Lau v. Kekuaokalani et al

Filing 7

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e) & 1915A(a) WITH LEAVE GRANTED TO AMEND. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 7/25/2017. (afc) Excerpt of conclusion:"Lau may file an amen ded complaint on or before August 25, 2017, that attempts to cure 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). Because Lau is granted leave to amend, his Letter request to Supplement Complaint, which provides no additional facts in support of his claims, ECF No. 6 , is DENIED."CERTIFICATE OF SERVICE Participants re gistered to receive electronic notifications received this document electronically 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 will be served on July 26, 2017 by first class mail addressed to: SHAWN THOMAS LAU A0205282OAHU COMMUNITY CORRECTIONAL CENTER 2199 KAMEHAMEHA HWYHONOLULU, HI 96819

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SHAWN THOMAS LAU,
#A0205282,
Plaintiff,
vs.
MICHAEL KEKUAOKALANI,
DENISE JOHNSON, RICHARD
BANNER, M.D.,
Defendants,
______________________________

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CIV. NO. 17-00258 JMS-KSC
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e)
& 1915A(a) WITH LEAVE
GRANTED TO AMEND

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e)
& 1915A(a) WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Shawn Thomas Lau’s prisoner civil rights
Complaint. ECF No. 1. Lau, a pre-trial detainee housed at the Oahu Community
Correctional Center (“OCCC”), is proceeding in forma pauperis. ECF No. 5. Lau
claims that OCCC Chief of Security (“COS”) Denise Johnson, Correctional
Officer (“CO”) Michael Kekuaokalani, and Richard Banner, M.D. (collectively,
“Defendants”), violated the Eighth Amendment in connection with an accident
Lau experienced in his cell and the alleged delay in surgery thereafter. For the
following reasons, Lau’s Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e) and 1915A(a) for failure to state a claim, with leave granted to amend.

I. 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
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 Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). A plaintiff must “set forth specific facts as to each individual
defendant’s” deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th
Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). That is, a
plaintiff must demonstrate each defendant’s personal participation in the
deprivation of his rights. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo Cty., 609
F.3d 1011, 1020-21 (9th Cir. 2010).
2

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).
II. 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

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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
against the official but rather is a suit against the official’s office.”); Ex parte
Young, 209 U.S. 123 (1908).
Lau names Defendants in their individual and official capacities and seeks
compensatory and punitive damages only. Lau’s claims against Defendants named
in their official capacities are DISMISSED.

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B.

Fourteenth Amendment: Deliberate Indifference
Lau alleges Defendants violated his rights under the Eighth Amendment.

But, because he was a pretrial detainee when the incidents at issue occurred, Lau’s
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).
The Eighth Amendment’s standard for deliberate indifference 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). And, until recently, this
standard was also applied to pretrial detainees’ claims 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 under the Fourteenth Amendment Due Process Clause
rather than under the Eighth Amendment, but same standards apply); Castro, 833
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F.3d at 1069. In the context of an excessive force claim, the United States
Supreme Court has recently rejected the subjective component of the test, 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). Rather, “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 extended Kingsley’s rationale to pretrial detainees’
failure-to-protect claims, setting forth a “less stringent” standard that eliminates a
“subjective intent to punish.” Castro, 833 F.3d at 1067-68, 1071 & 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.

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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 this new Kingsley test applies beyond
failure-to-protect claims to all pretrial detainee conditions of confinement claims.
To date, 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 remaining circuits to discuss the issue have either held that
Kingsley’s objective test applies only to a pretrial detainee’s excessive force
claims,1 or have declined to address the issue on the facts before them.2
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 deliberate indifference 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 less7

C.

Inadequate Medical Care
Given these recent developments, in the Ninth Circuit the appropriate

standard for pretrial detainees’ inadequate medical care claims following Kingsley
and Castro is unsettled.3 Under the Eighth Amendment, to state an inadequate
medical care claim an inmate:
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.’” Second, the
plaintiff must show the defendant’s response to the need was
deliberately indifferent. This second prong – defendant’s response to
the need was deliberately indifferent – is satisfied by showing (a) a
purposeful act or failure to respond to a prisoner’s pain or possible
medical need and (b) harm caused by the indifference. Indifference
“may appear when prison officials deny, delay or intentionally

demanding 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).
3

See Nyland v. Calaveras Cty. Sheriff’s Jail,
F. App’x , 2017 WL 1435436 (9th Cir.
Apr. 24, 2017) (dismissing pretrial detainee’s inadequate medical care claims “because under any
potentially applicable standard,” detainee failed to allege facts sufficient to show “defendants
knew of and disregarded an excessive risk to his health”) (citing Castro and earlier cases using
subjective standard for deliberate indifference claims); Banks v. Castillo,
F. App’x , 2017
WL 784643, at *1 (9th Cir. Mar. 1, 2017) (granting summary judgment on pretrial detainee’s
deliberate indifference to medical needs claim “because under any potential potentially
applicable standard,” plaintiff failed to raise genuine dispute of material fact whether defendants
knew of or disregarded an excessive risk of serious harm to his health) (citing Castro and earlier
cases applying subjective standard); see also Ninth Circuit Model Civil Jury Instructions § 9.30
(2017) (Particular Rights Fourteenth Amendment Pretrial Detainee’s Claim re Conditions of
Confinement/Medical Care) (stating it is unclear whether “Castro requires modification of
Instruction 9.27 (Particular Rights--Eighth Amendment--Convicted Prisoner’s Claim re
Conditions of Confinement/Medical Care) when applied in the context of a pretrial detainee’s
similar claim under the Fourteenth Amendment.”).
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interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.”
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A plaintiff must allege
sufficient facts to support a claim that the named defendants “[knew] of and
disregard[ed] an excessive risk to [plaintiff’s] health.” Farmer, 511 U.S. at 837;
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). Inadvertent or even
negligent medical care is insufficient to establish a constitutional violation.
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
But if Castro’s objective reasonableness test applies to pretrial detainees’
inadequate medical care claims, the elements would approximate the following:
(1) The Plaintiff faced a serious medical need, that is, the failure to
treat the condition would result in further significant injury or the
unnecessary and wanton infliction of pain;
(2) The Defendant was aware of Plaintiff’s request or need for
medical care;
(3) The Defendant failed to take reasonable steps to obtain or provide
medical care, even though a reasonable officer (or reasonable medical
provider) in the circumstances would have appreciated the high
degree of risk involved – making the likelihood of harm obvious; and
(4) By failure to take such measures, the Defendant caused Plaintiff’s
injuries.4

4

See Guerra v. Sweeny, 2016 WL 5404407, at *3 n.1 (E.D. Cal. Sept. 27, 2016) (setting
forth a similar formulation and recognizing that sometimes the need for medical care will be “so
glaringly obvious that a pretrial detainee need not request aid”).
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The court need not decide which test applies. Regardless, Lau fails to state a
claim against Defendants for the denial of adequate medical care.
1.

Chief of Security Johnson

According to the Complaint, when Lau arrived at OCCC on August 22,
2016, he was using a knee brace for support and stability per his outside medical
provider’s orders.5 See Compl., ECF No. 1, PageID #7 (Count III). An intake
nurse at the medical unit took Lau’s knee brace so that COS Johnson could inspect
and approve it for use in the prison. Johnson allegedly confiscated the knee brace
because it contained metal (presumably because this posed a safety risk). Lau
does not allege that he saw or spoke with Johnson before (or after) she confiscated
his knee brace. Lau claims that when he arrived at his assigned housing unit,
however, three other inmates were using an identical knee brace, and, after he had
knee surgery five months later, he was prescribed the same knee brace that
Johnson had confiscated. Lau alleges Johnson was deliberately indifferent to his
serious medical need because he fell in his cell three weeks later.
Lau’s claims against Johnson are too vague and conclusory for the court to
infer a plausible cause of action. First, Lau fails to allege that he had a serious
medical need (before his surgery) that required the knee brace to prevent the
5

Lau’s allegations of fact are accepted as true for the purposes of this Order.
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wanton infliction of pain or further injury. See Jett, 439 F.3d at 1096; see also
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (defining serious
medical need as “an injury that a reasonable doctor or patient would find important
and worthy of comment or treatment,” or one “that significantly affects [an
inmate’s] daily activities; or the existence of chronic and substantial pain”),
overruled in part on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133,
1136 (9th Cir. 1997).
Second, even if Lau had a serious medical need for the knee brace, he fails
to allege facts showing that Johnson was made aware of that need by the intake
nurse or himself, or because his need for the brace was glaringly obvious to any
reasonable officer.
Third, because Lau fails to allege facts showing that he had a serious or
obvious medical need (which required the knee brace), he fails to show that
Johnson or any reasonable security officer, subjectively failed to act or respond to
such medical need, or objectively could appreciate the high degree of risk
involved in confiscating the knee brace.
The fact that other inmates had similar knee braces is insufficient. These
other inmates may have had documented or obvious serious medical needs on
intake, or authorization for their knee braces, or different security classifications
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than Lau. And, although Lau was prescribed the same knee brace after his knee
surgery, this does not raise any inference of his particular pre-accident (and presurgery) needs. Lau fails to state a claim against Johnson for denial of adequate
medical care, and thus Count III is DISMISSED.
2.

Dr. Banner

Approximately three weeks after Johnson confiscated Lau’s knee brace, on
September 15, 2016, Lau tripped over an inmate laying on the floor in his cell as
Lau walked to the toilet. See Compl., ECF No. 1, PageID #5. Lau landed on his
left knee, allegedly resulting in the loss of his left patella. Lau states that he was
given Ibuprofen 600 mg. for pain, but does not identify who prescribed this
medicine or detail what other medical care he received, and from whom, until he
had knee surgery on January 5, 2017. See id., PageID #6 (Count II). Lau says
orthopedic surgeons Dr. Frauens and Dr. Murray recommended this surgery (and a
second surgery four months later). Lau alleges that Dr. Banner negligently or with
deliberate indifference delayed his surgeries, and claims this delay “contributed to
the loss of my left patella (kneecap),” pain and suffering. Id.
Lau provides no facts regarding Dr. Banner’s connection to his medical care
or showing that Banner knew of and disregarded a serious risk to Lau’s health.
Lau does not state when he saw Dr. Banner, what actions Dr. Banner took or failed
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to take, when Dr. Frauens and Dr. Mayer recommended surgery, or how Dr.
Banner delayed or interfered with such surgery. Lau’s vague and conclusory facts
are insufficient to state a claim against Dr. Banner or any other prison official or
medical provider for denial of adequate medical care.
To the extent Lau alleges that Dr. Banner was negligent, medical
malpractice or mere negligence is insufficient to make out a violation of the
Eighth Amendment or the Fourteenth Amendment. See Castro, 833 F.3d at 1071;
Toguchi, 391 F.3d at 1060-61; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
2002). Even gross negligence is insufficient. See Wood v. Housewright, 900 F.2d
1332, 1334 (9th Cir. 1990). Further, “a difference of opinion between a prisonerpatient 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). 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). Count II as alleged against Dr. Banner fails to state a claim and is
DISMISSED.
3.

CO Kekuaokalani

Before Lau fell, he told CO Kekuaokalani that he had difficulty
maneuvering in his cell “because not enough room with guy on the floor.”
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Compl., ECF No. 1, PageID #5 (Count I). Kekuaokalani allegedly replied, “it is
what it is, just gotta make do.” Id. Lau claims Kekuaokalani was therefore
negligent and deliberately indifferent to his safety. It is unclear whether Lau is
alleging that Kekuaokalani failed to respond to a serious medical need, because he
failed to retrieve Lau’s knee brace, or failed to protect Lau from allegedly
overcrowded conditions in his cell.
To the extent Lau claims that Kekuaokalani failed to provide him adequate
medical care by failing to apprehend that he needed a knee brace, Lau fails to
allege any facts showing that Kekuaokalani knew of and disregarded an excessive
risk to his health or serious medical need.
D.

Overcrowding
To the extent Lau alleges that Kekuaokalani failed to protect him from

injury due to alleged overcrowding in his cell, he fails to state a claim.
Temporarily housing an inmate in a cell with more inmates than it was intended to
hold does not rise to the level of a constitutional violation. Rhodes v. Chapman,
452 U.S. 337, 348-49 (1981) (holding double-celling by itself does not violate the
Eighth Amendment). There is no “one man, one cell principle lurking in the Due
Process Clause.” Bell, 441 U.S. at 542 (discussing the Fifth Amendment’s due
process protections and upholding double bunking of pretrial detainees in cells
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originally designed for one person) (some quotation marks omitted).
Overcrowding has “no constitutional significance standing alone.” Balla v. Idaho
State Bd. of Corrs., 869 F.2d 461, 471 (9th Cir. 1989). To state a cognizable
overcrowding claim, an inmate must plausibly allege that the crowding caused an
increase in violence, reduced the provision of other constitutionally required
services, or reached a level that rendered the institution unfit for human habitation.
See id.; Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir. 1982) (noting that
overcrowding by itself does not violate the Constitution, but can lead to specific
effects that might do so), abrogated in part on other grounds by Sandin v. Conner,
515 U.S. 472 (1995).
Lau fails to allege facts that show that Kekuaokalani knew of and made an
intentional decision with respect to the conditions of Lau’s confinement that put
Lau in substantial risk of suffering serious harm, and failed to take reasonable
measures to abate this risk. The court cannot infer that Kekuaokalani acted
subjectively or objectively unreasonably in the face of a serious risk to Lau’s
///
///
///
///
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safety.6 Lau fails to state a claim against Kekuaokalani and Count I is
DISMISSED.
III. LEAVE TO AMEND
The Complaint is DISMISSED with leave granted to amend. Lau may file
an amended complaint on or before August 25, 2017, 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). 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”).
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.
6

Lau may be alleging a simple “slip and fall” negligence claim, which generally fails to
arise to the level of a constitutional violation. See Oubichon v. Carey, 2017 WL 2162940, at *8
(E.D. Cal. May 17, 2017); but cf., Frost v. Agnos, 152 F.3d 1124, 1128-29 (9th Cir. 1998)
(holding that disabled inmate on crutches who frequently fell on slippery shower floors created a
triable issue on whether the conditions of his confinement violated the constitution). The court
cannot construe such a claim here on the sparse facts Lau alleges.
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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.
Lau is notified that if he fails to amend his Complaint’s deficiencies, he will
likely incur a strike.
V. CONCLUSION
(1) The Complaint is DISMISSED for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(1) and 1915A(a).
(2) Lau may file an amended complaint on or before August 25, 2017, that
attempts to cure 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) The Clerk is DIRECTED to send Lau a blank prisoner civil rights
complaint form so that he can comply with the directions of this Order.

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(4) Because Lau is granted leave to amend, his Letter request to Supplement
Complaint, which provides no additional facts in support of his claims, ECF No. 6,
is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 25, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Lau v. Kekuaokalani, 1:17 cv 00258 JMS KSC; Scrng 2017 jms 4th draft (pretr. dtn’ee 14 delay med care ovrcrd)

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