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Cheung v. State

United States District Court, D. Hawaii

June 27, 2017

VISE AH CHEUNG, JR., #A1029843, Plaintiff,
v.
STATE OF HAWAII, DEP'T OF PUBLIC SAFETY, OCCC, FRANCIS X. SEQUEIRA, JOHN T. FRAUENS, JOHN ESTABILLIO, Defendants,

          ORDER DISMISSING COMPLAINT AND DENYING MOTION FOR APPOINTMENT OF COUNSEL

          Derrick K. Watson United States District Judge.

         Before 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.

         I. BACKGROUND

         Ah 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 II, III).

         Ah 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.

         On 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.

         II. SCREENING

         Federal 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).

         A 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. 2002).

         Pro se 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).

         III. DISCUSSION

         "To 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.

         A. Immunities and Official Capacity Claims

         "The 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 ...


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