United States District Court, D. Hawaii
ORDER DISMISSING COMPLAINT WITH LEAVE TO
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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.
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).
BACKGROUND AND CLAIMS
was incarcerated at HCCC between August 2015 and August 2016,
and thereafter at HCF and at the Waiawa Correctional Facility
(“Waiawa”).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
generally complains about the alleged systemic overcrowding
in Hawaii's prisons for the past thirty
years. 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.
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
Count I: Eighth Amendment Claims
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.
Incidents at HCCC: August 2015 and August 2016
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.
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.
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.
November 11, 2015, Jossy met with Dr. Yamamoto, who he
alleges “failed to review [his] prior history . . . and
medical records.” Id. at PageID #6.
Yamamoto diagnosed him with “unspecified adjustment
disorder, ” which Jossy alleges was a “rubber
stamp” diagnosis given to all new inmates. Id.
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.
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.
January 18, 2016, Jossy submitted a medical request for
headaches and dizzy spells. He does not reveal whether he was
seen by medical staff.
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
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.
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.
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
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.
Incidents at HCF and Waiawa
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.
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,  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.
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
February 7, 2017, Jossy began bleeding uncontrollably from
his head injuries and was taken back to the Pali Momi
emergency room. Id., PageID #9.
February 13, 2017, Jossy was taken to Kapiolani Medical
Center for Women & Children, where he received
reconstructive facial surgery.
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.
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