Kobayashi v. Paderes et al

Filing 8

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A 1 . Signed by JUDGE DERRICK K. WATSON on 10/8/2014. ~ (1) The Complaint is DISMISSED for failure to state a claim. (2) Plaintiff may file an amended complaint curing the deficiencies noted above on or before November 14, 2014. Failure to timely amend the Complaint and cure its pleading deficiencies may result in DISMISSAL of this action for failure to state a claim, and may be counted as a strike pursuant to 28 U.S. C. § 1915(g). (3) If Plaintiff chooses to amend his claims, he is ORDERED TO SHOW CAUSE in writing why his claims against each named Defendant should not be dismissed as time-barred. (4) The Clerk of Court is DIRECTED to send Plaintiff a cour t-approved prisoner civil rights complaint form so he may comply with the directions in this Order. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this doc ument electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participant Jay Jun Kobayashi was served by first class mail on the date of this docket entry (Prisoner Civil Rights Complaint and Instructions provided as directed).

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 COMPLAINT
PURSUANT TO 28 U.S.C. § 1915A

ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915A
Before the court is pro se Plaintiff Jay Jun Kobayashi’s prisoner civil rights
complaint 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 Complaint is DISMISSED pursuant to 28 U.S.C.
§ 1915A, with leave granted to amend.
I. PLAINTIFF’S CLAIMS
Plaintiff alleges that on or about January 23, 2012, he was riding in the HCF
commissary van driven by Defendant Gonsales when the vehicle “hit a bump and

plaintiff and two other inmates flew up, [and] hit their heads, due to [Gonsales’]
high speed.” Compl., Doc. No. 1, PageID #5. Plaintiff alleges Gonsales
“carelessly or knowingly harmed [him] . . . by not acting in a safe matter of driving
carefully.” Id., PageID #7. He provides no other details regarding this incident.
Approximately seven weeks later, on or about March 12, 2012, Plaintiff
submitted a request for medical treatment. Id., PageID #5 (“3/12/12 was the first
signs of injury reported, though plaintiff stated in [memo] medical that he had pain
2 weeks prior.”). Unidentified HCF medical personnel examined Plaintiff and took
x-rays; it is unclear whether Defendant Dr. Paderes was involved in this
examination. Plaintiff alleges that a “doctor had examined plaintiff and found that
plaintiff was indeed in need of ‘MRI’ and surgery to correct this injury.” Id.
Plaintiff does not identify this doctor or detail when he received this diagnosis.
Plaintiff says his pain increased and he continued to request medical attention, but
Dr. Paderes denied his medical requests and denied him a referral for a second
opinion. Plaintiff states, however, that he received a second opinion and an MRI
was performed. Id. (“Only when a second opinion was made, had a ‘MRI’ been
performed.”). Plaintiff claims Dr. Paderes denied him access to qualified medical
personnel, to “required treatment (surgery),” and to “ice pack treatment.” Id.,
PageID #6.
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Plaintiff alleges Defendants Paderes and Gonsales acted with deliberate
indifference to his health and safety in violation of the Eighth Amendment. He
names both Defendants in their individual and official capacities, seeks an order
requiring prison officials to approve surgery, and demands “$250,000 to pay for
past, current, future professional services[.]” Id., PageID #8.
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; 28 U.S.C.
§ 1915(e)(2); 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
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
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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).
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.
4

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
The Eleventh Amendment bars claims for damages against state officials

sued in their official capacity. See Flint v. Dennison, 488 F.3d 816, 824-25 (9th
Cir. 2007). This is because 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). Stated
differently, the doctrine of Ex Parte Young, 209 U.S. 123 (1908) does not bar suits
for prospective declaratory or injunctive relief against state officials in their official
capacity. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997).
Claims for damages against Dr. Paderes and Defendant Gonsales in their official
capacities are DISMISSED without leave to amend.
B.

Counts I and II: Claims Against Dr. Paderes
“[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 v. Gamble,
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429 U.S. 97, 106 (1976)). Plaintiff must allege and prove (1) “‘a serious medical
need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in
further significant injury or the unnecessary and wanton infliction of pain,’” and
(2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439
F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.
1997) (en banc) (internal quotations omitted)).
Deliberate indifference may be shown by “a purposeful act or failure to
respond to a prisoner’s pain or possible medical need, and harm caused by the
indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). Thus,
an inmate must allege and establish that the delay in care resulted in some harm.
McGuckin, 974 F.2d at 1060 (citing Shapley v. Nev. Bd. of State Prison Comm’rs,
766 F.2d 404, 407 (9th Cir. 1985) (per curiam)). The unnecessary infliction of
pain is sufficient to satisfy this requirement. Id.; see also Hudson v. McMillian,
503 U.S. 1, 10 (1992). However, “a difference of opinion between a
prisoner-patient and prison medical authorities regarding treatment does not give
rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981)
(internal citation omitted). To prevail, Plaintiff “must show that the course of
treatment the doctors chose was medically unacceptable under the circumstances
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. . . and . . . that they chose this course in conscious disregard of an excessive risk
to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
(internal citations omitted). A prisoner’s disagreement with diagnosis or treatment
does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240,
242 (9th Cir. 1989).
Plaintiff provides insufficient facts regarding Dr. Paderes’ involvement with
and response to his injury from which this court can “draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Plaintiff admits that he waited seven weeks before seeking medical
attention, and that when he did, x-rays were taken. Plaintiff also admits that he
was referred for a second medical opinion and an MRI was performed. He does
not say when this occurred or who referred him, or provide the second doctor’s
recommendation or diagnosis, or the outcome of the MRI. It is therefore unclear
when Plaintiff met with Dr. Paderes, to what extent Dr. Paderes was involved in
Plaintiff’s treatment, or whether Dr. Paderes caused a delay in Plaintiff’s treatment
that resulted in further significant injury or pain. Plaintiff provides no dates from
which the court or Dr. Paderes can determine whether adequate medical care was
delayed and resulted in harm or unnecessary pain. While Plaintiff makes
conclusory accusations regarding Dr. Paderes, he provides no statement of facts
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allowing the inference that Dr. Paderes violated his constitutional rights.
Plaintiff’s complaint “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Twombly, 550 U.S. at 557. As such, the Complaint fails
to state a claim for relief and is DISMISSED with leave granted to amend.
C.

Count III: Claims Against Gonsales
Plaintiff alleges Gonsales “carelessly or knowingly” hit a bump at high

speed on or about January 23, 2012, causing him to hit his head on the van’s roof
and injure his head and neck. Compl., Doc. No. 1, PageId #5, #7. He sets forth no
other facts regarding this incident.
1.

Negligence Does Not Equate to Constitutional Violation

Deliberate indifference is a higher standard than negligence or lack of
ordinary due care for a prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994). 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 the inference.” Id. at 837. The Constitution “does
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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 fails to allege sufficient facts for the court to reasonably infer that
Gonsales was deliberately indifferent to a substantial risk of serious harm to
Plaintiff. See Iqbal, 556 U.S. at 678. He does not allege where the accident
occurred, how fast and for how long Gonsales drove carelessly, what the road or
weather conditions were, whether he was seatbelted, denied a seatbelt, restrained
and unable to brace or protect himself, or whether he asked Gonsales to slow
down. See Rogers v. Boatright, 709 F.3d 403 (5th Cir. 2013) (holding guard’s
knowledge that inmate was unseatbelted, combined with guard’s reckless driving
and statement that inmates were injured “all the time” during transports without
seatbelts, was sufficient to infer guard’s subjective knowledge of risk of harm);
Brown v. Fortner, 518 F.3d 552, 560-61 (8th Cir. 2008) (finding that guard who
knew inmates were unseatbelted and shackled, yet disregarded their pleas to slow
down, taunted them, and drove recklessly by speeding and erratically changing
lanes, was not entitled to qualified immunity); see also Kemp v. Webster, 2012 WL
4919615, *7 (D. Colo., Oct. 16, 2012) (finding transportation of a cuffed,
shackled, unseatbelted inmate in dangerous conditions, while driving recklessly,
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despite inmate’s pleas to stop, sufficient to infer subjective knowledge of a serious
risk of harm).
In short, Plaintiff provides insufficient facts to support an inference that
Gonsales acted with reckless, wanton, and deliberate indifference to his safety
when Gonsales hit a bump while allegedly driving too fast. See 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). Plaintiff’s stated facts may support a state law negligence claim, but they
are insufficient to state an actionable claim under the Eighth Amendment. See
Farmer, 511 U.S. at 836, n.4. Count III is DISMISSED with leave to amend for
failure to state a claim.
2.

Statute of Limitation

When the running of the statute of limitation is apparent on the face of the
complaint, dismissal for failure to state a claim is proper. See Cervantes v. City of
San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993); see also Estate of Blue v. Cnty. of
Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). Federal courts apply the forum
state’s statute of limitation for personal injury claims to claims brought under
§ 1983. Wilson v. Garcia, 471 U.S. 261, 279-80 (1985); Jones v. Blanas, 393 F.3d
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918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir .2004).
The applicable statute of limitation is two years in Hawaii. See Haw. Rev. Stats.
§ 657-7; Pele Defense Fund v. Paty, 73 Haw. 578, 595, 837 P .2d 1247, 1259
(1992).
Unlike the length of the limitations period, however, “the accrual date of a
§1983 cause of action is a question of federal law that is not resolved by reference
to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007); Hardin v. Staub, 490
U.S. 536, 543-44 (1989) (federal law governs when a § 1983 cause of action
accrues). “Under the traditional rule of accrual . . . the tort cause of action accrues,
and the statute of limitation begins to run, when the wrongful act or omission
results in damages.” Wallace, 549 U.S. at 391 (citation omitted); see also
Maldonado, 370 F.3d at 955 (“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.”).
Federal courts also apply the forum state’s laws regarding equitable tolling
when they are consistent with federal law. Fink v. Shedler, 192 F.3d 911, 914 (9th
Cir. 1999). To establish equitable tolling in 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,
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133 P.3d 767, 789 (Haw. 2006) (citation omitted). “Extraordinary circumstances
are circumstances that are beyond the control of the complainant and make it
impossible to file a complaint within the statute of limitations.” Id. (citations
omitted).
Plaintiff alleges the accident occurred on or about January 23, 2012, and he
began feeling pain in late February or early March 2012. Although Plaintiff signed
the complaint on April 17, 2014, it was not mailed until July 1, 2014. These dates
suggest that Plaintiff filed this action more than two years after his claim
apparently accrued.1 Additionally, Plaintiff fails to plead any facts that, if proved,
support the equitable tolling of his claims. See Cervantes, 5 F.3d at 1277. If
Plaintiff elects to amend this claim, he is ORDERED TO SHOW CAUSE why his
claims against Gonsales (and Paderes) should not be dismissed as time-barred.
IV. LEAVE TO AMEND
Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28
U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1). He may file an amended complaint
on or before November 14, 2014. The amended complaint must cure each of the
deficiencies noted above.

1

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).
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Local Rule 10.3 requires that an amended complaint be complete in itself
without reference to any prior pleading, and the court will not refer to the original
pleading to make an amended complaint complete. Defendants not named in the
caption and claims not realleged in an amended complaint are deemed waived.2
See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). An amended complaint
generally 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 further notified that he must
comply with the Federal Rules of Civil Procedure and the Local Rules for the
District of Hawaii if he amends his pleading.
Plaintiff is NOTIFIED that if he chooses to amend his claims, he must
SHOW CAUSE why these claims should not be dismissed as time-barred as
against each of the Defendants.
V. 28 U.S.C. § 1915(g)
If Plaintiff fails to file an amended complaint correcting the
deficiencies identified in this Order, he is notified that this dismissal may count as

2

Claims dismissed without leave to amend, such as Plaintiff’s claims for damages against
Defendants in their official capacities, need not be repled in an amended complaint to preserve
them for appeal. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
However, “claims that have been dismissed with leave to amend [that] are not repled in the
amended complaint will be considered waived.” Id.
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a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the
3-strikes provision, a prisoner may not bring a civil action or appeal a civil
judgment in forma pauperis under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g).
VI. CONCLUSION
IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED for failure to state a claim.

(2)

Plaintiff may file an amended complaint curing the deficiencies noted

above on or before November 14, 2014. Failure to timely amend the Complaint
and cure its pleading deficiencies may result in DISMISSAL of this action for
failure to state a claim, and may be counted as a strike pursuant to 28 U.S.C.
§ 1915(g).
(3)

If Plaintiff chooses to amend his claims, he is ORDERED TO SHOW

CAUSE in writing why his claims against each named Defendant should not be
dismissed as time-barred.
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(4)

The Clerk of Court is DIRECTED to send Plaintiff a court-approved

prisoner civil rights complaint form so he may comply with the directions in this
Order.
IT IS SO ORDERED.
DATED: October 8, 2014, Honolulu, Hawai’i.

__________________________________________________________________
JAY JUN KOBAYASHI, #A0714662, vs. SISAR PADERES, VAL GONSALES;
Civ. No. 14-00325 DKW-KSC; ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915A
Kobayashi v. Paderes, et al., Civ. No. 14-00325 DKW-KSC/; scrng 2014/ 14-325 dkw (ftsc in part); J:\Denise's Draft
Orders\DKW\Kobayashi 14-235 dkw (orig. c ftsc).wpd

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