United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C.
§§ 1915(e) & 1915A(a)
Gillmor United States District Judge.
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. He seeks damages and injunctive relief.
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.
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. §
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.
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).
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.
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.
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.
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.
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.
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
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,
complains of events that allegedly began at HCF in December
2014 and apparently concluded in October 2015. 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 ...