United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT IN PART AND DIRECTING
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE
the court is pro se Plaintiff Gavin Bolosan's prisoner
civil rights Complaint brought pursuant to 42 U.S.C. §
1983. Bolosan alleges claims against the Hawaii Department of
Public Safety (DPS), Oahu Community Correctional Center
(OCCC) Nurse Practitioner Courtney Tanigawa, and Adult
Correctional Officer Sgt. K. Fonseca (collectively,
Defendants). Bolosan alleges that Defendants violated the
Eighth and Fourteenth Amendments when (1) Tanigawa
deliberately neglected to review his DPS institutional
medical records during his reentry examination at OCCC; and
(2) Fonseca disregarded Bolosan's claim that he had a
long-standing, documented, medical condition that made a top
bunk unsafe for him. Compl., ECF No. 1, PageID #2. Bolosan
claims that he fell and injured himself on or about March 31,
2018, after Fonseca assigned him to a top bunk, due to
Defendants' actions or inactions.
states a plausible claim for relief against Defendants
Tanigawa and Fonseca in their individual capacities under the
Eighth or Fourteenth Amendment, and those claims are suitable
for service. Tanigawa and Fonseca are required to file a
response to Bolosan's claims after service is perfected.
See 42 U.S.C. § 1997(e)(g)(2).
fails to state a claim against the Hawaii Department of
Public Safety and against Tanigawa and Fonseca in their
official capacities and those claims are DISMISSED.
court must conduct a pre-Answer screening of all
prisoners' pleadings pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(a). Claims or complaints 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); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).
under §§ 1915(e)(2) and 1915A(a) involves the same
standard of review as that used under Federal Rule of Civil
Procedure 12(b)(6). See Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012); Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). 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). The court must grant leave to amend if it appears
the plaintiff can correct the defects in the complaint,
Lopez, 203 F.3d at 1130, but 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).
reentered OCCC on March 31, 2018, at 11:30 p.m., after nine
months out of DPS custody. He says that Tanigawa conducted a
perfunctory, five-minute reentry medical assessment
examination, during which she only weighed him and took his
blood pressure. He claims that, although Tanigawa “knew
of [his] medical history, ” she failed to review his
institutional DPS medical records. Compl., ECF No. 1, PageID
Bolosan alleges that these records contain a medical
memorandum that prohibits his assignment to a top bunk
indefinitely. He alleges that if Tanigawa had reviewed his
medical records, she would have seen this memorandum and
could have prevented his assignment to a top bunk.
went to the housing unit after his medical assessment. He
says that, although he “was medical[l]y assigned to the
bottom bunk in cell #111, ” id., PageID #7,
Sgt. Fonseca “forced” him “to move to cell
#110, ” id., PageID #2. A handicapped
inmate with a wheelchair was already assigned to the bottom
bunk in cell #110, leaving Bolosan the top bunk. Bolosan says
that he told Fonseca that he had an indefinite medical
memorandum for a lower bunk in his DPS medical files. Fonseca
allegedly said, “he don't care about that, ”
and threatened Bolosan with disciplinary action if he
didn't accept the cell assignment. Id., PageID
#6-7. Bolosan says that he “blacked out” as he
descended the ladder from the top bunk to use the restroom,
fell, and seriously injured his back. Id., PageID
now experiences severe pain and has difficulty walking,
bending, sitting, lifting, or climbing. He seeks $10 million
in compensation for his medical expenses for the rest of his
life and punitive damages.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege: (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). A plaintiff must also 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