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Char v. Queens Hospital

United States District Court, D. Hawaii

November 1, 2018

MARK ALAN CHAR, #A0234438, Plaintiff,
v.
QUEENS HOSPITAL, DR. BRANDI GARY, JANE DOES 1-10, Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT

          Michael Seabright Chief United States District Judge

         Before the court is pro se Plaintiff Mark Alan Char's first amended prisoner civil rights complaint (“FAC”). ECF No. 4.[1] Char alleges Defendants The Queen's Medical Center, West Oahu (“QMC West”) physician Brandi Gary, M.D., and QMC West nurses Jane Doe 1, and Jane Does 1-10 (collectively, “QMC West Defendants”), violated his federal civil rights and state law when they failed to provide him adequate medical care between August 1-3, 2016.

         Char fails to state a colorable claim against QMC West Defendants and the FAC is DISMISSED with leave granted to amend on or before November 30, 2018.

         I. BACKGROUND

         On August 15, 2018, the court granted Char's in forma pauperis application and dismissed his Complaint without prejudice for lack of subject matter jurisdiction because Char failed to allege any federal causes of action.[2] See Order, ECF No. 3, PageID #20-22. The court explained that, even liberally construing his Complaint as alleging deliberate indifference to his serious medical needs under the Fourteenth Amendment, his statement of facts supported, “at most, an inference of negligence or medical malpractice.” Id., PageId. #22. Char was given leave to amend his pleading if possible to state a federal claim. In the alternative, Char was notified that he could voluntarily dismiss this action and the court would vacate the Order Granting In Forma Pauperis and waive further payment of fees, allowing Char to bring his state law tort claims in the Hawaii state court.

         On October 4, 2018, Char filed the FAC. ECF No. 4. Char now specifically alleges that each QMC West Defendant violated his rights under state law and under the Fourteenth Amendment when they allegedly provided him inadequate medical care between August 1-3, 2016. See Id. at PageID #30. Otherwise, Char's statement of facts in the FAC is virtually identical to those in his original Complaint.

         Char alleges Dr. Gary failed to properly clean his wounds or give him a tetanus shot when she treated him at QMC West on August 1, 2016, at or about 8:00 p.m., which allegedly resulted in sepsis and kidney failure.

         Char further claims that Jane Doe 1, who also treated Char at QMC West on the evening of August 1, 2016, prescribed him a different type of insulin than the type that he told her he normally used. Char alleges that, therefore, he did not receive insulin shots twice a day as he required, “jeopardizing [his] health and life.” Id., PageID #32.

         Char alleges that QMC West nurses Jane Does 1-10, who were allegedly working at the main Honolulu Police Station between August 1-3, 2016, “refused to let [him] eat breakfast, lunch, & dinner” for “about three days” because he was “not able to use the wrong insulin” that Jane Doe 1 had prescribed. Id., PageID #33.

         Char claims that QMC West Defendants denied him adequate medical care in violation of the Fourteenth Amendment and that their actions constitute intentional and negligent infliction of emotional distress (“IIED” and “NIED”) under state law. Char seeks general, compensatory, and punitive damages and costs and fees.

         II. STATUTORY SCREENING

         The court is required to conduct a pre-Answer screening of all prisoners' pleadings 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). The court must dismiss a claim or complaint that is frivolous, malicious, fails to state a claim for relief, or seeks damages from defendants who are immune from suit. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

         Screening under §§ 1915(e)(2) and 1915A(b) involves the same standard that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (screening under § 1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (screening under § 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. The “mere possibility of misconduct” or an “unadorned, the defendant-unlawfully-harmed me accusation” falls short of meeting this plausibility standard. Id. at 678-79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         Pro se 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. If the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         III. ...


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