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Bolosan v. State of Hawaii Dep't of Public Safety

United States District Court, D. Hawaii

January 31, 2019

GAVIN BOLOSAN, #A1055979, Plaintiff,
v.
STATE OF HAWAII DEP'T OF PUBLIC SAFETY, et al., Defendants.

          ORDER DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE

          J. MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE

         Before 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.

         Bolosan 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).

         Bolosan 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.

         I. STATUTORY SCREENING

         The 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).

         Screening 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).

         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). 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).

         II. BACKGROUND

         Bolosan 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 #2.[1] 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.

         Bolosan 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.[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 #7.

         Bolosan 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.

         III. DISCUSSION

         To 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 ...


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