United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C.
§§ 1915(e) & 1915A(a) WITH LEAVE GRANTED TO
Michael Seabright Chief United States District Judge
the court is pro se Plaintiff Shawn Thomas Lau's prisoner
civil rights Complaint. ECF No. 1. Lau, a pre-trial detainee
housed at the Oahu Community Correctional Center
(“OCCC”), is proceeding in forma pauperis. ECF
No. 5. Lau claims that OCCC Chief of Security
(“COS”) Denise Johnson, Correctional Officer
(“CO”) Michael Kekuaokalani, and Richard Banner,
M.D. (collectively, “Defendants”), violated the
Eighth Amendment in connection with an accident Lau
experienced in his cell and the alleged delay in surgery
thereafter. For the following reasons, Lau's Complaint is
DISMISSED pursuant to 28 U.S.C.§§ 1915(e) and
1915A(a) for failure to state a claim, with leave granted to
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). A plaintiff must “set forth specific facts as
to each individual defendant's” deprivation of his
rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.
1988); see also Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989). That is, a plaintiff must demonstrate each
defendant's personal participation in the deprivation of
his rights. Iqbal, 556 U.S. at 676-77; Simmons
v. Navajo Cty., 609 F.3d 1011, 1020-21 (9th Cir. 2010).
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
plaintiff's 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. Nat'l 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.3d 1122, 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.
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 official in his
or her official capacity is not a suit against the official
but rather is a suit against the official's
office.”); Ex parte Young, 209 U.S. 123
names Defendants in their individual and official capacities
and seeks compensatory and punitive damages only. Lau's
claims against Defendants named in their official capacities
Amendment: Deliberate Indifference
alleges Defendants violated his rights under the Eighth
Amendment. But, because he was a pretrial detainee when the
incidents at issue occurred, Lau's claims arise under the
Fourteenth Amendment's Due Process Clause rather than
under the Eighth Amendment's prohibition against cruel
and unusual punishment. See Bell v. Wolfish, 441
U.S. 520, 535 (1979); Castro v. Cty. of Los Angeles,
833 F.3d 1060, 1067-68 (9th Cir. 2016), cert.
denied, 137 S.Ct. 831 (2017).
Eighth Amendment's standard for deliberate indifference
requires an objective and subjective showing. First, the risk
posed to the prisoner must be objectively, sufficiently
serious. Farmer v. Brennan, 511 U.S. 825, 834 (1970)
(citation omitted). Second, the prison official must
subjectively “know of and disregard an excessive
risk to inmate health or safety.” Id. at 837.
“In other words, the official must demonstrate a
subjective awareness of the risk of harm.”
Castro, 833 F.3d at 1068 (internal citation
omitted). And, until recently, this standard was also applied
to pretrial detainees' claims under the Fourteenth
Amendment. See Lolli v. Cty. of Orange, 351 F.3d
410, 419 (9th Cir. 2003) (reasoning that pretrial
detainee's claim of deliberate indifference to a serious
medical need is analyzed under the Fourteenth Amendment Due
Process Clause rather than under the Eighth Amendment, but
same standards apply); Castro, 833 F.3d at 1069. In
the context of an excessive force claim, the United States
Supreme Court has recently rejected the subjective component
of the test, holding that the “appropriate standard for
a pretrial detainee's excessive force claim is solely an
objective one.” Kingsley v. Hendrickson, 135
S.Ct. 2466, 2473-74 (2015). Rather, “a pretrial
detainee must show only that the force purposely or knowingly
used against him was objectively unreasonable.”
Id. at 2473.
Ninth Circuit has extended Kingsley's rationale
to pretrial detainees' failure-to-protect claims, setting
forth a “less stringent” standard that eliminates
a “subjective intent to punish.” Castro,
833 F.3d at 1067-68, 1071 & n.4. Under Castro, a
pretrial detainee alleging a failure-to-protect claim must
(1) The defendant made an intentional decision with respect
to the conditions under which the plaintiff was confined;
(2) Those conditions put plaintiff at substantial risk of
suffering serious harm;
(3) The defendant did not take reasonable available measures
to abate that risk, even though a reasonable officer in the
circumstances would have appreciated the high degree of risk
involved -- making the consequences of the defendant's
conduct obvious; and
(4) By not taking such measures, the defendant caused the
Id. at 1071 & n.4. Castro characterized
this test as requiring “more than negligence but less
than subjective intent -- something akin to reckless
disregard.” Id. Castro did not address whether
this new Kingsley test applies beyond
failure-to-protect claims to all pretrial detainee
conditions of confinement claims. To date, only the Second
Circuit has extended Kingsley's holding to
encompass all pretrial detainee deliberate indifference
conditions-of-confinement claims. See Darnell v.
Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (explicitly
relying on Castro, and interpreting
Kingsley as “standing for the proposition that
deliberate indifference for due process purposes should be
measured by an objective standard”). The remaining
circuits to discuss the issue have either ...