Kamakeeaina v. City & County of Honolulu et al

Filing 12

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. 1915 re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/29/12. ("(1) The Complaint is DISMISSED for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). Spe cifically, (a) claims against the State of Hawaii and damages claims against Maesaka-Hirata, Mun, Leland, Yamamoto, Pula, Lee, and Linda Rivera in their official capacities are DISMISSED with prejudice ; (b) claims alleged under the ADA and t he Rehabilitation Act and all other claims are dismissed without prejudice. Claims dismissed with prejudice may not be reasserted in an amended complaint. (2) Plaintiff is GRANTED leave to file a proposed amended complaint curing the deficiencies not ed above on or before April 26, 2012. Failure to timely or properly amend the Complaint will result in the AUTOMATIC DISMISSAL of this action for failure to state a claim, and may be counted as strike pursuant to 28 U.S.C. § 1915(g). (3) The Cle rk of Court is directed to mail a form prisonercivil rights complaint to Plaintiff so that he may comply with the directions in this Order. Plaintiff is NOTIFIED that his proposed amended complaint may include NO MORE THAN FIFTEEN additional typewrit ten pages in excess of the court's form.") (emt, )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). Buddy P. Kamakeeaina served by first class mail at the address of record on March 29, 2012. A prisoner civil rights complaint form with instructions was included in the mailing to Mr. Kamakeeaina.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BUDDY P. KAMAKEEAINA, BOP
#13385-022, HI #A0235486,
Plaintiff,
vs.
CITY AND COUNTY OF HONOLULU;
TYLER MAALO, NATHAN
PATOPOFF, WILLIAM DAUBNER,
OSCAR WILLIS, RANDALL
RIVERA,
&
STATE OF HAWAII; JODIE
MAESAKA-HIRATA, WESLEY MUN,
TOM LELAND, PETER YAMAMOTO,
TULIA PULA, MALCOLM LEE,
LINDA RIVERA, JANE OR JOHN
DOE,
Defendants.
____________________________

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CIV. NO. 11-00770 SOM-RLP
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915
Before the court is pro se Plaintiff Buddy P.
Kamakeeaina’s (“Plaintiff”) prisoner civil rights complaint.1
Plaintiff is a State of Hawaii prisoner incarcerated pursuant to
a contract the State has with the federal government, at the
Federal Detention Center, Honolulu (“FDC-Honolulu”).

Plaintiff

names as Defendants the City and County of Honolulu (“C&C”) and
Honolulu Police Department (“HPD”) Officers Tyler Maalo, Nathan
Patopoff, William Daubner, Oscar Willis, and Randall Rivera (“HPD

1

Plaintiff is proceeding in forma pauperis.

See ECF #[9].

Defendants”).

Plaintiff also sues the State of Hawaii and

numerous Department of Public Safety (“DPS”) officials,
specifically, DPS Director Jodie Maesaka-Hirata; DPS Health Care
Administrator Wesley Mun; DPS medical providers--Tom Leland,
M.D., Peter Yamamoto, M.D., Tulia Pula, and Malcolm Lee; and DPS
grievance officers Linda Rivera and John/Jane Doe (collectively
“DPS Defendants”).

Plaintiff alleges that the HPD Defendants

violated his civil rights during his arrest and while he was in
HPD custody, and that DPS Defendants did so during his
incarceration at the Oahu Community Correctional Center (“OCCC”).
The Complaint is DISMISSED, pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim.
Plaintiff is granted leave to amend the Complaint, if possible,
to cure the deficiencies detailed below.
I. PLAINTIFF’S CLAIMS
Plaintiff’s Complaint is a disjointed, rambling, 88page typewritten document, with 216 pages of exhibits.
#1, Compl., Exs. 1-23.
two causes of action.

See ECF

The Complaint can be roughly divided into
Plaintiff first complains of incidents

that allegedly occurred between around April 30, 2010, and May 3,
2010, during his arrest and while he was in HPD custody.
5-8.

Id. at

The remainder of Plaintiff’s claims allege incidents that

occurred after Plaintiff was transferred from HPD to DPS custody
on May 3, 2010, and was detained at OCCC until April 19, 2011.

2

Id. at 8.

Plaintiff does not assert claims arising after he was

transferred to FDC-Honolulu, on or about April 20, 2011, except
claims relating to DPS Defendants’ handling of grievances he
submitted thereafter regarding his treatment while at OCCC.

Id.

at 60.
Plaintiff’s claims do not follow a coherent timeline
and are replete with seemingly irrelevant facts.

Plaintiff says

he was arrested on April 30, 2010, and charged with two counts of
assault and one count of abuse of a family or household member.2
ECF #1, Compl. at 7.

Plaintiff claims that, although he

exhibited signs of mental instability and was extremely
intoxicated during the events leading up to his arrest and
thereafter, the HPD officers who arrested and detained him did
not refer him for a mental health examination, allegedly
violating section 334-59(a)(1) of Hawaii Revised Statutes.3
Plaintiff also alleges that this violated his constitutional
rights.

Id. at 7-8.

2

As of March 19, 2012, Hawaii’s publicly available criminal
case database does not reflect these charges as pending or
adjudicated. See http://hoohiki1.courts.state.hi.us/jud/Hoohiki.
It does show that Plaintiff’s probation in state Cr. No. 1PC08-1001539, for operating a vehicle under the influence of an
intoxicant and driving without a license, was revoked on August
11, 2010. See id.
3

Plaintiff vaguely refers to all of the HPD officers that
he names. He does not specify which officers arrested him, which
officers retained custody of him at HPD headquarters, or which
officers were responsible for providing him with the mental
health assessment or care that he says he did not receive.
3

Plaintiff complains that, after he was transferred to
DPS custody, DPS Defendants Tom Leland, M.D., Peter Yamamoto,
M.D., Tulia Pula, and Malcolm Lee failed to accurately document,
diagnose, and treat his mental health issues.

Plaintiff alleges

that DPS Defendants Linda Rivera, Wesley Mun, and John/Jane Doe
improperly processed his grievances.

Plaintiff alleges that

these DPS Defendants’ actions violated various state laws and
prison regulations, as well as the Hawaii and United States
constitutions.
Finally, Plaintiff broadly alleges that the HPD, C&C,
State of Hawaii, and DPS officials Maesaka-Hirata and Mun failed
to adequately train or supervise their employees.

Plaintiff

asserts that all Defendants’ conduct violated the Eighth and
Fourteenth Amendments of the United States Constitution; the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12101 et seq.; the Rehabilitation Act of 1973 (“RA”), 29
U.S.C.A. § 701 et seq.; various provisions of the Hawaii state
constitution; state laws; and prison policies and procedures.
Plaintiff does not identify what relief he seeks.
II. STATUTORY SCREENING
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.
§ 1915A(a).

28 U.S.C.

The court must dismiss a complaint or portion

4

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 when it (1) lacks a cognizable legal theory; or (2) sets
forth insufficient facts under a cognizable legal theory.
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990).

To state a claim, a pleading must contain a “short and

plain statement of the claim showing that the pleader is entitled
to relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not

demand detailed factual allegations, “it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949
(2009).

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.
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.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the

5

plaintiff can correct the defects of his or her complaint.

Lopez

v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
III.

DISCUSSION

“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
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
A.

Rule 8 of the Federal Rules Of Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure requires

a “short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Although the Federal Rules adopt a flexible pleading policy, a
complaint must give fair notice and state the elements of the
claim plainly and succinctly.

Jones v. Cmty. Redev. Agency of

City of L.A., 733 F.2d 646, 649 (9th Cir. 1984).

“All that is

required [by Fed. R. Civ. P. 8(a)] is that the complaint gives
‘the defendant fair notice of what the plaintiff’s claim is and
the ground upon which it rests.’”

Kimes v. Stone, 84 F.3d 1121,

1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett-Packard
Co., 941 F.2d 864, 870 (9th Cir. 1991)).

6

In addition, a complaint in which the facts relating to
the claim are scattered throughout the complaint and not
organized into a “short and plain statement of the claim” may be
dismissed for failure to satisfy Rule 8(a).

See Sparling v.

Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also
McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).
Plaintiff’s 88-page Complaint, with its more than 200pages of exhibits, fails to comply with Rule 8.

The Complaint’s

long list of alleged wrongs and overwhelming volume of background
details give the court Plaintiff’s factual premises.

Plaintiff’s

claims, however, are rambling, difficult to decipher, repetitive,
and fail to plainly and succinctly show that Defendants violated
his constitutional or federal statutory rights, and that he is
entitled to relief.
For example, Plaintiff fails to state clearly what
federal constitutional wrongs each Defendant is alleged to have
committed and the manner in which they wronged him.

Plaintiff

simply claims that Defendants’ conduct violated prison
regulations and state laws, then concludes that this conduct
violated his constitutional rights.

Plaintiff fails to specify

how Defendants displayed deliberate indifference to his mental
health so as to violate his federal constitutional rights, or how
they flouted the ADA and the Rehabilitation Act.

Plaintiff also

fails to allege what harm he suffered from the alleged delay or

7

denial of mental health care.

Plaintiff’s Complaint simply fails

to sufficiently assert the basis for this court’s jurisdiction
over his claims.
Further, Plaintiff repeats his claims against each
Defendant, providing the same details and conclusions in numerous
counts throughout his lengthy Complaint.

Particularly confusing

are Plaintiff’s detailed accounts of his mental health history
and treatment years before his 2010 arrest and incarceration, and
information regarding treatment he has received since he left DPS
custody.

While these details may be important later, as evidence

at trial or in response to dispositive motions, they do not
provide clarity to his claims.

Rather, Plaintiff’s narrative

obfuscates his claims.
In short, although Plaintiff’s Complaint is replete
with factual detail, those facts are confusing and insufficient
to “state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombley, 550 U.S. 544, 570 (2007).

Bell

The Complaint

does not allow a determination as to who allegedly did what to
Plaintiff, what his specific claims against each individual
Defendant entail, what harm he suffered, and how his
constitutional and federal statutory rights were violated.

The

court cannot conclude that Plaintiff’s Complaint asserts a viable
claim against any particular Defendant, and will not fashion a
statement of what Plaintiff may or may not be alleging.

8

Plaintiff’s Complaint is DISMISSED for failure to state
a claim under Rule 8.

This dismissal is without prejudice and

with leave granted to amend so that Plaintiff may decide whether
and how to amend his claims in light of the court’s discussion
below.
B.

Constitutional Violation Allegations
1.

Claims Precluded by the Eleventh Amendment
To the extent Plaintiff is bringing claims under 42

U.S.C. § 1983 for alleged violations of his rights under the
United States Constitution, those claims may not proceed against
certain Defendants.
In Will v. Michigan Department 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 has consented to the suit.

See

Seminole Tribe of Fla v. Florida, 517 U.S. 44, 53 (1996);
Pennhurst State Sch. & 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.
Melo, 502 U.S. 21 (1991).
9

Hafer v.

The Eleventh Amendment therefore bars Plaintiff’s
constitutional claims against the State of Hawaii, as well as his
damages claims against DPS Defendants Maesaka-Hirata, Mun,
Leland, Yamamoto, Pula, Lee, and Linda Rivera in their official
capacities.

See Doe v. Lawrence Livermore Nat’l 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 (9th Cir.
1992).

Claims against the State of Hawaii and damage claims

against Maesaka-Hirata, Mun, Leland, Yamamoto, Pula, Lee, and
Linda Rivera in their official capacities, to the extent asserted
for alleged violations of the United States Constitution, are
DISMISSED with prejudice.

That is, Plaintiff may not reassert

such claims in any amended Complaint he may submit in this
action.
2.

Claims Against the City and County of Honolulu
Plaintiff’s official capacity claims against the HPD

Defendants must be construed as claims against the C&C, which is
not entitled to Eleventh Amendment immunity.
Graham, 473 U.S. 159, 165-66 (1985).

See Kentucky v.

Nonetheless, Plaintiff may

not sue the C&C on a theory of respondeat superior, which is not
cognizable under § 1983.
v.

Iqbal, 129 S. Ct. at 1948; Polk Cnty.

Dodson, 454 U.S. 312, 325 (1981); Gibson v. Cnty. of Washoe,

Nev., 290 F.3d 1175, 1185 (9th Cir. 2002).

A municipal entity

may be held liable only if the alleged wrongdoing was committed
10

pursuant to a municipal policy, custom or usage.

See Board of

Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397,
402-04 (1997); Monell v. N.Y. City Dep’t of Soc. Serv., 436 U.S.
658, 691 (1978).

Plaintiff must allege facts, not conclusions,

to support his official capacity claims.

See Iqbal, 129 S. Ct.

at 1949.
The Complaint contains no allegations supporting
Plaintiff’s official capacity claims against the C&C.

That is,

Plaintiff does not set forth any municipal policy, custom, or
common usage that shows that the C&C violated his rights.
Rather, Plaintiff alleges that the HPD Defendants violated state
law, municipal policies, and customs when they failed to have him
psychologically evaluated after they arrested and detained him,
not that they were following any policy denying him mental health
care or evaluation.

Plaintiff therefore fails to state a claim

against the C&C.
3.

Supervisor Defendants: Maesaka-Hirata and Mun
As noted above, supervisory officials “may not be held

liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.”
1948.

Iqbal, 129 S. Ct. at

The term supervisory liability is therefore a “misnomer”

because “[e]ach Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.”

11

Id. at 1949.

Supervisory officials “cannot be held liable unless

they themselves” violated a constitutional right.

Id. at 1952.

Supervisors “can be held liable for: 1) their own
culpable action or inaction in the training, supervision, or
control of subordinates; 2) their acquiescence in the
constitutional deprivation of which a complaint is made; or 3)
for conduct that showed a reckless or callous indifference to the
rights of others.”

Edgerly v. City & Cnty of S.F., 599 F.3d 946,

961-62 (9th Cir. 2010) (citing Cunningham v. Gates, 229 F.3d
1271, 1292 (9th Cir. 2000)).
In other words, a supervisor is liable under § 1983
only on a showing of personal involvement in the constitutional
deprivation or a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.
Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991)
(en banc) (citation omitted).

That is, a plaintiff must allege

that the supervisor “participated in or directed the violations,
or knew of the violations and failed to act to prevent them.”
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

A

supervisor may also be liable for implementing “a policy so
deficient that the policy itself is a repudiation of
constitutional rights and is the moving force of the
constitutional violation.”

Redman, 942 F.2d at 1446; see Jeffers

v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001).
12

However, an

individual’s “general responsibility for supervising the
operations of a prison is insufficient to establish personal
involvement.”

Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir.

1987).
Plaintiff does not identify any policy or procedure
that DPS Director Maesaka-Hirata or DPS Supervisor Mun
promulgated that had a direct causal link to the alleged civil
rights violations he alleges.

Plaintiff does not show how

Maesaka-Hirata or Mun was involved in the alleged failure to
psychologically evaluate and treat him after he was in DPS
custody.

Plaintiff does not even allege that they were aware of

the treatment, or lack of treatment.

Additionally, Plaintiff

fails to allege sufficient facts to support a “failure to train”
theory.

Thus, Plaintiff’s allegations are insufficient to state

a federal civil rights claim on which relief can be granted as to
Maesaka-Hirata or Mun.
Moreover, to the extent any HPD Defendant is a
supervisor, a matter unclear from the Complaint, Plaintiff fails
to allege facts to support a supervisor liability claim against
them.
4.

Deliberate Indifference Claims Against Employees of HPD
and Against Employees of DPS Sued in their Individual
Capacities
Plaintiff broadly claims that Defendants were

deliberately indifferent to his health and safety when they
13

allegedly delayed or denied him mental health evaluations or care
during his arrest and incarceration (at HPD and OCCC).

It

appears that Plaintiff was a pretrial detainee while he was in
HPD custody and possibly during part of the time that he was at
OCCC.4
The Eighth Amendment’s prohibition against cruel and
unusual punishment applies to pretrial detainees under the Due
Process Clause of the Fourteenth Amendment, and a pretrial
detainee’s claims are evaluated under the Eighth Amendment.

See

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.
2010); Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232 (9th
Cir. 2010) (applying Eighth Amendment’s standards to pretrial
detainees); Lolli v. Cnty. of Orange, 351 F.3d 410, 418-19 (9th
Cir. 2003).
The Eighth Amendment requires that prisoners receive
adequate medical care, including mental health care.

Estelle v.

Gamble, 429 U.S. 97, 104 (1976); see also McGuckin v. Smith, 974
F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by
WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). To
state a cognizable § 1983 claim for failure to provide medical
care, a prisoner must allege a defendant’s “acts or omissions
[were] sufficiently harmful to evidence a deliberate indifference
4

Plaintiff’s probation was revoked in August 2010, so he
could not have been a pretrial detainee thereafter. See supra
n.2.
14

to serious medical needs.”

Estelle, 429 U.S. at 106; Toussaint

v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986).
To be liable for “deliberate indifference,” a prison
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 (1994); Simmons, 609 F.3d at 1017-18.

“[A]n

official’s failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation,
cannot . . . be condemned as the infliction of punishment.”
Farmer, 511 U.S. at 838.
Deliberate indifference requires consideration of two
elements: “[1] the seriousness of the prisoner’s medical need[;]
and [2] the nature of the defendant’s response to that need.”
McGuckin, 974 F.2d at 1059; see also Lolli, 351 F.3d at 419.
That is, a plaintiff must demonstrate “‘objectively, sufficiently
serious’ harm and that the officials had a ‘sufficiently culpable
state of mind’ in denying the proper medical care.

Thus, there

is both an objective and a subjective component to an actionable
Eighth Amendment violation.”

Clement v. Gomez, 298 F.3d 898, 904

(9th Cir. 2002)(citing Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th
Cir. 1995)).
Objectively, “[a] ‘serious’ medical need exists if the
failure to treat a prisoner’s condition could result in further

15

significant injury or the ‘unnecessary and wanton infliction of
pain’.”

McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at

104); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006).

Subjectively, “the official must both be aware of the

facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.”

Farmer, 511 U.S. at 837.

“This second prong . . .

is satisfied by showing (a) a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and (b)
harm caused by the indifference.”
McGuckin, 974 F.2d at 1060).

Jett, 439 F.3d at 1096 (citing

“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.

Id.

HPD Defendants

Plaintiff alleges that HPD officers (C&C employees)
failed to recognize his depression and suicidal thoughts during
his arrest and thereafter, and therefore failed to transport him
to a hospital for psychological evaluation and treatment.

In

support, Plaintiff says that before police arrived at his
residence on April 30, 2010, he attempted to cut himself, and
that, after they arrived, he climbed over his balcony to an
adjacent balcony and threatened to jump.
he was extremely intoxicated.

Plaintiff admits that

Plaintiff does not say he told the
16

police that he was depressed or suicidal or, in fact, that he had
any mental health concerns, other than his observable
intoxication.

Plaintiff simply concludes that, because he

received mental health treatment in 2004 and was acting
impulsively during his arrest, the police should have known he
needed mental health care.
These facts do not suffice to allege the requisite
deliberate indifference.

See Estelle, 429 U.S. at 105-06

(“Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner”); Lopez, 203 F.3d at
1131; see also Farley v. Capot, 2010 WL 2545710, at *1 (9th Cir.
June 21, 2010) (failure to diagnose source of inmate’s abdominal
pain did not rise to the level of deliberate indifference);
Ruvalcaba v. City of L.A., 167 F.3d 514, 525 (9th Cir. 1999)
(failure to diagnose arrestee’s broken ribs constituted at best
negligence, not deliberate indifference).

Even accepting that

Plaintiff’s need for a mental health evaluation or care was a
serious medical need, the facts as alleged show little more than
inadvertence and a possible violation of section 334-59 of Hawaii
Revised Statutes.

Violations of state law, including a state

constitution, are not cognizable under § 1983.

See, e.g.,

Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th
Cir. 1998) (“state law violations do not, on their own, give rise
to liability under § 1983[.]”) (citation omitted).

17

Additionally,

Plaintiff fails to show that he suffered harm from the HPD
Defendants’ alleged failure to have him psychologically evaluated
while he was in HPD custody.

He fails, therefore, to state a

claim against those Defendants.

See Jett, 439 F.3d at 1096.

b. DPS Defendants Pula and Lee
The court turns next to the deliberate indifference
claims against DPS employees.

Given their immunity from claims

against them in their official capacities, the court considers
here the claims only to the extent brought against them in their
individual capacities.

To clarify, “[p]ersonal-capacity suits

seek to impose personal liability upon a government official for
actions he takes under color of state law.”
165–66.

Graham, 473 U.S. at

In contrast, official-capacity suits, “generally

represent only another way of pleading an action against an
entity of which an officer is an agent.”

Monell, 436 U.S. at 690

n.55.
Plaintiff alleges that Defendant Pula medically
screened him when he arrived at OCCC.

See ECF #1, Compl. at 9.

On the intake form, Pula noted that Plaintiff exhibited no
observable signs of mental health risk.

Plaintiff concludes that

Pula did so “knowingly and intentionally [to] falsify all
behavioral conditions questions.”

Id.

Plaintiff faults Pula for

not checking an “OffenderTrak” database, which Plaintiff states
“was not being fully implemented at the time of plaintiff’s
18

intake screening due to pending hardware
improvements/upgrades[.]”

Id.

Plaintiff claims that Pula’s

“intentional failure” to check this database shows Pula’s
deliberate disregard for his mental health.
These facts do not constitute a constitutional
violation.

To the extent Plaintiff alleges that Pula was

negligent, such negligence is not actionable under § 1983.

See

Strong v. Woodford, 428 F. Supp. 2d 1082, 1085 (9th Cir. 2006)
(“[A] negligent act by a person acting under color of state law
does not rise to the level of a constitutional violation.”).
Moreover, some of Plaintiff’s conclusory statements contradict
themselves.

If the OffenderTrak software was not operable,

Pula’s failure to check the database was immaterial.

Further, if

Plaintiff failed to tell Pula of his mental health conditions his
allegation that his outward signs of distress were such that Pula
must have intentionally falsified her report in failing to note
his mental health issues cries out for specifics to avoid being a
mere conclusion.
actions.

Finally, Plaintiff alleges no harm from Pula’s

In short, Plaintiff’s allegations fail to state a claim

against Pula.
Similarly, Plaintiff alleges that Defendant Lee
reviewed Pula’s intake form approximately one week later, which
Plaintiff claims violates prison regulations requiring Lee to
review an inmate’s initial intake report within 72 hours of

19

admission.

Plaintiff alleges that Lee failed to “update

plaintiff’s medical file in a punctual manner,” and failed to
timely notify Dr. Leland of Plaintiff’s mental health condition,
thereby violating prison policies.

ECF #1, Compl. at 12-13.

These facts do not themselves constitute deliberate indifference
to Plaintiff’s health and safety.

Plaintiff fails to state a

claim against Defendant Lee.
c.

DPS Defendants Dr. Leland and Dr. Yamamoto

The court turns next to deliberate indifference claims
brought against the prison doctors in their individual
capacities.

Plaintiff complains that, although Leland and

Yamamoto treated him numerous times during his stay at OCCC, they
failed to prescribe Seroquel, a medication that Plaintiff told
Leland and Yamamoto he had taken in 2004 but had discontinued
after experiencing unpleasant side effects.

Plaintiff admits

that Leland and Yamamoto gave him other medication and treatment.
Plaintiff further alleges that Leland and Yamamoto delayed
treating him, denied his requests for appointments, and “failed
to implement a treatment plan that would outline the intended
treatment goals for plaintiff’s serious mental illnesses . . . as
clearly mandated [by prison policies and procedures].”
Compl. at 15.

ECF #1,

Plaintiff states that he was monitored by other

OCCC medical providers and evaluated by three court-ordered
mental health care professionals during the time he was allegedly

20

denied appointments with Leland or Yamamoto.

Plaintiff also

complains that OCCC officials, presumably including Leland and
Yamamoto, refused to let him see his personal therapist, Ms. Rose
Clute, to continue his psychotherapy sessions with her while he
was at OCCC.
Rather than exhibiting deliberate indifference, these
facts suggest that Leland and Yamamoto acted in Plaintiff’s
interests, e.g., by prescribing medication other than Seroquel
based on Plaintiff’s own information.

At most, the allegations

indicate Plaintiff’s disagreement with the prison doctors’
medical care, rather than a denial of care.

See Toguchi v.

Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (a difference of
opinion between doctor and prisoner is insufficient to establish
deliberate indifference).

“[T]o prevail on a claim involving

choices between alternative courses of treatment, a prisoner must
show that the chosen course of treatment ‘was medically
unacceptable under the circumstances,’ and was chosen ‘in
conscious disregard of an excessive risk to [the prisoner's]
health.’”

Id. (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th

Cir. 1996)).

No such circumstances are alleged.

Nor does Plaintiff provide facts that, if true,
indicate that the treatment Leland or Yamamoto provided was
deficient or caused him any discernible harm.

Inmates do not

have a constitutional right to receive a particular or requested

21

course of medical treatment, and prison doctors are free to
exercise their independent medical judgment.
F.3d 761, 765 (8th Cir. 1996).

See Long v. Nix, 86

Certainly, Plaintiff had no right

to see his personal therapist, as prisoners have “no independent
constitutional right to outside medical care additional and
supplemental to the medical care provided by the prison staff
within the institution.”
(9th Cir. 1986).

Roberts v. Spalding, 783 F.2d 867, 870

As written, Plaintiff’s Complaint fails to

state a claim for deliberate indifference against Leland or
Yamamoto.
5.

Grievance Claims
Plaintiff broadly alleges that DPS Defendants Linda

Rivera, Mun, and John or Jane Doe violated his right to due
process in the handling of his grievances.
Compl. at 41-45, 47-57, 63-69.
claim.

See generally ECF #1,

These allegations fail to state a

The “right of meaningful access to the courts extends to

established prison grievance procedures.”
F.3d 1276, 1279 (9th Cir. 1995).

Bradley v. Hall, 64

Thus, Plaintiff has a First

Amendment right to file prison grievances.
584 F.3d 1262, 1269-70 (9th Cir. 2009).

See Brodheim v. Cry,

That right, however, is

not a free-standing substantive right and “does not guarantee a
response to the petition or the right to compel government
officials to act on” the grievance.
477, 479 (6th Cir. 1999).
22

Apple v. Glenn, 183 F.3d

Plaintiff’s vague allegations regarding the improper
handling or rejection of his grievances do not indicate that Mun,
Rivera, or other OCCC officials prevented him from exercising his
First Amendment right to file prison grievances, or retaliated
against him for doing so.
Responding (or failing to respond) to a prisoner’s
grievance in a manner unagreeable to the prisoner is
not an adverse action taken against the prisoner for
filing the grievance. If it were, every time a
prisoner disagreed with a Defendant’s legitimate
response to a grievance, it could result in a
sustainable claim of retaliation. . . . Defendants’
responses were a part of the exercise of [Plaintiff’s]
First Amendment rights.
McCabe v. McComber, No. 08-00112 JMS, 2008 WL 4133186 *9 (D. Haw.
Sept. 8, 2008).
Plaintiff admits that OCCC officials accepted,
processed, and responded to his grievances.

That is all the

protection he is afforded, and his constitutional rights were not
violated by improper handling, untimely handling, or rejection of
his grievances.

Plaintiff fails to state a claim against Linda

Rivera, John or Jane Doe, and Mun regarding the handling of his
grievances.
6.

Equal Protection
Plaintiff broadly alleges that Defendants denied him

equal protection of the law.

He does not specify which

Defendants did so, or how they discriminated against him.
equal protection claim may be established in two ways.

23

An

First, a

plaintiff may show that the defendant intentionally discriminated
against him or her on the basis of the plaintiff’s membership in
a protected class, such as race.

See, e.g., Thornton v. City of

St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005); Lee v. City of
L.A., 250 F.3d 668, 686 (9th Cir. 2001).

Plaintiff does not

allege that he is a member of a suspect class, nor do his claims
support such an interpretation.

Thus, he fails to state a claim

under this theory.
Second, a plaintiff may establish an equal protection
violation by showing that he was treated differently from
similarly situated individuals, and that the different treatment
was not rationally related to a legitimate state purpose.

Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio
Sch. Dist. v. Rodriguez, 411 U.S. 1 (1972); Squaw Valley Dev. Co.
v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004); SeaRiver Mar.
Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002).
Under this theory, a plaintiff must allege that: (1) he is a
member of an identifiable class; (2) he was intentionally treated
differently from others similarly situated; and (3) there is no
rational basis for the difference in treatment.
Willowbrook, 528 U.S. at 564.

Vill. of

If an equal protection claim is

based on a defendant’s selective enforcement (or non-enforcement)
of a valid law or rule, a plaintiff must show that the selective
enforcement was based upon an “impermissible motive.”
24

Squaw

Valley, 375 F.3d at 944; Freeman v. City of Santa Ana, 68 F.3d
1180, 1187 (9th Cir. 1995).

Plaintiff does not assert that other

similarly situated individuals were treated differently from him.
Plaintiff fails to state an equal protection claim.
C.

Claims under the ADA and the Rehabilitation Act
Plaintiff broadly alleges claims against the State of

Hawaii and all Defendants under the ADA and the Rehabilitation
Act.

Congress has abrogated the states’ Eleventh Amendment

immunity with respect to claims under Title II of the ADA and
under the Rehabilitation Act.

See Phiffer v. Columbia River

Corr. Inst., 384 F.3d 791, 792 (9th Cir. 2004); Hanson v. Med.
Bd. of Cal., 279 F.3d 1167, 1170 (9th Cir. 2002) (holding that
Congress abrogated state sovereign immunity for claims under
Title II of the ADA); Pugliese v. Dillenberg, 346 F.3d 937, 938
(9th Cir. 2003) (per curiam) (holding that a state waives its
sovereign immunity under the Eleventh Amendment when it accepts
federal Rehabilitation Act funds); Larson v. Ching, No. 08-00537
SOM, 2009 WL 1025872 *5 (D. Haw. 2009).

The State and its

employees in their official capacities do not, therefore, have
immunity from suit under the ADA or the Rehabilitation Act, as
they do for claims based on alleged constitutional violations
brought under § 1983.
Relevant case law suggests that Plaintiff cannot bring
Title II claims against Defendants in their individual
25

capacities.

Although the Ninth Circuit has declined to reach

this issue, see Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137,
1145 (9th Cir. 2002),5 the Seventh Circuit, Eighth Circuit, and
some district courts in the Ninth Circuit have determined that
public actors cannot be sued in their individual capacities
directly under Title II of the ADA.

See, e.g., Walker v. Snyder,

213 F.3d 344, 346 (7th Cir. 2000), overruled on other grounds by
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001);
Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir.
1999) (en banc); Hunter v. Clark, 2010 WL 2196684, at *2 (E.D.
Cal. May 28, 2010); Gonzales v. Dexter, 2008 WL 4275783, *6 (C.D.
Cal. Sept. 4, 2008).

In Thomas v. Nakatani, 128 F. Supp. 2d 684,

692 (D. Haw. 2000), another judge in this district reached the
same conclusion, based in part on the Eighth and Seventh
Circuit’s decisions in Walker and Alsbrook.
This court, however, need not make a determination as
to that issue here.

Even assuming that Plaintiff may sue

Defendants in their individual capacities, Plaintiff states no

5

There are some unpublished Ninth Circuit decisions that
address the issue but, as those were issued before Ninth Circuit
rules permitted citation to unpublished Ninth Circuit rulings,
the court does not rely on them here. To the extent Plaintiff
asserts § 1983 claims against Defendants in their individual
capacities to vindicate his rights under the ADA & RA, those
claims are barred. See, e.g., Vinson v. Thomas, 288 F.3d 1145,
1156 (9th Cir. 2002).
26

claim against them under the ADA or Rehabilitation Act, whether
in their individual or official capacities.
To state a claim under Title II of the ADA, Plaintiff
must allege that (1) he is an individual with a disability; (2)
he is otherwise qualified to participate in or receive the
benefit of the prison’s services, programs or activities; (3) he
was excluded from participation in or denied the benefits of the
prison’s services, programs or activities, or was otherwise
discriminated against by the prison; and (4) such exclusion,
denial or discrimination was by reason of his disability.

42

U.S.C. § 12132 (emphasis added); see Simmons, 609 F.3d at 1021;
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).
The elements of a claim under the Rehabilitation Act
are materially identical to those under the ADA, except that a
plaintiff must allege that the program at issue receives federal
financial aid.

See Armstrong v. Davis, 275 F.3d 849, 862 n.17

(9th Cir. 2001); Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135
(9th Cir. 2001).
Plaintiff fails to allege specific facts showing any
Defendant’s personal participation in a violation of the ADA or
Rehabilitation Act.

Plaintiff simply alleges that he was denied

timely mental health assessments and appropriate mental health
treatment.

Plaintiff then concludes that Defendants

discriminated against him on the basis of his mental disability.

27

The ADA, however, prohibits discrimination because of disability,
not inadequate treatment for a disability.
at 1021–22.

See Simmons, 609 F.3d

The alleged lack of medical assessment or treatment

for Plaintiff’s depression and other mental health conditions
does not provide a basis on which to impose liability under the
ADA or the Rehabilitation Act.

See id.; see also Burger v.

Bloomberg, 418 F.3d 882, 882 (8th Cir. 2005) (medical treatment
decisions do not form the basis for ADA claims); Fitzgerald v.
Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical
decisions are not ordinarily within scope of ADA); Bryant v.
Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not
create a remedy for medical malpractice.”); O’Guinn v. Nev. Dept.
of Corr., 2010 WL 4395442 *4 (D. Nev. 2010) (“Although
plaintiff[] . . . frames [the] deprivation of care as
discriminatory, the court remains convinced that plaintiff’s
claim sounds in medical negligence.

In other words, the case

involves differences of opinion regarding proper mental health
treatment, not discrimination under the ADA or RA.”).
More importantly, Plaintiff’s claims of delayed and
inadequate treatment for his mental conditions do not suggest
that Defendants denied him medical treatment because of his
mental disability or conditions, as required under the ADA and
the Rehabilitation Act.
meet this requirement.

Nor does it appear that Plaintiff can
It simply does not follow that Defendants
28

discriminated against Plaintiff because of his mental health
conditions by denying him medical care for his mental health
conditions.
Plaintiff provides no facts indicating that any
Defendant participated in or was otherwise responsible for
excluding him, on the basis of his mental health status, from
activities, programs, or other benefits that would otherwise have
been available to him because of his mental health status.
Plaintiff’s general references to the ADA and the Rehabilitation
Act are insufficient to meet his burden to plead facts satisfying
the elements of a claim under either statute.

Accordingly,

Plaintiff’s ADA and Rehabilitation Act claims are DISMISSED with
leave to amend.
D.

Leave to Amend
The Complaint is DISMISSED.

Plaintiff may file a

proposed amended complaint on or before April 26, 2012.

The

proposed amended complaint must cure the deficiencies noted above
and demonstrate how the conditions complained of resulted in a
deprivation of federal constitutional or statutory rights.
The court will not refer to the original pleading to
make an amended complaint complete.

Local Rule 10.3 requires

that an amended complaint be complete in itself without reference
to any prior pleading.

Defendants not named and claims not

realleged in an amended complaint will be deemed waived.
29

See

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

Furthermore,

as a general rule, an amended complaint supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
Plaintiff is NOTIFIED that he must submit his proposed
amended complaint on the court’s prisoner civil rights complaint
form.

See Local Rule LR99.7.10(a).

If Plaintiff requires extra

pages, he may attach them to the proposed amended complaint.
Plaintiff’s proposed amended complaint may not, however, exceed
15 typewritten pages in excess of the court’s form.

Plaintiff’s

exhibits remain on file and need not be resubmitted or attached
to the amended complaint.
E.

28 U.S.C. § 1915(g)
Because the Complaint has been dismissed for failure to

state a claim, if Plaintiff fails to file an amended complaint
that corrects the deficiencies identified in this Order, this
dismissal may count as a “strike” under the three–strikes
provision of 28 U.S.C. § 1915(g).

Under the three–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
30

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).
IV.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)
claim.

The Complaint is DISMISSED for failure to state a
See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).

Specifically, (a) claims against the State of Hawaii and damages
claims against Maesaka-Hirata, Mun, Leland, Yamamoto, Pula, Lee,
and Linda Rivera in their official capacities are DISMISSED with
prejudice; (b) claims alleged under the ADA and the
Rehabilitation Act and all other claims are dismissed without
prejudice.

Claims dismissed with prejudice may not be reasserted

in an amended complaint.
(2)

Plaintiff is GRANTED leave to file a proposed amended

complaint curing the deficiencies noted above on or before April
26, 2012.

Failure to timely or properly amend the Complaint will

result in the AUTOMATIC DISMISSAL of this action for failure to
state a claim, and may be counted as strike pursuant to 28 U.S.C.
§ 1915(g).
(3)

The Clerk of Court is directed to mail a form prisoner

civil rights complaint to Plaintiff so that he may comply with
the directions in this Order.

Plaintiff is NOTIFIED that his

31

proposed amended complaint may include NO MORE THAN FIFTEEN
additional typewritten pages in excess of the court’s form.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 29, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Kamakeeaina v. City and County of Honolulu, et al., Civ. No. 11-00770 SOM-RLP, Order
Dismissing Complaint Pursuant to 28 U.S.C. § 1915; psa/Screening/dmp/ 2012/Kamakeeaina
11-770 SOM (ftsc R8 lv amd)

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