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Rowan v. State

United States District Court, D. Hawaii

February 14, 2019

GEORGE C.L. ROWAN, #A0221576, Plaintiff,
v.
STATE OF HAWAII DEP'T OF PUBLIC SAFETY O.C.C.C., JAMES O'SULIVAN, COURTNEY RN, Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         Before the court is pro se Plaintiff George C.L. Rowan's prisoner civil rights Complaint. Rowan alleges claims against the Oahu Community Correctional Center (OCCC), and its Nurses James O'Sullivan and Courtney Tanigawa (collectively, Defendants). Rowan alleges Defendants violated his constitutional right to adequate medical care between October 5 and 11, 2018, while he was incarcerated at OCCC. For the following reasons, Rowan's Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a), for failure to state a colorable claim for relief. Rowan is granted leave to amend his pleadings, on or before April 1, 2019.

         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 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 [1]

         Rowan says that he was examined at The Queen's Medical Center (QMC) on October 3, 2018, and had no signs of infection. He entered OCCC on October 5, 2018, where he states that he received an intake medical exam “for a few thing[s] I came in with, ” although he does not detail what these “things” were. Compl., ECF No. 1, PageID #6. Defendants O'Sullivan and Tanigawa noted an injury on Rowan's medical intake report and referred him for x-rays for osteomyelitis. He repeats that he showed “no signs of infection” at that time, although osteomyelitis is generally defined as “an infection of the bone, ” that can spread from an infection in another part of the body, from an open fracture, or from surgery. https://www.webmd.com/diabetes/osteomyeltis.

         Rowan says, “all these times while being exam[i]ned by medical staff from 10-5-2018 to 10-8-2018 my left big toe was badly treated by medical staff and started becoming infected by i[m]proper procedures and assessment.” Compl., ECF No. 1, PageID #6. On October 11, 2018, he says that, “to prove to staff that my left big toe was infected, I had to self-inflicted myself to get attention.” Id. He was taken to the QMC emergency room where x-rays determined that he had osteomyelitis. A QMC surgeon informed Rowan that he required surgery; a few days later his left, big toe was amputated.

         Rowan alleges O'Sullivan and Tanigawa denied him adequate medical care; he seeks compensation for his pain and suffering.

         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 violation of his rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         A. Eleventh Amendment Immunity

         “The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep't of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Further, “prospective declaratory and injunctive relief” is available under § 1983 only “to enjoin an alleged ongoing violation of federal law.” Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D. Haw. Apr. 23, 2013) (quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005), abrogated ...


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