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Conklin v. Espinda

United States District Court, D. Hawaii

December 23, 2019

CRAIG LAURENCE CONKLIN, #A5021908, Plaintiff,
v.
NOLAN ESPINDA, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART

          J. Michael Seabright, Chief United States District Judge

         Before 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 seq.[1]

         For the 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.

         IN THE ALTERNATIVE:

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.

         I. STATUTORY SCREENING

         The 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).

         Screening 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).

         Rule 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).

         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

         Conklin commenced this action on February 19, 2019, while he was incarcerated at HCF.[2] 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).

         On June 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.

         Conklin 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.

         Conklin seeks compensatory and punitive damages, and declaratory relief.

         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 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         Prison 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.

         A 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. 2018)).

         A. Inadequate Medical Care: Counts I-IV, VI-IX, XI

         The 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).

         “Deliberate 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 needs.”).

         “A 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).

         “Medical 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).

         1. Counts I and XI: Dr. Toyama

         Dr. 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.[3] 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.[4] 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.

         Dr. 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.[5] 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 needs.

         Counts I and XI as alleged against Dr. Toyama for denying Conklin his previous opiate medication are DISMISSED with leave granted to amend.

         2. Count I: Health Director John Doe 1

         Conklin 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 refers.

         A 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.

         Conklin 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.

         Conklin 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.

         3. Count II: Dr. Toyama

         At his entry examination, Conklin told Dr. Toyama that he had been diagnosed with diverticulosis[6] 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.

         Conklin's 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.

         4. Count III: Dr. Yoo

         On 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.

         Conklin 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.

         5.Count IV: Dr. Frauens

         On 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 ...


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