United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT IN
Michael Seabright, Chief United States District Judge
the court is pro se Plaintiff Craig Laurence Conklin's
first amended complaint (“FAC”) brought pursuant
to 42 U.S.C. § 1983. Conklin alleges that eleven
officials of the Hawaii Department of Public Safety
(“DPS”) and the Halawa Correctional Facility
(“HCF”) violated his constitutional rights under
the First, Fifth, Sixth, Eighth, and Fourteenth Amendments,
as well as under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et
following reasons, the FAC is DISMISSED in part for
Conklin's failure to state a colorable claim for relief
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
Conklin may file an amended pleading correcting those claims
dismissed without prejudice on or before January 20, 2020.
Conklin may notify the court in writing on or before January
20, 2020, that he will stand on his claims in Count XIV as
alleged against Defendant Mufao. Upon receipt of such a
notice, the court will issue an order directing service of
the FAC, limited to that claim only.
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 Wilhelm v. Rotman, 680 F.3d
1113, 1121 (9th Cir. 2012). 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).
8(a)(2) “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). The court must accept the
allegations of the complaint as true, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), and construe the
pleading in the light most favorable to the plaintiff,
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
overruled on other grounds by Davis v. Scherer, 468
U.S. 183 (1984).
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).
commenced this action on February 19, 2019, while he was
incarcerated at HCF. See Compl., ECF No. 1. The
court granted Conklin's Application to Proceed In Forma
Pauperis by a Prisoner on March 8, 2019. See ECF
Nos. 2 and 4. On or about April 11, 2019, Conklin was
released on parole. See
https://www.vinelink.com/#/searchResults/1 (last visited
Dec. 10, 2019).
6, 2019, the court dismissed Conklin's original Complaint
with leave to amend. See Order, ECF No. 8.
Specifically, the court dismissed constitutional claims for
money damages against Defendants named in their official
capacities and seeking prospective injunctive relief, as
mooted by Conklin's release on parole. The court
explained, however, that official-capacity Defendants were
properly named for those claims seeking damages against the
State under Title II of the ADA. The court dismissed claims
against inmate Tupuelo, DPS Director Espinda, and Health and
Institutions Directors Does 1 and 2, for Conklin's
failure to state colorable claims, with leave granted to
amend. Finally, the court severed claims that allegedly
occurred at HCCC from claims that allegedly occurred at HCF.
filed the FAC on August 8, 2019, raising fifteen overlapping
claims regarding incidents that occurred at HCF only. ECF No.
11. Conklin alleges that (1) Dr. Toyama, Dr. Yoo, Dr.
Frauens, and Health Director John Doe 1 denied him adequate
medical care; (2) Director Espinda and Institutions Director
John Doe 2 failed to transfer him to a minimum security
prison when he was classified as a minimum security inmate,
allegedly violating DPS policy, and causing him to be
assaulted on two occasions by two higher security inmates
housed near him; (3) Borgess improperly denied his grievances
concerning the denial of a transfer; (4) ADA Coordinator
Assily and Dr. Toyama violated his rights under the ADA by
denying him handicap accommodations; (5) Captain Snook and
CSO Antonio denied him access to the courts by prohibiting
attorney calls in the Special Housing Unit
(“SHU”); (6) CSO Antonio obstructed justice and
denied him due process by destroying video evidence to
support his ADA claim; and (7) ACO Mufao retaliated against
him for filing grievances by writing a negative report that
resulted in his reclassification to medium custody, which in
turn, allegedly resulted in the denial of parole.
seeks compensatory and punitive damages, and declaratory
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 color of
state law. See West v. Atkins, 487 U.S. 42, 48
officials generally are not liable for damages in their
individual capacities under § 1983 unless they
personally participated in the alleged constitutional
violations. Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989). “That means the inmate must show that
each defendant personally played a role in violating the
Constitution.” Hines v. Youseff, 914 F.3d
1218, 1228 (9th Cir. 2019); Iqbal, 556 U.S. at 677.
supervisor may be personally “liable under § 1983
so long as ‘there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor's
wrongful conduct and the constitutional
violation.'” Rodriguez v. Cty. of Los
Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (quoting
Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir.
Inadequate Medical Care: Counts I-IV, VI-IX, XI
Eighth Amendment is violated when a prison official acts with
deliberate indifference to an inmate's serious medical
needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir.
2012), overruled in part on other grounds by Peralta v.
Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014);
Wilhelm, 680 F.3d at 1122; Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)). To state a colorable claim
for the denial of adequate medical care, a plaintiff
“must show [(1)] a serious medical need by
demonstrating that failure to treat [his] condition could
result in further significant injury or the unnecessary and
wanton infliction of pain, ” and (2) that “the
defendant's response to the need was deliberately
indifferent.” Wilhelm, 680 F.3d at 1122
(quoting Jett, 439 F.3d at 1096).
indifference is a high legal standard.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It can be
shown by “(a) a purposeful act or failure to respond to
a prisoner's pain or possible medical need, and (b) harm
caused by the indifference.” Wilhelm, 680 F.3d
at 1122 (quoting Jett, 439 F.3d at 1096). The
requisite state of mind is one of subjective recklessness,
which entails more than ordinary lack of due care.
Snow, 681 F.3d at 985 (citation and quotation marks
omitted); Wilhelm, 680 F.3d at 1122. To establish
deliberate indifference from a delay in providing care, a
plaintiff must show that the delay was harmful. See
Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002);
cf. Jett, 439 F.3d at 1096 (“A prisoner need
not show his harm was substantial; however, such would
provide additional support for the inmate's claim that
the defendant was deliberately indifferent to his
difference of opinion between a physician and the prisoner-or
between medical professionals-concerning what medical care is
appropriate does not amount to deliberate
indifference.” Snow, 681 F.3d at 987 (citing
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989));
Wilhelm, 680 F.3d at 1122 (citing Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, a
plaintiff “must show that the course of treatment the
doctors chose was medically unacceptable under the
circumstances and that the defendants chose this course in
conscious disregard of an excessive risk to [his]
health.” Snow, 681 F.3d at 988 (citation and
internal quotation marks omitted).
malpractice does not become a constitutional violation merely
because the victim is a prisoner.” Estelle,
429 U.S. at 106; Snow, 681 F.3d at 987-88;
Wilhelm, 680 F.3d at 1122. Even a medical
provider's gross negligence does not constitute an Eighth
Amendment violation. Wood v. Housewright, 900 F.2d
1332, 1334 (9th Cir. 1990).
Counts I and XI: Dr. Toyama
Toyama examined Conklin upon his entry into HCF on February
22, 2018. Conklin requested the opiate pain medication that
he had been prescribed before he was incarcerated to
alleviate his chronic pain. Dr. Toyama instead
prescribed Gabapentin to Conklin. FAC, ECF No. 11 at PageID
#94, 104. Conklin complains that other inmates were given
their “previous prescription pain medication, ”
and that Dr. Toyama's denial caused him pain, insomnia,
and anxiety. Id. at PageID #94. Several months
later, Conklin alleges that he developed burns in his throat
and mouth because the Gabapentin was dispensed dissolved in
water. Id. at PageID #104. When
Conklin was denied undissolved Gabapentin capsules, he
discontinued taking it. Id. He alleges Dr. Toyama
violated the Eighth Amendment by prescribing Gabapentin
instead of the opiate medication he requested. Id.
Toyama apparently prescribed Gabapentin to Conklin to address
his chronic pain because Conklin had told prison authorities
that he was addicted to his previous opiate
medication. Moreover, Conklin had not taken that
medication for at least six weeks since his incarceration.
Conklin does not allege that he told Dr. Toyama (1) about the
side effects he experienced after several months of taking
Gabapentin dissolved in water; (2) of his continuing pain; or
(3) that he had stopped taking Gabapentin, and that Dr.
Toyama denied him any alternative pain relief. Without such
facts, Conklin fails to show that Dr. Toyama was,
subjectively deliberately indifferent to his serious medical
I and XI as alleged against Dr. Toyama for denying Conklin
his previous opiate medication are DISMISSED with leave
granted to amend.
Count I: Health Director John Doe 1
alleges that Health Director John Doe 1 “allowed”
the practice of denying opiate pain medication “to
continue in violation of policy.” FAC, ECF No. 11 at
PageID #94. He does not identify the policy to which he
supervisor may “be liable in his individual capacity
for his own culpable action or inaction in the training,
supervision, or control of his subordinates; for his
acquiescence in the constitutional deprivation; or for
conduct that showed a reckless or callous indifference to the
rights of others.” Keates, 883 F.3d at 1243
(quoting Starr, 652 F.3d at 1208). A colorable
supervisor-liability claim must show that the supervisor
personally participated in the alleged deprivation, knew of
the violation and failed to prevent it, or
“implement[ed] a policy so deficient that the policy
itself is a repudiation of constitutional rights and is the
moving force of the constitutional violation.”
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)
(internal citations and quotation marks omitted));
Taylor, 880 F.2d at 1045.
alleges no facts suggesting that John Doe 1 personally
participated in or was even aware that Dr. Toyama prescribed
Conklin Gabapentin in lieu of opiate medication, which, in
any case, was not a constitutional violation. Nor does
Conklin allege facts that show that John Doe 1 implemented a
medical policy that was so deficient that it violated
Conklin's constitutional right to adequate medical care.
He does not explain what this unidentified policy requires,
or how Dr. Toyama's medical decision violated it.
fails to allege facts showing John Doe 1's personal
involvement in his medical care claims. Count I as alleged
against Health Director John Doe 1 is DISMISSED with leave
granted to amend.
Count II: Dr. Toyama
entry examination, Conklin told Dr. Toyama that he had been
diagnosed with diverticulosis before he was
incarcerated by “positive hemocult card tests, and [a]
CAT scan” and requested a colonoscopy. FAC, ECF No. 11
at PageID #95. Dr. Toyama denied Conklin's request for a
colonoscopy “to diagnose [his] serious medical
condition.” Id. These facts only show that,
although Conklin had been tested and diagnosed with
diverticulosis before he was incarcerated, Dr. Toyama did not
believe that a colonoscopy was medically necessary when
Conklin arrived at HCF. Further, Conklin does not allege that
the denial of a colonoscopy caused him further significant
injury, beyond his anxiety that he did not receive one.
disagreement with Dr. Toyama's decision is insufficient
to allege a colorable claim that Dr. Toyama was subjectively,
deliberately indifferent to Conklin's serious medical
needs. Count II is DISMISSED with leave to amend.
Count III: Dr. Yoo
February 28, 2018, Dr. Yoo extracted Conklin's tooth
using a local anesthetic. Id. at PageID #96. Conklin
says a large piece of his jaw bone broke off during this
procedure. Conklin returned to the HCF dental unit the next
day and asked for his previous opiate pain medication. Dr.
Yoo, like Dr. Toyama, denied this request. Conklin alleges
this caused him “chronic dental” and throat pain,
headaches, and the inability to swallow, chew, or brush his
teeth for forty days. Id.
began taking Gabapentin a week before this extraction. Dr.
Yoo would have been aware of this, and of Conklin's
admitted opiate addiction. Conklin does not allege
that Dr. Yoo refused him additional or alternative pain
medication, whether prescription or over the counter, or
failed to monitor his recovery. Conklin alleges only that Dr.
Yoo denied him opiate medication the day after his tooth was
extracted. This is insufficient to plausibly infer that Dr.
Yoo was subjectively, deliberately indifferent to
Conklin's pain or serious medical needs. Count III is
DISMISSED with leave granted to amend.
IV: Dr. Frauens
April 3, 2018, an outside orthopedic specialist, Dr. Frauens,
examined Conklin to evaluate his requests to receive the same
orthopedic care and opiate medication that he had before he
was incarcerated. Id. at PageID #97. Conklin does
not explain what type of orthopedic care he had previously
received. He states, “Dr. Frauens explained in lengthy
detail . . . the severity of multiple serious injuries which
require not only orthopedic care/surgery, but also the need
for prescription pain medications to control the chronic pain
plaintiff was suffering from.” Id. After ...