Castro v. Pimental et al

Filing 423

ORDER GRANTING IN PART AND DENYING IN PART THE REMAINING DEFENDANTS' 405 MOTION FOR SUMMARY JUDGMENT AND GRANTING THE REMAINING DEFENDANTS' 404 MOTION FOR STAY OF ACTION: "On the basis of the foregoing, the Remaining Defendants& #039; Motion for Summary Judgment, filed June 8, 2012, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion for Summary Judgment is GRANTED as to: 1) the portion of Plaintiff's negligence claim alleging that Defendants Marks and Wakabayashi, in their individual capacities, were negligent in training, supervising, and retaining Defendants Melchor, Bhalang, Bradley, and Yasunaga; 2) the portion of Plaintiff's negligence claim alleging an NIED claim based on negligent training, superv ision, and retention by Defendants Marks and Wakabayashi, in their individual capacities; and 3) the portions of Plaintiff's § 1983 claim and IIED claim based on the training, supervision, and retention by Defendants Marks and Wakabayashi. The Remaining Defendants' Motion for Summary Judgment is DENIED WITHOUT PREJUDICE in all other respects.Further, the Remaining Defendants' Motion for Stay of Action, also filed June 8, 2012, is HEREBY GRANTED. The Court HEREBY STAYS the ins tant case pending the resolution of the appeal in the State Action, Leah Castro, et al. v. Leroy Melchor, et al., Civil No. 08-1-0901-05 KTN. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on September 14, 2012. (bbb, )< hr>CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
LEROY MELCHOR, in his
)
individual capacity; WANNA
)
BHALANG, in her individual
)
capacity; TOMI BRADLEY, in
)
her individual capacity;
)
ROBERTA MARKS, in her
)
individual capacity; KAY
)
BAUMAN, M.D., in her
)
individual capacity; KEITH
)
WAKABAYASHI, in his
)
individual capacity,
)
)
Defendants.
_____________________________ )
LEAH CASTRO, individually and
as PERSONAL REPRESENTATIVE of
the ESTATE OF BRIANDALYNNE
CASTRO, deceased minor,

CIVIL NO. 07-00558 LEK-BMK

ORDER GRANTING IN PART AND DENYING IN PART THE REMAINING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING
THE REMAINING DEFENDANTS’ MOTION FOR STAY OF ACTION
On June 8, 2012, Defendants Leroy Melchor,
Wanna Bhalang, Tomi Bradley, Roberta Marks, and
Keith Wakabayashi, all in their individual capacities
(collectively “the Remaining Defendants”) filed their Motion for
Summary Judgment and their Motion for Stay of Action (“Stay
Motion”).

[Dkt. nos. 405, 404.]

Plaintiff Leah Castro,

individually and as Personal Representative of the Estate of
Briandalynne Castro, deceased minor (“Plaintiff”), filed a
memorandum in opposition to each motion on August 20, 2012.

[Dkt. nos. 415, 414.]

The Remaining Defendants filed a reply in

support of each motion on August 27, 2012.

[Dkt. nos. 418, 417.]

These matters came on for hearing on September 10, 2012.
Appearing on behalf of the Remaining Defendants were
Marie Gavigan, Esq., and Henry Kim, Esq.

Also present were

Defendants Wakabayashi, Marks, and Bhalang.
of Plaintiff was Sue Hansen, Esq.

Appearing on behalf

After careful consideration of

the motions, supporting and opposing memoranda, and the arguments
of counsel, the Remaining Defendants’ Motion for Summary Judgment
is HEREBY GRANTED IN PART AND DENIED IN PART, and the Remaining
Defendants’ Stay Motion is HEREBY GRANTED for the reasons set
forth below.
BACKGROUND
Plaintiff originally filed the instant action pursuant
to 42 U.S.C. § 1983 on November 8, 2007.

Plaintiff filed her

First Amended Complaint on October 27, 2008, and her Second
Amended Complaint on April 30, 2009.

[Dkt. nos. 76, 132.]

The

Second Amended Complaint alleged claims against the Remaining
Defendants, as well as Defendants Amy Yasunaga,
Kenneth Zienkiewicz, M.D., and Kay Bauman, M.D., all in their
individual capacities (all collectively “Defendants”).
The Second Amended Complaint alleges the following
claims: a § 1983 claim for the violation of Plaintiff’s Eighth
Amendment right to be free from cruel and unusual punishment and

2

her Fourteenth Amendment right to due process; intentional
infliction of emotional distress (“IIED”); negligence; and
punitive damages.

Plaintiff’s claims include, inter alia,

allegations that Defendants Marks, Zienkiewicz, Bauman, and
Wakabayashi: negligently hired, trained, supervised, and retained
Defendants Melchor, Bhalang, Bradley, and Yasunaga, who
negligently failed to provide Plaintiff with necessary medical
and prenatal care; negligently failed to reprimand Defendants
Melchor, Bhalang, Bradley, and Yasunaga regarding the denial of
medical care to Plaintiff; and negligently managed Oahu Community
Correctional Center’s (“OCCC”) medical services and procedures,
including the failure to adequately document Plaintiff’s medical
complaints.

[Second Amended Complaint at ¶ 42.]

This Court incorporates the summary of the relevant
factual background set forth in this Court’s Order Granting in
Part and Denying in Part Defendants’ Motion for Summary Judgment
(“2010 Summary Judgment Order”).

Castro v. Melchor, 760 F. Supp.

2d 970, 974-75 (D. Hawai`i 2010) (footnote omitted).1

The 2010

Summary Judgment Order granted summary judgment to Defendants
Yasunaga and Zienkiewicz as to all claims against them.

The

Court also granted summary judgment to Defendant Bauman as to

1

This citation includes both the 2010 Summary Judgment
Order and this Court’s Order Granting Defendants’ Motion
For Stay of Action Pending Appeal, filed January 7, 2011 (“Stay
Order”).
3

several claims but denied summary judgment to Defendant Bauman as
to other claims.

Defendant Bauman filed a Notice of Appeal on

December 14, 2010.

[Dkt. no. 291.]

Order on January 7, 2011.

This Court issued the Stay

760 F. Supp. 2d at 1000-05.

The Ninth

Circuit later granted the parties’ Stipulated Motion to
Voluntarily Dismiss Appeal.
395).]

[Order, filed 4/9/12 (dkt. no.

This Court subsequently approved the parties’ Stipulation

for Partial Dismissal with Prejudice as to All Claims Against
Defendant Kay Bauman, M.D.
I.

[Filed 5/16/12 (dkt. no. 399).]

State Action
While Defendant Bauman’s appeal was pending, Plaintiff

proceeded to trial before the Circuit Court of the First Circuit,
State of Hawai`i (“state court”) in Leah Castro, et al. v.
Leroy Melchor, et al., Civil No. 08-1-0901-05 KTN (“State
Action”).

[Defs.’ Concise Statement of Facts in Supp. of Their

Motion for Summary Judgment, filed 6/8/12 (dkt. no. 406) (“Defs.’
CSOF”), Decl. of Marie Manuele Gavigan (“Gavigan Decl.”), Exh. E
(Findings of Fact & Conclusions of Law & Order (“State Action
FOF&COL”)) at 1-2.]
The defendants that Plaintiff named in the First
Amended Complaint in the State Action (“State Action Complaint”)
were: Leroy Melchor, Wanna Bhalang, Tomi Bradley, Amy Yasunaga,
Roberta Marks, Kenneth Zienkiewicz, M.D., and Keith Wakabayashi,
all in their official capacities; the State of Hawaii (“State”);

4

and the Hawaii Department of Public Safety (“DPS”, all
collectively “State Action Defendants”).

The State Action

Complaint is based on the same factual allegations as the Second
Amended Complaint in the instant case.

It alleges negligence and

gross negligence against the State Action Defendants (“State
Count I”), as well as an IIED and negligent infliction of
emotional distress (“NIED”) claim against all of the defendants
except the State and DPS (“State Count II”).

[Gavigan Decl.,

Exh. B (State Action Complaint).]
State Count I alleges, in pertinent part:
17. Defendants MELCHOR, BHALANG, BRADLEY,
and YASUNAGA were negligent and/or grossly
negligent for failure to provide Plaintiff CASTRO
and her unborn daughter with proper or timely
medical care. . . .
18. Defendants ZIENKIEWICZ, WAKABAYASHI and
MARKS were negligent for failure to properly
train, supervise and/or retain Defendants MELCHOR,
BHALANG, BRADLEY, and YASUNAGA. . . .
[Id. at pgs. 5-6 (emphases in original).]
On March 24, 2011, the State Action Defendants filed
their Motion for Summary Judgment, or in the Alternative, for a
Stay of This Civil Action (“State Action Motion for Summary
Judgment”).

[Pltf.’s Concise Statement of Facts in Supp. of Mem.

in Opp. to Remaining Defs.’ Motion for Summary Judgment, Filed
June 8, 2012, filed 8/20/12 (dkt. no. 416) (“Pltf.’s CSOF”),
Decl. of Sue Vo Hansen (“Hansen Decl.”), Exh. 6 (State Action
Motion for Summary Judgment).]

On May 13, 2011, the state court
5

issued an order granting the State Action Motion for Summary
Judgment in part and denying it part.

[Gavigan Decl., Exh. D.]

The order stated, in pertinent part: “The motion is granted as to
all claims against Defendants Yasunaga, Marks, Zienkiewicz and
Wakabayashi . . . .”2

[Id. at 2.]

In the State Action Motion for Summary Judgment, the
State Action Defendants, inter alia, sought summary judgment as
to Plaintiff’s claims for negligent training, supervision, and/or
retention.

[Mem. in Supp. of State Action Motion for Summary

Judgment at 10-15.]

Specifically as to Defendants Zienkiewicz,

Wakabayashi, and Marks, in their official capacities, the State
Action Defendants argued that: 1) Plaintiff had not sufficiently
pled those claims against Defendants Zienkiewicz, Wakabayashi,
and Marks; and 2) even if Plaintiff had properly pled those
claims, Defendants Zienkiewicz, Wakabayashi, and Marks were
immune from liability because they were “engaged in discretionary
functions as supervisors[.]”

[Id. at 13-15.]

The state court held a jury-waived trial from February
27, 2012 through March 8, 2012.

[State Action FOF&COL at 1-2.]

The state court found, in pertinent part:

2

The state court issued an amended order on October 14,
2011, but the amended order did not alter the state court’s
ruling as to Defendants Yasunaga, Marks, Zienkiewicz and
Wakabayashi. [Decl. of Marie Manuele Gavigan, filed 9/10/12
(dkt. no. 422), Exh. J.]
6

46. Defendant State breached the applicable
standards of care by (1) failing to provide
Plaintiff with adequate and timely prenatal care,
including failure to provide Plaintiff with an
OBGYN evaluation and ultrasound as ordered by the
nurse practitioner and OCCC physician, (2) failing
to provide Plaintiff with medical care in response
to Plaintiff’s repeated vaginal bleeding
complaints and requests for medical attention, and
(3) failing to properly monitor, observe, and
question Plaintiff about her health condition
while she was locked up in segregation, pursuant
to the clear and unambiguous DPS and OCCC policies
and procedures mandating such level of health care
for segregated inmates.
47. Therefore, Defendant State was
negligent.
[Id. at pg. 10.]

The state court’s references to “State” or

“Defendant State” include State Action Defendants Melchor,
Bhalang, and Bradley, in their official capacities (“Nurse
Defendants”), because the suit against them in their official
capacities “is essentially a suit against Defendant State.”

[Id.

at pg. 10 n.5.]
The state court also concluded, inter alia, that “the
evidence established that the conduct of Nurse Defendants with
respect to Plaintiff’s bleeding complaints, was not intentional
or reckless, but negligent.

Therefore, as to IIED, the court

rules in favor of Nurse Defendants.”

[Id. at ¶ 76.]

Ultimately,

the state court concluded:
81. Based on all the facts and
circumstances, an award of damages against
Defendant State, in the amount of $350,000.00 to
Plaintiff individually ($250,000.00 for NIED and
$100,000.00 for loss of filial consortium), is
7

fair and appropriate, for the State’s share of
Plaintiff’s total damages.
82. The Estate’s claim, under HRS § 663-7,
is the cause of action and recovery that Baby
Castro would have been entitled to at death for
the injuries caused by Defendant State’s
negligence. Ozaki v. Assn of Apt. Owners, 87
Hawai`i 273, 288, 954 P.2d 652, 667 (App. 1998),
aff’d in part and reversed in part on other
grounds, 87 Hawai`i 265, 954 P.2d 644 (1998). The
Estate’s damages include damages for the loss of
enjoyment of life, or for the value of life
itself, measured separately from the economic
productive value that the deceased would have had.
Montalvo v. Lapez, 77 Hawai`i 282, 284 n.2, 884
P.2d 345, 347 n.2 (1994).
83. The Estate’s damages include the value
for the loss of life itself and for all of the
damages that Baby Castro would have been entitled
to had she been alive, such as loss of enjoyment
of life. The evidence established that the baby
was normal, with no congenital or development
abnormalities. Despite the incarcerated status of
her mother, Baby Castro’s life and her loss of
enjoyment of life, are of the nature and kind of
any other infant. An award of damages against
Defendant State, in the amount of $250,000.00 to
the Estate of Briandalynne Castro, is fair and
appropriate, for the State’s share of the Estate’s
total damages.
[Id. at pg. 17.]
On July 31, 2012, the state court entered its judgment
pursuant to the State Action FOF&COL and the order and amended
order granting the State Action Motion for Summary Judgment
(“State Action Judgment”).
Judgment).]

[Hansen Decl., Exh. 1 (State Action

On August 29, 2012, the State Action Defendants

filed their notice of appeal from the State Action Judgment and
the State Action FOF&COL.

[Pltf.’s Suppl. Exh. in Supp. of Mem.
8

in Opp. to the Remaining Defs.’ Motion for Summary Judgment,
Filed June 8, 2012, filed 8/30/12 (dkt. no. 419), Decl. of Sue Vo
Hansen (“Suppl. Hansen Decl.”), Exh. 7 (notice of appeal).]
Plaintiff represents that the deadline to file appeals from the
State Action Judgment was August 31, 2012.

[Mem. in Opp. to Stay

Motion at 4.]
II.

Motion for Summary Judgment
In the instant Motion for Summary Judgment, the

Remaining Defendants first emphasize that Plaintiff initially
filed the instant action against two OCCC Adult Corrections
Officers (“ACOs”) and the wardens of OCCC and the Women’s
Community Correctional Center (“WCCC”) based upon an incident
which resulted in a “take down” of Plaintiff.

Plaintiff also

named the State and DPS as defendants, but Plaintiff stipulated
to dismiss those entities and other defendants in their official
capacities based upon the State’s immunity from suit in federal
court.

According to the Remaining Defendants, Plaintiff did not

raise her theory of the case based upon the failure to treat her
vaginal bleeding complaints until she filed her First Amended
Complaint in October 2008.

[Mem. in Supp. of Motion for Summary

Judgment at 1-2.]
When Plaintiff initially filed the State Action in May
2008, she sued the ACOs who she initially named in the instant
case, the State, and DPS as the defendants, and she based her

9

claims upon the “take down” incident.

Plaintiff, however, later

dismissed her claims against the ACOs and amended her complaint
to name Defendants Melchor, Bhalang, Bradley, Yasunaga, Marks,
Zienkiewicz, and Wakabayashi, all in their official capacities,
as well as the State and DPS, based on the stillbirth of her
daughter.

[Id. at 3.]

The Remaining Defendants assert that

“[t]he allegations in the Second Amended Complaint in the Federal
lawsuit with regard to the claims of negligence and intentional
and negligent infliction of emotional distress are the same or
substantially similar to the claims in the First Amended
Complaint in the State lawsuit.”

[Id. at 4.]

The Remaining Defendants argue that “because all of
Plaintiff’s claims have been fully litigated and adjudicated in
the State lawsuit, the State Defendants are entitled to summary
judgment as a matter of law based on the application of res
judicata.”

[Id. at 9.]

They seek summary judgment in their

favor on all claims in the instant case.

[Id. at 10.]

First, the Remaining Defendants argue that there is an
identity of claims in the two actions because all of Plaintiff’s
claims in the instant case and all of her claims in the State
Action arise from the same transactional nucleus of facts - the
alleged lack of appropriate medical care, which resulted in the
stillbirth of Plaintiff’s daughter.

[Id. at 13.]

Second, the

Remaining Defendants argue that the parties in the instant case

10

are identical to the parties in the State Action, except that the
State and DPS were also defendants in the State Action.

The

Remaining Defendants argue that the individual defendants are in
privity with the State and DPS because the individual defendants
are closely aligned with those entities and because those
entities act through their employees.

The Remaining Defendants

acknowledge that Defendant Bauman was not a defendant in the
State Action, but they argue that this is irrelevant to the res
judicata analysis because, in the instant case, Plaintiff
dismissed her claims against Defendant Bauman.
n.2.]

[Id. at 13-14 &

Third, as to the requirement of a final judgment on the

merits, the Remaining Defendants argue that the summary judgment
rulings and the State Action FOF&COL are adjudications of the
merits.

The Remaining Defendants argue that, after the entry of

judgment in the State Action, there will be a final judgment for
res judicata purposes.

[Id. at 14-15.]

They acknowledge that

the Motion for Summary Judgment is premature, but they state that
they filed it in order to comply with the dispositive motions
deadline.

[Id. at 14 n.3.]
Assuming that res judicata applies, the Remaining

Defendants argue that the state court’s conclusion that the State
Action Defendants were negligent precludes § 1983 liability in
this case because Eighth Amendment liability requires more than
negligence.

[Id. at 15-16.]

The Remaining Defendants also argue

11

that they are entitled to summary judgment as to Plaintiff’s
negligence claims in this case because the State Action fully
litigated Plaintiff’s claims based upon the failure to provide
timely and adequate medical treatment and the failure to comply
with the segregated inmates policies.

Further, the state court

ruled in favor of the State Action Defendants as to Plaintiff’s
claims based on the allegedly negligent training, supervision,
and retention of Defendants Melchor, Bhalang, Bradley, and
Yasunaga.

[Id. at 16-17.]

Finally, the Remaining Defendants

argue that they are entitled to summary Judgment as to
Plaintiff’s IIED claim because the state court ruled that the
actions of Defendants Melchor, Bhalang, and Bradley in responding
to Plaintiff’s vaginal bleeding complaints were not intentional
or reckless, but merely negligent.
A.

[Id. at 17-18.]

Plaintiff’s Opposition
In her memorandum in opposition to the Motion for

Summary Judgment, Plaintiff states that, throughout this action,
she has consistently alleged that Defendants were deliberately
indifferent when they denied her medical care, resulting in the
stillbirth of her daughter.

Plaintiff merely did not know, at

the time she filed the action, the identities of the nurses who
failed to provide her with medical care or the identities of
their supervisors.

Plaintiff learned their identities during

discovery and timely amended her complaint.

12

Plaintiff emphasizes

that, prior to the Defendant Bauman appeal, the trial in the
instant case was scheduled to go forward well before the trial in
the State Action.

[Mem. in Opp. to Motion for Summary Judgment

at 2-4.]
Plaintiff argues that res judicata does not apply to
the State Action because there has been no final judgment in
light of the State Action Defendants’ appeal from the judgment
and the State Action FOF&COL, and the judgment will not be final
for another three to four years.

[Id. at 10-11.]

In addition, Plaintiff argues that the parties in the
instant case and the State Action are not the same and they are
not in privity.

Essentially, all of the individual defendants,

in their official capacities, in the State Action are the same as
the State itself.

In contrast, the defendants in the instant

case are sued in their individual capacities.

Plaintiff argues

that their status as employees of the State does not establish
privity.

There is no evidence that the individual defendants

were able to call their own witnesses in the State Action or that
the State represented their individual interests.

[Id. at 12-

14.]
Plaintiff also argues that there is no identity of
claims in the two actions.

The State Action did not include

claims for violation of Plaintiff’s Eighth Amendment and
Fourteenth Amendment rights, nor did it include claims for

13

punitive damages or attorneys’ fees and costs pursuant to 42
U.S.C. § 1983.

Plaintiff asserts that, because she filed the

instant case first, she could not have asserted those claims in
the State Action.

Further, she had a right to bring those claims

in federal court if she chose to do so.

[Id. at 14-15.]

Moreover, because those claims were not at issue in the State
Action, Plaintiff did not fully litigate her claims in the
instant case in the State Action.

The State Action determined

only the liability of the State, not the individual defendants.
Plaintiff argues that she would be prejudiced if she is not
allowed to pursue her remaining claims in the instant case.
at 16-17.]

[Id.

She also contends that it would violate her due

process right, as well as public policy.

[Id. at 19-20.]

Even if res judicata could apply without a final
judgment, nothing in the state court’s findings regarding the
State’s negligence precludes Plaintiff from litigating her civil
rights claims in the instant case, which are based on a
deliberate indifference standard.

[Id. at 18-19.]

Finally, Plaintiff urges the Court to deny the Summary
Judgment Motion based on judicial estoppel.3

3

She argues that the

Plaintiff also argues that the Summary Judgment Motion
violates Fed. R. Civ. P. 11 because the res judicata argument is
frivolous. [Mem. in Opp. to Motion for Summary Judgment at 2223.] The Court, however, will not address this argument because
Plaintiff failed to follow the proper procedures for seeking
sanctions pursuant to Rule 11. See Fed. R. Civ. P. 11(c)(2).
14

Remaining Defendants have taken the inconsistent position of
challenging the State Action’s judgment in their appeal but at
the same time trying to enforce that judgment in the instant case
through res judicata.
B.

[Id. at 22.]

The Remaining Defendants’ Reply
In their reply in support of the Motion for Summary

Judgment (“Summary Judgment Reply”), the Remaining Defendants
argue that there is no dispute that the instant case and the
State Action both arise out of the alleged failure to provide
timely and adequate medical care to Plaintiff, which allegedly
resulted in the stillbirth of her fetus.

[Summary Judgment Reply

at 2-3.]
The Remaining Defendants concede that there is no final
judgment in the State Action, but they argue that, “[i]f a stay
is not granted and this case is allowed to go to trial, there is
the possibility of an inconsistent result, a matter which res
judicata is directly intended to address.”

[Id. at 5.]

As to the identity of the parties, the Remaining
Defendants argue that the same individuals named in the instant
case were also named in the State Action.

Even if this Court

were to find that the two groups of defendants were not the same,
the defendants in the instant case are in privity with the
defendants in the State Action because there is a sufficiently
close relationship between individual employees in their official

15

capacities and those individuals in their individual capacities.
[Id. at 5-8.]
As to the identity of the claims, the Remaining
Defendants reiterate that the claims in the two actions arise
from the same common nucleus of facts and that Plaintiff could
have dismissed her claims in the instant case and included them
in the State Action.

The Remaining Defendants argue that

Plaintiff seeks a windfall by pursing her claim twice in two
different fora.

[Id. at 9.]

The Remaining Defendants reiterate

that the findings in the State Action preclude Plaintiff’s claims
in the instant case.

Allowing her claims to go forward could

result in inconsistent verdicts on Plaintiff’s “single claim.”
[Id. at 10.]

The Remaining Defendants contend that neither

public policy nor due process allows Plaintiff to split her
claims between two different courts.

[Id. at 10-11.]

The Remaining Defendants argue that judicial estoppel
does not apply because they do not assert inconsistent positions.
They are entitled to appeal the judgment in the State Action and,
in the instant case, they seek a stay until the State Action
becomes final.

At that time, res judicata will apply.

The

Remaining Defendants argue that, because Plaintiff had an
opportunity to litigate her claims in the State Action, this
Court should defer to the state court’s judgment when it becomes
final.

Thus, a stay is appropriate.

16

[Id. at 11-12.]

III. Stay Motion
In the Stay Motion, the Remaining Defendants seek a
stay of all proceedings in the instant case until the judgment in
the Stay Action is final, including the resolution of any
appeals.

[Stay Motion at 2.]

The Remaining Defendants argue

that a stay is appropriate because the State Action proceedings
are duplicative of the instant case.

They emphasize that this

Court has the discretion, based on the totality of the issues
before both courts, to stay this action pending the outcome of
the State Action.

The Remaining Defendants argue that a stay is

particularly appropriate because the final judgment in the State
Action will have a res judicata effect.

The Remaining Defendants

argue that, if the Court allows the case to go forward, the
Remaining Defendants will be prejudiced by having to litigate the
same case twice, and there could be inconsistent results, which
would waste this Court’s and the state court’s limited resources.
[Mem. in Supp. of Stay Motion at 4-5.]

The Remaining Defendants

argue that a stay pending the resolution of any appeals in the
State Action would be for a reasonable period of time because the
appeal would likely end the litigation in the instant case, and
“[t]here is no basis for this Court to believe that the appellate
courts of Hawaii would cause any unreasonable delay.”
10-11.]

17

[Id. at

The Remaining Defendants raise the same arguments
regarding res judicata that they raise in the Summary Judgment
Motion.

[Id. at 5-11.]

Acknowledging that there is no final

judgment in the State Action, the Remaining Defendants argue that
“it would violate the intent and spirit of this legal precept if
a stay were not granted.”
A.

[Id. at 7.]

Plaintiff’s Opposition
In her memorandum in opposition to the Stay Motion,

Plaintiff argues that the two cases are not duplicative, and the
State Action did not resolve all of the claims in the instant
case.

She emphasizes that she filed the instant case before she

filed the State Action.

[Mem. in Opp. to Stay Motion at 5-7.]

Plaintiff reiterates her arguments from the Summary
Judgment Opposition that res judicata does not apply.

Plaintiff

argues that the Remaining Defendants have repeatedly tried to
frustrate the prosecution of her claims by using delay tactics.
[Id. at 8-14.]

Plaintiff does admit that she could have brought

her civil rights claims in state court.

[Id. at 11.]

Plaintiff

also reiterates her arguments that the Court should deny the Stay
Motion based on judicial estoppel, [id. at 14-18,] and that she
did not fully litigate all of the claims in the instant case in
the State Action [id. at 18-19].

18

B.

The Remaining Defendants’ Reply
In their reply in support of the Stay Motion (“Stay

Reply”), the Remaining Defendants reiterate that the claims and
the parties are identical in the instant case and in the State
Action.

[Stay Reply at 4-8.]

The Remaining Defendants argue

that, because Plaintiff could have brought all of her claims in
the instant case in the State Action, res judicata precludes her
from pursuing those claims in the instant case.

[Id. at 4-5

(quoting Ellis v. Crockett, 51 Haw. 45, 55, 451 P.2d 814, 822
(1969)).]

The Remaining Defendants also reiterate their

arguments that judicial estoppel does not apply under the
circumstances of this case and that Plaintiff has already been
fully compensated for her claims.

[Id. at 9-10.]

DISCUSSION
I.

Judicial Estoppel
At the outset, this Court will address Plaintiff’s

argument that this Court should deny both of the Remaining
Defendants’ motions based on judicial estoppel.

“Judicial

estoppel is an equitable doctrine that precludes a party from
gaining an advantage by asserting one position, and then later
seeking an advantage by taking a clearly inconsistent position.”
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th
Cir. 2001) (citations omitted).

Courts invoke “judicial estoppel

not only to prevent a party from gaining an advantage by taking
19

inconsistent positions, but also because of ‘general
consideration[s] of the orderly administration of justice and
regard for the dignity of judicial proceedings,’ and to ‘protect
against a litigant playing fast and loose with the courts.’”

Id.

(quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990))
(alteration in original).
Courts may consider three factors in deciding whether
to apply the doctrine of judicial estoppel:
First, a party’s later position must be clearly
inconsistent with its earlier position. Second,
. . . whether the party has succeeded in
persuading a court to accept that party’s earlier
position, so that judicial acceptance of an
inconsistent position in a later proceeding would
create the perception that either the first or the
second court was misled . . . . [T]hird[,] . . .
whether the party seeking to assert an
inconsistent position would derive an unfair
advantage or impose an unfair detriment on the
opposing party if not estopped.
New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (citations
and internal quotation marks omitted); accord Hamilton, 270 F.3d
at 782-83.
This Court CONCLUDES that judicial estoppel does not
apply to the instant motions.

The State Action Defendants’

appeal is not inconsistent with the Remaining Defendants’
position in the instant motions.

Essentially, the Remaining

Defendants argue that this Court should refrain from ruling on
any claims in the instant case that would be affected by the

20

rulings in the appeal in the State Action.

This Court therefore

turns to the merits of the instant motions.
II.

Summary Judgment Based on Res Judicata
This Court must look to Hawai`i law to determine

whether the judgment in the State Action has preclusive effect.
See Bumatay v. Fin. Factors, Ltd., Civil No. 10-00375 JMS/LEK,
2010 WL 3724231, at *4 (D. Hawai`i Sept. 16, 2010) (citing Migra
v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)
(“It is now settled that a federal court must give to a
state-court judgment the same preclusive effect as would be given
that judgment under the law of the State in which the judgment
was rendered.”)).

Hawai`i state courts use the term “claim

preclusion” instead of res judicata.

Id. at *4 n.3 (citing

Bremer v. Weeks, 104 Haw. 43, 53, 85 P.3d 150, 160 (2004)).
Under Hawaii law, claim preclusion prevents a
party from relitigating “not only . . . issues
which were actually litigated in [a prior] action,
but also . . . all grounds of claim and defense
which might have been properly litigated in the
[prior] action.” See Aganos v. GMAC Residential
Funding Corp., 2008 WL 4657828, at *4 (D. Haw.
Oct. 22, 2008) (quoting Bremer v. Weeks, 104 Haw.
43, 53, 85 P.3d 150, 160 (2004)). . . .
Id. at *4 (alterations in Bumatay).
The party asserting res judicata/claim preclusion has
“‘the burden of establishing that (1) there was a final judgment
on the merits, (2) both parties are the same or in privity with
the parties in the original suit, and (3) the claim decided in

21

the original suit is identical with the one presented in the
action in question.’”

Id. at *5 (quoting Bremer, 104 Haw. at 54,

85 P.3d at 161).
“‘[A] judgment is final where the time to appeal has
expired without an appeal being taken.’”

Id. (alteration in

Bumatay) (some citations omitted) (quoting Littleton v. State, 6
Haw. App. 70, 75, 708 P.2d 829, 833 (1985)).

Thus, the judgment

in the State Action is not final as to the rulings in the State
Action FOF&COL because of the State Action Defendants’ pending
appeal.4

Insofar as all of the three factors identified in

Bumatay and Bremer must be present for res judicata/claim
preclusion to apply, the lack of finality as to all of the issues
subject to the State Action Defendants’ appeal means that res

4

The Court notes that the state court ruled in favor of
Defendants Melchor, Bhalang, and Bradley, in their official
capacities, as to the IIED claim based on their response to
Plaintiff’s bleeding complaints. Plaintiff did not appeal from
the judgment in favor of Defendants Melchor, Bhalang, and
Bradley, in their official capacities, as to the IIED claim. The
notice of appeal in the State Action states that Defendants
Melchor, Bhalang, and Bradley, in their official capacities, the
State, and DPS appeal from “the Judgment Pursuant to Findings of
Fact, Conclusions of Law and Order filed herein on July 31,
2012 . . . , and the Findings of Fact and Conclusions of Law and
Order filed on May 14, 2012 . . . .” [Suppl. Hansen Decl., Exh.
7 at 2.] Based on the record before this Court, it is not clear
whether the appeal contests either the state court’s ruling as to
the IIED claim against Defendants Melchor, Bhalang, and Bradley,
in their official capacities, or the factual findings that the
state court based that ruling upon. Thus, depending upon the
specific issues that the appellants raise in the State Action
appeal, the judgment as to the IIED claim against Defendants
Melchor, Bhalang, and Bradley, in their official capacities, may
be final even prior to the resolution of the appeal.
22

judicata/claim preclusion does not apply to the State Action
Judgment, to the extent that the state court entered it pursuant
to the State Action FOF&COL.
The state court, however, also entered the State Action
Judgment pursuant to the order, and amended order, granting in
part and denying in part the State Action Motion for Summary
Judgment.

The state court, inter alia, granted summary judgment

in favor of Defendants Marks and Wakabayashi as to all claims
against them.

[Gavigan Decl., Exh. D at 2.]

This includes the

portion of State Count I alleging that Defendants Marks and
Wakabayashi, in their official capacities, were negligent for
failing to properly train, supervise, and/or retain Defendants
Melchor, Bhalang, Bradley, and Yasunaga.
at ¶ 18.]

[State Action Complaint

The time for Plaintiff to appeal from this portion of

the judgment has expired, and Plaintiff did not file a notice of
appeal.

This Court therefore FINDS that, to the extent that the

state court entered judgment in favor of Defendants Marks and
Wakabayashi, in their official capacities, as to the negligent
training, supervision, and/or retention claim, the State Action
Judgment is final for purposes of res judicata/claim preclusion.
In the instant case, Count III in the Second Amended
Complaint alleges, inter alia, that Defendants Marks and
Wakabayashi were negligent for “training, supervision, and
retention of Defendants MELCHOR, BHALANG, BRADLEY and YASUNAGA,

23

who denied, delayed and/or failed to provide necessary medical
and prenatal care to Plaintiff CASTRO and her daughter,
BRIANDALYNNE CASTRO[.]”
(emphases in original).]

[Second Amended Complaint at ¶ 42(a)
Count III also alleges that, by reason

of the negligent training, supervising, and retention, Defendants
Marks and Wakabayashi “negligently inflicted severe emotional
distress on Plaintiff CASTRO.”

[Id. at ¶ 45.]

This Court FINDS

that these portions of Plaintiff’s negligence claim against
Defendants Marks and Wakabayashi, in their individual capacities,
are identical to Plaintiff’s negligent training, supervision, and
retention claim and NIED claim in the State Action against
Defendants Marks and Wakabayashi, in their official capacities.
Further, the state court decided those claims on the merits in
the State Action.
As to the final factor identified in Bumatay and
Bremer, Plaintiff argues that the individual defendants, in their
official capacities, in the State Action are not the same parties
as the individual defendants, in their individual capacities, in
the instant case because a suit against a state official in his
official capacity is a suit against the state itself.

See Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“a suit
against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the
official’s office” (citation omitted)), limited on other grounds

24

by Hafer v. Melo, 502 U.S. 21, 22-23 (1991).

Even if that rule

precludes a finding that the parties are identical, this Court
would still find that the parties are in privity.
Under Hawai`i law, the “concept of privity has
moved from the conventional and narrowly defined
meaning of ‘mutual or successive relationship[s]
to the same rights of property’ to ‘merely a word
used to say that the relationship between one who
is a party of record and another is close enough
to include that other within res adjudicata.’”
Napala v. Valley Isle Loan LLC, Civ. No. 10–00410 ACK–KSC, 2010
WL 4642025, at *6 (D. Hawai`i Nov. 1, 2010) (alteration in
Napala) (quoting Spinney v. Greenwich Capital Fin. Prods., Inc.,
No. 05–00747 ACK–KSC, 2006 WL 1207400, at *7 (D. Hawai`i May 3,
2006) (citing In re Dowsett Trust, 7 Haw. App. 640, 646, 791 P.2d
398, 402 (Haw. App. 1990))).

In the present case, the

relationship between Defendants Marks and Wakabayashi, in their
official capacities, and Defendants Marks and Wakabayashi, in
their individual capacities, is close enough to find that res
judicata/claim preclusion applies.
The Hawai`i Supreme Court has also recognized, in the
context of the privity necessary for issue preclusion:
In addressing privity, this court has previously
stated that “[p]reclusion is fair in circumstances
where the nonparty and party had the same
practical opportunity to control the course of the
proceedings.” Bush v. Watson, 81 Hawai`i 474,
480, 918 P.2d 1130, 1136 (1996) (citation
omitted). “Preclusion may also be appropriate
where the party in the previous action was acting
in a representative capacity for the current
party. However, several important rules limit the
25

extent of preclusion by representation. The most
obvious rule is that the representative must have
been appointed by a valid procedure.” Id. at 481,
918 P.2d at 1137 (citation, brackets and quotation
marks omitted).
Lingle v. Haw. Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO, 107
Hawai`i 178, 186-87, 111 P.3d 587, 595-96 (2005) (alteration in
Lingle).

Clearly, in the State Action, Defendants Marks and

Wakabayashi, in their official capacities, also represented the
interests of Defendants Marks and Wakabayashi, in their
individual capacities, particularly where all are represented by
the Attorney General’s office and where the same deputy attorney
general, Ms. Gavigan, is the primary defense counsel in both
cases.

This Court therefore FINDS that Defendants Marks and

Wakabayashi, in their official capacities, are the same parties
as or are in privity with Defendants Marks and Wakabayashi, in
their individual capacities.
Having found that all of the factors identified in
Bumatay and Bremer are present, this Court CONCLUDES that res
judicata/claim preclusion applies to the state court’s ruling in
favor of Defendants Marks and Wakabayashi, in their official
capacities, as to the negligent training, supervision, and
retention claim and as to the NIED claim based on training,
supervision, and retention against them in the State Action.
Thus, as to the negligent training, supervision, and retention
claim, and as to the NIED claim based on training, supervision,

26

and retention, in the instant case against Defendants Marks and
Wakabayashi, in their individual capacities, the Court CONCLUDES
that there are no genuine disputes of material fact and
Defendants Marks and Wakabayashi are entitled to judgment as a
matter of law as to those claims.

See Fed. R. Civ. P. 56(a).

Similarly, insofar as Plaintiff cannot establish that Defendants
Marks and Wakabayashi, in their individual capacities,
negligently trained, supervised, and retained Defendants Melchor,
Bhalang, Bradley, and Yasunaga, Plaintiff cannot establish that
Defendants Marks’s and Wakabayashi’s training, supervision, and
retention of Defendants Melchor, Bhalang, Bradley, and Yasunaga
was either deliberately indifferent, as required for the § 1983
claim, or intentional, as required for the IIED claim.

See

Campbell v. Wash. Dep’t of Soc. & Health Servs., 671 F.3d 837,
846 (9th Cir. 2011) (“Deliberate indifference is a higher
standard than gross negligence because it requires a culpable
mental state, meaning that [t]he state actor must recognize[]
[an] unreasonable risk and actually intend[] to expose the
plaintiff to such risks without regard to the consequences to the
plaintiff.” (alterations in Campbell) (citations and internal
quotation marks omitted)).
The Court therefore GRANTS the Remaining Defendants’
Motion for Summary Judgment as to the negligent training,
supervision, and retention claim, and as to the NIED claim based

27

on training, supervision, and retention, against Defendants Marks
and Wakabayashi, in their individual capacities.

The Court also

GRANTS the Motion for Summary Judgment as to the portions of the
§ 1983 claim and the IIED claim based on Defendants Marks’s and
Wakabayashi’s training, supervision, and retention of Defendants
Melchor, Bhalang, Bradley, and Yasunaga.

The Court DENIES the

Remaining Defendants’ Motion for Summary Judgment in all other
respects.

The denial is WITHOUT PREJUDICE to the refiling, by

either the Remaining Defendants or Plaintiff, of a motion for
summary judgment based on res judicata/claim preclusion after
there is a final judgment as to the claims at issue in the appeal
in the State Action.
The Court notes that, in the instant case, Plaintiff’s
negligence claim against Defendants Marks and Wakabayashi, in
their individual capacities, included allegations based on:
negligent failure to hire Defendants Melchor, Bhalang, and
Bradley and negligent failure to reprimand them for their denial
of medical care to Plaintiff; [Second Amended Complaint at
¶ 42(a), (b);] “negligent management of OCCC’s medical services
and procedures[;5]” [id. at ¶ 42(c);] and NIED as a result of
those actions and omissions [id. at ¶ 45].

Plaintiff’s

negligence claim in State Count I did not include these

5

The negligent management claim would include the decision
not to enforce the policies and procedures regarding the health
evaluation of female inmates in segregation.
28

allegations.6

Thus, the State Action Judgment in favor of

Defendants Marks and Wakabayashi, in their official capacities,
does not have a res judicata effect as to those portions of
Plaintiff’s negligence claim in the instant case.

Those portions

of the negligence claim against Defendants Marks and Wakabayashi,
in their individual capacities, remain.

Similarly, all other

portions of the § 1983 claim, the IIED claim, and the derivative
claim for punitive damages against Defendants Marks and
Wakabayashi, in their individual capacities, also remain.
III. Stay Motion
The Remaining Defendants urge the Court to stay the
instant case pending the resolution of any appeals in the State
Action because of the res judicata effect that the State Action
Judgment will have when it becomes final.

This district court

has recognized that:
“[T]he power to stay proceedings is
incidental to the power inherent in every court to
control the disposition of the causes on its
docket with economy of time and effort for itself,

6

The Court notes that the state court did make factual
findings regarding the decision not to enforce the policies and
procedures regarding the health evaluation of female inmates in
segregation. [State Action FOF&COL at ¶¶ 12-17, 46.] These
findings, however, appear to be background for Plaintiff’s
negligence claim in State Count I based on the failure to provide
proper or timely medical care. In contrast with the Second
Amended Complaint in the instant case, the State Action Complaint
does not expressly allege a negligence claim based on the failure
to enforce the procedures regarding the health evaluation of
inmates in segregation. Compare Second Amended Complaint at
¶¶ 33, 42(c), with State Action Complaint at ¶¶ 15-22.
29

for counsel, and for litigants.” Landis v. N. Am.
Co., 299 U.S. 248, 254, 57 S. Ct. 163, 81 L. Ed.
153 (1936). See Leyva v. Certified Grocers of
Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979)
(“[T]he court may order a stay of [an] action
pursuant to its power to control its docket and
calendar and to provide for a just determination
of the cases pending before it.”). . . .
Illinois Nat’l Ins. Co. v. Nordic PCL Constr., Inc., Civil No.
11–00515 SOM/KSC, 2012 WL 1492399, at *20 (D. Hawai`i Apr. 26,
2012) (some alterations in Nordic PCL).

Further, this district

court has exercised its inherent power to stay an action pending
the resolution of state appellate proceedings.

See, e.g., Tejada

v. Deutsche Bank Nat’l Trust Co., Civil No. 10–00136 SOM/KSC,
2011 WL 3240276, at *4 (D. Hawai`i July 27, 2011) (“When an
appeal has been taken, the Hawaii Supreme Court has noted that it
is proper to stay a subsequent suit regarding the subject matter
of the first suit pending that appeal.” (citing Solarana v.
Indus. Elecs., Inc., 50 Haw. 22, 30, 428 P.2d 411, 417 (1967))).
In Tejada, the district court noted that it had “no
reason to think that the Hawaii appellate courts will take an
unreasonable amount of time to decide the Tejadas’ appeal.

To

the contrary, the court expects that the stay in this case will
be of a fairly short duration.”

Id. (citing Dependable Highway

Express, Inc. v. Nagigators Ins. Co., 489 F.3d 1059, 1067 (9th
Cir. 2007) (noting that stays should not be indefinite and that
they should not be granted unless is appears that the other
proceedings will be concluded within a reasonable time)).
30

Similarly, in the instant case, this Court must also assume that
the Hawai`i appellate courts will decide the State Action
Defendants’ appeal within a reasonable amount of time.
In deciding whether to grant the stay, this Court is
guided by the principles of the abstention doctrine based on
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).
This district court has described the Pullman abstention doctrine
as follows:
“The Pullman abstention doctrine allows a
federal court to postpone the exercise of federal
jurisdiction when ‘a federal constitutional issue
. . . might be mooted or presented in a different
posture by a state court determination of
pertinent state law.’” VH Prop. [Corp. v. City of
Rancho Palos Verdes], 622 F. Supp. [2d 958,] 962
[(C.D. Cal. 2009)] (quoting Pearl Inv. Co. v. City
and Cnty. of San Francisco, 774 F.2d 1460, 1462
(9th Cir. 1985), and C–Y Dev. Co. v. City of
Redlands, 703 F.2d 375, 377 (9th Cir. 1983)).
Pullman abstention is an “equitable doctrine that
allows federal courts to refrain from deciding
sensitive federal constitutional questions when
state law issues may moot or narrow the
constitutional questions.” San Remo Hotel v. City
and Cnty. of San Francisco, 145 F.3d 1095, 1104
(9th Cir. 1998). It is also a discretionary
doctrine, which flows from the court’s equity
powers. Potrero Hills Landfill, Inc. v. Cnty. of
Solano, 657 F.3d 876, 888 (9th Cir. 2011) (citing
Baggett v. Bullitt, 377 U.S. 360, 375 (1964), and
Smelt v. Cnty. of Orange, 447 F.3d 673, 678 (9th
Cir. 2006).
Pullman abstention is warranted if three
conditions are satisfied: “(1) the federal
plaintiff’s complaint requires resolution of a
sensitive question of federal constitutional law;
(2) the constitutional question could be mooted or
narrowed by a definitive ruling on the state law
issues; and (3) the possibly determinative issue
31

of state law is unclear.” Potrero Hills Landfill,
657 F.3d at 888 (quoting Spoklie v. Montana, 411
F.3d 1051, 1055 (9th Cir. 2005)). . . .
Bridge Aina Le`a, LLC v. Haw. Land Use Comm’n, Civil No. 11–00414
SOM–BMK, 2012 WL 1109046, at *3 (D. Hawai`i Mar. 30, 2012) (some
alterations in Bridge Aina Le`a).
In the instant case, Plaintiff’s substantive claims
include both federal constitutional law claims pursuant to § 1983
and state law claims - negligence and IIED.

The State Action did

not include any civil rights claims, but it did include some of
the same negligence (including NIED) claims and IIED claims at
issue in the instant case.

Except for the claims discussed

supra, those claims are still at issue in the appeal by the State
Action Defendants.

In particular, both the State Action and the

instant case present negligence claims (including NIED) and IIED
claims against Defendants Melchor, Bhalang, and Bradley based
upon their responses to Plaintiff’s vaginal bleeding complaints.
If the Court allowed Plaintiff to proceed to trial in the instant
case during the pendency of the appeal in the State Action, the
jury could return a verdict that is inconsistent with the state
court’s rulings on those claims.

Arguably, only the United

States Supreme Court would be able to hear appeals from both
cases and resolve the conflict.

This would not serve the

interests of justice, particularly because, once the state
court’s judgment on those claims is final, the judgment would

32

have a res judicata/collateral estoppel effect in the instant
case.
This Court could stay the claims in the instant case
which are identical to the claims at issue in the State Action
appeal and proceed to trial on the claims in the instant case
which Plaintiff did not allege in the State Action, but that
would not be an effective use of the Court’s or the parties’ time
and resources.

Further, a definitive ruling on the state law

claims in the State Action appeal will narrow the issues in the
claims which are distinct from the claims in the State Action.
For example, if the Intermediate Court of Appeals (“ICA”)
reverses the state court’s ruling that the responses to
Plaintiff’s vaginal bleeding complaints were negligent and there
is ultimately a final judgment in favor of the State Action
Defendants on the negligence claim, this would preclude Plaintiff
from recovering on her § 1983 claim against Defendants Melchor,
Bhalang, and Bradley, in their individual capacities, based on
the same conduct because deliberate indifference requires more
than negligence.

See Wood v. Housewright, 900 F.2d 1332, 1334

(9th Cir. 1990) (“In determining deliberate indifference, we
scrutinize the particular facts and look for substantial
indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect.” (citation
omitted)).

Even if the ICA affirms all of the state court’s

33

findings and conclusions, it would still narrow the issues in the
§ 1983 claim.

As stated in this Court’s 2010 Summary Judgment

Order, the Ninth Circuit has
“long analyzed claims that correction facility
officials violated pretrial detainees’
constitutional rights by failing to address their
medical needs (including suicide prevention) under
a ‘deliberate indifference’ standard.” [Clouthier
v. Cnty. of Contra Costa, 590 F.3d 1232,] 1241
[(9th Cir. 2010)]. A prison official cannot be
liable for deliberate indifference unless he or
she “knows of and disregards an excessive risk to
inmate health or safety; the official must both be
aware of facts from which the inference could be
drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct.
1970, 128 L. Ed. 2d 811 (1994). In other words, a
plaintiff must show that the official was “(a)
subjectively aware of the serious medical need and
(b) failed adequately to respond.” Conn v. City
of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010)
(citing Farmer, 511 U.S. at 828, 114 S. Ct. 1970),
petition for cert. filed, 78 U.S.L.W. 3670, --U.S. ----, --- S. Ct. ----, --- L. Ed. 2d ---(2010).[7]

7

Since the filing of the 2010 Summary Judgment Order, the
United States Supreme Court granted the petition for writ of
certiorari and vacated the judgment in Conn, 591 F.3d 1081. The
Supreme Court remanded the case for further consideration in
light of Connick v. Thompson, 131 S. Ct. 1350 (2011). City of
Reno v. Conn, 131 S. Ct. 1812 (2011). With some exceptions, the
Ninth Circuit on remand reinstated its prior opinion, including
the portion of the opinion quoted in the 2010 Summary Judgment
Order. Conn v. City of Reno, 658 F.3d 897 (9th Cir. 2011).
This Court notes that district courts within the Ninth
Circuit still cite Farmer, 511 U.S. at 828, or Simmons, 609 F.3d
at 1017-18, for the subjective awareness and failure to
adequately respond analysis. See, e.g., Smith v. Solano Cnty.,
No. 2:11–cv–00142 MCE EFB P, 2012 WL 3727332, at *4 (E.D. Cal.
Aug. 24, 2012); Adams v. Albertson, No. C 10–04787 WHA, 2012 WL
440465, at *8 (N.D. Cal. Feb. 12, 2012); Gonzalez v. Henderson
(continued...)
34

760 F. Supp. 2d at 988-89 (quoting Simmons v. Navajo County,
Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010) (emphasis in
original)).

A final judgment that Defendants Melchor, Bhalang,

and Bradley, in their official capacities, were negligent would
require a finding as to the § 1983 claim that they failed to
adequately respond to Plaintiff’s medical need.

Thus, the issue

would be limited to their subjective awareness of the seriousness
of Plaintiff’s medical need.
Third, this Court cannot say that it is clear how the
ICA will decide the issues in the State Action appeal.

Thus, if

this Court looks to the Pullman abstention doctrine as a guide,
the applicable factors weigh in favor of a stay in the instant
case.

In addition, proceeding to trial immediately in this case

would effectively allow the Remaining Defendants to seek review
of the state court’s rulings in the State Action.

As this

district court noted in Tejada,
Staying this action is also consistent with
the Rooker–Feldman doctrine, which generally
prevents this court from exercising appellate
jurisdiction over state-court decisions. D.C.
Court of Appeals v. Feldman, 460 U.S. 462, 482–86
(1983); Rooker v. Fid. Trust Co., 263 U.S. 413,
415–16 (1923). The Rooker–Feldman doctrine states
that:
a losing party in state court is barred from
seeking what in substance would be appellate

7

(...continued)
Det. Ctr., No. 2:11–cv–00789–RLH–CWH, 2011 WL 4834461, at *2 (D.
Nev. Oct. 12, 2011).
35

review of the state judgment
States District Court, based
party’s claim that the state
violates the loser’s federal

in a United
on the losing
judgment itself
rights.

Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir.
1998) (quoting Johnson v. DeGrandy, 512 U.S. 997,
1005–06 (1994)). If the court stays this action,
allowing Hawaii’s appellate courts to decide any
appeal of the state-trial court’s decision, this
court cannot be said to be acting as an appellate
court over the state-court decision.
2011 WL 3240276, at *5.

Similarly, this Court should not allow

the Remaining Defendants to re-try or otherwise seek review of
the rulings in the State Action.

The Remaining Defendants should

be limited to one review, that of the Hawai`i appellate courts.
Finally, the Court recognizes that Plaintiff and the
general public have a strong interest in the expeditious
resolution of this case.

The Court also understands Plaintiff’s

frustration with the fact that this is the second defense request
for a stay in the instant case.

The interests in the expeditious

resolution of the case, however, do not outweigh the
considerations of judicial economy and the administration of
justice discussed supra.

In addition, Plaintiff arguably could

have avoided this situation by dismissing this action when she
filed the State Action and bringing all of her claims in the
State Action.

Plaintiff emphasizes that, although the state

court could have heard her § 1983 claims, she had a right to
bring her federal claims in federal court.

This is true.

Plaintiff, however, must also accept the consequences of her
36

decision to bring some of her claims in federal court and some of
her claims in state court.
Having carefully considered all of the relevant
factors, this Court, in the exercise of its discretion, FINDS
that a stay is appropriate in the instant case.
CONCLUSION
On the basis of the foregoing, the Remaining
Defendants’ Motion for Summary Judgment, filed June 8, 2012, is
HEREBY GRANTED IN PART AND DENIED IN PART.

The Motion for

Summary Judgment is GRANTED as to: 1) the portion of Plaintiff’s
negligence claim alleging that Defendants Marks and Wakabayashi,
in their individual capacities, were negligent in training,
supervising, and retaining Defendants Melchor, Bhalang, Bradley,
and Yasunaga; 2) the portion of Plaintiff’s negligence claim
alleging an NIED claim based on negligent training, supervision,
and retention by Defendants Marks and Wakabayashi, in their
individual capacities; and 3) the portions of Plaintiff’s § 1983
claim and IIED claim based on the training, supervision, and
retention by Defendants Marks and Wakabayashi.

The Remaining

Defendants’ Motion for Summary Judgment is DENIED WITHOUT
PREJUDICE in all other respects.
Further, the Remaining Defendants’ Motion for Stay of
Action, also filed June 8, 2012, is HEREBY GRANTED.

The Court

HEREBY STAYS the instant case pending the resolution of the

37

appeal in the State Action, Leah Castro, et al. v. Leroy Melchor,
et al., Civil No. 08-1-0901-05 KTN.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 14, 2012.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

LEAH CASTRO, ET AL. V. LEROY MELCHOR, ET AL; CIVIL NO. 07-00558
LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART THE REMAINING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING THE
REMAINING DEFENDANTS’ MOTION FOR STAY OF ACTION

38