaintiff notified his family that he had not received the prescription. His family contacted Dr. Devendra, who faxed a letter to FDC-Honolulu on December 31, 2015, explaining that Plaintiff has a serious heart/lung condition that requires chronic medications, and noting that a failure to take these prescribed medications will result in early worsening of Plaintiff’s condition.[7]

         Plaintiff began experiencing dizziness, headaches, blurred vision, and swelling in his knee after beginning Tadaifill. Nevertheless, unnamed FDC-Honolulu Health Service staff increased Plaintiff’s dosage, per Dr. Devendra’s order, on or about January 12, 2016. Plaintiff’s symptoms increased, and two days later, on January 14, 2016, he was sent back to Dr. Devendra. Dr. Devendra ordered a new prescription on January 17, 2016. FAC, Doc. No. 23, PageID #182. He also notified FDC-Honolulu that there is no generic form for this medicine. See Doc. No. 6-2, PageID #34. Dr. Devendra stated that, with treatment, PAH patients’ life expectancy is about seven years, without treatment, it decreases to about two and a half years. Plaintiff signed his original Complaint on February 2, and this action was received and filed on February 5, 2016. FDC-Honolulu thereafter approved the new medication and Plaintiff received it on February 26, 2016.

         2. Analysis

         Plaintiff alleges Dayton, Smith, Simon, Blackmon, FDC-Honolulu Health Services’ staff, and John and Jane Does #1 posed a threat to his safety and violated the Eighth Amendment. See FAC, Doc. No. 23, PageID #168-71 (Count I); PageID #186-87 (Count VI).

         Although the court found that, liberally construed, Plaintiff’s claims against Dayton, Blackmon, Smith, and Simon stated a claim in the original Complaint, the FAC’s clarification of events renders Plaintiff’s Eighth Amendment claims against all Defendants insufficient to state a claim.

         First, RN Dayton processed Plaintiff into FDC-Honolulu on October 17, 2015. Plaintiff told her of his PAH diagnosis, and that he had been seen at Pali Momi that day for PAH-related symptoms and was released. Dayton answered Plaintiff’s questions and told him to inform Health Services of his PAH diagnosis and concerns at his initial medical evaluation in approximately two weeks. Plaintiff saw Dayton a month later while in the pill line, and told her he needed to see a doctor. Plaintiff saw Dr. Devendra the next day. Regardless of whether Dayton wrote Plaintiff’s request down, these ...

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