Gonda v. Recarte et al
Order Dismissing Amended Complaint In Part. The First Amended Complaint 9 is DISMISSED IN PART. On or before October 6, 2017, Gonda may either file an amended complaint curing the deficiencies in his claims that are dismissed without prejudice, OR he may notify the court in writing that he will stand onthe plausible claims defined by this Order. If Gonda fails to timely accomplish either option, the court will order the U.S. Marshal to serve the First AmendedComplaint as limited on Defendants Scott Recarte, Henry Moe, John Doe, Dr. Pedri, and Sergeant Matthew Kuresa. Signed by JUDGE SUSAN OKI MOLLWAY on 9/15/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications rece ived this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Copy of order and blank prisoner civil rights complaint form mailed to pro se plaintiff Justin Gonda
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JUSTIN GONDA, #A1049736,
) CIV. NO. 17 00292 SOM RLP
) ORDER DISMISSING AMENDED
) COMPLAINT IN PART
SCOTT RECARTE, et al.,
ORDER DISMISSING AMENDED COMPLAINT IN PART
Before the court is pro se Plaintiff Justin Gonda’s
amended prisoner civil rights Complaint.
ECF No. 9.
Gonda claims that Oahu Community Correctional Center
(“OCCC”) officers Scott Recarte, Henry Moe, and John
Doe failed to protect him from an assault by other
Gonda alleges that Sergeant Matthew Kuresa
failed to prevent his further injury when Gonda fell in
his cell after the assault, and OCCC physicians Mark
Pedri, D.O., and Richard Banner, M.D., failed to
provide adequate medical care for his injuries.
asserts claims against Defendants in their individual
and official capacities and seeks damages pursuant to
42 U.S.C. § 1983 and state law.
The court has screened the Complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b)(1), and finds that it
states a plausible claim for relief for damages against
Defendants Recarte, Moe, Doe, Kuresa, and Dr. Pedri.
Gonda again fails to state a plausible claim against
Dr. Banner, and claims against him are DISMISSED.
After the Complaint is served, Defendants Recarte, Moe,
Doe, Kuresa, and Pedri are required to respond.
Because Gonda is a prisoner and is proceeding in
forma pauperis, the court conducts a pre answer
screening of his pleading pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b).
The court must sua sponte
dismiss a prisoner’s complaint, or any portion of it,
that is frivolous, malicious, fails to state a claim,
or seeks damages from defendants who are immune from
See Lopez v. Smith, 203 F.3d 1122, 1126 27 (9th
Cir. 2000) (en banc) (discussing 28 U.S.C.
§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that the
targets of frivolous or malicious suits need not bear
the expense of responding.’”
Nordstrom v. Ryan, 762
F.3d 903, 920 n.1 (9th Cir. 2014) (describing pre
answer screening) (“Nordstrom I”) (quoting Wheeler v.
Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th
“The standard for determining whether a plaintiff
has failed to state a claim upon which relief can be
granted under § 1915(e)(2)(B)(ii) is the same as the
Federal Rule of Civil Procedure 12(b)(6) standard for
failure to state a claim.”
Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (noting that
screening pursuant to § 1915A “incorporates the
familiar standard applied in the context of failure to
state a claim under Federal Rule of Civil Procedure
Rule 12(b)(6) requires that a complaint
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted); Wilhelm, 680 F.3d
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
Iqbal, 556 U.S. at 678.
whether a complaint states a plausible claim for relief
[is] . . . a context specific task that requires the
reviewing court to draw on its judicial experience and
The “mere possibility of
misconduct” or “unadorned, the defendant unlawfully
harmed me accusation[s]” fall short of meeting this
Leave to amend should be granted if it appears the
plaintiff can correct the complaint’s defects.
203 F.3d at 1130.
A court may dismiss a complaint or
claim without leave to amend, however, when “it is
clear that the complaint could not be saved by any
Sylvia Landfield Trust v. City of L.A.,
729 F.3d 1189, 1196 (9th Cir. 2013).
“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.’”
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.
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
Aholelei v. Dep’t of Pub. Safety, 488
F.3d 1144, 1147 (9th Cir. 2007).
defendants 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).
Similarly, sovereign immunity bars awards for
damages for past violations under Hawaii state law,
unless the State has clearly relinquished its immunity.
See Bush v. Watson, 918 P.2d 1130, 1137, 81 Haw. 474,
481 (1996); Pele Def. Fund v. Paty, 837 P.2d 1247,
1266, 73 Haw. 578, 609 10(1992); cf. Sound v. Hawaii
Dep’t of Human Serv., 2013 WL 5021023, at *1 2 (Haw.
App. 2013) (denying award of fees and recognizing the
distinction between sovereign immunity on actions
seeking prospective relief and those seeking
Gonda seeks compensatory and punitive damages only
and alleges no ongoing violations of state or federal
Gonda’s claims against Defendants named in their
official capacities are therefore DISMISSED with
Deliberate Indifference Claims Under § 1983 Against
Defendants in Their Individual Capacities
Because Gonda was a pretrial detainee when the
incidents at issue occurred, his claims arise under the
Fourteenth Amendment’s Due Process Clause.
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, all pretrial detainees’ deliberate
indifference claims were nonetheless addressed under
the Eighth Amendment’s two pronged standard, as the
minimum protection afforded under the Fourteenth
See Lolli v. Cty. of Orange, 351 F.3d 410,
419 (9th Cir. 2003) (stating that a 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 the same standards apply); Castro, 833 F.3d at
The Eighth Amendment’s standard requires a
showing that (1) the risk posed to the prisoner is
objectively, sufficiently serious; and (2) the prison
official subjectively “knows of and disregards an
excessive risk to inmate health or safety.”
Brennan, 511 U.S. 825, 834, 837 (1970) (citation
“In other words, the official must
demonstrate a subjective awareness of the risk of
Castro, 833 F.3d at 1068 (internal citation
Recently, the Supreme Court has rejected the Eighth
Amendment test for reviewing pretrial detainees’
excessive force claims, holding that the “appropriate
standard” for such claims “is solely an objective one.”
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 74
Under Kingsley, “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 the Kingsley
rationale to pretrial detainees’ failure to protect
claims, setting forth a “less stringent” standard that
eliminates the need to prove a “subjective intent to
Castro, 833 F.3d at 1067 68, 1071 & n.4.
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
(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
consequences of the defendant’s conduct
(4) By not taking such measures, the defendant
caused the plaintiff’s injuries.
Id. at 1071 & n.4.
The Castro test requires “more than
negligence but less than subjective intent
akin to reckless disregard.”
Counts I, II, III, IV: Recarte, Moe, and
Gonda alleges that he was attacked by other
prisoners in the OCCC recreation yard on April 26,
2017, while Recarte, Moe, and Doe were supervising the
recreation yard from the watch tower.1
No. 9, PageID #38 41.
See Compl., ECF
Gonda says he blacked out during
the attack, and that Recarte was standing behind him
when he woke up.
Recarte told Gonda to follow him to
the Medical Unit, but Gonda was unable to walk without
assistance and another guard helped transport him to
the Medical Unit.
Gonda asserts that the attack was
clearly visible to Recarte, Moe, and Doe from their
positions in the tower, although Recarte claims he saw
Gonda alleges that Recarte, Moe, and Doe were
deliberately indifferent to his safety when they failed
to verbally or physically intervene or call for
assistance until the attack ended.
An allegation that a prison official saw a pretrial
detainee be assaulted but failed to intervene states a
plausible Fourteenth Amendment failure to protect
See Castro, 833 F.3d at 1071, n.4; Lolli, 351
F.3d at 418 (stating that an officer’s failure to
intervene can support a Fourteenth Amendment claim if
Gonda’s allegations of material facts are accepted as true
and construed in the light most favorable to him. Nordstrom I,
762 F.3d at 908.
the officer had a realistic opportunity to intervene
but failed to do so); Conyers v. Rodriguez, 2017 WL
2839618, at *3 (S.D. Cal. July 3, 2017).
Counts I, II,
III, and IV shall be served on Recarte, Moe, and Doe,
who are required to file a response.
Count V: Claims Against Dr. Pedri
Dr. Pedri treated Gonda the next day, April 27,
See ECF No. 9, PageID #42.
Pedri ordered x
rays, determined that Gonda’s left forearm was broken,
put his arm in a cast, and gave him a sling.
also informed that his left orbital tripod might be
broken; this was later verified and treated with
surgery by another doctor approximately one month
later, on June 6, 2017.
ECF No. 9, PageID #42.
allegedly told Gonda that he would issue a “No Top
Bunk” memorandum to prevent further injuries, but Gonda
did not receive this memorandum, and it was apparently
not circulated to his housing unit.
Gonda alleges that
Gonda was taken to the medical unit on the day of the
attack, but Dr. Pedri did not see him until the next day.
Dr. Pedri was therefore either negligent or
deliberately indifferent to his medical needs.
It is unclear whether the objective test in
Kingsley and Castro applies to all pretrial detainees’
conditions of confinement claims.
To date, only the
Second Circuit has extended Kingsley’s holding to
encompass all pretrial detainee conditions of
See Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017) (interpreting Kingsley and Castro
as “standing for the proposition that deliberate
indifference for due process purposes should be
measured by an objective standard”).
The remaining circuits to address the issue have
either held that the Kingsley objective test applies
only to a pretrial detainee’s excessive force claims,3
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’s subjective standard, while recognizing
or declined to address the issue on the facts before
Under either formulation of the deliberate
indifference test, however, Gonda fails to state a
plausible claim against Dr. Pedri under § 1983.
Negligent conduct alone does not state a constitutional
claim for relief under § 1983.
See Daniels v.
Williams, 474 U.S. 327, 329 30 (1986); Ah Cheung v.
Sequeira, 2017 WL 3431586, at *4 (D. Haw. Aug. 8, 2017)
(finding that a prisoner failed to state a claim for
deliberate indifference in connection with a simple
slip and fall claim).
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, 511 U.S. at
Kingsley’s application to excessive force claims).
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 less-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).
835 (quoting Whitley v. Albers, 475 U.S. 312, 319
Dr. Pedri accurately diagnosed and treated Gonda
for his injuries and apparently recommended further
treatment for his orbital tripod injury.
Pedri said that he would issue Gonda a “No Top Bunk”
memorandum, this did not happen.
memorandum was either forgotten or lost.
suggests that Dr. Pedri acted purposely, with
deliberate indifference or reckless disregard to
Gonda’s medical needs and safety when he failed to
ensure that the “No Top Bunk” memorandum was issued and
distributed at OCCC.
At most, these facts suggest
Gonda fails to state a plausible claim for
deliberate indifference under § 1983 against Dr. Pedri
and this claim is DISMISSED.
Gonda returned to his housing unit after Dr. Pedri
ECF No. 9, PageID #42 43.
On May 1,
2017, Sergeant Kuresa moved Gonda to the top bunk in a
new cell, despite Gonda’s obvious injuries (as
evidenced by Gonda’s cast and arm sling).
allegedly moved Gonda to the top bunk because Gonda’s
roommate needed a lower bunk for his own medical
concerns and Gonda had not been issued a “Top Bunk”
The next morning, May 2, 2017, Gonda
tripped while climbing from the top bunk.
unable to prevent the fall because of his cast and
sling, and he incurred further injuries to his face and
“Deliberate indifference is a high legal standard.”
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).
To be deliberately indifferent, a “prison official must
not only ‘be aware of the facts from which the
inference could be drawn that a substantial risk of
serious harm exists,’ but that person ‘must also draw
Id. at 1057 (quoting Farmer, 511 U.S.
“‘If a prison official should have been aware
of the risk, but was not, then the official has not
violated the [Constitution], no matter how severe the
Id. (quoting Gibson v. Cty. of Washoe, 290
F.3d 1175, 1188 (9th Cir. 2002)); DeMonte v. Griffith,
2017 WL 3720048, at *3 (E.D. Cal. Aug. 29, 2017).
The facts alleged here are sufficient to show that
Kuresa was deliberately indifferent to Gonda’s serious
medical needs under either standard.
Gonda had a serious, obvious medical condition.
either subjectively disregarded Gonda’s injuries in
favor of the other inmate’s needs, or he objectively
failed to take reasonable measures to mitigate the
conditions that put Gonda at substantial risk of
The court need not determine which
standard applies at this stage of these proceedings,
Gonda states a claim under § 1983 against
Sergeant Kuresa, and Count VI shall be served on him.
Gonda’s claims against Dr. Banner remain unclear
because Gonda still fails to explain Dr. Banner’s
connection to his claims.
Gonda simply reiterates
claims from the previous counts, complains that he did
not receive surgery for his orbital tripod fracture for
twenty nine days after his injury, and concludes that
Dr. Banner was either deliberately indifferent or
Gonda does not state when he saw Dr.
Banner, what Dr. Banner diagnosed or prescribed for his
injury, or how Dr. Banner delayed or interfered with
Gonda’s vague and conclusory
allegations are insufficient to state a plausible claim
against Dr. Banner, and Count VII is DISMISSED.
Supplemental State Claims: Negligence
In Hawaii, to establish a defendant’s liability for
negligence, a plaintiff must prove (1) the existence of
a duty recognized by the law that the defendant owed to
the plaintiff; (2) a breach of the duty; (3) that the
defendant’s breach was the legal cause of the
plaintiff’s harm; and (4) actual damages.
O’Grady v. State, 140 Haw. 36, 398 P.3d 625, 632
(2017), as amended (June 22, 2017) (citing Doe Parents
No. 1 v. Dep’t of Educ., 100 Haw. 34, 68, 58 P.3d 545,
Gonda states plausible supplemental state law
claims for negligence against Dr. Pedri and Sergeant
Kuresa, and those claims may be served.
LEAVE TO AMEND
The First Amended Complaint is DISMISSED in part,
with leave to amend as limited above.
Gonda may file
an amended complaint on or before October 6, 2017, that
cures his claims’ deficiencies.
Gonda must comply with
the Federal Rules of Civil Procedure and the Local
Rules of the United States District Court for the
District of Hawaii if he elects to amend his pleading.
Local Rule LR10.3 requires that an amended complaint be
complete in itself without reference to any prior
Any amended complaint must be short and
plain and comply with Rule 8 of the Federal Rules of
Civil Procedure and will generally supersede the
See Ramirez v. Cty. of San
Bernadino, 806 F.3d 1002, 1008 (9th Cir. 2015).
Defendants not renamed and claims not realleged in an
amended complaint may be deemed voluntarily dismissed.
See Lacey, 693 F.3d at 928.
Any amended complaint must
be submitted on the court’s prisoner civil rights form.
IN THE ALTERNATIVE:
Gonda may elect to stand on the claims in his First
Amended Complaint that are deemed cognizable in the
If that is what he chooses to do, he
need not submit any amended complaint, but must notify
this court of his choice in writing on or before
October 6, 2017.
On receipt of such written
notification, or if Gonda fails to timely submit an
amended complaint or such notification, the court will
order the U.S. Marshal to serve the First Amended
Complaint on Defendants Scott Recarte, Henry Moe,
Matthew Kuresa, John Doe, and Dr. Pedri without further
JOHN DOE DEFENDANT
Although Doe pleading is generally disfavored,
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980), a plaintiff should be given the opportunity to
identify Doe Defendants through the discovery process,
unless it is clear that discovery would not uncover
their identity, or the complaint should be dismissed
for other reasons.
See Wakefield v. Thompson, 177 F.3d
1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d
Gonda is proceeding in forma pauperis and is
entitled to service of his Complaint by the U.S.
However, the Marshal cannot serve an
unknown Doe Defendant.
See Walker v. Sumner, 14 F.3d
1415, 1422 (9th Cir. 1994) (stating that the plaintiff
is required to “furnish the information necessary to
identify the defendant” before the U.S. Marshal can
effect service under Rule 4).
Once Gonda’s Amended
Complaint is served, he may use the discovery process
to identify John Doe.
Gonda is then responsible for
notifying the court about John Doe’s identity and
moving to substitute a named defendant in his place.
He is cautioned that “authorities clearly support the
proposition that John Doe defendants must be identified
and served within  days of the commencement of the
action,” and may be dismissed for failure to effect
service after that time, unless good cause is shown for
the failure to timely serve them.5
Aviles v. Village of
Bedford Park, 160 F.R.D. 565, 567 (N.D. Ill. 1995)
(citations omitted); Fed. R. Civ. P. 4(m) & 15(c)(1).
The First Amended Complaint is DISMISSED IN
Specifically, claims against all Defendants in
their official capacity are DISMISSED with prejudice
(meaning these claims may not be reasserted in an
amended complaint); all claims against Dr. Richard
Banner, and those claims against Dr. Pedri that assert
deliberate indifference are DISMISSED without prejudice
(meaning deficiencies in these claims may be cured by
Gonda in an amended complaint).
Gonda plausibly states a claim against
Defendants Scott Recarte, Henry Moe, John Doe, and
Matthew Kuresa under 42 U.S.C. § 1983.
plausibly asserts state law negligence claims against
In prisoner cases, service is generally not required until
90 days after the court screens the complaint, finds that it
states a claim, and directs the U.S. Marshal or prisoner to
effect service. See e.g., Long v. Does, 2016 WL 3983226, at *4
(D. Haw. July 25, 2016); Warren v. Ruffcorn, 2001 WL 34043449, at
*3 (D. Or. Sept. 18, 2001).
Dr. Pedri and Matthew Kuresa.
These claims may proceed
and be served.
On or before October 6, 2017, Gonda may either
file an amended complaint curing the deficiencies in
his claims that are dismissed without prejudice, OR he
may notify the court in writing that he will stand on
the plausible claims defined by this Order.
fails to timely accomplish either option, the court
will order the U.S. Marshal to serve the First Amended
Complaint as limited on Defendants Scott Recarte, Henry
Moe, John Doe, Dr. Pedri, and Sergeant Matthew Kuresa.
The Clerk is DIRECTED to send Gonda a blank
prisoner civil rights complaint form so that he may
amend his claims to comply with the directions in this
Order, if he chooses.
IT IS SO ORDERED.
Honolulu, Hawaii, September 15, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Gonda v. Recarte, 1:17 cv 00 SOM RLP; Scrng ‘17 Gonda 17 292 som (FAC)
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