United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT IN
A. OTAKE, UNITED STATES DISTRICT JUDGE
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). 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.
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.
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. 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).
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).
Claims in the FAC
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.
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.” Id., PageID #64.
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 ...