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Gonda v. Recarte

United States District Court, D. Hawaii

October 18, 2017

JUSTIN GONDA, #A1049736, Plaintiff,
v.
SCOTT RECARTE, et al., Defendants,

          ORDER DISMISSING SECOND AMENDED COMPLAINT IN PART AND DIRECTING SERVICE

          Susan Oki Mollway, United States District Judge.

         Before the court is pro se Plaintiff Justin Gonda's second amended prisoner civil rights complaint (“SAC”), brought pursuant to 42 U.S.C. § 1983. SAC, ECF No. 15. Gonda alleges that state officials violated his constitutional rights under the Eighth and/or Fourteenth Amendments when they failed to protect him from an assault by other inmates and then denied him adequate medical care.[1] Gonda seeks declaratory relief and compensatory and punitive damages.

         Gonda's claims against all Defendants named in their official capacities are DISMISSED with prejudice. Gonda's claims against Dr. Pedri, Dr. Banner, Governor Ige, Director Espinda, Deputy Director Maesaka, Warden Sequeira, and Chief of Security Johnson in their individual capacities are DISMISSED without prejudice. Gonda's claims against Scott Recarte, Henry Moe, John Doe, and Matthew Kuresa in their individual capacities shall proceed and be served.

         The United States Marshals Service SHALL serve the Second Amended Complaint, as limited herein, on Defendants Recarte, Moe, Doe, and Kuresa as directed by Gonda, and they are DIRECTED to file a response.

         I. BACKGROUND

         On June 16, 2017, Gonda commenced this action. See ECF Nos. 1, 3, 4.

         On August 9, 2017, Gonda filed his First Amended Complaint (“FAC”). ECF No. 9. He alleged that: (1) Recarte, Moe, and Doe failed to protect him from an assault by two inmates that occurred on April 26, 2017; (2) Kuresa failed to prevent his later injury in his cell; and (3) Dr. Pedri and Dr. Banner failed to provide him adequate medical care thereafter.

         On September 15, 2017, the court screened the FAC pursuant to 28 U.S.C. § 1915(e) and § 1915A(a) and dismissed claims: (1) against all Defendants in their official capacities, with prejudice; (2) against Dr. Banner, with leave to amend; and (3) as alleged under 42 U.S.C. § 1983 against Dr. Pedri, with leave to amend. See Order Dismissing Amended Complaint In Part, ECF No. 12 (“September 15 Order”). Gonda's Fourteenth Amendment claims against Recarte, Moe, Doe, and Kuresa, and his state law negligence claims against Dr. Pedri and Kuresa were deemed suitable for service. See Id. The court directed Gonda either to file an amended complaint curing the deficiencies in the claims dismissed without prejudice or to notify the court that he would stand on his claims against Recarte, Moe, Doe, Dr. Pedri, and Kuresa as limited by the September 15 Order. In the latter event, the court would direct the United States Marshals Service Service to serve the FAC.

         On September 28, 2017, Gonda filed the SAC. ECF No. 15. He alleges that previously named Defendants Recarte, Moe, Doe, Pedri, Kuresa, and Banner, and newly named Defendants Ige, Espinda, Maesaka, Sequeira, and Johnson acted with deliberate indifference to his health or safety in violation of the Eighth and/or Fourteenth Amendments. He asserts that the State of Hawaii is liable for Defendants' acts or omissions pursuant to Haw. Rev. Stat. § 662-2.

         II. SCREENING

         The court conducts a pre-answer, sua sponte screening of prisoners' pleadings pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The court must dismiss a prisoner's complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune from suit. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (describing pre-answer screening) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (same). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

         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.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.

         Leave to amend should be granted if it appears the plaintiff can correct the complaint's defects. Lopez, 203 F.3d at 1130. A court may dismiss a complaint or claim without leave to amend, however, when “it is clear that the complaint could not be saved by any amendment.” Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         III. DISCUSSION

         Gonda is proceeding under 42 U.S.C. § 1983. “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).

         Additionally, a plaintiff must allege that he suffered a specific injury as a result of a particular defendant's conduct and an affirmative link between the injury and the violation of his rights. See Monell v. Dep't of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         A. Summary of Allegations in the SAC[2]

         The SAC alleges that Defendants violated Gonda's rights under the Eighth and/or Fourteenth Amendments, omits negligence claims that Gonda had asserted in prior pleadings, [3] and asserts that the State of Hawaii has waived its immunity for liability for Defendants' constitutional torts pursuant to Haw. Rev. Stat. § 662-2.

         Gonda says that he was attacked by two inmates on the OCCC recreation yard on Wednesday, April 26, 2017, at approximately 9:30 in the morning. He says that Officers Recarte, Moe, and Doe stood nearby and observed the assault, yet failed to intervene or come to his aid. After the assault, Recarte denied that he had seen anything.

         Gonda was taken to the OCCC infirmary, where cuts on his eye and elbow were cleaned and he was given an ice pack for his face. Gonda says Dr. Banner was present, but he does not detail what Banner said or did, other than alleging that Banner denied his request to be taken to an emergency room. Someone at the infirmary, perhaps Banner, explained that x-rays would be taken the next day, Thursday, April 27, 2017.[4] After three hours, Gonda returned to his cell. At 7:00 p.m., he was given Naproxen 500 mg. for pain.

         The next day, April 27, 2017, Gonda returned to the infirmary. X-rays were taken that confirmed that his arm was broken and showed that he had a possible fracture to his face. Dr. Pedri put Gonda's arm in a cast, gave him a sling, and told him that he would be given a “No Top Bunk” memorandum.[5] When Gonda did not receive this memorandum that night, he asked the nurse to consult with Drs. Banner and Pedri, who he said were aware of his injuries and had approved the memorandum.

         Gonda slept in a lower bunk until May 1, 2017, when Kuresa moved him into a cell with a cellmate, and directed Gonda to take the top bunk. Gonda says that Kuresa did so over his objections, and despite Gonda's obvious injuries, because Gonda did not have a “Top Bunk” memorandum, and his new roommate required the lower bunk because he urinated frequently. Gonda says the roommate did not have Top Bunk memorandum.

         On May 2, 2017, Gonda tripped while climbing from the top bunk. He was unable to prevent the fall because of his cast and sling and he allegedly incurred further injuries to his face from the fall. Gonda does not explain what medical treatment he ...


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