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Kealoha v. Cabrera

United States District Court, D. Hawaii

December 11, 2017

KRISTOPHER KEALOHA, #A0265817, Plaintiff,

          ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e) & 1915A(a)

          Helen Gillmor United States District Judge.

         Before the Court is pro se Plaintiff Kristopher Kealoha's prisoner civil rights Complaint. ECF No. 1. Although Kealoha is presently incarcerated at the Oahu Community Correctional Center (“OCCC”), he complains about incidents that allegedly occurred at the Halawa Correctional Facility (“HCF”) between December 25, 2014, and October 9, 2015. Kealoha alleges that Department of Public Safety (“DPS”) and HCF officials and staff violated the Eighth Amendment by failing to provide him adequate or timely medical care.[1] He seeks damages and injunctive relief.

         The Court has screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). For the following reasons, Kealoha's Complaint is DISMISSED pursuant to for his failure to state a plausible claim for relief, with leave granted to amend.


         Because Kealoha is a prisoner and is proceeding in forma pauperis, the court must screen his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Complaints or claims that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126 27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

         Screening under §§ 1915(e)(2) and 1915A(b) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (discussing screening under § 1915(e)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (discussing screening pursuant to § 1915A). Under Rule 12(b)(6), a complaint must “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. “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.” Iqbal, 556 U.S. at 678.

         Pro se litigants' pleadings must be liberally construed and all doubts resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Leave to amend must 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).

         II. BACKGROUND[2]

         Kealoha suffered a dislocated shoulder on an unidentified date. On December 25, 2014, he submitted a medical request to RN Cabrera for treatment for his shoulder. RN Cabrera forwarded Kealoha's request to RN Krueger. Kealoha's medical request was returned to him the next day with a notation that he had been “referred to see a[n] Orthopedic.” Compl., ECF No. 1, PageID #6.

         Kealoha says that he requested pain medication, an appointment with an orthopedic specialist, and a medical memorandum allowing him to be handcuffed in the front to lessen his shoulder pain every morning at sick call. Kealoha says that he “never did see a Orthopedic for [his] shoulder injury, ” but does not allege that he never saw any prison physician or medical provider for his shoulder. Id. On October 19, 2015, Kealoha received a medical memorandum permitting him to be handcuffed in front.[3]

         Kealoha previously raised these claims in Kealoha v. Espinda, No. 1:16 cv 00486 JMS KJM (D. Haw. 2016), on September 2, 2016, although he named additional defendants Tina Agaran, RN, and Barney Toyama, M.D. On February 24, 2017, the district court dismissed these claims from that suit as improperly joined and for failure to state a claim. See id., Order, ECF No. 37. Kealoha was told that he could raise the dismissed claims in a new action, but should consider the court's discussion on the claims' deficiencies before doing so.

         Kealoha alleges that Defendants violated the Eighth Amendment when (1) Cabrera failed to provide him medical care for his “serious medical need” after she received his medical request; (2) Krueger failed to schedule an appointment for him with HCF Orthopedic specialist Dr. Frauens; (3) Dr. Frauens failed to provide him medical care, despite being aware of Kealoha's serious medical need through a March 1, 2015 sick care request that Kealoha gave to Nurse Pam; (4) Mun failed to provide him medical care, despite Mun's knowledge of Kealoha's alleged need through Kealoha's grievance; and (5) Does 1 -150 failed to provide him medical care between December 26, 2014, and October 9, 2015, despite his daily requests for pain medication and an orthopedic appointment. Id., PageID #7.


         “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 and quotation marks 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.

         In addition, a plaintiff asserting a § 1983 claim must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). That is, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, that is, an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 37172, 377 (1976).

         A. 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, 7071 (1989).

         Kealoha complains of events that allegedly began at HCF in December 2014 and apparently concluded in October 2015.[4] Kealoha was later transferred to the Federal Detention Center Honolulu and released from custody after his sentence expired on March 4, 2017. See Kealoha, No. 1:16 cv 00486 JMS KJM, ECF No. 45. Kealoha was arrested on a new ...

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