Ah Cheung v. State of Hawaii et al
ORDER DISMISSING COMPLAINT AND DENYING MOTION FOR APPOINTMENT OF COUNSEL re 2 - Signed by JUDGE DERRICK K. WATSON on 6/27/2017. "(1) The Complaint is DISMISSED for failure to state a claim pursuant to 2 8 U.S.C. §§ 1915(e)(1) and 1915A(a). Specifically, claims against (1) the State of Hawaii, the Department of Public Safety, the Oahu Community Correctional Center, and Defendants Dr. John T. Frauens and ACO John Estabillio in their offi cial capacities are DISMISSED with prejudice; and (2) Dr. Frauens and Estabillio in their individual capacities are DISMISSED with leave to amend. (2) Ah Cheung is DIRECTED to file an amended complaint on or before J uly 28, 2017 that cures the deficiencies discussed above. Failure to do so will result in dismissal of this action for failure to state a claim and may result in a strike pursuant to 28 U.S.C. § 1915(g). (3) Ah Cheun g's Motion for Appointment of Counsel, ECF No. 2, is DENIED without prejudice. Because the Complaint has been dismissed and there are no claims pending before the court, neither the interests of justice nor exceptional circumstances warrant ap pointment of counsel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (requiring evaluation of plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues involved and the likelihood of success on the merits for appointment of counsel); LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). (4) The Clerk is DIRECTED to send Ah Cheung a blank prisoner civil rights form so that he can comply with the directions of this Order." (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 June 27, 2017. A copy of the Court's prisoner civil rights complaint form was included in the mailing to Mr. Ah Cheung.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VISE AH CHEUNG, JR., #A1029843, ) CIV. NO. 17-00257 DKW-KSC
) ORDER DISMISSING COMPLAINT
) AND DENYING MOTION FOR
) APPOINTMENT OF COUNSEL
STATE OF HAWAII, DEP=T OF
PUBLIC SAFETY, OCCC, FRANCIS )
X. SEQUEIRA, JOHN T. FRAUENS, )
ORDER DISMISSING COMPLAINT AND DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Before the court is pro se Plaintiff Vise Ah Cheung, Jr.=s prisoner civil rights
Complaint and Motion for Appointment of Counsel. ECF Nos. 1, 2. Ah Cheung
alleges that Defendants violated his constitutional rights by failing to prevent his
Aslip and fall@ accident and thereafter providing him inadequate medical care. Ah
Cheung=s Complaint is DISMISSED with leave granted to amend and his Motion
to Appoint Counsel is DENIED.
Ah Cheung is a pre-trial detainee who has been confined in Module 19 of
the Oahu Community Correctional Center (AOCCC@) since November 16, 2016.
He is proceeding in forma pauperis. ECF No. 7. Ah Cheung states that Module
19=s roof is dilapidated and Aleaks all over the place@ when it rains. Compl., ECF
No. 1, PageID #2. On January 6, 2017, Ah Cheung slipped and fell in a puddle of
water that formed on Module 19=s floor during a rain storm, injuring his left
shoulder. Id., PageID #7 (Count III). Ah Cheung alleges Defendant OCCC
Warden Francis Sequeira and Adult Correctional Officer (AACO@) John Estabillio
violated the Eighth Amendment by failing to place Awet floor@ signs near the
puddle or otherwise prevent his fall.
Id., PageId #6-7 (Counts II, III).
Ah Cheung reported his injury the next day, January 7, 2017, and was
immediately taken to the OCCC medical unit, which transferred him to Straub
Medical Center for evaluation. He returned to OCCC that day, where he was seen
by Defendant John T. Frauens, M.D., a DPS orthopedic surgeon. Dr. Frauens
immobilized Ah Cheung=s left shoulder with a sling, and recommended he begin
AROM@ (range of motion) exercises in two to three weeks.
Id., PageID #7.
On January 13, 2017, Ah Cheung met again with Dr. Frauens. He told Dr.
Frauens that he was still in pain and requested surgery. Dr. Frauens replied that
Ah Cheung=s shoulder ligaments were torn, but opined that surgery was
unnecessary. Ah Cheung requested a second opinion. Ah Cheung had surgery
on his shoulder on February 2, 2017, and states that a second surgery may be
necessary. See id., PageID #2, 5 (Count I). Ah Cheung alleges that Dr. Frauens=
actions violated the Eighth Amendment.
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
A complaint must contain Aa short and plain statement of the claim showing
that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual
allegations are not required, but A[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.
F.3d 930, 934 (9th Cir. 2002).
Jones v. Williams, 297
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, Athe liberal pleading
standard . . . applies only to a plaintiff=s factual allegations.@ Neitzke v. Williams,
490 U.S. 319, 330 n.9 (1989).
A[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).
ATo 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.
Immunities and Official Capacity Claims
AThe 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 Afor
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[A] suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official=s office.@); Ex parte Young, 209
U.S. 123 (1908).
Moreover, claims under ' 1983 must be directed at Apersons,@ and neither a
jail nor a prison facility is a Aperson@ amenable to suit under ' 1983. See Allison
v. Cal. Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (finding that San Quentin
Prison is not a Aperson@ subject to suit under ' 1983); cf. Brown v. Cal. Dep=t of
Corr., 554 F.3d 747, 752 (9th Cir. 2009) (holding California Department of
Corrections and Board of Prison Terms are entitled to Eleventh Amendment
Ah Cheung seeks compensatory and punitive damages only. His claims
against the State of Hawaii, Department of Public Safety, OCCC, and Dr. Frauens
and ACO Estabillio in their official capacities, are DISMISSED with prejudice.
Slip and Fall Claims
The Eighth Amendment=s prohibition of cruel and unusual punishment
requires prison officials to take reasonable measures for the safety of inmates.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison official violates the
Eighth Amendment when two requirements are met: (1) the deprivation alleged is,
objectively, sufficiently serious, and (2) the official is, subjectively, deliberately
indifferent to the inmate=s safety. Id. at 834. A[O]nly those deprivations denying
>the minimal civilized measure of life=s necessities,= are sufficiently grave to form
the basis of an Eighth Amendment violation.@ Wilson v. Seiter, 501 U.S. 294, 298
(1991) (citation omitted).
Federal courts have repeatedly rejected Eighth Amendment slip and fall
claims. 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); Pyles v. Fahim, 771 F.3d 403, 410 & n.25 (7th Cir. 2014)
(collecting cases) (AFederal courts consistently have adopted the view that slippery
surfaces and shower floors in prisons, without more, cannot constitute a hazardous
condition of confinement.@)). ASimply 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
The Ninth Circuit Court of Appeals has stated that claims regarding
Aslippery prison floors . . . do not state even an arguable claim for cruel and
unusual punishment.@ Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989),
superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000); see also La Cruz v. Gipson, 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).
But cf. Frost v. Agnos, 152 F.3d 1124, 1128B29
(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).
Ah Cheung=s Eighth Amendment claim based on his slip and fall fails as a
matter of law. He alleges no exacerbating conditions that elevate this simple
negligence claim to a constitutional violation. This claim amounts to Amere
negligence,@ which is insufficient to establish deliberate indifference, and it is
DISMISSED with leave to amend.
Farmer, 511 U.S. at 835.
Inadequate Medical Care Claim
A[T]o maintain an Eighth Amendment claim based on prison medical
treatment, an inmate must show >deliberate indifference to serious medical needs.=@
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). The two prong test for deliberate indifference requires
the plaintiff to show (1) A>a serious medical need= by demonstrating that >failure to
treat a prisoner=s condition could result in further significant injury or the
unnecessary and wanton infliction of pain,=@ and (2) Athe defendant=s response to
the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting McGuckin
v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). Deliberate indifference is shown
by Aa purposeful act or failure to respond to a prisoner=s pain or possible medical
need, and harm caused by the indifference.@ Jett, 439 F.3d at 1096 (citing
McGuckin, 974 F.2d at 1060). To state a claim for violation of the Eighth
Amendment, a plaintiff must allege sufficient facts to support a claim that the
named defendants A[knew] of and disregard[ed] an excessive risk to [plaintiff=s]
health.@ Farmer, 511 U.S. at 837.
A[A] complaint that a physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.@ Estelle, 429 U.S. at 106; see
also Anderson v. Cty. of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974
F.2d at 1050. Even gross negligence is insufficient to establish deliberate
indifference to serious medical needs.
See Wood v. Housewright, 900 F.2d 1332,
1334 (9th Cir. 1990). Also, Aa difference of opinion between a prisoner-patient
and prison medical authorities regarding treatment does not give rise to a ' 1983
claim.@ Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To prevail, a
plaintiff Amust show that the course of treatment the doctors chose was medically
unacceptable under the circumstances . . . and . . . that they chose this course in
conscious disregard of an excessive risk to plaintiff's health.@ Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). A prisoner=s disagreement with a
physician=s diagnosis or treatment does not support a claim of deliberate
indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Ah Cheung was taken to the OCCC medical unit immediately upon
reporting his injury and was then taken to Straub Medical Center for evaluation.
Upon his release, Ah Cheung was returned to OCCC, where Dr. Frauens treated his
injury. Dr. Frauens diagnosed torn ligaments, recommended that Ah Cheung
immobilize his shoulder for two weeks, and then begin ROM exercises. Six days
later, Ah Cheung saw Dr. Frauens because he was still in pain and wanted surgery.
Dr. Frauens opined that surgery was not required. Nonetheless, Ah Cheung was
later approved for surgery, which occurred ten days later, on February 2, 2017.
These facts do not support a claim that Dr. Frauens or any other prison official or
medical provider was deliberately indifferent to Ah Cheung=s serious medical need.
This claim is DISMISSED with leave to amend.
28 U.S.C. ' 1915(g)
The Prison Litigation Reform Act of 1995 (APLRA@) restricts prisoners=
ability to proceed in forma pauperis (AIFP@) when filing certain federal lawsuits.
Title 28, United States Code ' 1915(g) provides a Athree-strikes@ rule that bars
prisoners from proceeding IFP if they have accrued Athree strikes@ under the
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 fails to amend his Complaint=s deficiencies,
he will likely incur a strike.
(1) The Complaint is DISMISSED for failure to state a claim pursuant to 28
U.S.C. '' 1915(e)(1) and 1915A(a). Specifically, claims against (1) the State of
Hawaii, the Department of Public Safety, the Oahu Community Correctional
Center, and Defendants Dr. John T. Frauens and ACO John Estabillio in their
official capacities are DISMISSED with prejudice; and (2) Dr. Frauens and
Estabillio in their individual capacities are DISMISSED with leave to amend.
(2) Ah Cheung is DIRECTED to file an amended complaint on or before
July 28, 2017 that cures the deficiencies discussed above. Failure to do so will
result in dismissal of this action for failure to state a claim and may result in a
strike pursuant to 28 U.S.C. ' 1915(g).
(3) Ah Cheung=s Motion for Appointment of Counsel, ECF No. 2, is
DENIED without prejudice. Because the Complaint has been dismissed and there
are no claims pending before the court, neither the interests of justice nor
exceptional circumstances warrant appointment of counsel. See Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (requiring evaluation of plaintiff=s
ability to articulate his claims pro se in light of the complexity of the legal issues
involved and the likelihood of success on the merits for appointment of counsel);
LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).
(4) The Clerk is DIRECTED to send Ah Cheung a blank prisoner civil rights
form so that he can comply with the directions of this Order.
IT IS SO ORDERED.
DATED: June 27, 2017 at Honolulu, Hawaii.
Vise Ah Cheung, Jr. vs. State of Hawaii, Dep’t of Public Safety, et al;
Civil No. 17-00257 DKW KSC; ORDER DISMISSING COMPLAINT AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
Ah Cheung v. State, 1:17-cv-00257 DKW-KSC; Scrng 2017 (8A slip & fall)
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