United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT IN PART WITH LEAVE TO
A. OTAKE UNITED STATES DISTRICT JUDGE
Plaintiff Mark Alan Char is a pretrial detainee incarcerated
at the Halawa Correctional Facility. Char alleges that Defendants
Kaiser Permanente Moanalua Medical Center (Kaiser
Permanente), its employees, Doctors John Does 1-2 and Jane
Does 1-2 (collectively, Kaiser Defendants), and a Department
of Public Safety correctional officer, ACO John Doe, violated
his federal civil rights and state law while he was
hospitalized at Kaiser Permanente in September and October
Complaint is DISMISSED in part with leave to amend pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A(a-b).
Char is a prisoner proceeding in forma pauperis who alleges
claims against government officers, the court performs a
pre-answer screening of his Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(a). Byrd v. Phoenix
Police Dep't, 885 F.3d 639, 641 (9th Cir. 2018).
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
§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d
1002, 1004 (9th Cir. 2010) (discussing § 1915A(b)).
1915 screening involves the same standard of review as that
under Federal Rule of Civil Procedure 12(b)(6). See
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(screening under § 1915(e)(2)); Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (screening
under § 1915A(b)). That is, 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. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
12(b)(6) is read in conjunction with Rule 8(a). Zixiang
Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under
Rule 8, 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 a complaint must allege
enough facts to provide both “fair notice” of the
claim asserted and “the grounds upon which [that claim]
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 & n.3 (2007) (citation and quotation marks
omitted); see also Iqbal, 556 U.S. at 555 (stating
Rule 8 pleading standard “demands more than an
accusation”). The “mere possibility of
misconduct” falls short of meeting this standard.
Iqbal, 556 U.S. at 555; see also Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
litigants' pleadings must be liberally construed, and all
doubts should be 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, 203 F.3d at 1130.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988). 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).
Counts I-VIII: Kaiser Defendants
alleges that Kaiser Defendants Doctors John Does 1-2
improperly cared for him, causing him to develop a pressure
ulcer that lasted approximately ten months and required
surgery. He alleges Jane Does 1-2, Kaiser Permanente nurses
working the midnight shift, dislocated his collar bone when
they roughly changed his bed sheets. Char alleges Kaiser
Defendants were negligent and deliberately indifferent to his
serious medical needs in violation of the Eighth and
Fourteenth Amendments and state law. See Compl., ECF
No. 1, PageID #7-14, Counts I-VIII (alleging Eighth and
Fourteenth Amendment violations and intentional infliction of
emotional distress (IIED), negligence, negligent infliction
of emotional distress (NIED), assault and battery, and
as a pretrial detainee, Char's claims arise under the
Fourteenth, not the Eighth Amendment. See Castro v. Cty.
of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016)
(citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)
(holding that, under the Due Process Clause, a pretrial
detainee may not be punished prior to conviction)). Claims
alleged under the Eighth Amendment are dismissed.
private hospitals and doctors are not generally considered
state actors amenable to suit under § 1983. See
Briley v. California, 564 F.2d 849, 855-856 (9th Cir.
1977) (noting that “private hospitals and physicians
have consistently been dismissed from § 1983 actions for
failing to come within the color of state law requirement of
this section”); see also Babchuk v. Indiana Univ.
Health, Inc., 809 F.3d 966, 970-71 (7th Cir. 2016).
“[T]o show that a private action is in fact state
action, the plaintiff must show that there is a sufficiently
close nexus between the State and the challenged action of
the regulated entity so that the action of the latter may be
fairly treated as that of the State itself.”
Grijalva v. Shalala, 152 F.3d 1115, 1119 (9th Cir.
1998) vacated on other grounds by 526 U.S. 1096
(1999); see also West v. Atkins, 487 U.S. 42, 54
(1988) (holding that a doctor employed part-time by the state
acted under color of law when he treated inmates in a state
prison); Chudacoff v. Univ. Med. Ctr. of S. Nevada,
649 F.3d 1143, 1146 (9th Cir. 2011) (holding county
hospital's medical committee members were state actors,
because the hospital was a public entity that was required to
“meet the provisions of the Fourteenth Amendment,
” and defendants' authority “flow[ed]
directly from the state”).
may only hold Kaiser Defendants liable if he shows that they
contracted directly with the state to provide medical
services to inmates and can otherwise show their close
connection, or nexus, to the State. Nothing within Char's
Complaint as pleaded, ...