United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT IN
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
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”);and Title II of the Americans With
Disabilities Act (“ADA”),  against numerous
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.
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.
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.
FTCA claims fail to state a claim and are DISMISSED without
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.
remaining claims under the ADA in Count II are DISMISSED
court will direct service on Defendant L. Boyd regarding
Plaintiff’s claims in Count II by separate order.
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
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
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
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).
BIVENS CLAIMS: COUNTS I, III, IV, V, VI
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).
Official Capacity Claims
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.
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.
Eighth Amendment Claims: Counts I, VI
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 &
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.
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).
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. 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
Plaintiff was moved to housing unit 5B, he told Officer
Gonzalez that he was having difficulty breathing and feeling
faint. 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.
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.
says he notified all FDC-Honolulu staff that he was
“dying.” He was told to be patient, that his
outside consultation with a specialist had been approved.
Id., PageID #170.
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.
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.
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).
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
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