United States District Court, D. Hawaii
ORDER DISMISSING AMENDED COMPLAINT IN PART
DERRICK WATSON, United States District Judge
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.
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
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.
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).
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.
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. Id., PageID #330-372.
Summary of FAC
the FAC's eighty-seven-page statement of facts is not
presented chronologically and is frequently confusing,
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.
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). 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
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.
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.,
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
September 20, 2015, Lagmay received a formal Notice of Report
of Misconduct and Hearing, charging him with violating four
DPS Policies and Procedures. 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.
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.
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.
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.
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.
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.
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,
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
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.
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. §
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,
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.
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).
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).