United States District Court, D. Hawaii
GEORGE C.L. ROWAN, #A0221576, Plaintiff,
STATE OF HAWAII DEP'T OF PUBLIC SAFETY O.C.C.C., JAMES O'SULIVAN, COURTNEY RN, Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
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,
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 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).
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.
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.
alleges O'Sullivan and Tanigawa denied him adequate
medical care; he seeks compensation for his pain and
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).
Eleventh Amendment Immunity
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 ...