Kobayashi v. Paderes et al

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. § 1915A(b). Signed by JUDGE DERRICK K. WATSON on 12/1/2014. ~ (1) The First Amended Complaint and this action are DISMISSED with prejudice for failure t o state a claim pursuant to 28 U.S.C. § 1915A. (2) This dismissal may later be counted as a strike pursuant to 28 U.S.C. § 1915(g). (3) The Clerk of Court is DIRECTED to enter judgment and terminate this case. (ecs, )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
JAY JUN KOBAYASHI, #A0714662, )
)
Plaintiff,
)
)
vs.
)
)
SISAR PADERES, VAL
)
GONSALES,
)
)
Defendants.
)
______________________________ )

CIV. NO. 14-00325 DKW-KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT AND
ACTION PURSUANT TO 28 U.S.C.
§ 1915A(b)

ORDER DISMISSING COMPLAINT AND ACTION
PURSUANT TO 28 U.S.C. § 1915A(b)
Before the court is pro se Plaintiff Jay Jun Kobayashi’s first amended
prisoner civil rights complaint (“FAC”) brought pursuant to 42 U.S.C. § 1983.
Plaintiff is incarcerated at the Halawa Correctional Facility (“HCF”). He alleges
HCF physician Dr. Sisar Paderes and HCF driver Val Gonsales violated his
constitutional rights in connection with a motor vehicle incident that occurred at or
near the prison in the HCF commissary van. Plaintiff’s FAC is DISMISSED
pursuant to 28 U.S.C. § 1915A(b), without further leave to amend.
I. PROCEDURAL HISTORY AND CLAIMS
On October 8, 2014, the court dismissed Plaintiff’s original complaint for
failure to state a claim pursuant to 28 U.S.C. § 1915A. Order, Doc. No. 8. The

court informed Plaintiff of his pleading deficiencies, granted him leave to amend,
and ordered him to show cause why the action should not be dismissed as timebarred under Hawaii’s two-year statute of limitation. Id., PageID #47.
Plaintiff timely submitted his FAC on November 12, 2014. In Count I, he
alleges that between January 23-27, 2012,1 he was riding in the back of an HCF
commissary van driven by Gonsales. FAC, Doc. No. 9, PageID #53. Plaintiff
states that immediately after the van passed through the HCF High Security gate
traveling between 7-10 miles per hour,2 Gonsales ran over a speed bump. Plaintiff
claims this caused him and two other inmates in the van, which lacked seatbelts, to
“fly up and hit [their] heads.” Id. Plaintiff alleges he sustained a neck
compression and spinal injury because of Gonsales’ negligent and careless conduct
which created an “excessive risk to inmates health or safety.” Id.
In Count II, Plaintiff alleges Dr. Paderes denied or delayed medical care
because of his “Lack of Knowled[g]e and Negligen[ce], Failing to perform
appro[p]riate diagnostic treatment and to follow professional standards and policy
and procedures violation.” Id., PageID #54. Plaintiff says he experienced pain

1

Plaintiff unequivocally stated that the accident occurred on January 23, 2012, in his
original Complaint. See Doc. No. 1, PageID #5.
2

This appears to contradict Plaintiff’s original claim that Gonsales was driving at “high
speed.” See Compl., Doc. No. 1, PageID #5.
2

after the accident, but did not request medical treatment until February 7-11, 2012.
Plaintiff saw a nurse on February 22, 2012, and she scheduled a physician
evaluation on March 12, 2012. Id., PageID #54. Plaintiff requested to see “Dr.
Ryann Nakamoto, NP,” but says she only prescribed him Naproxen for pain.3 Id.
Dr. Paderes examined Plaintiff in April 2012, and Plaintiff requested an x-ray. Id.
On July 12, 2012, Aloha Mobile Imaging took an x-ray. Id., PageID #55. Plaintiff
states that John Frauens, M.D., and Sandra K. Lawrence, M.D., diagnosed damage
to cervical disks C4-6.4 Id., PageID #55. On July 20, 2012, Dr. Paderes reviewed
Plaintiff’s x-ray report, diagnosed him with “neck pain[,] mild not serious,” and
continued his pain medication. Id.
Plaintiff filed a grievance on July 23, 2012, but alleges he never received a
final response. Id. On August 7, 2012, Plaintiff began physical therapy and was
told to continue his medication, exercises, and ice treatments. Id., PageID #56.
On August 27, 2012, Plaintiff sought another appointment, complaining of
increased pain and numbness on his left side. Id., PageID #55.
3

Ryanne Nakamoto is a licensed Nurse Practitioner practicing at HCF. See
http://www.e-physician.info/NPI-1649327230-HI. (last visited Nov. 21, 2014). Naproxen is
commonly used for mild to moderate herniated disk pain before other treatments are attempted.
See http://www.mayoclinic.org/diseases-conditions/herniated-disk.
4

Dr. John T. Frauens is an Orthopedic Surgeon currently practicing at Kaiser Permanente
Medical Center in Honolulu. Dr. Sandra K. Lawrence is a Diagnostic Radiologist currently
practicing at Maui Memorial Medical Center. See http://www.mauimemorialmedical.org;
http://health.usnews.com/doctors/john-frauens-592036; (both sites last visited Nov. 21, 2014).
3

Plaintiff says he began twice daily ice treatments on October 10, 2012. Id.,
PageID #56. Plaintiff states his “results remain[ed] positive for damage,” in
November 2012,when he requested a second opinion and approval for an MRI.5
Id., PageID #55. Dr. Paderes told him his condition did not warrant an MRI. Id.
Plaintiff says he called the Hawaii State Ombudsman on December 18, 2012, and
was taken for an MRI forty-five minutes later. Id.
In Count III, Plaintiff alleges Dr. Frauens denied or delayed medical care by
“falsification of diagnosis.”6 Id., PageID #57. In support, Plaintiff says Dr.
Frauens read the MRI on December 21, 2012, and found Plaintiff’s cervical spine
disks C3-5 were “bulging,” and disks C5-6 had “heterogeneous epidural
eccentrically.”7 Id., PageID #56. Plaintiff claims Dr. Frauens said Plaintiff’s
condition was serious. Id. Plaintiff then“found out” he required surgery, although
it is not clear from whom. Id. Plaintiff says he reviewed his MRI results with Dr.
Frauens on March 5, 2013. Id., PageID #57. Dr. Frauens allegedly opined that
5

“Magnetic resonance imaging (“MRI”) is a technique that uses a magnetic field and
radio waves to create detailed images of the organs and tissues within your body.” See
http://www.mayoclinic.org/tests-procedures/mri/basics.
6

Plaintiff does not name Dr. Frauens in the caption, but names him as a defendant within
the FAC, for “inadequate assesment [sic] to follow professional standards.” FAC, Doc. No. 9,
PageID #52.
7

This makes no literal sense. Plaintiff may have intended to say that Dr. Frauens
recommended an epidural injection for his herniated cervical disc pain. See
http://www.spine-health.com/conditions/herniated-disc. (last visited Nov. 21, 2014).
4

Plaintiff’s condition was “a serious matter and found how serious this is, within 34 months [Plaintiff could] become paralyzed.” Id. Plaintiff claims he saw a Dr.
Jeffery Lee for a “second opinion” on or about October 23, 2014. Id. He says Dr.
Lee told him his condition was “not [] serious enough to have [] surgery,” and that
the proper treatment was physical therapy and medication. Id. Plaintiff alleges
that Dr. Frauens’ and Dr. Lee’s conflicting and confusing diagnoses caused him to
suffer depression and other mental and emotional distress.
Plaintiff seeks an order requiring prison officials to approve surgery,
punitive damages, and $250,000 to “pay for past, current, and future professional
services[.]” Id., PageID #59.
II. LEGAL STANDARD
Federal courts must screen all civil actions brought by prisoners seeking
redress from a governmental entity, officer, or employee, and dismiss a claim or
complaint if it is frivolous, malicious, fails to state a claim, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 42 U.S.C.
§ 1997e(c)(1).
A complaint fails to state a claim if it (1) lacks a cognizable legal theory; or
(2) contains insufficient facts under a cognizable legal theory. Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To sufficiently state a
5

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). This does not require
detailed factual allegations, but “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. A sufficient complaint must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
A court must construe pro se complaints liberally, in the light most favorable
to the plaintiff, and accept all allegations of material fact as true. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hebbe v. Pliler, 611 F.3d 1202, 1205
(9th Cir. 2010). Leave to amend should be granted unless amendment is futile.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
6

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), vacated and remanded on other grounds, 556 U.S. 1256
(2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.
A.

Immunities
As discussed in the October 8, 2014 Order dismissing the original

Complaint, the Eleventh Amendment bars claims for damages against state
officials sued in their official capacity. See Flint v. Dennison, 488 F.3d 816, 82425 (9th Cir. 2007). State officials sued in their official capacity for damages are
not “persons” for purposes of § 1983. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 69 n.24 (1997). State officials sued in their official capacity
for injunctive relief, however, are persons for purposes of § 1983. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989). Accordingly, Plaintiff’s
damages claims against Gonsales, Paderes, and Frauens in their official capacities
remain DISMISSED without leave to amend.
B.

Count I: Claim Against Defendant Gonsales
7

The FAC clarifies that Gonsales ran over a speed bump, on prison grounds,
while driving a prison van at 7-10 miles per hour, sometime between January 2327, 2012, causing Plaintiff to hit his head on the van’s ceiling and injure his head
and neck. FAC, Doc. No. 9, PageId #53. Plaintiff alleges Gonsales “negligen[tly,]
carelessly[,] or knowingly” disregarded an “excessive risk to inmates[’] health or
safety,” suggesting Gonsales violated the Eighth Amendment.
1.

Negligence is Not a Constitutional Violation

To violate the Eighth Amendment, a prison official must act with deliberate
indifference to an inmate’s health or safety. Deliberate indifference embodies a
higher standard than negligence or the lack of ordinary due care. Farmer v.
Brennan, 511 U.S. 825, 834 (1994); see also Estelle v. Gamble, 429 U.S. 97, 105,
(1976) (“An accident, although it may produce added anguish, is not on that basis
alone to be characterized as wanton infliction of unnecessary pain.”). To state a
claim of deliberate indifference, the alleged constitutional deprivation must be,
objectively, “sufficiently serious;” and the official’s act or omission must result in
the denial of “the minimal civilized measure of life’s necessities.” Id. at 834. That
is, the prison official must have a “sufficiently culpable state of mind.” Id.
Subjectively, “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
8

the inference.” Id. at 837. The Constitution “does not guarantee due care on the
part of state officials; liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.” Cnty. of Sacramento v. Lewis,
523 U.S. 833, 849 (1998).
Plaintiff’s clarified facts do not allow the court to draw the reasonable
inference that Gonsales acted with deliberate indifference to a known substantial
risk of serious harm to Plaintiff. See Iqbal, 556 U.S. at 678. Plaintiff states the
van had just passed through HCF’s High Security gate when Gonsales drove over a
speed bump at 7-10 miles per hour. He says Gonsales was aware of the speed
bump and knew the van passengers were unseatbelted. Driving 7-10 miles over a
speed bump immediately after passing through a security gate, however, does not
show that Gonsales acted recklessly, wantonly, or with deliberate indifference to
Plaintiff’s safety. The fact that Plaintiff and the other inmates were not provided
seatbelts does not alter that conclusion. See, e.g., Jabbar v. Fischer, 683 F.3d 54
(2d Cir. 2012) (holding prison officials’ failure to provide seatbelts in prison
vehicles, standing alone, does not violate inmate’s Eighth Amendment rights);
Russell v. Stroleny, 2014 WL 357408, *11 (S.D. Tex. Jan. 31, 2014) (same).

9

Plaintiff’s statement of facts alleges only the possibility that Gonsales acted
negligently – it does not support any claim to relief under the Eighth Amendment.
See Iqbal, 556 U.S. at 678; Farmer, 511 U.S. at 836, n.4.
2.

Statute of Limitation

Even if Plaintiff stated an adequate § 1983 claim against Gonsales, his claim
is time-barred under Hawaii’s two-year personal injury statute of limitation. See
Haw. Rev. Stats. § 657-7; Pele Defense Fund v. Paty, 73 Haw. 578, 595, 837 P .2d
1247, 1259 (1992). In response to the Order to Show Cause, Plaintiff states, “I did
not know the statute of limitation starts from the date of the incident.” Doc. No.
10, PageID #63. Plaintiff also claims that, because the attorney he asked to
represent him on March 6, 2013, waited until August 1, 2013 to decline
representation, the statute of limitation should be equitably tolled for 148 days.
“[T]he accrual date of a § 1983 cause of action . . . [begins] when the
wrongful act or omission results in damages.’” Wallace v. Kato, 549 U.S. 384,
388, 391 (2007) (citation omitted); see also Maldonado v. Harris, 370 F.3d 945
955 (9th Cir. 2004) (“Under federal law, a claim accrues when the plaintiff knows
or has reason to know of the injury which is the basis of the action.”). A state’s
equitable tolling laws apply when they are consistent with federal law. See Fink v.
Shedler, 192 F.3d 911, 914 (9th Cir. 1999). To establish equitable tolling in
10

Hawaii, “a plaintiff must demonstrate ‘(1) that he . . . has been pursuing his right
diligently, and (2) that some extraordinary circumstance stood in his way.’” Office
of Hawaiian Affairs v. State, 133 P.3d 767, 789 (Haw. 2006) (citation omitted); see
also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (same).
Accepting that the accident occurred on the latest date Plaintiff alleges,
January 27, 2012, Plaintiff should have initiated any § 1983 claim no later than
January 27, 2014. See Abramson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir.
1979) (“The proper focus is upon the time of the discriminatory acts, not upon the
time at which the consequences of the acts became most painful.”). Instead,
Plaintiff commenced this action by mailing it to the court on July 1, 2014, 155 days
after the statute of limitation had expired.8 See Doc. No. 1-1 (mailing doc.).
First, Plaintiff’s lack of knowledge of the applicable statute of limitations
and his pro se status are insufficient to invoke equitable tolling. See Raspberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal
sophistication is not, by itself, an extraordinary circumstance warranting equitable
tolling”); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“ignorance of

8

Under the prison “mailbox rule,” a pro se prisoner’s filing is generally deemed filed
when the prisoner delivers it to prison authorities for forwarding to the clerk of the court. See
Stillman v. Lamarque, 310 F.3d 1199, 1201 (9th Cir. 2003).
11

the law, even for an incarcerated pro se petitioner, generally does not excuse
prompt filing[ ]”).
Second, Plaintiff does not otherwise show that he acted diligently to pursue
his claims. Although Plaintiff says he submitted a grievance in July 2012, six
months after the accident, it appears that this grievance was directed at Dr.
Paderes’ conduct, not at Gonsales’ negligent driving. Moreover, Plaintiff signed
his original Complaint on April 14, 2014, but does not explain why he waited until
July 1, 2014, to mail it to the court. Nor does Plaintiff explain what actions he
took to preserve this claim while he passively waited five months for a response
from the attorney he asked to represent him.
Third, even if the court tolled the statute for the 148 days that Plaintiff
waited for a response from the attorney, and there is no justification for such
tolling, he still commenced this suit seven days too late.
In short, without a basis to invoke tolling, Plaintiff’s claim against Gonsales
is DISMISSED for the additional reason that it is time-barred.
C.

Counts II and III: Claims against Drs. Paderes and Frauens
In the FAC, Plaintiff essentially alleges that Dr. Paderes negligently

prescribed a conservative course of treatment, misread his x-ray (as showing only
mild to moderate injury or pain), delayed approving an MRI, and then refused to
12

recommend surgery. See FAC, Count II, Doc. No. 9, PageID #54-56. Plaintiff
alleges Dr. Frauens falsified his diagnosis by first finding that Plaintiff had a
serious cervical disk injury and allegedly stating it could result in paralysis, but
nonetheless telling Plaintiff his physical therapy exercises, medication, and ice
treatments were the only viable treatment for his injury. See id., Count III, PageID
#57-58. Then, when Dr. Lee concurred with Frauens and Paderes that Plaintiff’s
injury did not warrant surgery, these “conflicting” statements caused Plaintiff
confusion and emotional distress. Id.
1.

Standard for Medical Claims

“[T]o maintain an Eighth Amendment claim based on prison medical
treatment, an inmate must show ‘deliberate indifference to serious medical needs.’”
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle, 429 U.S. at
106). Prison officials are deliberately indifferent to a prisoner’s serious medical
needs when they “deny, delay, or intentionally interfere with medical
treatment. . . . Mere negligence in diagnosing or treating a medical condition,
without more, does not violate a prisoner’s Eighth Amendment rights.” Hutchinson
v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing Estelle, 429 U.S. at 10406). “A difference of opinion between a physician and the prisoner--or between
medical professionals--concerning what medical care is appropriate does not
13

amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir.
2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir.
2014); see also Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014)
(reiterating that prison’s reliance on non-specialist prison physicians’ opinions,
rather than specialists’ contradictory opinions, satisfies deliberate indifference
standard). Instead, “[t]o show deliberate indifference, the plaintiff ‘must show that
the course of treatment the doctors chose was medically unacceptable under the
circumstances’ and that the defendants ‘chose this course in conscious disregard of
an excessive risk to plaintiff’s health.’” Snow, 681 F.3d. at 988 (quoting Jackson
v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996)).
2.

Plaintiff Fails to State a Claim Against Drs. Paderes and Frauens

Plaintiff’s clarified facts show that Plaintiff: (1) received medical care within
ten days of requesting it; (2) was referred to a Nurse Practitioner whom he
requested within days and who prescribed anti-inflammatory medicine; (3) was
then seen by Dr. Paderes; (4) was given x-rays, physical therapy, daily ice
treatment, and an MRI; and (5) was seen by three outside orthopedic and radiologic
specialists (Dr. Lawrence, Dr. Frauens, and Dr. Lee). Plaintiff further states that he
was scheduled to see Dr. Lee again on October 23, 2014, indicating that he
continues to receive treatment.
14

Dr. Paderes, Dr. Frauens, and Dr. Lee agree that Plaintiff’s condition does
not warrant surgery. Plaintiff, however, disagrees, and alleges he suffered
emotional distress by the conflicting news that his cervical spine was injured,
perhaps seriously, but nonetheless did not require surgery. Plaintiff fails to show
that Paderes’ and Frauens’ treatment was medically unacceptable or that they
prescribed physical therapy, medication, and ice treatments over surgery with
conscious disregard to an excessive risk to Plaintiff’s health. And, unlike the
situation in Snow and Colwell, there is no disagreement between prison physician
Dr. Paderes’ recommendation and treatment, and orthopedic specialists Dr.
Frauens’ or Dr. Lee’s diagnoses. Rather, Plaintiff’s claims are based solely on his
own disagreement with the medical treatment he has been provided and the
diagnoses set forth in three physicians’ opinions. This is insufficient to show
deliberate indifference and Plaintiff’s claims in Counts II and III against Dr.
Paderes and Dr. Frauens are DISMISSED for failure to state a claim.9
Because further amendment appears futile, Plaintiff’s Complaint and this
action are DISMISSED with prejudice. See Lopez, 203 F.3d at 1130.
9

The court need not address whether the statute of limitation bars Plaintiff’s medical
claims. It appears unlikely that these claims are time-barred, however, based on the dates
Plaintiff asserts he was denied adequate medical care and because sufficient time was tolled
while Plaintiff’s July 23, 2012 grievance was pending with prison officials. See Brown v. Valoff,
422 F.3d 926, 942-43 (9th Cir. 2005).
15

IV. 28 U.S.C. § 1915(g)
Under the 3-strikes provision, a prisoner may not bring a civil action or
appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g). Plaintiff is notified that this dismissal may count as a “strike”
under the “3-strikes” provision of 28 U.S.C. § 1915(g).
V. CONCLUSION
IT IS HEREBY ORDERED that:
(1)

The First Amended Complaint and this action are DISMISSED with

prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915A.
(2)

This dismissal may later be counted as a strike pursuant to 28 U.S.C.

§ 1915(g).

16

(3)

The Clerk of Court is DIRECTED to enter judgment and terminate

this case.
IT IS SO ORDERED.
DATED: December 1, 2014 at Honolulu, Hawai’i.

JAY JUN KOBAYASHI, #A0714662 v. SISAR PADERES, VAL GONSALES;
CIV. NO. 14-00325 DKW-KSC; ORDER DISMISSING FIRST AMENDED
COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. § 1915A(b)

Kobayashi v. Paderes, et al., Civ. No. 14-00325 DKW-KSC/; scrng 2014/ 14-325 dkw (FAC ftsc); J:\PSA Draft
Ords\DKW\Kobayashi 14-235 dkw (dsm FAC no amd. ftsc).wpd

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