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Lagmay v. Nobriga

United States District Court, D. Hawaii

February 9, 2017

HENRY LAGMAY, #A0191119, Plaintiff,
v.
MRS. SHELLEY NOBRIGA, et al., Defendants,

          ORDER DISMISSING AMENDED COMPLAINT IN PART

          DERRICK WATSON, United States District Judge

         Before the Court is pro se Plaintiff Henry Lagmay's First Amended Complaint (“FAC”), brought pursuant to 42 U.S.C. §§ 1983 and 1985. ECF No. 18. Lagmay is incarcerated in the Halawa Correctional Facility (“HCF”) special housing unit (“SHU”). He alleges that HCF, Department of Public Safety (“DPS”), and Office of the Ombudsman officials and staff violated his constitutional rights.

         The Court has screened the FAC pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1) and finds that it states a cognizable claim for relief against Defendants Adult Correctional Officers (“ACO”) Levy Christensen and Kaipo Sarkissian. The FAC fails to state a claim against all remaining Defendants and claims against them are DISMISSED.

         The Court will issue a separate Service Order directing the United States Marshal to serve the FAC on Christensen and Sarkissian, and they will be required to respond.

         I. BACKGROUND

         A. Procedural History

         Lagmay commenced this action by filing a lengthy, handwritten Complaint. See Compl., ECF No. 1 (68 pages). He thereafter filed three additional documents that were randomly interspersed with exhibits, which the Court construed as part of the original Complaint. See ECF Nos. 4 (Mot., 55 pages), 6 (Suppl., Exs. F-W, 23 pages), 7 (Suppl., Exs., 103 pages).

         On September 16, 2016, the Court dismissed the Complaint with leave to amend pursuant to Rule 8 of the Federal Rules of Civil Procedure and the Local Rules for the District of Hawaii. ECF No. 9 (“Dismissal Order”). The Dismissal Order carefully explained what Lagmay must do to properly amend, instructed him to limit his statement of facts to twenty-five pages, label each claim separately, and detail what each Defendant personally did or failed to do to violate his rights.

         On December 22, 2016, Lagmay filed the FAC. ECF No. 18 (135 pages). The FAC alleges that seventy-six state officials conspired to violate Lagmay's First, Fourth, Eighth, and Fourteenth Amendment rights in retaliation for his filing grievances and three previous lawsuits concerning the conditions of his confinement.[1] Id., PageID #330-372.

         B. Summary of FAC[2]

         Although the FAC's eighty-seven-page statement of facts is not presented chronologically and is frequently confusing, [3] Lagmay appears to allege that his left and/or right foot, ribs, arms, and/or shoulders were permanently injured while he was incarcerated on the Mainland in 2008. He repeatedly refers to “Exhibit L” as evidence of these allegedly permanent injuries and to provide support for his claims. Exhibit L is a referral from HCF physician Dr. S. DeWitt and Defendant C. Leong, RN, requesting Defendant Dr. Frauens to consult on Lagmay's “plantar fasciitis, [L] elbow will not fully extend, [L] 10th rib pain (prevents lying on [L] side).” ECF 7-4, PageID #193 (Consultation Record). This referral is dated October 16, 2012.

         Dr. Frauens' October 18, 2012 consultation response states that Lagmay complained of “incomplete extension of [R] elbow x 2 yrs;” “[R] elbow tight-contracted[;] [R] biceps tender, X-rays” negative for fracture, “dislocation[, ] or sublaxation.” Id. (Consutant's Report).[4] Dr. Frauens' impression was that Lagmay had a “[c]ontracted [R] elbow, ” for which Frauens “[i]nstructed [Lagmay] on stretching motion, ” and prescribed an injection that Lagmay “rejected.” Id. Dr. Frauens also diagnosed “plantar fascitis, ” and prescribed “[p]roper footwear, ” per “Dr. Paderes' request.” Id. This document forms the evidentiary basis for most, if not all, of Lagmay's claims.

         Lagmay alleges that Defendants ACOs Arcalas, Kami, Dacoscos, Lorico, Mareco, Flores, Castagan, Smith, Asuncion, Coifin, Alsted, Jinbo, Lee, Palau, Guitguitin, Silva, Botelho, Mulu, Fonoti, Gernler, Lum, Aceedello, and Tom routinely cuffed his wrists behind his back during movements to and from his cell between April 28, 2015, and May 21, 2016, despite his having shown them Exhibit L. He claims this violated the Eighth Amendment. See generally FAC, ECF No. 18, PageID #444-58.

         After DPS Director Nolan Espinda and HCF Captain Palleka approved Lagmay's transfer from the SHU to the general population, on or about August 17, 2015, Lagmay refused to transfer because he claims that he is a confidential informant, and he feared for his safety. See id., PageID #412-15. ACO Lei then issued Lagmay a Misconduct Report and instructed him to ready his cell for his transfer to another segregated cell. When Lagmay reported to the security gate without the Misconduct Report, ACO Wyatt Lee directed ACO Stephen to return to the cell with Lagmay, retrieve the Misconduct Report, and ascertain that Lagmay's cell was in order. ACO Stephen affirmed that “Protocol was complete, ” and escorted Lagmay to his new cell. Id., PageID #415.

         Between September 2, 2015, and March 14, 2016, Lagmay telephoned Ombudsman staff members L. Gansin and Almeida six times to report that HCF medical staff were ignoring his requests for medical care and interfering with his grievances. He claimed that he feared for his safety. Id., PageID #436-43. Gansin and Almeida allegedly replied that they could not assist Lagmay until he exhausted his claims through the DPS grievance process.

         On September 20, 2015, Lagmay received a formal Notice of Report of Misconduct and Hearing, charging him with violating four DPS Policies and Procedures.[5] Id., PageId. #415-17; see also ECF No. 7-6, PageID #266 (Ex. “#5 of 77”). The report specifically charged Lagmay with leaving thirty-four damaged grievance forms in his cell during the August 17, 2015 transfer. Lagmay argues these charges are false because ACO Stephen had approved his cell for transfer and ACO Lei had already issued a Misconduct Report. Lagmay was found guilty of all four charges based on “Sgt. Lee['s] reported non-compliance with order to move, damage and untidiness.” Id.

         On February 16, 2016, Lagmay alleges that Tanya, RN, while chewing food, took his temperature without wearing gloves. FAC, ECF No. 18, PageID #397-98. Lagmay says he told Tanya that Dr. Frauens had sworn at him “because he was fed up with [Lagmay] telling him that ‘permanent injuries' still hurt.” Id., PageID #398. Tanya allegedly became angry and was unable to get a reading when she attempted to take Lagmay's blood pressure on his left arm. Lagmay asked her to use a manual blood pressure cuff on his right arm and claims that she “rip[ped] the velcro” from his left arm and placed it on his right arm. He asked her again to use a manual blood pressure cuff, but she allegedly ignored him. Lagmay states the strap crushed his “permanently injured right arm, ” causing “unbearable torque pressure.” Id., PageID #398.

         Lagmay alleges that ACOs Christensen, Sarkissian, and Naole inspected his paperwork on April 5, 2016, approved a certain amount to keep in the cell, and took the remaining documents to storage. Id., PageID #393-94. Sarkissian asked to see Lagmay's medical “Memo” for knee and elbow braces. Lagmay showed them his “Prosthesis Memo” for knee braces and a “Purchase Slip” for his elbow sleeve. Id., PageID #394. He says they then confiscated these items on Tanya, RN's authority. Id.; see also Exs. G-J, M, ECF No. 7-4, PageID #188-91, 199.

         On May 25, 2016, ACOs Christensen, Sarkissian, Naole, Akau, Kowelski, and Olomua transferred Lagmay to Cell 1. Id., PageID #395-96, 401-02, 409-11, 419-27. Initially, they cuffed his wrists in front so that he could carry his belongings. When they arrived at Cell 1, Sarkissian removed Lagmay's handcuffs, and Christensen inspected his papers. Christensen decided Lagmay had too many papers to keep in his cell, pushed the papers through the trapdoor onto the floor, and gave Lagmay one minute to choose which papers to put in storage.

         When they returned to Lagmay's cell, Sarkissian ordered him to put his wrists behind his back and raise his arms through the trapdoor to be restrained. Lagmay told Sarkissian that his permanent injuries prevented him from doing so. Sarkissian and Christensen allegedly screamed at Lagmay to comply, which he did. ACO Naole opened the door, Sarkissian confiscated Lagmay's papers in excess of 4½ inches, medical shoes, medication, and a used in forma pauperis application. Christensen told Lagmay to find the medical Memo for his shoes, and Sarkissian gave Lagmay's medication to Tanya, RN. Sarkissian removed Lagmay's ankle restraints, and they left his cell.

         Naole closed the cell door and Sarkissian ordered Lagmay to raise his wrists through the trapdoor to be uncuffed. Lagmay again told Sarkissian that he could not, but eventually he complied with concomitant pain. While Christensen, Naole, Akau, Kowelski, Olomua, and Tanya allegedly watched, Sarkissian sharply pulled Lagmay's wrists through the trapdoor and removed the cuffs. Lagmay states that he felt his left biceps “rip.” Id., PageID #426.

         On May 28, 2016, Janis Palafox, RN, came to Lagmay's cell, apparently in response to his medical request. See ECF No. 7-5, PageID #201. Palafox examined Lagmay, noted an “egg-sized swelling on the left biceps, ” asked him what had happened, and questioned why he waited three days to report the incident. ECF No. 7-4, PageID #184 (Ex. D). Lagmay told her that he had sent a grievance to Warden Sequeira that night but feared to do more while Sarkissian was on duty. Palafox completed a sick call report, photographed Lagmay's left biceps, administered his prescribed Indomethacin and Acetaminophen, and generated a memo allowing him to be handcuffed in front “per Sargeant's [sic] request, for 4 days when pt needs to be moved, ie to the shower.” Id., PageID #181-85 (Ex. A, B, D). Palafox ordered daily monitoring of Lagmay's left biceps and approved a referral to a medical provider if his symptoms did not improve within three days. Lagmay received a copy of Palafox's report on June 16, 2016.

         On May 30 and June 10, 2016, Lagmay submitted two more medical requests regarding his injury. See FAC, ECF No. 18-3, PageID #411. He does not detail the outcome of these requests.

         Based on these facts, Lagmay alleges that all Defendants conspired to violate his constitutional rights and obstruct justice in retaliation for his having filed grievances and lawsuits regarding prison conditions.

         II. STATUTORY SCREENING

         The court must screen all complaints brought by prisoners proceeding in forma pauperis or seeking relief against a governmental entity, or officer or employee of a governmental entity. 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Complaints or claims must be dismissed if they are frivolous, malicious, fail to state a claim on which relief may be granted, or seek relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         III. PLEADING STANDARD

         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 requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Under 42 U.S.C. § 1983, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The mere possibility of misconduct, however, falls short of meeting the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Leave to amend should be granted if it appears the plaintiff can correct the defects in the complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). When it is clear the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         IV. ...


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