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Char v. Kaiser Hospital

United States District Court, D. Hawaii

January 2, 2019

MARK ALAN CHAR, #A0234438, Plaintiff,



         Before the Court is pro se Plaintiff Mark Alan Char's First Amended Complaint (FAC). ECF No. 9. Char is a pretrial detainee incarcerated at the Halawa Correctional Facility (HCF).[1] Char alleges that Defendants Kaiser Permanente Moanalua Medical Center (Kaiser Permanente), its unidentified doctors, nurses, and aides (collectively, Kaiser Permanente Defendants), and a Department of Public Safety (DPS) correctional officer, ACO John Doe, violated his federal civil rights and state law during his hospitalization at Kaiser Permanente between September 29 and October 10, 2016. Char alleges jurisdiction for his claims arises under 42 U.S.C. § 1983 and 28 U.S.C. § 1367.

         The FAC is DISMISSED in part pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a-b). After Char identifies ACO Doe Defendant and successfully moves to substitute him, the Court will direct the United States Marshal to serve the FAC at Char's direction, as limited below.


         Because 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)).

         Section 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. at 678.

         Rule 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         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 a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).


         To 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).

         A. Claims in the FAC

         Char was transferred from the Oahu Community Correctional Center (OCCC) to Kaiser Permanente on August 29, 2016, due to a blood infection he says he developed “from an earlier assault, ” by two Kaiser Permanente employees. FAC, ECF No. 9, PageID #63. Char alleges that when he arrived at Kaiser Permanente, several unidentified Kaiser Permanente staff roughly transferred him to a gurney, overpowered him, flipped him upside down, and “tortured” him by pouring hot water on his “genitalia, burning [him].” Id. Char told various doctors and nurses about this treatment, but they refused to intervene or report this alleged abuse. Char suggests Kaiser Permanente staff mistreated him because they were co-workers and friends of his attackers.

         Char alleges that during the forty-two days that he remained at Kaiser Permanente, hospital staff constantly harassed him. He claims two nurses lost control of him while changing his bed sheet, dropping him roughly to the mattress, which caused a whiplash and dislocated his collar bone. A doctor ordered an x-ray, but allegedly told Char they would not repair his injury. When Char later yelled for help and demanded heat packs for his shoulder, ACO John Doe, who Char alleges “acted within the scope of his employment with the Department of Public Safety (OCCC), ” told him to shut up and hit him with a “solid pillow.”[2] Id., PageID #64.

         Char claims Kaiser Permanente staff refused to treat edema in his hands and left foot for five months and he developed a wound on his shoulder that required draining. He complains that, because he was bedridden the entire time at Kaiser Permanente with drains in his ...

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