Lagmay v. Nobriga, et al

Filing 20

ORDER DISMISSING 18 AMENDED COMPLAINT IN PART. Signed by JUDGE DERRICK K. WATSON on 2/9/2017. (1) The First Amended Complaint is DISMISSED IN PART. Specifically, Lagmay states a claim against Defendants Kaipo Sarkissian and Levy Christensen for retaliation and excessive use of force, and these claims shall proceed. Sarkissian and Christensen SHALL file a response to the First Amended Complaint. (2) All other claims, including claims for inadequate medi cal care, conspiracy, illegal seizure of property, denial of grievances, and failure to intervene as alleged against ALL OTHER DEFENDANTS are DISMISSED without prejudice. (3) The Court will issue a separate Service Order directing the U.S. Marsh alto serve the Complaint and Summons on Defendants Sarkissian and Christensen at Lagmay's direction. (4) Lagmay may file an Amended Complaint curing the deficienciesdiscussed above on or before March 15, 2017. If Lagmay's amended plead ingdoes not comply with this Court's explicit directions, it will be STRICKEN. (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). Participant (Henry Lagmay) not registered to receive electronic notifications were served by first class mail on the date of this docket entry

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HENRY LAGMAY, #A0191119,

)
)
Plaintiff,
)
)
vs.
)
)
MRS. SHELLEY NOBRIGA, et al.,
)
)
Defendants,
)
_______________________________ )

CIV. NO. 16-00408 DKW/KJM
ORDER DISMISSING AMENDED
COMPLAINT IN PART

ORDER DISMISSING AMENDED COMPLAINT IN PART
Before the Court is pro se Plaintiff Henry Lagmay’s First Amended
Complaint (“FAC”), brought pursuant to 42 U.S.C. §§ 1983 and 1985. ECF No.
18. Lagmay is incarcerated in the Halawa Correctional Facility (“HCF”) special
housing unit (“SHU”). He alleges that HCF, Department of Public Safety
(“DPS”), and Office of the Ombudsman officials and staff violated his
constitutional rights.
The Court has screened the FAC pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b)(1) and finds that it states a cognizable claim for relief against Defendants
Adult Correctional Officers (“ACO”) Levy Christensen and Kaipo Sarkissian. The
FAC fails to state a claim against all remaining Defendants and claims against
them are DISMISSED.

The Court will issue a separate Service Order directing the United States
Marshal to serve the FAC on Christensen and Sarkissian, and they will be required
to respond.
I.
A.

BACKGROUND

Procedural History
Lagmay commenced this action by filing a lengthy, handwritten Complaint.

See Compl., ECF No. 1 (68 pages). He thereafter filed three additional documents
that were randomly interspersed with exhibits, which the Court construed as part of
the original Complaint. See ECF Nos. 4 (Mot., 55 pages), 6 (Suppl., Exs. F-W, 23
pages), 7 (Suppl., Exs., 103 pages).
On September 16, 2016, the Court dismissed the Complaint with leave to
amend pursuant to Rule 8 of the Federal Rules of Civil Procedure and the Local
Rules for the District of Hawaii. ECF No. 9 (“Dismissal Order”). The Dismissal
Order carefully explained what Lagmay must do to properly amend, instructed him
to limit his statement of facts to twenty-five pages, label each claim separately, and
detail what each Defendant personally did or failed to do to violate his rights.
On December 22, 2016, Lagmay filed the FAC. ECF No. 18 (135 pages).
The FAC alleges that seventy-six state officials conspired to violate Lagmay’s
First, Fourth, Eighth, and Fourteenth Amendment rights in retaliation for his filing
2

grievances and three previous lawsuits concerning the conditions of his
confinement.1 Id., PageID #330-372.
B.

Summary of FAC2
Although the FAC’s eighty-seven-page statement of facts is not presented

chronologically and is frequently confusing,3 Lagmay appears to allege that his left
and/or right foot, ribs, arms, and/or shoulders were permanently injured while he
was incarcerated on the Mainland in 2008. He repeatedly refers to “Exhibit L” as
evidence of these allegedly permanent injuries and to provide support for his
claims. Exhibit L is a referral from HCF physician Dr. S. DeWitt and Defendant
1

Lagmay names in their individual capacities (in alphabetical order): ACO Aceedello;
Tina Agaran, RN; Counselor Jan Ahn; ACO Akau; Dep. Ombudsman Almeida; ACO Alsted;
Major Lyle Antonio; ACO Arcalas; ACO Asuncion; RSA Admin. Dovie Borges; ACO Botelho;
ACO Brown; ACO Burkey; ACO Castagan; Sgt. Levy Christensen; ACO Coifin; Sgt. T.
Dacoscos; Lt. K. Dreg, Kimo; DPS Director Nolan Espinda; ACO Flores; ACO Fonoti;
Orthopedist Dr. Frauens; Sgt. Gernler; Sgt. M. Gribin; ACO Guitguitin; Holly, RN; Contract
Monitor Jinbo; Sgt. R. Jones; Lt. Kaiser; Sgt. Kami; ACO Kaninau; Sgt. Keopuhiwa; ACO
Kowelski; Sgt. Kuamoo; ACO W. Lee; Mrs. Lei; Leilani, RN; Collette Leong, RN; Admin.
Obmbudsman Gansin Li; Psychiatrist Libio; Lisa-Theresa, RN; Grievance Specialist T. Liu;
ACO Lorico; ACO Lum; Psychiatric Admin. Magalanes; Mahina, RN; Sgt. Mareco; ACO Mulu;
ACO Naole; Shelley Nobriga; Sgt. P. Olomua; ACO Olomua; Janis Palafox, RN; Sgt. Palau;
Capt. Dallen Palleka; Sgt. Rodrigues; Sgt/ Rogish; Lt. D. Santiago; Sgt. Kaipo Sarkissian; HCF
Warden Francis Sequeira; Counselor Mrs. Sharla; Lt. Shook; ACO T. Silva; ACO Smith; Nurse
Admin. D. Stampfle; ACO Stephen; Sgt. Tafiti; Tanya, RN; Psychiatrist J. Tom; ACO Tom; Lt.
Tuitama; Counselor Nolan Uehara; Val, RN; Lt. Vaovasa; Charlotte Yuen, RN. See FAC, ECF
18, PageID #330-72.
2

These statements are taken from the FAC or Lagmay’s exhibits and are accepted as true
for the purposes of this Order, but are not to be construed as findings of fact.
3

See e.g. FAC ECF 18, PageID #375-86 (Count I); PageID #387-402 (Counts II); PageID
#403-622 (Counts III) (Lagmay identifies numerous apparently separate claims as “Count II or
Count III”).
3

C. Leong, RN, requesting Defendant Dr. Frauens to consult on Lagmay’s “plantar
fasciitis, [L] elbow will not fully extend, [L] 10th rib pain (prevents lying on [L]
side).” ECF 7-4, PageID #193 (Consultation Record). This referral is dated
October 16, 2012.
Dr. Frauens’ October 18, 2012 consultation response states that Lagmay
complained of “incomplete extension of [R] elbow x 2 yrs;” “[R] elbow tightcontracted[;] [R] biceps tender, X-rays” negative for fracture, “dislocation[,] or
sublaxation.” Id. (Consutant’s Report).4 Dr. Frauens’ impression was that Lagmay
had a “[c]ontracted [R] elbow,” for which Frauens “[i]nstructed [Lagmay] on
stretching motion,” and prescribed an injection that Lagmay “rejected.” Id. Dr.
Frauens also diagnosed “plantar fascitis,” and prescribed “[p]roper footwear,” per
“Dr. Paderes’ request.” Id. This document forms the evidentiary basis for most, if
not all, of Lagmay’s claims.
Lagmay alleges that Defendants ACOs Arcalas, Kami, Dacoscos, Lorico,
Mareco, Flores, Castagan, Smith, Asuncion, Coifin, Alsted, Jinbo, Lee, Palau,
Guitguitin, Silva, Botelho, Mulu, Fonoti, Gernler, Lum, Aceedello, and Tom
routinely cuffed his wrists behind his back during movements to and from his cell

4

To be clear, although the Consultation Record shows that Dr. DeWitt referred Lagmay
to Dr. Frauens for pain in his left elbow, rib, and side, Dr. Frauens’ Report refers to Lagmay’s
reported pain on his right side. ECF 7-4, PageID #193.
4

between April 28, 2015, and May 21, 2016, despite his having shown them Exhibit
L. He claims this violated the Eighth Amendment. See generally FAC, ECF No.
18, PageID #444-58.
After DPS Director Nolan Espinda and HCF Captain Palleka approved
Lagmay’s transfer from the SHU to the general population, on or about August 17,
2015, Lagmay refused to transfer because he claims that he is a confidential
informant, and he feared for his safety. See id., PageID #412-15. ACO Lei then
issued Lagmay a Misconduct Report and instructed him to ready his cell for his
transfer to another segregated cell. When Lagmay reported to the security gate
without the Misconduct Report, ACO Wyatt Lee directed ACO Stephen to return
to the cell with Lagmay, retrieve the Misconduct Report, and ascertain that
Lagmay’s cell was in order. ACO Stephen affirmed that “Protocol was complete,”
and escorted Lagmay to his new cell. Id., PageID #415.
Between September 2, 2015, and March 14, 2016, Lagmay telephoned
Ombudsman staff members L. Gansin and Almeida six times to report that HCF
medical staff were ignoring his requests for medical care and interfering with his
grievances. He claimed that he feared for his safety. Id., PageID #436-43. Gansin
and Almeida allegedly replied that they could not assist Lagmay until he exhausted
his claims through the DPS grievance process.
5

On September 20, 2015, Lagmay received a formal Notice of Report of
Misconduct and Hearing, charging him with violating four DPS Policies and
Procedures.5 Id., PageId #415-17; see also ECF No. 7-6, PageID #266 (Ex. “#5 of
77”). The report specifically charged Lagmay with leaving thirty-four damaged
grievance forms in his cell during the August 17, 2015 transfer. Lagmay argues
these charges are false because ACO Stephen had approved his cell for transfer and
ACO Lei had already issued a Misconduct Report. Lagmay was found guilty of all
four charges based on “Sgt. Lee[’s] reported non-compliance with order to move,
damage and untidiness.” Id.
On February 16, 2016, Lagmay alleges that Tanya, RN, while chewing food,
took his temperature without wearing gloves. FAC, ECF No. 18, PageID #397-98.
Lagmay says he told Tanya that Dr. Frauens had sworn at him “because he was fed

5

Lagmay was charged and found guilty of violating P&PM Nos.:

13.03.4a.8(11) Refusing to obey an order of any staff member, which may include
a failure to comply with violations in the low moderate category.
13.03.5a.9(1) Destroying, altering or damaging government property or the
property of another person resulting in damages less than $50.
13.03.5a.(9)9 Failure to follow safety or sanitary rules.
13.03.5.a.9(11) Being unsanitary or untidy; failing to keep one’s person and one’s
quarter in accordance with posted safety standards.
See ECF 18-3, PageID #415-16; see also DPS Policies and Procedures Manual, avail.
http://dps.hawaii.gov/wp-content/uploads/2015/09/COR.13.03.pdf.
6

up with [Lagmay] telling him that ‘permanent injuries’ still hurt.” Id., PageID
#398. Tanya allegedly became angry and was unable to get a reading when she
attempted to take Lagmay’s blood pressure on his left arm. Lagmay asked her to
use a manual blood pressure cuff on his right arm and claims that she “rip[ped] the
velcro” from his left arm and placed it on his right arm. He asked her again to use
a manual blood pressure cuff, but she allegedly ignored him. Lagmay states the
strap crushed his “permanently injured right arm,” causing “unbearable torque
pressure.” Id., PageID #398.
Lagmay alleges that ACOs Christensen, Sarkissian, and Naole inspected his
paperwork on April 5, 2016, approved a certain amount to keep in the cell, and
took the remaining documents to storage. Id., PageID #393-94. Sarkissian asked
to see Lagmay’s medical “Memo” for knee and elbow braces. Lagmay showed
them his “Prosthesis Memo” for knee braces and a “Purchase Slip” for his elbow
sleeve. Id., PageID #394. He says they then confiscated these items on Tanya,
RN’s authority. Id.; see also Exs. G-J, M, ECF No. 7-4, PageID #188-91, 199.
On May 25, 2016, ACOs Christensen, Sarkissian, Naole, Akau, Kowelski,
and Olomua transferred Lagmay to Cell 1. Id., PageID #395-96, 401-02, 409-11,
419-27. Initially, they cuffed his wrists in front so that he could carry his
belongings. When they arrived at Cell 1, Sarkissian removed Lagmay’s handcuffs,
7

and Christensen inspected his papers. Christensen decided Lagmay had too many
papers to keep in his cell, pushed the papers through the trapdoor onto the floor,
and gave Lagmay one minute to choose which papers to put in storage.
When they returned to Lagmay’s cell, Sarkissian ordered him to put his
wrists behind his back and raise his arms through the trapdoor to be restrained.
Lagmay told Sarkissian that his permanent injuries prevented him from doing so.
Sarkissian and Christensen allegedly screamed at Lagmay to comply, which he did.
ACO Naole opened the door, Sarkissian confiscated Lagmay’s papers in excess of
4½ inches, medical shoes, medication, and a used in forma pauperis application.
Christensen told Lagmay to find the medical Memo for his shoes, and Sarkissian
gave Lagmay’s medication to Tanya, RN. Sarkissian removed Lagmay’s ankle
restraints, and they left his cell.
Naole closed the cell door and Sarkissian ordered Lagmay to raise his wrists
through the trapdoor to be uncuffed. Lagmay again told Sarkissian that he could
not, but eventually he complied with concomitant pain. While Christensen, Naole,
Akau, Kowelski, Olomua, and Tanya allegedly watched, Sarkissian sharply pulled
Lagmay’s wrists through the trapdoor and removed the cuffs. Lagmay states that
he felt his left biceps “rip.” Id., PageID #426.

8

On May 28, 2016, Janis Palafox, RN, came to Lagmay’s cell, apparently in
response to his medical request. See ECF No. 7-5, PageID #201. Palafox
examined Lagmay, noted an “egg-sized swelling on the left biceps,” asked him
what had happened, and questioned why he waited three days to report the
incident. ECF No. 7-4, PageID #184 (Ex. D). Lagmay told her that he had sent a
grievance to Warden Sequeira that night but feared to do more while Sarkissian
was on duty. Palafox completed a sick call report, photographed Lagmay’s left
biceps, administered his prescribed Indomethacin and Acetaminophen, and
generated a memo allowing him to be handcuffed in front “per Sargeant’s [sic]
request, for 4 days when pt needs to be moved, ie to the shower.” Id., PageID
#181-85 (Ex. A, B, D). Palafox ordered daily monitoring of Lagmay’s left biceps
and approved a referral to a medical provider if his symptoms did not improve
within three days. Lagmay received a copy of Palafox’s report on June 16, 2016.
On May 30 and June 10, 2016, Lagmay submitted two more medical
requests regarding his injury. See FAC, ECF No. 18-3, PageID #411. He does not
detail the outcome of these requests.
Based on these facts, Lagmay alleges that all Defendants conspired to violate
his constitutional rights and obstruct justice in retaliation for his having filed
grievances and lawsuits regarding prison conditions.
9

II.

STATUTORY SCREENING

The court must screen all complaints brought by prisoners proceeding in
forma pauperis or seeking relief against a governmental entity, or officer or
employee of a governmental entity. 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
Complaints or claims must be dismissed if they are frivolous, malicious, fail to
state a claim on which relief may be granted, or seek relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2). “Notwithstanding any filing
fee, or any portion thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that . . . the action or appeal . . . fails to
state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
III.

PLEADING STANDARD

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 requires “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)). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. A claim is plausible “when the plaintiff pleads
10

factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
Under 42 U.S.C. § 1983, a plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002). This requires factual allegations sufficient to state a
plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572
F.3d 962, 969 (9th Cir. 2009).
Prisoners proceeding pro se in civil rights actions are entitled to have their
pleadings liberally construed and to have any doubt resolved in their favor. Hebbe
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The mere
possibility of misconduct, however, falls short of meeting the plausibility standard.
Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Leave to amend should be granted
if it appears the plaintiff can correct the defects in the complaint. Lopez v. Smith,
203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). When it is clear the complaint
cannot be saved by amendment, dismissal without leave to amend is appropriate.
Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
IV.

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;
11

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 and
quotation marks 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.
Additionally, a plaintiff must allege that he suffered a specific injury as a
result of the conduct of a particular defendant, and he must allege an affirmative
link between the injury and the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).
A.

Eighth Amendment
The unnecessary and wanton infliction of pain constitutes cruel and unusual

punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S.
312, 319 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble,
429 U.S. 97, 105-06 (1976). To prevail on a cruel and unusual punishment claim,
a prisoner must prove that he objectively suffered a sufficiently serious deprivation
and, subjectively, prison officials acted with deliberate indifference in allowing or
causing the deprivation to occur. See Farmer v. Brennan, 511 U.S. 825, 834
(1994); Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

12

1.

Excessive Force

The Eighth Amendment bars prison officials from using excessive force
against inmates. Farmer, 511 U.S. at 832. To state an excessive force claim, a
plaintiff must allege facts showing that the force involved an “unnecessary and
wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001)
(quoting Whitley, 475 U.S. at 319). Whether the force inflicted unnecessary and
wanton pain turns on whether the “force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson v.
McMillian, 503 U.S. 1, 9 (1992)) (internal quotation marks omitted); Furnace v.
Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The Court must look at the need for
application of force; the relationship between that need and the amount of force
applied; the extent of the injury inflicted; the extent of the threat to the safety of
staff and inmates as reasonably perceived by prison officials; and any efforts made
to temper the severity of the response. See Whitley, 475 U.S. at 321.
a.

ACOs Present During May 25, 2016 Incident

Lagmay repeatedly told Sarkissian that he could not raise his wrists high
enough from behind to put them in the trapdoor without causing him great pain.
He alleges Sarkissian nonetheless forced him to comply and pulled his arms so
13

roughly through the trapdoor that his left biceps was demonstrably injured. This
states an excessive force claim against Sarkissian, particularly given the absence of
any need to employ force and the absence of any threat that could have been
perceived by Sarkissian under the described circumstances.
While a closer call, Lagmay also states an excessive force claim against
Christensen. Normally, “[b]eing a mere bystander” to a colleague’s conduct does
not support liability under § 1983. See Chuman v. Wright, 76 F.3d 292, 295 (9th
Cir. 1996) (rejecting “team effort” theory that allowed the jury to “lump all the
defendants together, rather than require it to base each individual’s liability on his
own conduct”); Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009)
(discussing Chuman). When an officer’s “integral participation” in a constitutional
violation is alleged, even if that officer’s actions alone do not arise to the level of a
constitutional violation, § 1983 liability can be found. Chuman, 76 F.3d at 294;
see also Boyd v. Benton Cty., 374 F.3d 773, 780-81 (9th Cir. 2004) (finding each
officer involved in allegedly illegal search operation were “integral participants”
and could be held liable under Fourth Amendment); but cf., Torres v. City of Los
Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008) (finding detective who was not
present when suspect was arrested, did not instruct other detectives to arrest
suspect, and was not consulted by other detectives before arrest was not “integral
14

participant” in use of excessive force). An officer can be held liable for failing to
intercede only if he had a “realistic opportunity” to intercede. Cunningham v.
Gates, 229 F.3d 1271, 1289 (9th Cir. 2000); Robins v. Meecham, 60 F.3d 1436,
1442 (9th Cir. 1995).
Christensen and Sarkissian are both Sergeants, suggesting they had equal
authority and were directing the May 25, 2016 cell transfer. Christensen was also
aware of Lagmay’s alleged permanent injuries, and, rather than object when
Sarkissian ordered Lagmay to raise his arms through the trapdoor, he screamed at
Lagmay to comply, suggesting they acted in concert. These facts suggest that
Christensen had a realistic opportunity to intervene, but did not, and are sufficient
to state a claim against Christensen.
Other than ACOs Akau, Kowelski, and Olomua’s presence during the
incident, and Naole’s handcuffing him in front and opening and closing the cell
door, Lagmay alleges no facts suggesting that they were more than mere
bystanders to this alleged use of excessive force. Their mere presence is
insufficient to conclude that they had authority during the incident, had reason to
believe Sarkissian would harm Lagmay, had knowledge of Lagmay’s permanent
injuries, or had a realistic opportunity to intervene. Lagmay’s claims against
ACOs Naole, Akau, Kowelski, and Olomua are DISMISSED.
15

b.

ACOs Alleged to Have Cuffed Lagmay From Behind

Lagmay alleges that ACOs Arcalas, Kami, Dacoscos, Lorico, Mareco,
Flores, Castagan, Smith, Asuncion, Coifin, Alsted, Jinbo, Lee, Palau, Guitguitin,
Silva, Botelho, Mulu, Fonoti, Gernler, Lum, Aceedello, and Tom cuffed him
behind his back during cell movements between April 28, 2015 and May 21, 2016.
He claims that, because he showed them Exhibit L, they were aware of his
permanent injuries and therefore violated the Eighth Amendment.
Exhibit L is a medical report that lists Lagmay’s symptoms and complaints,
and records the treatment he received in October 2012, three to four years before
he alleges these Defendants cuffed his wrists behind his back. It does not prohibit
prison personnel from cuffing Lagmay’s wrists behind his back. The only
document in the record that prohibits prison staff from restraining Lagmay’s wrists
behind his back, of which the Court is aware is Exhibit D, Palafox’s May 28, 2016
medical report that allowed him to be cuffed in front for four days after her
evaluation. See ECF No. 7-4, PageID #184-85 (Ex. D). Lagmay does not assert
that any ACO cuffed him behind his back after May 21, 2016, or allege facts
showing that any ACO, other than Sarkissian and Christensen, maliciously and
sadistically used or allowed the use of force to cause him harm. Lagmay does not
even allege that he suffered harm through these Defendants actions.
16

Lagmay fails to state an excessive force claim against ACOs Arcalas, Kami,
Dacoscos, Lorico, Mareco, Flores, Castagan, Smith, Asuncion, Coifin, Alsted,
Jinbo, Lee, Palau, Guitguitin, Silva, Botelho, Mulu, Fonoti, Gernler, Lum,
Aceedello, and Tom, and these claims are DISMISSED.
2.

Medical Care

To state an Eighth Amendment claim based on inadequate medical care, a
plaintiff must allege facts showing that a defendant acted with deliberate
indifference to his serious medical needs. See Estelle, 429 U.S. at 104; McGuckin
v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds,
WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
A medical need is “serious” if the failure to treat the condition could result in
further significant injury or the “‘[u]nnecessary and wanton infliction of pain.’”
McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). A prison official is
“deliberately indifferent” if the official knows that a prisoner faces a substantial
risk of serious harm and disregards that risk by failing to take reasonable measures
to abate it. Farmer, 511 U.S. at 847. Deliberate indifference requires “(a) a
purposeful act or failure to respond to a prisoner’s pain or possible medical need
and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th
Cir. 2006) (citation omitted); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.
17

2012) (same). “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.” Jett, 439 F.3d at 1096.
“Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support
this cause of action.” Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir. 1980)
(citing Estelle, 429 U.S. at 105-06). Even gross negligence is insufficient to
establish a cognizable claim for deliberate indifference to serious medical needs.
See e.g. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Nor do
differences of opinion between a prisoner and prison medical staff regarding the
proper course of treatment give rise to a § 1983 claim. See Snow v. McDaniel, 681
F.3d 978, 988 (9th Cir. 2012); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir.
2004).
a.

Tanya RN

Lagmay alleges Tanya roughly used an automatic blood pressure cuff to
record his blood pressure, although he requested that she use a manual cuff. He
further alleges this caused excruciating pressure to his right arm. Deliberate
indifference is a very demanding standard, requiring more than mere negligence or
lack of due care. See Farmer, 511 U.S. 825. Not “every malevolent touch by a
prison guard gives rise to a federal cause of action.” Hudson v. McMillian, 503
18

U.S. 1, 9 (1992) (discussing excessive force rather than medical care claim). Even
civil recklessness (a failure to act in the face of an unjustifiably high risk of harm
which is so obvious that it should be known) is insufficient to establish an Eighth
Amendment violation. Farmer, 511 U.S. at 837 & n.5. It is not enough that a
reasonable person would have known of the risk or that a defendant should have
known of the risk. Toguchi, 391 F.3d 1051, 1057. Rather, a finding of deliberate
indifference requires that the defendant subjectively “knows of and disregards an
excessive risk to inmate health and safety.” Id. (citation and internal quotation
marks omitted).
Lagmay fails to allege facts suggesting Tanya deliberately disregarded a
serious and excessive risk of harm when she used an automatic blood pressure cuff
on his arms, even if she was somewhat rough. Nor does he allege that further or
significant harm resulted from this single incident. See Jett, 439 F.3d at 1096;
Wood, 900 F.2d at 1335 (delay in treatment does not constitute deliberate
indifference unless it causes substantial harm); Shapely v. Nev. Bd. of State Prison
Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (finding denial of surgery was not
deliberate indifference unless it was harmful). Cf. Oliver v. Keller, 289 F.3d 623,
627 (9th Cir. 2002) (the Prison Litigation Reform Act requires “a showing of
physical injury that need not be significant but must be more than de minimis” in
19

order to bring a federal civil action). This is insufficient to show that Tanya acted
with deliberate indifference to Lagmay’s serious medical needs.
To the extent Lagmay alleges Tanya denied him adequate medical care by
allegedly approving the confiscation of his shoes, medicine, and elbow sleeve, he
also fails to state a claim. He had access to his medicine, even if he was not
allowed to keep it in his cell, see Exhibit L, and he alleges no resulting significant
harm from the confiscation of his shoes or sleeve. Lagmay’s Eighth Amendment
claims against Tanya, RN, are DISMISSED.
b.

Other Medical Providers

Lagmay states that Palafox examined him, took photographs, provided him
pain medicine, recommended follow up care, and directed that he be cuffed in front
for at least four days. These facts do not show that Palafox acted with deliberate
indifference to his health, and the claims against her are DISMISSED.
Lagmay alleges Dr. Frauens yelled at him when he continued to complain
about his permanent injuries. He provides no other facts regarding Dr. Frauens’
medical care. Lagmay fails to state a claim against Dr. Frauens, and these claims
are DISMISSED.
Lagmay indiscriminately names medical providers Tina Agaran, RN;
Counselor Jan Ahn; RSA Administrator Dovie Borges; Holly, RN; Leilani, RN;
20

Collette Leong, RN; Psychiatrist Libio; Lisa-Theresa, RN; Psychiatric
Administrator Magalanes; Mahina, RN; Counselor Mrs. Sharla; Nurse
Administrator D. Stampfle; Tanya, RN; Psychiatrist J. Tom; Counselor Nolan
Uehara; Val, RN; and Charlotte Yuen, RN without any coherent explanation of
how they denied or delayed him medical care, or facts showing their personal
involvement in his claims. Lagmay fails to allege sufficient facts to plausibly
suggest these Defendants violated the Eighth Amendment, and these claims are
DISMISSED.6
B.

Supervisory Liability and the Denial of Grievances
Lagmay appears to allege numerous Defendants are liable for his claims

based on their supervisory positions at DPS or for their denial of his grievances.7

6

To the extent Lagmay alleges these Defendants violated his rights by denying his
grievances, these claims are addressed below.
7

Lagmay names DPS Director Nolan Espinda, Litigation Coordinator Shelley Nobriga,
HCF Warden Francis Sequeira, Grievance Specialist T. Liu, RSA Administrator Dovie Borges,
Captain Dallen Paleka, UTM Nolan Uehara, UTM Chair Jan Ahn, ACO Antonio, ACO Vaovasa,
ACO Santiago, Counselor Sharla, ACO Gribin, ACO Dreg, ACO Tuitama,ACO Keopuhiwa,
Contract Monitor Jinbo, ACO Jones,ACO Kaiser, ACO Shook, ACO P. Olomua, ACO Tafiti,
ACO Rodrigues, ACO Gernler, ACO Mareco, ACO Kami, ACO Palau, ACO Dacoscos, ACO
Arcalas, ACO Kuamoo, ACO Rogish, ACO Christensen, Psychiatrist Libio, Psychiatrist J. Tom,
Psychiatrist Administrator Magalanes, and possibly others, regarding this claim. See FAC, ECF
18-1, PageID #371-86.
21

1.

Supervisory Liability

Supervisors are not liable under § 1983 for the actions of their subordinates
based on respondeat superior or vicarious liability. Crowley v. Bannister, 734
F.3d 967, 977 (9th Cir. 2013); accord Lemire v. Cal. Dep’t of Corr. and Rehab.,
726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896,
915-16 (9th Cir. 2012) (en banc). “A supervisor may be held liable only if (1) he
or she is personally involved in the constitutional deprivation, or (2) there is ‘a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’” Crowley, 734 F.3d at 977(quoting Hansen v. Black, 885
F.2d 642, 646 (9th Cir.1989)). “Under the latter theory, ‘[s]upervisory liability
exists even without overt personal participation in the offensive act if supervisory
officials implement a policy so deficient that the policy ‘itself is a repudiation of
constitutional rights’ and is the moving force of a constitutional violation.” Id.
(quoting Hansen, 885 F.2d at 646) (further citations omitted).

Although Director

Espinda and Captain Paleka approved Lagmay’s transfer to the general population
in August 2015, he refused to transfer and alleges no harm pursuant to their
approval of such transfer.
To the extent DPS has a policy requiring High Security SHU inmates to be
cuffed behind their backs during movements outside of their cells, Lagmay does
22

not allege this policy, on its own, is constitutionally deficient. Rather, he provides
documents showing this policy may be modified based on an individual inmate’s
medical needs.
Lagmay asserts no facts showing that any supervisor Defendant personally
participated in or directed Sarkissian and Christensen’s actions on May 25, 2016,
or in any other alleged violation. See Starr v. Baca, 652 F.3d 1202, 1206-07 (9th
Cir. 2011). Lagmay’s vague and conclusory statements concerning any
Defendant’s alleged supervisory liability are insufficient to plausibly allege a
constitutional violation, and these claims are DISMISSED. See Ivey v. Board of
Regents, 673 F.2d 266, 268 (9th Cir. 1982).
2.

Denial of Grievances

To the extent Lagmay alleges any Defendant violated his constitutional
rights by denying his grievances, he fails to state a claim. A defendant’s
participation in an administrative appeal process is an insufficient basis on which
to state a federal civil rights claim. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 860
(9th Cir. 2003) (holding that a prisoner has no constitutional right to an effective
grievance or appeal procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (“[A prison]

23

grievance procedure is a procedural right only, it does not confer any substantive
right upon the inmates.”)
That is, “[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);
Moore v. Horch, 2017 WL 35514, at *3 (E.D. Cal. Jan. 3, 2017); Wright v.
Shapirshteyn, 2009 WL 361951, *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 ”); Velasquez v. Barrios, 2008
WL 4078766, *11 (S.D. Cal. Aug. 29, 2008) (“An official’s involvement in
reviewing a prisoner’s grievances is an insufficient basis for relief through a civil
rights action.”). Lagmay’s allegations that any Defendant violated his rights based
on their participation in his grievance process are insufficient to state a claim and
are DISMISSED.
24

3.

Defendants Gansin and Almeida

Lagmay alleges Office of the Ombudsman staff Gansin and Almeida are
liable for his claims based on their putative supervisory role and failure to
intervene after he telephoned them.
First, Lagmay does not allege that Gansin and Almeida participated in or
directed any constitutional violation or promulgated unconstitutional policies that
harmed him. Second, the Office of the Ombudsman may investigate claims alleged
against state agencies and report findings, but it has no enforcement powers, and
the Ombudsman’s opinions are only advisory. See Haw. Rev. Stats. §§ 96–4, –12,
–13, –15. Moreover, under Hawaii law, decisions or proceedings by the
ombudsman are immune from judicial review. See Karagianes v. Hawaii
Ombudsman, 2014 WL 624924, at * (Haw. App. Feb. 14, 2014); see also Haw.
Rev. Stats. § 96–17 (“No proceeding or decision of the ombudsman may be
reviewed in any court, unless it contravenes the provisions of this chapter. The
ombudsman has the same immunities from civil and criminal liability as a judge of
this State.”) . Lagmay fails to state a claim against Gansin and Almeida, and his
claims against them are DISMISSED.

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C.

Conspiracy: 42 U.S. C. § 1985(2)
To state a claim for conspiracy to obstruct justice in violation of § 1985(2), a

plaintiff must plead that “two or more persons conspire[d] for the purpose of
impeding, hindering, obstructing, or defeating . . . the due course of justice in any
State or Territory, with intent to deny to any citizen the equal protection of the
laws.” 42 U.S.C. § 1985(2). Section 1985 therefore requires “an allegation of
class-based animus” to state a claim. Portman v. Cty. of Santa Clara, 995 F.2d
898, 908-09 (9th Cir. 1993). A § 1985(2) claim cannot be maintained without a
cognizable § 1983 claim. See Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th
Cir. 1989) (“[T]he absence of a section 1983 deprivation of rights precludes a
section 1985 conspiracy claim predicated on the same allegations.”).
Lagmay fails to allege any facts showing that any Defendant acted against
him because of “class-based animus.” Portman, 995 F.2d at 908. Rather, he
explicitly asserts Defendants retaliated against him for filing lawsuits and
grievances.
Moreover, Lagmay fails to allege facts showing any Defendants had “‘an
agreement’ or meeting of the minds’ to violate [his] constitutional rights.’”
Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (citation omitted). He also
fails to state a cognizable § 1983 against any Defendant other than Sarkissian and
26

Christensen, which precludes a conspiracy claim against all other Defendants. See
Caldeira, 866 F.2d at 1182 (stating a conspiracy claim under § 1985 requires a
cognizable claim under § 1983 to proceed). Lagmay’s conspiracy claims are
DISMISSED for failure to state a claim.
D.

Retaliation
To state a retaliation claim, an inmate must allege that: (1) a state actor took

an adverse action against him; (2) because he engaged in constitutionally protected
conduct; (3) the adverse action chilled the exercise of his First Amendment rights;
and (4) did not reasonably advance a legitimate correctional goal. Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668
F.3d 1108, 1114 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009).
Lagmay has filed hundreds of grievances and three previous lawsuits
regarding his conditions of confinement. Lagmay states sufficient details to
plausibly allege that Sarkissian and Christensen retaliated against him for filing
grievances against them. It is less clear how their conduct “chilled” the exercise of
his rights, but this claim shall proceed against Sarkissian and Christensen subject to
further adversarial proceedings. Lagmay’s retaliation claims against all other
Defendants are DISMISSED for failure to state a claim.
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E.

Illegal Seizure of Property
Lagmay alleges Sarkissian and Christensen unlawfully confiscated his

medical shoes, medication, elbow sleeve, and wrist brace in violation of the Fourth
Amendment. The Fourth Amendment does not protect an inmate from the seizure
and destruction of his property. Hudson v. Palmer, 468 U.S. 517, 524, 528 n.8
(1984); Pell v. Procunier, 417 U.S. 817, 822 (1974). This does not mean that a
prisoner has no redress for the loss of property; it means such redress arises under
the Due Process and/or Takings Clauses of the Fifth and Fourteenth Amendments,
rather than under the Fourth Amendment. Hudson, 468 U.S. at 540.
The confiscation of Lagmay’s property fails to state a claim under the
Fourteenth Amendment, however, because the unauthorized deprivation of
property does not state a claim under § 1983 if the state provides an adequate
post-deprivation remedy. Id. at 533 (holding this is true regardless of whether the
loss was intentional or negligent). Hawaii law provides such an adequate
post-deprivation remedy. See Haw. Rev. Stat. § 662-2; cf. Barnett v. Centoni, 31
F.3d 813, 816–17 (9th Cir. 1994) (per curiam) (analyzing prisoner’s due process
claim under California’s tort statutes). Lagmay alleges he has authorization for
this property. If true, the confiscation of his property was unauthorized and he has
an adequate state law remedy (if he has not prevailed through the grievance
28

process). Lagmay’s claim regarding the confiscation of his personal property fails
to state a claim and is DISMISSED.
V.

LEAVE TO AMEND

The FAC is DISMISSED in part with leave to amend as discussed above.
28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1). Lagmay
may file an amended complaint on or before March 15, 2017 that cures the
deficiencies noted in this Order and heeds the Court’s directions. Lagmay must
comply with the Federal Rules of Civil Procedure and the Local Rules for the
District of Hawaii if he elects to amend his pleading.
Lagmay is NOTIFIED that any amended complaint must be short and plain
and comply with Rule 8 of the Federal Rules of Civil Procedure and that an
amended complaint generally supersedes the preceding operative complaint. See
Ramirez v. Cty. of San Bernadino, 806 F.3d 102, 1008 (9th Cir. 2015). Local Rule
10.3 requires that an amended complaint be complete in itself without reference to
any prior pleading. Defendants not renamed and claims that are not realleged in an
amended complaint may be deemed voluntarily dismissed. See Lacey v. Maricopa
Cty., 693 F.3d 896, 928 (9th Cir. 2012). Each claim and the involvement of each
Defendant must be sufficiently alleged.

29

If Lagmay chooses to file an amended complaint he is NOTIFIED that his
statement of facts is strictly limited to twenty-five pages. Lagmay must heed
this warning. The Court will not accept another confusing and voluminous
pleading, in violation of the Court’s orders, that is excessively long, does not
constitute a short and plain statement, and refers to previous pleadings, exhibits, or
documents to make sense. Any amended pleading that fails to comply with this
direction will be STRICKEN.
VI.

CONCLUSION

(1) The First Amended Complaint is DISMISSED IN PART. Specifically,
Lagmay states a claim against Defendants Kaipo Sarkissian and Levy Christensen
for retaliation and excessive use of force, and these claims shall proceed.
Sarkissian and Christensen SHALL file a response to the First Amended
Complaint.
(2) All other claims, including claims for inadequate medical care,
conspiracy, illegal seizure of property, denial of grievances, and failure to
intervene as alleged against ALL OTHER DEFENDANTS are DISMISSED
without prejudice.

30

(3) The Court will issue a separate Service Order directing the U.S. Marshal
to serve the Complaint and Summons on Defendants Sarkissian and Christensen at
Lagmay’s direction.
(4) Lagmay may file an Amended Complaint curing the deficiencies
discussed above on or before March 15, 2017. If Lagmay’s amended pleading
does not comply with this Court’s explicit directions, it will be STRICKEN.
IT IS SO ORDERED.
DATED: February 9, 2017 at Honolulu, Hawai’i.

Henry Lagmay v. Shelley Nobriga, et al.; Civil No. 16-00408 DKW-KJM;
ORDER DISMISSING AMENDED COMPLAINT IN PART
Lagmay v. Nobriga, et al.,1:16-00408 DKW/KJM; scrng 2017 Lagmay 16-408 dkw (FAC dsm prt ord svc)

31