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Jossy v. State

United States District Court, D. Hawaii

May 29, 2019

MICHAEL JOSSY, #A0718566, Plaintiff,
v.
STATE OF HAWAII, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         Before the court is pro se Plaintiff Michael Jossy's prisoner civil rights Complaint. ECF No. 1. Jossy complains about incidents that allegedly occurred at the Hawaii Community Correctional Center (“HCCC”) between August 13, 2015, and an unidentified date in August 2016, and thereafter at the Halawa Correctional Facility (“HCF”), until he commenced this suit. Jossy alleges Hawaii Department of Public Safety (“DPS”), HCCC, and HCF prison officials violated his constitutional rights.[1]

         For the following reasons, the Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), with leave to amend those claims that are dismissed without prejudice.

         Jossy may file an amended pleading asserting those claims that he elects to proceed with in this action, on or before June 19, 2019. He may file a separate action or actions asserting the claims that are severed from the claims that he pursues herein at his discretion in light of the discussion below. Failure to file a timely amended pleading may result in dismissal of this action with prejudice.

         I. SCREENING

         The court is required to conduct a pre-answer screening of Jossy's Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a), and dismiss any claim that is frivolous, malicious, fails to state a colorable claim for relief, or seeks damages from defendants who are immune from suit. 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). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (screening under § 1915A(a)). Rule 12(b)(6) requires that a complaint “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); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.

         The court must set conclusory factual allegations aside, accept nonconclusory factual allegations as true, and determine whether those factual allegations accepted as true state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 676-684; Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (noting that the court need not accept legal conclusions, unwarranted deductions of fact, or unreasonable inferences as true). “The plausibility standard is not akin to a probability requirement;” rather, it “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         Leave to amend should be granted if it appears the plaintiff can correct the complaint's defects. Lopez, 203 F.3d at 1130. Dismissal without leave to amend is appropriate when “it is clear that the complaint [or claim] could not be saved by any amendment.” Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         II. BACKGROUND AND CLAIMS[2]

         Jossy was incarcerated at HCCC between August 2015 and August 2016, and thereafter at HCF and at the Waiawa Correctional Facility (“Waiawa”).[3]Jossy's Complaint asserts incidents that occurred over more than three years at HCCC, HCF, and Waiawa. It is set forth in a disjointed format that makes it difficult to understand when and where a particular incident occurred, which Defendant(s) were involved, and what each Defendant personally did to violate Jossy's constitutional rights.

         Jossy generally complains about the alleged systemic overcrowding in Hawaii's prisons for the past thirty years.[4] He alleges this overcrowding is the underlying cause of all of his claims. Jossy states that he has a history of traumatic brain injuries and mental illness, including post-traumatic stress disorder (“PTSD”) and bipolar disorder. He claims that prison officials have known about his mental and medical history since at least June 2012, when an unidentified physician allegedly relayed these diagnoses to DPS (presumably during an earlier incarceration). He claims that stress and anxiety trigger his mental illnesses and have lead to several “physiological and life threatening cardiac emergencies.” Compl., ECF No. 1, PageID #3.

         Jossy asserts two primary causes of action: (1) “Inadequate Mental/Medical Health Care, ” at HCCC and HCF (Count I); and (2) “Procedural Due Process Violations, ” that began at Waiawa and concluded at HCF (Count II). Id., PageID #3-15. Although Jossy relates many incidents involving other prisoners, as evidentiary support for his own allegations, the court discusses only those allegations in which Jossy alleges his own rights were violated.

         A. Count I: Eighth Amendment Claims

         Jossy says that he was exposed to “racial violence repeatedly and continuously” while in custody, and was repeatedly assaulted by inmates and guards at HCCC and at HCF, who failed to protect him. Id., PageID #5. Jossy says this environment caused constant him anxiety, stress, and fear, which he alleges were “directly related to [his] active bipolar disorder and PTSD, ” and caused several cardiac emergencies. Id.

         1. Incidents at HCCC: August 2015 and August 2016

         Between August 28-30, 2015, Jossy submitted medical requests for psychiatric treatment with a licensed psychiatrist, but these requests were denied. Id. He provides no further information regarding these requests or denials.

         Jossy alleges ACO Nihoa struck him in the head on September 28, 2015, causing pain, distress, and anxiety, that exacerbated his PTSD and bipolar condition. Id.

         Jossy alleges ACO Fa'avai struck him in the head on October 13, 2015, causing him to almost lose consciousness and precipitating a panic attack. Id., PageID #5-6.

         On November 11, 2015, Jossy met with Dr. Yamamoto, who he alleges “failed to review [his] prior history . . . and medical records.” Id. at PageID #6.

         Dr. Yamamoto diagnosed him with “unspecified adjustment disorder, ” which Jossy alleges was a “rubber stamp” diagnosis given to all new inmates. Id.

         Jossy alleges ACO Watanabe harassed him, then threw and dragged him “across the room” striking his head several times against the wall and door jamb on December 30, 2015. Id. Jossy says this attack was unprovoked, and left him bleeding from multiple head injuries. He says Watanabe tore up his request for medical treatment.

         On January 16, 2016, Jossy awoke “on the floor next to urine and overflowing sewage, ” from the toilet. Id. He suggests this happened because he was “triple celled” with an incontinent inmate. Id. Jossy says Warden Cabreros was deliberately indifferent because he approved triple-celling at HCCC.

         On January 18, 2016, Jossy submitted a medical request for headaches and dizzy spells. He does not reveal whether he was seen by medical staff.

         On February 2, 2016, Jossy filed a grievance reporting “unprovoked assaults on inmates by staff.” Id. He does not identify the staff or inmates to which he refers. Jossy also submitted a medical request reporting the triple-celling, 24-hour lockdowns, and “no exercise” which he alleges were “making [him] crazy.” Id. at PageID #7. Jossy met with a case manager who allegedly told him there were no treatment options for these conditions and no available psychiatric care.

         On February 7, 2016, ACO Towler ordered Jossy to move to a cell with inmate Daniel Kapamau. Jossy told Towler that Kapamau had threatened him, and that he was afraid to share a cell with him. Jossy alleges Towler forced him into the cell and “locked plaintiff in while Kapamau assaulted plaintiff, striking plaintiff repeatedly in the face breaking plaintiff[']s nose.” Id. Jossy alleges Warden Cabreros, as supervisor of HCCC, was deliberately indifferent for failing to prevent this assault.

         On April 3 and 5, and May 4, 2016, Jossy requested psychiatric attention, but his case manager told him there was “no psych doctor” available at HCCC.

         On May 13, 2016, Jossy witnessed two inmates having sex. He says one of the inmates then assaulted him, and that ACO Kilmore, who is not a named Defendant, witnessed this assault but failed to intervene.

         Finally, Jossy alleges that on an unidentified date he was “moved to Wainuenue housing unit where he was forced to sleep on floor with eight other inmates in a cubicle originally designed for two.” Id. He says several of these inmates threatened him.

         2. Incidents at HCF and Waiawa

         When Jossy arrived at HCF, in August 2016, he requested mental health counseling. An unidentified person arrived at Jossy's module and asked him what he needed in front of others. Jossy suggests this violated his privacy.

         On December 16, 2016, Jossy alleges he began experiencing “stress induced heart attacks.” Id. Jossy told ACO Marquez that he was having a heart attack at approximately 9:15 p.m.; Marquez ordered him to return to his cell. At approximately 12:00 a.m., Jossy was taken to the medical unit, where he was told that he was fine and to return to his cell. Jossy disputed this and a doctor was called, who ordered Jossy to be transported to the nearest emergency room. Emergency Medical Services arrived and the EMTs requested assistance to transport Jossy to the ambulance. Jossy says unidentified prison staff refused until they received approval from the watch commander. There was a further delay while shackles were located. Jossy says he was “cardioverted, [5] with 120 volts of electricity, then with 240 volts to re-start” his heart, then taken to Pali Momi Medical Center. Id., PageID #7. Jossy was admitted and “treated for atrial fibrillation (Afib), Parkinson's-Wolf syndrome (PWS) and other cardio-vascular issues.” Id., PageID #8. Jossy remained in the hospital until December 27, 2016, and discharged with a notice regarding the “interrelation” of his mental and physical illnesses, that was provided to HCF with his “Discharge Summary.” Id. Jossy complains that he was rehoused at HCF in “extremely overcrowded conditions” which exposed him to the same stressors that precipitated his hospitalization. Id.

         On February 2, 2017, Jossy was “randomly and arbitrarily” housed with an inmate with a history of violence who had previously threatened Jossy. Id. Jossy spoke with HCF watch commander Sgt. Sheridan regarding his fears of his new cell mate. Sgt. Sheridan refused to move Jossy, and the next day, February 3, 2017, Jossy was assaulted until he lost consciousness. Jossy does not explicitly allege that his cell mate attacked him, however. Jossy was taken to Pali Momi and diagnosed with multiple head injuries and fractures. Jossy was returned to the same housing unit at HCF, where he was now labeled a “rat.” Id.

         On February 7, 2017, Jossy began bleeding uncontrollably from his head injuries and was taken back to the Pali Momi emergency room. Id., PageID #9.

         On February 13, 2017, Jossy was taken to Kapiolani Medical Center for Women & Children, where he received reconstructive facial surgery.

         On February 15, 2017, Jossy began experiencing panic attacks, rapid heartbeat and chest pains. He requested emergency medical help but was denied. Approximately an hour and a half later a doctor was consulted, who ordered Jossy to be taken to Pali Momi emergency room. Jossy says he was again “cardioverted to re-start” his heart and treated for paroxysmal atrial fibrillation. Id. Jossy was admitted to the cardiac wing and released the next day. Jossy says he was returned to the “same unsafe conditions” at HCF that caused his cardiac emergencies, but still denied mental health treatment.

         On February 18, 2017, Jossy experienced panic, rapid heartbeat, dizziness, and chest pains again. He says he was denied “immediate” access to emergency care but was taken to Pali Momi emergency room again. Id. Jossy ...


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