United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT
Michael Seabright Chief United States District Judge
the court is pro se Plaintiff Mark Alan Char's first
amended prisoner civil rights complaint (“FAC”).
ECF No. 4. 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
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.
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. 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.
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.
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.
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.
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.,
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.
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).
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).
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).