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Bolosan v. Sequeira

United States District Court, D. Hawaii

April 4, 2019

GAVIN BOLOSAN, #A1055979, Plaintiff,
v.
FRANCIS SEQUEIRA, THOMAS EVANS, DR. CAROLINE MEE, Defendants.

          ORDER DISMISSING COMPLAINT

          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 Oahu Community Correctional Center (OCCC) Warden Francis Sequeira, OCCC Chief of Security (COS) Thomas Evans, and Department of Public Safety (DPS) Medical Director Dr. Caroline Mee (collectively, “Defendants”) violated the Eighth and Fourteenth Amendments relating to incidents that allegedly occurred within the past year when he was incarcerated at OCCC.[1]

         Bolosan's claims are so vague and conclusory that he fails to state any colorable claim for relief. The Complaint is DISMISSED with leave granted to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a), subject to the limitations discussed below.

         I. STATUTORY SCREENING

         The court must conduct a pre-Answer screening of all prisoner 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

         On December 3, 2018, Bolosan filed a previous federal civil rights complaint, Bolosan v. Tanigawa, et al., Civ. No. 18-00473 JMS-RLP (D. Haw.) (Bolosan I), to which he refers in the present action. In that action, Bolosan claimed that OCCC nurse Courtney Tanigawa failed to review his institutional medical records when she examined him for reentry on or about March 31, 2018. He alleged these records contained a medical memorandum prohibiting his assignment to a top bunk. When Bolosan arrived at the housing unit, he told Sgt. Fonseca that he had a medical memorandum that prohibited his assignment to a top bunk, but he alleges that Fonseca nonetheless forced him to accept a top bunk. Bolosan fell from the ladder to the top bunk that evening and injured his back.

         On January 31, 2019, the court directed service of the Complaint in Bolosan I, limited to Bolosan's claims that Tanigawa and Fonseca acted with deliberate indifference to his medical needs in their individual capacities; claims against DPS and Tanigawa and Fonseca in their official capacities were dismissed. Bolosan I, Civ. No. 18-00473 JMS-RLP, Order, ECF No. 4, PageID #22.

         Bolosan filed the present Complaint on February 11, 2019. He alleges that Warden Sequiera “allowed his staff to assess the situation with no Moral aptitude leading to the [incompetence] of them to allow the breach of care.” Compl., ECF No. 1, PageID #2. In Count I, Bolosan does not name Sequeira, but he appears to refer to Sequeira when he states that OCCC is “under his supervision, ” and that Bolosan holds “him accountable for my falling off the bed . . . an [sic] letting his sargents [sic] get away with threatening to lock [me] up if I do not move.” Id., PageID #5 (emphases added). Bolosan also complains that his mattress was hard, the cell was small, and there were long lockdowns, which made the living conditions at OCCC “cruel.” Id.

         In Count II, Bolosan says “chief of security” (Evans), “over sees [sic] all of the staff that is employed at the OCCC facility, ” and he alleges that Evans is therefore responsible for Bolosan's assault by two dozen inmates from two different gangs while Bolosan was housed in Annex 1. Id., PageID #6. Bolosan says these inmates “came for me while I was sleeping in my bed, ” because Evans failed to supervise his staff, who “let situations get out [of] control.” Id. He claims Evans is liable for this alleged “retaliation as well [as] medical care.” Id.

         In Count III, Bolosan alleges that Dr. Mee is liable for the pain he has endured for almost a year, because she oversees all DPS medical staff and “the SURP team.”[2] Id., PageID #7. He says that she has breached her duty of care because “she is forcing me to plead guilty to my new charges [in an unidentified criminal proceeding] in order for me to get medical attention.” Id.

         Bolosan requests a hearing and appointment of counsel “so I have some understanding to what is going on with my case.” Id., PageID #8 (Request for Relief). He seeks compensation for his mental, emotional, and physical injuries. Id.

         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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