Ah Cheung v. State of Hawaii et al

Filing 11

ORDER DISMISSING FIRST AMENDED COMPLAINT re 9 - Signed by JUDGE DERRICK K. WATSON on 8/8/2017. "(1) The First Amended Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). < b> Specifically, claims in (1) Counts I and II alleged against OCCC Warden Francis Sequeira and ACO John Estabillio are DISMISSED with prejudice; (2) Count III as alleged against Dr. Richard Banner are DISMISSED with leave to amend; and (3) Count IV are DISMISSED without prejudice but without leave to reallege these claims in this action. (2) Ah Cheung is DIRECTED to file an amended complaint on or before September 8, 2017 that cures the deficiencies in Count III as discussed above. Ah Cheung must submit the amended complaint on a prisoner complaint form. See Local Rule LR99.7.10. Failure to timely and adequately amend and cure the noted deficiencies will result in the DISMISSAL of this action pursuant to 28 U.S. C. §§ 1915(e) (2) and 1915A(b), and may count as a strike under 28 U.S.C. § 1915(g). (3) The Clerk is DIRECTED to send Ah Cheung a blank prisoner civil rights complaint so that he can comply with the directions of this Order.&qu ot; (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Vise Ah Cheung, Jr. served by first class mail to the address of record on August 8, 2017. A copy of the court's prisoner civil rights form shall be included in the mailing to Mr. Ah Cheung.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

VISE AH CHEUNG, JR., #A1029843, )
)
Plaintiff,
)
)
vs.
)
)
FRANCIS X. SEQUEIRA, JOHN
)
ESTABILLIO, and RICHARD
)
BANNER,
)
)
Defendants.
)
______________________________

CIV. NO. 17-00257 DKW-KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT

Before the court is pro se Plaintiff Vise Ah Cheung, Jr.’s first amended
Prisoner Civil Rights Complaint (“FAC”). ECF No. 9. Ah Cheung alleges that
Defendants Francis X. Sequeira and John Estabillio violated his constitutional
rights by failing to prevent his “slip and fall” accident and Defendant Richard
Banner, M.D., did so by delaying surgery for his injury. He also alleges a
Department of Public Safety Deputy Sheriff Agna slapped his injured shoulder
outside of the Hawaii circuit court, although Sheriff Agna is not named as a
Defendant. For the following reasons, the FAC is DISMISSED with leave granted
to amend, as limited below.

I. PROCEDURAL BACKGROUND
Ah Cheung commenced this action on June 1, 2017, while he was a pretrial
detainee at the Oahu Community Correctional Center (“OCCC”).
On June 21, 2017, the court granted Ah Cheung’s in forma pauperis
application. ECF No. 7.
On June 27, 2017, the court dismissed Ah Cheung’s original Complaint for
failure to state a claim, with leave granted to amend. ECF No. 8.
On July 7, 2017, Ah Cheung filed the FAC. ECF No. 9.
On or about July 12, 2017, Ah Cheung was released from OCCC. See ECF
No. 10 (notice of change of address).
II. SCREENING
Federal courts must screen all cases in which prisoners seek redress from a
governmental entity, officer, or employee, or seek to proceed without prepayment
of the civil filing fees. See 28 U.S.C. §§ 1915(b)(2) and 1915A(a). The court must
identify cognizable claims and dismiss those claims that are frivolous, malicious,
fail to state a claim on which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. Id. at §§ 1915(b)(2) and 1915A(b).
A complaint 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). Detailed factual
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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Moreover, 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).
Pro se prisoners’ pleadings must be liberally construed and given the benefit
of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading standard
. . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S.
319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not
supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l
Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of
Regents, 673 F.2d 266, 268 (9th Cir. 1982)). A plaintiff must identify specific
facts supporting the existence of substantively plausible claims for relief. Johnson
v. City of Shelby, 135 S. Ct. 346, 347 (2014) (per curiam) (citation omitted). Leave
to amend should be granted if it appears possible that the plaintiff can correct the
complaint’s defects. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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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.

Official Capacity Claims
“The Eleventh Amendment bars suits for money damages in federal court

against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Defendants
named in their official capacities are subject to suit under § 1983 only “for
prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing
violation of federal law.” Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D.
Haw. Apr. 23, 2013) (quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir.
2005), abrogated on other grounds by Levin v. Commerce Energy Inc., 560 U.S.
413 (2010)); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71
(1989) (“[A] suit against a state official in his or her official capacity is not a suit

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against the official but rather is a suit against the official’s office.”); Ex parte
Young, 209 U.S. 123 (1908).
Ah Cheung seeks compensatory and punitive damages only and any claims
that he might have for injunctive relief are moot because he has been released from
OCCC. Claims against all Defendants named in their official capacities are
DISMISSED with prejudice.
B.

Fourteenth Amendment: Deliberate Indifference
Ah Cheung alleges Defendants acted with deliberate indifference to his

health and safety, violating his rights under the Eighth Amendment. Because Ah
Cheung was a pretrial detainee when the incidents at issue occurred, his claims
arise under the Fourteenth Amendment’s Due Process Clause rather than under the
Eighth Amendment’s prohibition against cruel and unusual punishment. See Bell
v. Wolfish, 441 U.S. 520, 535 (1979); Castro v. Cty. of Los Angeles, 833 F.3d
1060, 1067-68 (9th Cir. 2016), cert. denied, 137 S. Ct. 831 (2017). Until recently,
the Eighth Amendment’s standard was applicable to all pretrial detainee claims as
the minimum protection afforded under the Fourteenth Amendment. See Lolli v.
Cty. of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (reasoning that pretrial
detainee’s claim of deliberate indifference to a serious medical need is analyzed

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under the Fourteenth Amendment Due Process Clause rather than under the Eighth
Amendment, but same standards apply); Castro, 833 F.3d at 1069.
To allege deliberate indifference under the Eighth Amendment requires an
objective and subjective showing. First, the risk posed to the prisoner must be
objectively, sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1970)
(citation omitted). Second, the prison official must subjectively “know[] of and
disregard[] an excessive risk to inmate health or safety.” Id. at 837. “In other
words, the official must demonstrate a subjective awareness of the risk of harm.”
Castro, 833 F.3d at 1068 (internal citation omitted). The United States Supreme
Court recently rejected the subjective component of this test for pretrial detainees’
excessive force claims, however, holding that the “appropriate standard for a
pretrial detainee’s excessive force claim is solely an objective one.” Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473-74 (2015). Kingsley holds that, under the
Fourteenth Amendment, “a pretrial detainee must show only that the force
purposely or knowingly used against him was objectively unreasonable.” Id. at
2473.
The Ninth Circuit has since extended Kingsley’s rationale to pretrial
detainees’ failure-to-protect claims, setting forth a “less stringent” standard that
eliminates any “subjective intent to punish.” Castro, 833 F.3d at 1067-68, 1071 &
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n.4. Under Castro, a pretrial detainee alleging a failure-to-protect claim must show
that:
(1)

The defendant made an intentional decision with respect to the
conditions under which the plaintiff was confined;

(2)

Those conditions put plaintiff at substantial risk of suffering
serious harm;

(3)

The defendant did not take reasonable available measures to
abate that risk, even though a reasonable officer in the
circumstances would have appreciated the high degree of risk
involved -- making the consequences of the defendant’s
conduct obvious; and

(4)

By not taking such measures, the defendant caused the
plaintiff’s injuries.

Id. at 1071 & n.4. Castro characterized this test as requiring “more than
negligence but less than subjective intent -- something akin to reckless disregard.”
Id.
Castro did not address whether the new Kingsley test applies beyond failureto-protect claims to all pretrial detainee conditions of confinement claims. Only
the Second Circuit has extended Kingsley’s holding to encompass all pretrial
detainee deliberate indifference conditions-of-confinement claims. See Darnell v.
Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (explicitly relying on Castro, and
interpreting Kingsley as “standing for the proposition that deliberate indifference
for due process purposes should be measured by an objective standard”). The
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remaining circuits have either held that Kingsley’s objective test applies only to
pretrial detainees’ excessive force claims,1 or have declined to address the issue on
the facts before them.2
C.

Counts I and II: Claims Against Sequeira and Estabillio
Ah Cheung states that the roof in OCCC Module 19 always leaks when it

rains. In fact, signs are sometimes posted there to warn of puddles and wet floors.
On January 6, 2017, Ah Cheung slipped and fell in a puddle of water that collected
during a rain storm, injuring his left shoulder. Ah Cheung alleges Defendants
Warden Sequeira and ACO Estabillio failed to post signs alerting inmates to the
puddle. Ah Cheung asserts that Sequeira and Estabillio therefore violated his
constitutional rights by failing to prevent his fall. See FAC, ECF No. 9, PageID
#41-45 (Counts I and II).
1

See Dang by & through Dang v. Sheriff, Seminole Cty., Fla., 856 F.3d 842, 850 n.1
(11th Cir. 2017) (“[W]e are not persuaded that [Kingsley’s] holding extends to claims of
inadequate medical treatment due to deliberate indifference.”); Alderson v. Concordia Par. Corr.
Fac., 848 F.3d 415, 420 (5th Cir. 2017) (declining to follow Castro, stating, “the Fifth Circuit
has continued to . . . apply a subjective standard post-Kingsley,” to pretrial detainees’ conditions
of confinement claims); Guy v. Metro. Gov’t of Nashville & Davidson Cty., — F. App’x —,
2017 WL 1476896, at *3-5 (6th Cir. Apr. 25, 2017) (analyzing pretrial detainee’s inadequate
medical care under Eighth Amendment subjective standard, while recognizing Kingsley’s
application to excessive force claims).
2

See Collins v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017) (“[W]e have not yet
addressed whether [Kingsley’s] reasoning extends to claims of allegedly inadequate medical care
. . . . We need not (and do not) resolve that issue here, however, as even under the lessdemanding standard, Collins’s federal claims still cannot succeed.”); Ryan v. Armstrong, 850
F.3d 419, 425 (8th Cir. 2017) (declining to decide Kingsley’s applicability to pretrial detainees’
deliberate indifference claims).
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Under either formulation of the deliberate indifference test, Ah Cheung fails
to state a claim. Negligent conduct alone does not state a constitutional claim for
relief under § 1983. See Daniels v. Williams, 474 U.S. 327, 329-30 (1986).
Deliberate indifference, whether alleged under the Eighth or Fourteenth
Amendment, is “a state of mind more blameworthy than negligence” and “requires
‘more than ordinary lack of due care for the prisoner’s interests or safety.’”
Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley v. Albers, 475 U.S.
312, 319 (1986)). The facts alleged here show a “garden variety tort” of
negligence or, at most, gross negligence. Flowers v. City of New York, 668 F.
Supp. 574, 578 (S.D.N.Y. 2009).
Federal courts have uniformly rejected prisoner’s slip and fall claims as
insufficient to state a constitutional violation. See Oubichon v. Carey, 2017 WL
2162940, at *8 (E.D. Cal. May 17, 2017) (citing Coleman v. Sweetin, 745 F.3d
756, 764 & n.7 (5th Cir. 2014) (collecting cases and holding that as a matter of
law, “prisoner slip-and-fall claims almost never serve as the predicate for
constitutional violations,” upholding sua sponte dismissal of deliberate indifference
claim by inmate who slipped and fell in the shower); Pyles v. Fahim, 771 F.3d 403,
410 & n.25 (7th Cir. 2014) (collecting cases) (“Federal courts consistently have
adopted the view that slippery surfaces and shower floors in prisons, without more,
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cannot constitute a hazardous condition of confinement.”)). “Simply put, a slip
and fall, without more, does not amount to cruel and unusual punishment. . . .
Remedy for this type of injury, if any, must be sought in state court under
traditional tort law principles.” Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir.
2004) (internal quotations, brackets and citation omitted).
Under the subjective test, “slippery prison floors . . . do not state even an
arguable claim for cruel and unusual punishment.” LeMaire v. Maass, 12 F.3d
1444, 1457 (9th Cir. 1993) (quotation omitted); see also La Cruz v. Gibson, 2016
WL 5791474, at *5 (E.D. Cal. Oct. 4, 2016) (dismissing claim alleging prisoner
was made to walk through a puddle, causing him to injure his back, arm, shoulder,
and head); Aaronian v. Fresno Cty. Jail, 2010 WL 5232969, at *2-*3 (E.D. Cal.
2010) (dismissing § 1983 claim that plumbing leak caused puddle, resulting in
plaintiff’s slip and fall, as not cognizable); Gilman v. Woodford, 2008 WL 686740,
at *1 (9th Cir. Mar. 12, 2008) (dismissing inmate’s complaint alleging Eighth
Amendment violation based on leaky roof and slippery floors); Edwards v. City of
New York, 2009 WL 2596595, at *3 (S.D.N.Y. Aug. 24, 2009) (“[A]llegations of
wet conditions leading to a slip-and-fall will not support a Section 1983 claim even
where, as here, the plaintiff also alleges that the individual defendants had notice of
the wet condition but failed to address it.”). But cf. Frost v. Agnos, 152 F.3d 1124,
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1128–29 (9th Cir. 1998) (disabled inmate on crutches who frequently fell on
slippery shower floors created a triable issue on whether the conditions of his
confinement violated the Eighth Amendment).
Under Kingsley’s objective test, Ah Cheung “must prove that the
defendant-official acted intentionally to impose the alleged condition, or recklessly
failed to act with reasonable care to mitigate the risk that the condition posed to the
pretrial detainee even though the defendant-official knew, or should have known,
that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at
35 (citing Castro, 833 F.3d at 1071 ). Ah Cheung fails to allege facts showing that
Estabillio or Sequeira made an intentional decision not to post a sign or “recklessly
failed to act with reasonable care to mitigate the risk” of the puddle, even if they
“knew, or should have known,” that the puddle might pose a risk. Their conduct as
alleged cannot be deemed intentional or recklessly indifferent and the risk of
slipping in a puddle was not an excessive risk to inmate health and safety. Ah
Cheung also fails to allege any exacerbating conditions that elevate this simple
negligence claim to a constitutional violation.
Ah Cheung’s claims in Counts I and II are insufficient to establish deliberate
indifference under the Constitution. Ah Cheung has been given the opportunity to
amend these claims and is unable to do so, making clear that further leave to
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amend is futile. Counts I and II as alleged against Warden Sequeira and ACO
Estabillio are DISMISSED with prejudice.
C.

Count III: Claims Against Dr. Banner
The FAC contains considerably less detail regarding the medical care that

Ah Cheung received after his fall than did the original Complaint. Ah Cheung now
substitutes Richard Banner, M.D., as Defendant, and no longer names Dr. Frauens,
but he fails to explain Dr. Banner’s role in his medical care.
In the original Complaint, Ah Cheung said he reported his injury on January
7, 2017, and was taken to Straub Medical Center for evaluation. Compl., ECF No.
1, PageID #7. He returned to OCCC that day and was seen by Dr. Frauens, an
orthopedic surgeon. Id. Dr. Frauens immobilized Ah Cheung’s left shoulder and
recommended that he begin “ROM” (range of motion) exercises in two to three
weeks. Id. Less than one week later, Ah Cheung requested surgery. Dr. Frauens
opined that surgery was unnecessary, but sent Ah Cheung to Dr. Weldon for a
second opinion, although the date he saw Dr. Weldon is not evident. See FAC,
ECF No. 9, PageID #46. Dr. Weldon recommended surgery, which Ah Cheung
received on February 22, 2017; he had a second surgery on May 17, 2017. See id.
These facts do not support a claim that Dr. Banner, Dr. Frauens, or any other
prison official or medical provider was deliberately indifferent to Ah Cheung’s
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serious medical need. Ah Cheung was seen immediately after reporting his injury,
taken to a hospital for examination, released and returned to the OCCC medical
unit, where his arm was immobilized and he was prescribed pain relievers and
exercises to be done for two to three weeks. Although Dr. Frauens disagreed that
surgery was necessary, he sent Ah Cheung for a second opinion. Ah Cheung
received surgery within one month after seeing Dr. Weldon, and a second surgery
in May 2017. The FAC is devoid of facts regarding what Dr. Banner did or failed
to do that violated Ah Cheung’s right to adequate and timely medical care. Ah
Cheung’s statement of facts does not otherwise support a claim of deliberate
indifference or reckless disregard for medical care.
Count III is DISMISSED with leave to amend so that Ah Cheung can
explain what actions Dr. Banner took or failed to take regarding the medical care
he received at OCCC after his injury.
D.

Count IV: Claims Against Unnamed Sheriff Deputy Agna
In Count IV, Ah Cheung alleges that when he arrived at the state circuit

court on May 30, 2017, Deputy Agna asked why his arm was in a sling and then
slapped his shoulder, showing “no interest or sympathy” for Ah Cheung’s injury.
FAC, ECF No. 9, PageID #49. Ah Cheung alleges this caused him pain and
further physical injury.
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Ah Cheung may not bring unrelated claims against unrelated parties in a
single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 653 F.3d 950, 952
(7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Ah Cheung
may bring a claim against multiple defendants if (1) the claim arises out of the
same transaction or occurrence, or series of transactions and occurrences, and (2)
there are common questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v.
Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co.
of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Only if the defendants are
properly joined under Rule 20(a) will the Court review the other claims to
determine if they may be joined under Rule 18(a), which permits the joinder of
multiple claims against the same party.
Count IV as alleged against Deputy Agna is improperly joined with Ah
Cheung’s other claims, even if Deputy Agna was properly named in the FAC. It
does not arise out of his slip and fall accident at OCCC or the alleged delay in
surgery thereafter. This claim is DISMISSED without prejudice to Ah Cheung
raising it in another action. He may not reallege this claim in this action.
IV. 28 U.S.C. § 1915(g)
The Prison Litigation Reform Act of 1995 (“PLRA”) restricts prisoners’
ability to proceed in forma pauperis (“IFP”) when filing certain federal lawsuits.
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Title 28, United States Code § 1915(g) provides a “three-strikes” rule that bars
prisoners from proceeding IFP if they have accrued “three strikes” under the
statute:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section 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.
Ah Cheung is notified that if he again fails to adequately amend his claim
regarding the delay of medical care, he will likely incur a strike.
V. CONCLUSION
(1) The First Amended Complaint is DISMISSED for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Specifically, claims in (1)
Counts I and II alleged against OCCC Warden Francis Sequeira and ACO John
Estabillio are DISMISSED with prejudice; (2) Count III as alleged against Dr.
Richard Banner are DISMISSED with leave to amend; and (3) Count IV are
DISMISSED without prejudice but without leave to reallege these claims in this
action.
(2) Ah Cheung is DIRECTED to file an amended complaint on or before
September 8, 2017 that cures the deficiencies in Count III as discussed above. Ah
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Cheung must submit the amended complaint on a prisoner complaint form. See
Local Rule LR99.7.10. Failure to timely and adequately amend and cure the noted
deficiencies will result in the DISMISSAL of this action pursuant to 28 U.S.C.
§§ 1915(e) (2) and 1915A(b), and may count as a strike under 28 U.S.C. § 1915(g).
(3) The Clerk is DIRECTED to send Ah Cheung a blank prisoner civil rights
complaint so that he can comply with the directions of this Order.
IT IS SO ORDERED.
DATED: August 8, 2017 at Honolulu, Hawaii.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Vise Ah Cheung, Jr. v. Francis X. Sequeira, et al.; Civil No. 17-00257 DKW KSC
Ah Cheung v. State, 1:17-cv-00257 DKW-KSC; Scrng 2017 (dsm FAC 8A slip & fall)

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