Baker v. Doe et al
Filing
6
ORDER DISMISSING COMPLAINT IN PART re: 1 . Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 4/13/2016. (afc)Excerpt of conclusion:"The Complaint is DISMISSED IN PART for fail ure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, Plaintiff states a claim for deliberate indifference against the unidentified RN Defendants and Defendants Dr. Karl Ayer and Dr. Francis Hamada. These clai ms shall proceed and be answered after service is perfected.""Plaintiff fails to state a claim against Defendants John Doe and Dr. BarneyToyoma and claims against them are DISMISSED with leave to amend."Plaintiff may fi le an amended complaint curing the deficiencies in his dismissed claims on or before May 13, 2016. Plaintiff SHALL use the court's prisoner civil rights complaint form if he chooses to amend his pleadings." "In the alternative, Plaintiff may NOTIFY the court in writing on or before May 13, 2016, that he elects to stand on his claims against the RN Defendants and Defendants Dr. Karl Ayer and Dr. Francis Hamada and go forward. If Plaintiff chooses this option, the court will order the U.S. Marshal to serve the Complaint at Plaintiff's direction as to those claims only."CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document elec tronically at the e-mail address listed on the Notice of Electronic Filing (NEF). A copy of the instant Order, and the "Prisoner Civil Rights Complaint" form with its instructions, has been served this date by first class mail to Mr. Vernon Baker at his address of record.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VERNON BAKER, #A1058244,
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Plaintiff,
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vs.
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JANE DOE, et al.,
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Defendants.
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_____________________________ )
CIV. NO. 16-00140 JMS/RLP
ORDER DISMISSING COMPLAINT
IN PART
ORDER DISMISSING COMPLAINT IN PART
Before the court is pro se Plaintiff Vernon Baker’s prisoner civil rights
Complaint. Compl., Doc. No. 1. Plaintiff is a pretrial detainee incarcerated at the
Oahu Community Correctional Center (“OCCC”).1 He is proceeding in forma
pauperis. Plaintiff alleges OCCC staff violated the Eighth and Fourteenth
Amendments by denying him timely and adequate medical care following an
assault by another inmate at OCCC in March 2014.2 Id., PageID #18-19.
1
See Hawai’i State Judiciary’s Public Access to Court Information, (“Ho`ohiki”) at:
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm, State v. Baker, 1PC13-1-001121.
2
Plaintiff names OCCC registered nurses Jane Doe, Janet Doe, Susan Doe, Betty Doe,
Alice Doe, and Kathy Doe (collectively, “RN Defendants”); OCCC physicians Karl Ayer, M.D.,
and Barney Toyoma, M.D.; OCCC dentist Francis Hamada, DDS; and OCCC Food and Diet
Supervisor John Doe (collectively, “Defendants”). Defendant Dr. Karl Ayer is named in his
individual and official capacities, all other Defendants are named in their individual capacities,
only.
Plaintiff’s Complaint is DISMISSED in part pursuant to 28 U.S.C.
§§ 1915(e)(2) & 1915A(b). The court finds that Plaintiff states a claim against
unidentified RN Defendants, Dr. Karl Ayer, and Dr. Francis Hamada, and they
will be required to respond to the Complaint after service is perfected. Plaintiff
fails to state a claim against Defendants Dr. Barney Toyoma and OCCC Food and
Diet Supervisor John Doe, however, and those claims are DISMISSED with leave
to amend.
Plaintiff may file an amended complaint curing the deficiencies in claims
dismissed by this order on or before May 13, 2016. In the alternative, he may
notify the court in writing on or before May 13, 2016, that he will stand on his
claims against RN Defendants, Dr. Karl Ayer, and Dr. Francis Hamada. In that
event, the court will order the U.S. Marshal to serve the Complaint as directed by
Plaintiff, and the RN Defendants, Dr. Karl Ayer, and Dr. Francis Hamada will be
directed to answer.
I. BACKGROUND3
Plaintiff alleges that at approximately 9:00 p.m., on March 20, 2014, he was
attacked by another OCCC inmate. Plaintiff was taken to OCCC medical module
3
These facts are taken from the Complaint and accepted as true, but should not be
construed as findings by the court.
2
5, where he reported severe pain in his mouth and throat and requested to be taken
to the hospital. RN Defendant Jane Doe photographed Plaintiff’s face and mouth,
gave him an ice pack, told him to take his already-prescribed naproxen for pain.
She told him there was nothing wrong and denied his request to go to the hospital.
At 11:40 p.m., Plaintiff returned to OCCC medical module 5 because he
was in severe pain and begged RN Defendant Janet Doe to be taken to the
hospital. Janet Doe and another nurse allegedly laughed at Plaintiff and told the
guard that he had already been examined.
Two hours later, at 1:30 a.m., March 21, 2014, a guard called OCCC
medical module 5 to report Plaintiff’s continuing severe pain, inability to sleep,
and request to go to the hospital. RN Defendant Susan Doe explained that
Plaintiff should report to sick call in the morning and denied Plaintiff’s request to
go to the hospital. Plaintiff was unable to sleep because of the pain.
At 7:00 a.m. that morning, Plaintiff returned to sick call. He reported that
he was in great pain and unable to chew or eat, and begged for an appointment
with a doctor. He was told that a doctor’s appointment would be scheduled as
soon as possible.
On March 22, 2014, Plaintiff returned to sick call at 7:00 a.m. He told
“Nurse Neil” that he believed his jaw was broken. Compl., Doc. No. 1, PageID
3
#12. Nurse Neil told Plaintiff that he would be scheduled for an appointment with
a physician. Plaintiff’s extreme pain continued.
Between March 21 and 28, 2014, Plaintiff says he “told each nurse that he
needed to see the doctor and complained about the pain.” Id. He was told that he
was scheduled for an appointment with a doctor. Plaintiff was provided nothing
for his pain, although his neck was obviously bruised, and he had a golf ball sized
lump on his lower jaw. Plaintiff says he lost fifteen pounds during this week.
On March 28, 2014, Defendant Dr. Karl Ayer examined Plaintiff. Although
Dr. Karl Ayer initially opined that he did not believe Plaintiff’s jaw was broken,
he sent Plaintiff to OCCC dentist, Dr. Francis Hamada, for an x-ray. This x-ray
revealed that Plaintiff’s jaw was, in fact, broken. Plaintiff says he begged Dr.
Francis Hamada for pain medication, and Dr. Francis Hamada told him that he
would discuss this request with Dr. Karl Ayer, but neither Dr. Francis Hamada nor
Dr. Karl Ayer returned to speak with Plaintiff. Someone prescribed Plaintiff
antibiotics and a “soft diet,” however, and told Plaintiff he would be referred to
The Queen’s Medical Center (“QMC”). Plaintiff was also told that his jaw could
not be wired in place and hospitalization was not required because his “bones
[were] already fusing out of place.” Id., PageID #13.
4
Plaintiff began receiving a meal tray that was labeled “soft diet,” but he says
it was identical to the regular diet tray he was served before his injury, and it was
not kosher. Plaintiff asked someone to contact Defendant OCCC Food and Diet
Supervisor John Doe about this issue, and complained to unidentified nurses and
to RN Defendant Susan Doe, but his diet was not adjusted. Plaintiff says he lost
twenty-five pounds until his jaw sufficiently healed to eat a regular diet again.
Between April 8 and 14, 2014, Plaintiff kept seeking pain relief, but was
told he must wait until his appointment at QMC. Finally, on April 14, 2014,
Plaintiff was taken to QMC, where a doctor told him the bone had set and his jaw
could no longer be wired into place. This doctor prescribed Plaintiff a
“liquid/ensure/yogurt diet.” Id., PageID #14. Plaintiff says he never received
Ensure or a liquid diet, and his soft diet “was barely edible and never soft,” despite
his numerous written and oral requests to unidentified OCCC medical staff. Id.
Plaintiff continued to lose weight and suffered headaches and insomnia.
Between April 18 and July 2014, Plaintiff filed numerous requests to see a
physician due to his continuing pain and the unresolved lump in his neck.
Plaintiff says Defendant Betty Doe refused to schedule him for an appointment
and Defendant Kathy Doe, who is in charge of scheduling appointments, knew of
his many requests for medical care but failed to intervene.
5
In July 2014, Defendant Dr. Barney Toyoma examined Plaintiff, prescribed
him a muscle relaxant, flexeril, and ordered an ultrasound of his neck. An
ultrasound was performed on September 12, 2014, and revealed that Plaintiff had a
one centimeter lymph node in his neck. Dr. Barney Toyoma allegedly told
Plaintiff nothing could be done about his enlarged lymph node, but Plaintiff also
complains that he was not informed about this “abnormality” until he reviewed his
own medical records. Id., PageID #16. Plaintiff requested a specialist or physical
therapy, but Dr. Barney Toyoma told him neither was available at OCCC.
Plaintiff’s flexeril prescription ran out after twelve days, although his pain
continued. In November 2014, Plaintiff was prescribed Elavil,4 but the pain
persisted. On January 6, 2015, Dr. Barney Toyoma examined Plaintiff again and
this time prescribed physical therapy. Plaintiff had twice-weekly physical therapy
sessions between January 12 and 31, 2015, and was told to follow up with Dr.
Barney Toyoma when these sessions finished.
4
Plaintiff is not explicit, but he suggests Dr. Barney Toyoma prescribed him Elavil,
which is used to treat depression, relieve anxiety and tension, and prevent migraine headaches.
See WebMD, http://www.webmd.com/drugs/2/drug-1807/elavil-oral/details (last visited
03/31/2016).
6
Plaintiff requested a follow up appointment with Dr. Barney Toyoma on
March 22, 2015, and saw him on March 27, 2015. Dr. Barney Toyoma denied
Plaintiff further treatment for “TMJ” or the lump in his neck.5
Plaintiff complains that, had his broken jaw been treated and set when it was
injured, it would have healed properly and he would not have a one centimeter
lymph node or “golf ball sized lump in the neck.” Id., PageId #17. Plaintiff seeks
compensatory damages and treatment for his “ongoing pain & injury sustained due
to the negligent indifference.” Id., PageID #18.
II. SCREENING
The court must screen all civil actions brought by prisoners proceeding in
forma pauperis or seeking redress from a government entity, officer, or employee.
28 U.S.C. §§ 1915(e)(2) & 1915A(a). Complaints or claims that are frivolous,
malicious, fail to state a claim, or seek relief from a defendant who is immune
from relief must be dismissed. 28 U.S.C. §§ 1915(e)(2) & 1915A(b); 42 U.S.C.
§ 1997e(c)(1).
A complaint that lacks a cognizable legal theory or alleges insufficient facts
under a cognizable legal theory fails to state a claim. Balistreri v. Pacifica Police
5
It is unclear whether the lump in Plaintiff’s neck and his allegedly enlarged lymph node
refer to the same condition.
7
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). This “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must
plead facts that allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
A court must “accept factual allegations in the complaint as true and
construe the pleadings in the light most favorable to the nonmoving party.”
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
The court must identify and disregard allegations that “are not entitled to the
assumption of truth,” that is, allegations that are legal conclusions, bare assertions,
or merely conclusory. Iqbal, 556 U.S. at 679-80. Then, the court must consider
the factual allegations “to determine if they plausibly suggest an entitlement to
relief.” Id. at 681. If the allegations state a plausible claim for relief, the claim
may proceed. Id. at 680.
8
The court is not required to “‘assume the truth of legal conclusions merely
because they are cast in the form of factual allegations.’” Fayer v. Vaughn, 649
F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt,
643 F.2d 618, 624 (9th Cir. 1981)). “[C]onclusory allegations of law and
unwarranted inferences are insufficient.” Adams v. Johnson, 355 F.3d 1179, 1183
(9th Cir. 2004); accord Iqbal, 556 U.S. at 678.
Leave to amend should be granted if the plaintiff can correct the defects in
the complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). If
the complaint cannot be saved by amendment, however, dismissal without leave to
amend is appropriate. Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196
(9th Cir. 2013).
III. DISCUSSION
To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff “must allege
the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); Thornton v. City
of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005).
Section 1983 requires a connection between a defendant’s actions and a
plaintiff’s allegations. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978);
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Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the
deprivation of a constitutional right, within the meaning of section 1983, if he
does an affirmative act, participates in another’s affirmative acts, or omits to
perform an act which he is legally required to do that causes the deprivation of
which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
A.
Deliberate Indifference to Serious Medical Needs
A convicted prisoner’s deliberate indifference claims arise under the Eighth
Amendment’s proscription against cruel and unusual punishment. Gibson v. Cty.
of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th Cir. 2002). A pretrial detainee,
however, who has not yet been convicted of a crime, derives such rights from the
Due Process Clause of the Fourteenth Amendment, rather than the Eighth
Amendment. Id. at 1187 (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979); Frost
v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998)). Regarding medical needs, the
Due Process Clause “imposes, at a minimum, the same duty the Eighth
Amendment imposes: ‘persons in custody have the established right to not have
officials remain deliberately indifferent to their serious medical needs.’” Id.
(quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)); see also Simmons v.
Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010); Lolli v. Cty. of Orange,
351 F.3d 410, 418-19 (9th Cir. 2003).
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Deliberate “[i]ndifference ‘may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in
which prison officials provide medical care.’” Crowley v. Bannister, 734 F.3d
967, 978 (9th Cir. 2013) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006)). To establish deliberate indifference, first, a “plaintiff must show 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.” Jett, 439 F.3d at 1096 (quotations omitted). “Second, the plaintiff must
show the defendant’s response to the need was deliberately indifferent.” Id. This
can be shown by alleging “(a) a purposeful act or failure to respond to a prisoner’s
pain or possible medical need and (b) harm caused by the indifference.” Id.
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391
F.3d 1051, 1060 (9th Cir. 2004). The “‘inadvertent [or negligent] failure to
provide adequate medical care’ alone does not state a claim under § 1983.” Jett,
439 F.3d at 1096 (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)); see also
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (“While poor medical
treatment will at a certain point rise to the level of constitutional violation, mere
malpractice, or even gross negligence, does not suffice.”).
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Deliberate indifference requires that “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 (1994).
B.
RN Defendants Jane, Janet, Susan, Betty, Alice, and Kathy Doe
Taken singly, Plaintiff’s claims against the separately identified RN
Defendants may not meet the deliberate indifference standard. When viewed in
their entirety and in the light most favorable to Plaintiff, however, these
allegations sufficiently state a claim that unidentified OCCC nursing staff acted
with deliberate indifference to Plaintiff’s serious medical needs. Plaintiff alleges
he repeatedly informed RN Defendants and “each nurse” that he was in great pain,
believed his jaw was broken, required pain relief, and needed to see a physician.
Compl., Doc. No. 1, PageID #12. Nonetheless, he was not taken to an emergency
room, given additional pain medication, scheduled for an immediate appointment
with a physician, or even taken to the onsite OCCC dental department for an x-ray
of his jaw for eight days after his injury. He alleges two nurses laughed at his
pain. He alleges he notified the RN Defendants’ supervisor of these problems, and
personally spoke with Susan Doe about his inability to eat because he was not
receiving a soft diet. By the time Plaintiff was scheduled with and seen by Dr.
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Karl Ayer and Dr. Francis Hamada, his jaw had begun healing improperly and
could not be set, and he had allegedly lost fifteen pounds. Plaintiff alleges that he
repeatedly asked for medical attention and pain relief over a period of almost a
year and was largely ignored by the RN Defendants. These allegations state a
claim and require an answer.
To the extent that Plaintiff alleges that RN Defendant Alice Doe denied his
grievance, however, Plaintiff fails to state a claim. Simply “[r]uling against a
prisoner on an administrative complaint does not cause or contribute to the
[underlying] violation.” George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)
(holding that only persons who cause or participate in civil rights violations can be
held responsible); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding
that prison officials whose only roles involved the denial of the prisoner’s
administrative grievances cannot be held liable under § 1983); Wright v.
Shapirshteyn, 2009 WL 361951, at *3 (E.D. Cal. Feb. 12, 2009) (noting that
“where a defendant’s only involvement in the allegedly unconstitutional conduct is
the denial of administrative grievances, the failure to intervene on a prisoner’s
behalf to remedy alleged unconstitutional behavior does not amount to active
unconstitutional behavior for purposes of § 1983”).
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Plaintiff states a claim against unidentified RN Defendants. After Plaintiff
adequately identifies these individuals so that they can be served, they will be
required to answer the Complaint.
C.
Dr. Karl Ayer and Dr. Francis Hamada
Plaintiff’s allegations against Dr. Karl Ayer and Dr. Francis Hamada also
state a claim when viewed liberally and in conjunction with Plaintiff’s other
allegations. Although neither can be held liable for failing to examine Plaintiff
earlier if they were unaware of his need for medical attention, Plaintiff alleges that
he was in severe pain and requested pain relief for his broken jaw and neither Dr.
Karl Ayer nor Dr. Francis Hamada even came back to the waiting room to discuss
this with him. Nor did either apparently prescribe him pain medicine. Plaintiff’s
claims against Dr. Karl Ayer and Dr. Francis Hamada shall proceed and will
require an answer.
D.
Food and Diet Supervisor John Doe
Plaintiff says he asked someone to notify Food and Diet Supervisor John
Doe that he was not receiving an adequate soft foods diet. This is insufficient to
show that John Doe was aware of Plaintiff’s need for a soft diet or that he was not
getting such a diet and that he acted with deliberate indifference to Plaintiff’s
serious medical needs. This claim is DISMISSED with leave to amend.
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E.
Dr. Barney Toyoma
Plaintiff saw Dr. Barney Toyoma in July 2014, four months after his injury
occurred. Dr. Barney Toyoma examined Plaintiff, prescribed him a muscle
relaxant for his neck pain, and ordered an ultrasound. The ultrasound revealed a
lymph node that was one centimeter in size. It appears that Dr. Barney Toyoma
saw Plaintiff again in November 2014, although this is not explicit in the
Complaint, and prescribed him Elavil. Dr. Barney Toyoma examined Plaintiff
again in January 2015, and despite his earlier statements that physical therapy was
unavailable at OCCC, he prescribed Plaintiff physical therapy. In March 2015,
Dr. Barney Toyoma told Plaintiff that nothing further could be done for Plaintiff’s
continuing neck pain. Plaintiff may disagree with Dr. Barney Toyoma’s diagnoses
and treatments, but this is insufficient to state a claim for deliberate indifference.
Neither negligence in diagnosing or treating a medical condition nor a difference
of opinion between a prisoner and medical providers concerning the appropriate
course of treatment are sufficient to state a claim for deliberate indifference. See
Estelle, 429 U.S. at 106; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Plaintiff’s claims against Dr. Barney Toyoma fail to state a claim for deliberate
indifference to his serious medical needs and they are DISMISSED with leave to
amend.
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IV. LEAVE TO AMEND
Plaintiff may file an amended complaint on or before May 13, 2016, that
cures the deficiencies noted above. An amended complaint generally supersedes
the previous complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 907 n.1 (9th
Cir. 2012) (en banc). Thus, an amended complaint should stand on its own
without incorporation or reference to a previous pleading. Defendants not named
and claims dismissed without prejudice that are not realleged in an amended
complaint may later be deemed voluntarily dismissed. Id. at 928 (stating claims
dismissed with prejudice need not be repled in an amended complaint to preserve
them for appeal, but claims that are “voluntarily dismissed” are considered
“waived if not repled”).
In the alternative, Plaintiff may notify the court in writing on or before May
13, 2016, that he will stand on his claims against the unidentified RN Defendants
and Defendants Dr. Karl Ayer and Dr. Francis Hamada. In that event, the court
will order the Complaint served and require those Defendants to answer Plaintiff’s
claims against them.
V. CONCLUSION
(1) The Complaint is DISMISSED IN PART for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, Plaintiff states a
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claim for deliberate indifference against the unidentified RN Defendants and
Defendants Dr. Karl Ayer and Dr. Francis Hamada. These claims shall proceed
and be answered after service is perfected.
Plaintiff fails to state a claim against Defendants John Doe and Dr. Barney
Toyoma and claims against them are DISMISSED with leave to amend.
(2) Plaintiff may file an amended complaint curing the deficiencies in his
dismissed claims on or before May 13, 2016. Plaintiff SHALL use the court’s
prisoner civil rights complaint form if he chooses to amend his pleadings.
(3) In the alternative, Plaintiff may NOTIFY the court in writing on or
before May 13, 2016, that he elects to stand on his claims against the RN
Defendants and Defendants Dr. Karl Ayer and Dr. Francis Hamada and go
forward. If Plaintiff chooses this option, the court will order the U.S. Marshal to
serve the Complaint at Plaintiff’s direction as to those claims only.
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(4) The Clerk is directed to mail Plaintiff the court’s prisoner civil rights
complaint form so that he can comply with the directions in this Order if he
chooses to amend his pleadings.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 13, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Baker v. Jane Doe, et al., 1:16 cv 00140 JMS/RLP; scrn 2016 Baker 16 140 jms (pretr. detainee dny med care)
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