Kealoha v. Cabrera et al

Filing 4

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e) & 1915A(a) re 1 - Signed by JUDGE HELEN GILLMOR on 12/11/2017. "(1) The Complaint is DISMISSED for failure to state a claim against any Defendant purs uant to 28 U.S.C. §§ 1915(e) & 1915A(a). Claims against Defendants named in their official capacities are DISMISSED with prejudice. Claims against Defendants named in their individual capacities for allege d violations of the Eighth Amendment are DISMISSED without prejudice. (2) Kealoha may file an amended complaint that cures the deficiencies in those claims dismissed without prejudice on or before January 15, 2018. (3 ) The Clerk of Court is DIRECTED to mail Kealoha a prisoner civil rights complaint form so that he can comply with the directions in this Order." (emt, )CERTIFICATE OF SERVICEParticipants registered to rece ive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Kristopher Kealoha shall be served by first class mail to the address of record on December 12, 2017. A copy of the court's prisoner civil rights complaint form shall be included in the mailing to Mr. Kealoha.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KRISTOPHER KEALOHA,
#A0265817,

)
)
)
Plaintiff,
)
)
vs.
)
)
ELIZABETH CABRERA, CATHY
)
KRUEGER, WESLEY MUN, JOHN )
FRAUENS, DOES 1 - 150,
)
)
Defendants,
)
__________________________ )

NO. 1:17 cv 00570 HG KSC
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C.
§§ 1915(e) & 1915A(a)

ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e) & 1915A(a)
Before the Court is pro se Plaintiff Kristopher
Kealoha’s prisoner civil rights Complaint.

ECF No. 1.

Although Kealoha is presently incarcerated at the Oahu
Community Correctional Center (“OCCC”), he complains
about incidents that allegedly occurred at the Halawa
Correctional Facility (“HCF”) between December 25,
2014, and October 9, 2015.

Kealoha alleges that

Department of Public Safety (“DPS”) and HCF officials
and staff violated the Eighth Amendment by failing to

1

provide him adequate or timely medical care.1

He seeks

damages and injunctive relief.
The Court has screened the Complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(a).

For the following

reasons, Kealoha’s Complaint is DISMISSED pursuant to
for his failure to state a plausible claim for relief,
with leave granted to amend.
I.

STATUTORY SCREENING

Because Kealoha is a prisoner and is proceeding in
forma pauperis, the court must screen his Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
Complaints or claims that are frivolous, malicious,
fail to state a claim for relief, or seek damages from
defendants who are immune from suit must be dismissed.
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)).

1

Plaintiff names HCF staff: (1) Elizabeth Cabrera, RN, (2)
Cathy Krueger, RN, (3) John Frauens, M.D., (4) Does 1-150; and
(5) DPS Clinical Health Care Administrator Wesley Mun, as
Defendants in their official and individual capacities.
2

Screening under §§ 1915(e)(2) and 1915A(b) involves
the same standard of review as that used under Federal
Rule of Civil Procedure 12(b)(6).

Watison v. Carter,

668 F.3d 1108, 1112 (9th Cir. 2012) (discussing
screening under § 1915(e)); see also Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (discussing
screening pursuant to § 1915A).

Under Rule 12(b)(6), a

complaint must “contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted);
Wilhelm, 680 F.3d at 1121.

“Determining 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
common sense.”

Iqbal, 556 U.S. at 678.

Pro se litigants’ pleadings must be liberally
construed and all doubts resolved in their favor.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citations omitted).

Leave to amend must be granted if

it appears the plaintiff can correct the defects in the
3

complaint.

Lopez v. Smith, 203 F.3d 1122, 1130 (9th

Cir. 2000) (en banc).
II.

BACKGROUND2

Kealoha suffered a dislocated shoulder on an
unidentified date.

On December 25, 2014, he submitted

a medical request to RN Cabrera for treatment for his
shoulder.
Krueger.

RN Cabrera forwarded Kealoha’s request to RN
Kealoha’s medical request was returned to him

the next day with a notation that he had been “referred
to see a[n] Orthopedic.”

Compl., ECF No. 1, PageID #6.

Kealoha says that he requested pain medication, an
appointment with an orthopedic specialist, and a
medical memorandum allowing him to be handcuffed in the
front to lessen his shoulder pain every morning at sick
call.

Kealoha says that he “never did see a Orthopedic

for [his] shoulder injury,” but does not allege that he
never saw any prison physician or medical provider for
his shoulder.

Id.

On October 19, 2015, Kealoha

2

Kealoha’s allegations of fact are accepted as true and
construed in the light most favorable to him. See Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014).
4

received a medical memorandum permitting him to be
handcuffed in front.3
Kealoha previously raised these claims in Kealoha
v. Espinda, No. 1:16 cv 00486 JMS KJM (D. Haw. 2016),
on September 2, 2016, although he named additional
defendants Tina Agaran, RN, and Barney Toyama, M.D.

On

February 24, 2017, the district court dismissed these
claims from that suit as improperly joined and for
failure to state a claim.

See id., Order, ECF No. 37.

Kealoha was told that he could raise the dismissed
claims in a new action, but should consider the court’s
discussion on the claims’ deficiencies before doing so.
Kealoha alleges that Defendants violated the Eighth
Amendment when (1) Cabrera failed to provide him
medical care for his “serious medical need” after she
received his medical request; (2) Krueger failed to
schedule an appointment for him with HCF Orthopedic
specialist Dr. Frauens; (3) Dr. Frauens failed to
provide him medical care, despite being aware of
3

In Kealoha v. Espinda, No. 1:16-cv-00486 JMS-KJM (D. Haw.
2017), Kealoha said that Dr. Toyama prescribed the medical
memorandum.
5

Kealoha’s serious medical need through a March 1, 2015
sick care request that Kealoha gave to Nurse Pam; (4)
Mun failed to provide him medical care, despite Mun’s
knowledge of Kealoha’s alleged need through Kealoha’s
grievance; and (5) Does 1 -150 failed to provide him
medical care between December 26, 2014, and October 9,
2015, despite his daily requests for pain medication
and an orthopedic appointment.
III.

Id., PageID #7.

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
and quotation marks omitted), vacated and remanded on
other grounds, 556 U.S. 1256 (2009); see also West v.
Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.
In addition, a plaintiff asserting a § 1983 claim
must demonstrate that each defendant personally
participated in the deprivation of his rights.
6

Jones

v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

That

is, a plaintiff must allege that he suffered a specific
injury as a result of the conduct of a particular
defendant, that is, an affirmative link between the
injury and the conduct of that defendant.

Rizzo v.

Goode, 423 U.S. 362, 371 72, 377 (1976).
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).
7

Kealoha complains of events that allegedly began at
HCF in December 2014 and apparently concluded in
October 2015.4

Kealoha was later

transferred to the

Federal Detention Center Honolulu and released from
custody after his sentence expired on March 4, 2017.
See Kealoha, No. 1:16 cv 00486 JMS KJM, ECF No. 45.
Kealoha was arrested on a new charge on or about April
24, 2017, and is now incarcerated at OCCC awaiting
trial.

Id., ECF No. 48.

First, Kealoha does not allege an ongoing violation
of his federal civil rights.

Second, Kealoha’s

injunctive relief claims alleging a denial of medical
treatment at HCF in 2014 and 2015 are moot.

See City

of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)
(holding a plaintiff must demonstrate a “real and
immediate threat of repeated injury” to have standing
for injunctive relief claims); see also Darring v.
Kincheloe, 783 F.2d 874, 876 77 (9th Cir. 1986)
4

Kealoha’s claims may be barred by the two-year statute of
limitation applicable to § 1983 actions in Hawaii, although the
Court makes no holding on this affirmative defense at this time.
See Pele Defense Fund v. Paty, 73 Haw 578, 597-98, 837 P.2d 1247,
1260 (1992).
8

(holding injunctive relief claims became moot when
inmate transferred to new prison with no reasonable
expectation of being subjected to conditions for which
he sought injunctive relief); Suarez v. Beard, 2017 WL
2652199, at *5 (N.D. Cal. June 20, 2017) (dismissing
claim for injunctive relief after inmate transferred).
Kealoha’s official capacity claims against all
Defendants are DISMISSED with prejudice.
B.

Eighth Amendment:

Inadequate Medical Care

To establish an Eighth Amendment violation
regarding the denial or delay of medical care, an
inmate must prove “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious
medical needs.”

Estelle v. Gamble, 429 U.S. 97, 106

(1976); see also Clouthier v. Cty. of Contra Costa, 591
F.3d 1232, 1241 (9th Cir. 2010).

Deliberate

“indifference ‘may appear when prison officials deny,
delay or intentionally interfere with medical
treatment, or it may be shown by the way in which
prison officials provide medical care.’”

9

Crowley v.

Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
To state a claim, a “plaintiff must [first] 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.”

Jett, 439 F.3d at 1096

(quotations omitted).

“Second, the plaintiff must show

the defendant’s response to the need was deliberately
indifferent.”

Id.

This can be shown by alleging “(a)

a purposeful act or failure to respond to a prisoner’s
pain or possible medical need and (b) harm caused by
the indifference.”

Id.

Deliberate indifference

requires that “the official must both be aware of facts
from which the inference could be drawn that a
substantial risk of serious harm exists, and he must
also draw the inference.”

Farmer v. Brennan, 511 U.S.

825, 837 (1994).
“Deliberate indifference is a high legal standard.”
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
The “‘inadvertent [or negligent] failure to provide
10

adequate medical care’ alone does not state a claim
under § 1983.”

Jett, 439 F.3d at 1096 (citing Estelle,

429 U.S. at 105); see also Wood v. Housewright, 900
F.2d 1332, 1334 (9th Cir. 1990) (“While poor medical
treatment will at a certain point rise to the level of
constitutional violation, mere malpractice, or even
gross negligence, does not suffice.”).
C.

Rule 8 of the Federal Rules of Civil Procedure
Rule 8 requires only “a short and plain statement

of the claim showing that the pleader is entitled to
relief.”

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.”

Iqbal, 556 U.S. at 678.

The “mere possibility of misconduct” or an “unadorned,
the defendant unlawfully harmed me accusation” falls
short of meeting this plausibility standard.

Id.; see

also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009).
Kealoha’s allegation that he was in pain for
several months due to his shoulder injury satisfies the
11

serious medical need requirement for the purposes of
this Order.

Kealoha fails, however, to allege

sufficient additional facts from which the Court can
plausibly infer that Defendants acted with deliberate
indifference to this allegedly serious medical need.
1.

RN Cabrera

Kealoha states, “Elizabeth Cabrera didn’t provide
me medical care for my serious medical need after I
gave her a medical request for pain medication and to
see a doctor for my shoulder injury.”
1, PageID #7.

Compl., ECF No.

Kealoha concludes that Cabrera violated

the Eighth Amendment.

Cabrera, however, immediately

forwarded Kealoha’s request to Krueger to schedule an
appointment for him; it was returned to him the next
day with a notation stating that he had been “referred
to see a[n] Orthopedic” specialist.

Id.

Cabrera

clearly acted on Kealoha’s request and presumably
assumed that it had been adequately addressed.
Kealoha provides no other details regarding
Cabrera’s involvement in the alleged denial of medical
care.

He does not explain what his medical request
12

stated regarding his shoulder injury, to allow the
Court to infer that Cabrera knew that a substantial
risk of serious harm existed if he was not seen
immediately by a physician and that she drew (or should
have drawn) that inference.

Kealoha does not allege

that Cabrera knew that he was not scheduled for an
orthopedic appointment, either from him or otherwise,
and refused to assist him.

It is not even clear that

Cabrera had the authority to schedule Kealoha for an
appointment with the HCF orthopedic specialist without
prior approval from a primary care physician.
Kealoha fails to allege enough facts to show that
Cabrera purposefully failed to act or respond to his
serious medical need with deliberate indifference to
his health.

He therefore fails to state a claim

against Cabrera under the Eighth Amendment.
2.

RN Krueger

Kealoha claims that Krueger failed to schedule an
appointment for him with Dr. Frauens after Cabrera gave
her his request.

He provides no other facts regarding

Krueger’s involvement in the alleged denial of medical
13

care.

Again, Kealoha does not say what his medical

request stated regarding his shoulder injury, or allege
that he otherwise informed Krueger that he was in pain
and needed medication, a physician appointment, and a
medical memorandum allowing him to be handcuffed in the
front.

Kealoha does not allege that Krueger falsely

responded that an appointment had been scheduled yet
purposely failed to schedule an appointment for him, or
set forth facts explaining why she would do so.

Nor

does Kealoha allege that Krueger knew the appointment
she scheduled had been canceled, yet refused to
reschedule an appointment for him despite knowledge of
his serious medical need.
Krueger may have been negligent in scheduling an
appointment for Kealoha; these facts are insufficient
to support an inference that she was deliberately
indifferent to his serious medical need.
3.

Wesley Mun

Kealoha states, “Wesley Mun didn’t provide Medical
care after having knowledge of my serious medical need
from responding to my grievance.”
14

Compl., ECF No. 1,

PageID #7.

Kealoha does not explain what his grievance

said regarding his shoulder injury or pain, the HCF
medical unit’s response to that injury or pain, or
their initial response to his grievance.

Kealoha also

fails to explain how, why, or by whom he was later
issued a medical memorandum allowing him to be
handcuffed in front if he was never seen by any medical
provider.

It appears that Kealoha was seen by some

medical provider, but wanted to see an orthopedic
specialist, and this request was denied.

It is

impossible to determine the background of this claim,
that is, the reason for such denial, from Kealoha’s
sparse representation of facts.
Kealoha’s allegations are insufficient to allow the
Court to infer that Mun was aware that Kealoha had a
serious medical need and that the HCF medical unit
staff ignored or refused to treat that need with
deliberate indifference to his health, such that Mun’s
failure to intervene constituted deliberate
indifference to Kealoha’s serious medical need.

15

4.

Dr. Frauens

Dr. Frauens is the HCF Orthopedic specialist.
Kealoha states that “Frauens didn’t provide medical
care after having knowledge of my serious medical need
from a sick call request from nurse pam on (3 15 15)
causing me on going pain and suffering.”
No. 1, PageID #7.

Compl., ECF

As with Kealoha’s statement of facts

against the other Defendants, this sparse and
conclusory statement is insufficient to state an Eighth
Amendment claim against Dr. Frauens.

Dr. Frauens may

never have received the medical request from Nurse Pam,
or he may have made a medical decision that Kealoha did
not require orthopedic care based on Kealoha’s medical
history or treatment.

Without more background facts

regarding Dr. Frauens involvement in Kealoha’s medical
care, however, it is impossible to infer that he acted
with deliberate indifference to Kealoha’s serious
medical need.
5.

Does 1-150

Rule 10(a) of the Federal Rules of Civil Procedure
requires a plaintiff to include the names of all
16

parties in the complaint.

Because it is nearly

impossible for the United States Marshal to serve a
summons and complaint on an anonymous defendant, the
use of doe defendants is generally disfavored in the
federal court.

See Gillespie v. Civiletti, 629 F.2d

637, 642 (9th Cir. 1980).
If the names of individual defendants are unknown
at the time a complaint is filed, a plaintiff may refer
to the unknown defendants as Defendant John Doe 1, John
Doe 2, John Doe 3, and so on, but he must allege facts
to support how each particular doe defendant violated
his constitutional rights.

The plaintiff may then use

the discovery processes to obtain the names of doe
defendants whom he believes violated his constitutional
rights and seek leave to substitute those individuals
as defendants, unless it is clear that discovery would
not uncover their identities, or that the complaint
would be dismissed on other grounds.

Wakefield v.

Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
Kealoha indiscriminately sues Doe Defendants 1 150,
who he were registered nurses at HCF, without
17

exp l aining how each individual nurse vio l ated his
rights.

That is, he fai l s to individually identify

them so that their relationship to his c l aims is
evident.

Kea l oha therefore fai l s to state a c l aim

against Doe Defendants 1-150 and they are DI SMI SSED.
He may reallege c l aims against Doe Defendants, subject
to the limitations set forth herein , but he must a ll ege
specific facts showing what each particu l ar Doe
Defendant did to vio l ate his rights.

IV.

LEAVE TO AMEND

Kea l oha may fi l e an amended comp l aint that cures
the deficiencies noted above on or before January 1 5 ,
2018.

An amended comp l aint shou l d stand on its own

without incorporation or reference to a previous
p l eading and it genera ll y supersedes the origina l
comp l aint.

See Ramirez v. Cty. of San Bernadina , 806

F.3d 1002, 1008 (9th Cir. 2015); Lacey v. Maricopa
Cty. , 693 F.3d 896 ,

928

(9th Cir. 2012)

(en bane).

Defendants not named and c l aims dismissed without
prejudice that are not realleged in an amended
comp l aint may be deemed vol untari l y dismissed.
18

See

Lacey, 693 F.3d at 928 (stating claims dismissed with
prejudice need not be repled to preserve them for
appeal, but claims that are “voluntarily dismissed” are
considered “waived if not repled”).
V.

28 U.S.C. § 1915(g)

If Kealoha fails to file an amended complaint, or
is unable to sufficiently amend his claims to cure
their deficiencies, this dismissal may later count as a
“strike” under 28 U.S.C. § 1915(g).5
VI.

CONCLUSION

(1) The Complaint is DISMISSED for failure to state
a claim against any Defendant pursuant to 28 U.S.C.
§§ 1915(e) & 1915A(a).

Claims against Defendants named

in their official capacities are DISMISSED with

5

Under this “3-strikes” provision, a prisoner may not bring
a civil action or appeal a civil judgment in forma pauperis under
28 U.S.C. § 1915
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.
28 U.S.C. § 1915(g).
19

prejudice.

Claims against Defendants named in their

individual capacities for alleged violations of the
Eighth Amendment are DISMISSED without prejudice.
(2) Kealoha may file an amended complaint that
cures the deficiencies in those claims dismissed
without prejudice on or before January 15, 2018.
(3) The Clerk of Court is DIRECTED to mail Kealoha
a prisoner civil rights complaint form so that he can
comply with the directions in this Order.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, December 11, 2017.

Kristopher Kealoha, #A0265817 v. Elizabeth Cabrera, Cathy Krueger,
Wesley Mun, John Frauens, Does 1-150; Civ. No. 17-00570 HG-KSC;
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e) &
1915A(a)
20