Obata v. Harrington et al
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915A & 1915 re: 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/8/2013. Excerpt of Conclusion: ~ "Plaintiff is granted leave to file an a mended complaint on or before May 6, 2013, in compliance with this Order. If Plaintiff fails to do so, this action will be AUTOMATICALLY DISMISSED...." ~ (afc)CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Plaintiff Mark Kenji Obata will be served by First Class Mail on April 9, 2013 with a copy of the instant order and the Prisoner Civil Rights Complaint with its instructions.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARK KENJI OBATA, #A0113411, )
WARDEN HARRINGTON, LT.
SAYORAN, IRENE REVILLA RN,
CIV. NO. 13-00137 LEK/RLP
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A & 1915
Plaintiff Mark Kenji Obata, a prisoner at the Waiawa
Correctional Facility (“WCF”), brings this pro se civil rights
action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that
Defendants WCF Warden Harrington, Lieutenant Sayoran,
Irene Revilla, and “Nurse” Janet violated his rights under the
Eighth and Fourteenth Amendments by denying him timely and
adequate medical care and depriving him of his personal property.
Plaintiff names Defendants in their official and individual
capacities and seeks injunctive and monetary relief, including
release from prison.
Plaintiff’s Complaint is dismissed for failure to state
a claim pursuant to 28 U.S.C. § 1915A(b)(1) and § 1915(e)(2).
Plaintiff is given leave to amend, as discussed and limited
I. PLAINTIFF’S CLAIMS
Plaintiff says that, on or about 9:00 p.m., on
August 4, 2012, he “was in “excruciating, agonizing pain and
swelling of [the] left side of my face and ear.
(left) was impaired, my vision started to get obscured, my mouth
was not functioning properly, my equilibrium made walking
difficult, I was nauseated and was throwing up.”
II, ECF No. 1 PageID #6.
Plaintiff alleges that Warden
Harrington was aware that WCF had no twenty-four hour, onsite
Id., Count I, PageID #5.
Harrington is liable for the alleged denial of adequate medical
care to him, based on Harrington’s position as WCF Warden.
Plaintiff was apparently taken to an emergency center
at some point, because he states that, when he returned from
“Pali Momi (Emergency) with prescribed medication from my DR’s at
Pali Momi,” on or about August 10, 2012, Nurse Janet denied and
“deprived [him] of prescribed medication[.]”
Id., Count III,
II. LEGAL STANDARD
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
28 U.S.C. § 1915A(a).
The court must
dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A(b); 42 U.S.C. § 1997e(c)(1).
A complaint may be dismissed for failure to state a
claim if it (1) lacks a cognizable legal theory; or (2) contains
insufficient facts under a cognizable legal theory.
v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
Fed. R. Civ. P. 8(a)(2).
While Rule 8 does not demand
detailed factual allegations, “it demands more than an unadorned,
Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
A complaint fails to state a
claim if it does not plead “enough facts to state a claim to
relief that is plausible on its face.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 611
F.3d 1202, 1205 (9th Cir. 2010) (stating that “we continue to
construe pro se filings liberally”).
Leave to amend should be
granted unless it appears that amendment is futile.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)
(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
Plaintiff names Defendants in their official and
In Will v. Mich. Dep’t of State Police,
491 U.S. 58, 64–66 (1989), the Supreme Court held that states,
state agencies, and state officials sued in their official
capacities are not persons subject to civil rights suits under 42
U.S.C. § 1983.
Further, the Eleventh Amendment prohibits federal
jurisdiction over suits against the state or a state agency
unless the state or agency consents to the suit.
Tribe of Fla. v. Fla., 517 U.S. 44, 53 (1996); Pennhurst State
Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Quern v.
Jordan, 440 U.S. 332, 342 (1979).
State officers acting in their
official capacities receive the same immunity as the government
agency that employs them.
Hafer v. Melo, 502 U.S. 21 (1991).
The State of Hawaii has not consented to suit under
§ 1983 in this case.
Thus, the Eleventh Amendment bars
Plaintiff’s claims for damages against Defendants in their
See Doe v. Lawrence Livermore Natl. Lab.,
131 F.3d 836, 839 (9th Cir. 1997); Eaglesmith v. Ward, 73 F.3d
857, 859 (9th Cir. 1996); Pena v. Gardner, 976 F.2d 469, 472
Defendants named in their official capacities and
damages claims against are them DISMISSED with prejudice.
Claims Against Defendants Revilla and Sayuran Are Dismissed
Section 1983 plainly requires that there be an actual
connection or link between the actions of a defendant and the
See Monell v. Dep’t of Soc. Serv., 436
U.S. 658(1978); Rizzo v. Goode, 423 U.S. 362 (1976).
‘subjects’ another to the deprivation of a constitutional right,
within the meaning of section 1983, if he does an affirmative
act, participates in another’s affirmative acts or omits to
perform an act which he is legally required to do that causes the
deprivation of which complaint is made.”
Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978).
Plaintiff provides no facts linking Defendants Revilla
and Sayoran to his claims.
They are not mentioned within either
of his claims and Plaintiff gives no indication what they did to
violate his constitutional rights.
Defendants Revilla and
Sayoran are DISMISSED.
Eighth Amendment Claims
Plaintiff alleges that WCF’s lack of an onsite, twenty-
four hour emergency facility violates his rights under the Eighth
The prohibition of cruel and unusual punishment in
the Eighth Amendment imposes a duty upon prison officials to
provide humane conditions of confinement.
U.S. 825, 832 (1994).
Farmer v. Brennan, 511
Prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care.
Eighth Amendment claims involving medical care apply the
deliberate indifference standard.
See Hudson v. McMillian, 503
U.S. 1, 8 (1992).
To state a constitutional violation, a prisoner must
satisfy a two-part test that has objective and subjective
components: (1) the deprivation alleged must be objectively
sufficiently serious, and (2) the prison official must have a
sufficiently culpable state of mind.
Farmer, 511 U.S. at 834.
With respect to the subjective prong, the state of mind is one of
deliberate indifference to inmate health or safety.
this standard, the prison official must be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and the prison official must also draw that
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
Prison officials act with deliberate indifference to a
prisoner’s serious medical needs when they “deny, delay, or
intentionally interfere with medical treatment, or it may be
shown by the way in which prison physicians provide medical
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
(internal quotations omitted), or if prisoners are unable to make
their medical problems known to medical staff.
Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
Hunt v. Dental
have “wide discretion” in the medical treatment afforded
Stiltner v. Rhay, 371 F.2d 420, 421 (9th Cir. 1967).
Lack of a Twenty-four Hour Emergency Care Facility
Plaintiff fails to allege facts showing that WCF’s lack
of a twenty-four hour emergency care facility violated his
The Constitution requires prison
officials to provide timely and adequate medical (and dental)
care to prisoners.
It does not require that every prison and
jail have medical staff on duty twenty-four hours a day.
Bennett v. Reed, 534 F. Supp. 83, 87 (E.D.N.C. 1981) (absence of
availability to qualified nurse on twenty-four hour duty does not
violate prisoner’s constitutional rights); Williams v. Limetone
Cnty., 198 F. App’x 893, 897 (11th Cir.2006) (absence of
twenty-four hour medical staff on duty did not violate the
prisoner’s constitutional rights); Robinson v. Conner, 2012 WL
2358955 *5 (M.D. Ala. 2012) (holding that prison’s lack of
twenty-four hour emergency infirmary, without more, fails to
state a claim); Parker v. Amos, 2011 WL 3568836 *3 (W.D. Va.
2011) (holding that jails and prisons are not required to provide
twenty-four hour emergency care facilities).
Notwithstanding WCF’s alleged lack of a twenty-four
hour infirmary, Plaintiff fails to allege sufficient facts
showing that (1) he required emergency medical care for a serious
physical condition, (2) prison officials were aware of his
serious need, and (3) nonetheless, refused or were unable to
transport him to an emergency care facility outside of the prison
with deliberate indifference to his health and safety.
Plaintiff fails to state a claim and this claim is DISMISSED.
Claims Against Warden Harrington
Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
Iqbal, 556 U.S. at 676.
government official may only be held liable for his or her own
A defendant may be held liable as a supervisor under
§ 1983 if either (1) he or she was personally involved in the
constitutional deprivation, or (2) there is a sufficient causal
connection between the supervisor’s wrongful conduct and the
(9th Cir. 2011).
Starr v. Baca, 633 F.3d 1191, 1196
In general, a plaintiff “must allege that every
government defendant -- supervisor or subordinate -- acts with
the state of mind required by the underlying constitutional
Or. State Univ. Student Alliance v. Ray, 699 F.3d
1053, 1070 (9th Cir. 2012).
Conversely, where there is no
evidence that the supervisor was personally involved or connected
to the alleged violation, the supervisor may not be held liable.
See Edgerly v. City and Cnty of San Francisco, 599 F.3d 946,
961–62 (9th Cir. 2010).
Plaintiff fails to establish that Warden Harrington was
personally involved or otherwise responsible for the alleged
delay or denial of medical care to Plaintiff.
claims in conclusory terms that he was in pain on August 4, 2012,
and that Warden Harrington knew that WCF lacked an onsite,
twenty-four hour emergency facility.
As explained above, even if
Harrington was aware that WCF lacked a twenty-four hour
infirmary, that does not equate to Harrington’s deliberate
indifference to Plaintiff’s alleged need for emergency medical
care on August 4, 2012.
Plaintiff does not allege that
Harrington was aware of Plaintiff’s need for emergency care, or
that Harrington instituted policies or procedures that denied
medical services to prisoners who became ill overnight WCF.
is, that Harrington denied WCF staff the authority to transport
Plaintiff or any other prisoner to an outside emergency medical
facility if the need arose.
An individual’s “general
responsibility for supervising the operations of a prison is
insufficient to establish personal involvement.”
Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987).
allegations against Warden Harrington fail to state a cognizable
constitutional claim and are DISMISSED.
Claims Against Defendant Nurse Janet
Plaintiff claims that WCF Nurse Janet “denied” him the
medication that he was prescribed by the Pali Momi Emergency
Plaintiff frames this as a deprivation of his personal
See Compl., Count III, ECF No. 1 PageID #7.
more, this statement fails to state a plausible claim for an
Eighth or Fourteenth Amendment violation.
A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
556 U.S. at 678; Twombly, 550 U.S. at 556.
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.”
Iqbal, 556 U.S. at
Thus, although a plaintiff’s specific factual allegations
may be consistent with a constitutional claim, a court must
assess whether there are other “more likely explanations” for a
Id. at 680.
“[W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged — but it has
not ‘show[n]’ — “that the pleader is entitled to relief.’”
at 679 (quoting Fed. Rule Civ. Proc. 8(a)(2)).
First, a more likely explanation for the confiscation
of Plaintiff’s pain medication upon his return from Pali Momi is
to further the prison’s need to monitor prescription pain
medication in the prison.
Common sense dictates that prisons
cannot allow prisoners to retain prescription pain medication in
their cells to use or sell at their discretion.
Second, although Nurse Janet may have taken Plaintiff’s
prescription medication from him, this does not equate to a
denial of care.
She may have delivered the medicine to Plaintiff
as prescribed by the Pali Momi doctors, or she may have given him
alternative medication as prescribed by the prison’s doctors.
Plaintiff refrains from saying she denied him any pain medication
and it is unlikely that she would do so without a doctor’s
Rather, Plaintiff’s vague statement suggests that he
disagrees with the course of medical care he is being provided at
the prison, rather than an unequivocal statement that Nurse Janet
completely denied him either his own or an alternate pain
A prisoner’s disagreement with prison medical
personnel concerning his treatment does not equate to a
See Toguchi, 391 F.3d at 1058.
To the extent Plaintiff seeks to hold Nurse Janet
liable for depriving him of his “personal property,” he similarly
fails to state a claim.
The unauthorized negligent or
intentional deprivation of property by prison officials does not
state a cognizable cause of action under § 1983 if the prisoner
has an adequate post-deprivation state remedy.1
See Zinermon v.
Burch, 494 U.S. 113, 129–32 (1990); Hudson v. Palmer, 468 U.S.
517, 533 (1984).
Plaintiff’s statements are insufficient to
state a claim against Nurse Janet and are DISMISSED.
LEAVE TO AMEND
Plaintiff’s Complaint is DISMISSED.
Plaintiff may file
a proposed amended complaint on or before May 6, 2013, curing the
specific deficiencies noted above.
The amended complaint must
contain short, plain statements explaining each Defendant’s
involvement in Plaintiff’s claims and specific facts supporting a
finding that Defendants violated his constitutional rights.
The proposed amended complaint must clearly designate
that it is the “First Amended Complaint.”
The amended complaint
must be retyped or rewritten in its entirety on court-approved
forms and may not incorporate any part of the original Complaint
Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).
Hawaii Revised Statutes § 662-2 provides that public
employees are liable for torts in the same manner and to the same
extent as a private individual and expressly waives state
immunity for its employees’ torts, providing Plaintiff an
adequate post-deprivation remedy.
Any cause of action that was raised in the original complaint is
waived if it is not raised in an amended complaint.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
28 U.S.C. § 1915(g)
If Plaintiff fails to file an amended complaint
correcting the deficiencies identified in this Order, this
dismissal may count as a “strike” under the “3-strikes” provision
of 28 U.S.C. § 1915(g).
Under the 3-strikes provision, a
prisoner may not bring a civil action or appeal a civil judgment
in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in
any facility, brought an action or appeal in
a court of the United States that was
dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
The Complaint is DISMISSED in its entirety for
failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
Plaintiff is granted leave to file an amended
complaint on or before May 6, 2013, in compliance with this
If Plaintiff fails to do so, this action will be
AUTOMATICALLY DISMISSED, without further notice and the Clerk
SHALL enter judgment stating that the dismissal was made pursuant
to 28 U.S.C. § 1915.
The Clerk of Court is DIRECTED to forward a copy of
the court’s prisoner civil rights complaint and instructions to
Plaintiff so that he may comply with this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 8, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Obata v. Harrington, 1:13-cv-00137 LEK/RLP;G:\docs\prose
attys\Screening\DMP\2013\Obata 13-137 lek (8th amdt ftsc lv amd).wpd