United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Derrick K. Watson United States District Judge.
the court is pro se Plaintiff Vise Ah Cheung, Jr.'s
prisoner civil rights Complaint and Motion for Appointment of
Counsel. ECF Nos. 1, 2. Ah Cheung alleges that Defendants
violated his constitutional rights by failing to prevent his
"slip and fall" accident and thereafter providing
him inadequate medical care. Ah Cheung's Complaint is
DISMISSED with leave granted to amend and his Motion to
Appoint Counsel is DENIED.
Cheung is a pre-trial detainee who has been confined in
Module 19 of the Oahu Community Correctional Center
("OCCC") since November 16, 2016. He is proceeding
in forma pauperis. ECF No. 7. Ah Cheung states that Module
19's roof is dilapidated and "leaks all over the
place" when it rains. Compl., ECF No. 1, PagelD #2. On
January 6, 2017, Ah Cheung slipped and fell in a puddle of
water that formed on Module 19's floor during a rain
storm, injuring his left shoulder. Id., PagelD #7
(Count III). Ah Cheung alleges Defendant OCCC Warden Francis
Sequeira and Adult Correctional Officer ("ACO")
John Estabillio violated the Eighth Amendment by failing to
place "wet floor" signs near the puddle or
otherwise prevent his fall. Id., Pageld #6-7 (Counts
Cheung reported his injury the next day, January 7, 2017, and
was immediately taken to the OCCC medical unit, which
transferred him to Straub Medical Center for evaluation. He
returned to OCCC that day, where he was seen by Defendant
John T. Frauens, M.D., a DPS orthopedic surgeon. Dr. Frauens
immobilized Ah Cheung's left shoulder with a sling, and
recommended he begin "ROM" (range of motion)
exercises in two to three weeks. Id., PagelD #7.
January 13, 2017, Ah Cheung met again with Dr. Frauens. He
told Dr. Frauens that he was still in pain and requested
surgery. Dr. Frauens replied that Ah Cheung's shoulder
ligaments were torn, but opined that surgery was unnecessary.
Ah Cheung requested a second opinion. Ah Cheung had surgery
on his shoulder on February 2, 2017, and states that a second
surgery may be necessary. See id., PagelD #2, 5
(Count I). Ah Cheung alleges that Dr. Frauens' actions
violated the Eighth Amendment.
courts must screen all cases in which prisoners seek redress
from a governmental entity, officer, or employee, or seek to
proceed without prepayment of the civil filing fees.
See 28 U.S.C. §§ 1915(b)(2) and 1915A(a).
The court must identify cognizable claims and dismiss those
claims that are frivolous, malicious, fail to state a claim
on which relief may be granted, or seek monetary relief from
a defendant who is immune from such relief. Id. at
§§ 1915(b)(2) and 1915A(b).
complaint 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). Detailed factual
allegations are not required, but "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, 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.
prisoners' pleadings must be liberally construed and
given the benefit of any doubt. Blaisdell v.
Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However,
"the liberal pleading standard . . . applies only to a
plaintiffs factual allegations." Neitzke v.
Williams, 490 U.S. 319, 330 n.9 (1989). "[A]
liberal interpretation of a civil rights complaint may not
supply essential elements of the claim that were not
initially pled." Bruns v. Natl Credit Union
Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting
Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
1982)). A plaintiff must identify specific facts supporting
the existence of substantively plausible claims for relief.
Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014)
(per curiam) (citation omitted). Leave to amend should be
granted if it appears possible that the plaintiff can correct
the complaint's defects. Lopez v. Smith, 203
F.3dll22, 1130 (9th Cir. 2000).
sustain an action under section 1983, a plaintiff must show
'(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the
conduct deprived the plaintiff of a federal constitutional or
statutory right.'" Hydrick v. Hunter, 500
F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated
and remanded on other grounds, 556 U.S. 1256 (2009);
see also West v. Atkins, 487 U.S. 42, 48 (1988); 42
U.S.C. § 1983.
Immunities and Official Capacity Claims
Eleventh Amendment bars suits for money damages in federal
court against a state, its agencies, and state officials
acting in their official capacities." Aholelei v.
Dep t of Pub. Safety,488 F.3d 1144, 1147 (9th Cir.
2007). Defendants named in their official capacities are
subject to suit under § 1983 only "for prospective
declaratory and injunctive relief... to enjoin an alleged
ongoing violation of federal law." Oyama v. Univ. of
Haw., 2013 WL 1767710, at *7 (D. Haw. Apr. 23, 2013)
(quoting Wilbur v. Locke,423 F.3d 1101, 1111 (9th
Cir. 2005), abrogated on other grounds by Levin v.
Commerce Energy Inc.,560 U.S. 413 (2010)); see also
Will v. Mich. Dep't of State Police,491 U.S. 58,
70-71 (1989) ("[A] suit against a state ...