Majhor v. Kempthorne

• Decision Date: 30 October 2007
• Docket Number: Civil Action No. 07-1465 (RBW).
• Parties: Richard MAJHOR, Plaintiff v. Dirk KEMPTHORNE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

518 F.Supp.2d 221

Richard MAJHOR, Plaintiff v. Dirk KEMPTHORNE, et al., Defendants.

Civil Action No. 07-1465 (RBW).

United States District Court, District of Columbia.

October 30, 2007.

Eric A. Seitz, Honolulu, HI, for Plaintiff.

Charlotte A. Abel, United States Attorney's Office, Washington, DC, Mark Ronald Hales, American Samoa Attorney General's Office, Pago Pago, AS, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Richard Majhor, a United States citizen currently incarcerated at the Tafuna Correctional Facility in Pago Pago, American Samoa and the plaintiff in this civil suit, seeks declaratory and injunctive relief as well as compensatory and punitive damages against numerous defendants for their alleged "deliberate indifference and intentional, knowing, reckless and/or negligent deprivation of medical care and treatment to [the p]laintiff," Amended Verified Complaint for Injunction, Declaratory Judgment and Damages ¶ 2 (the "Amended Complaint" or "Am. Compl."), "in violation of rights guaranteed to him by the United States Constitution and 42 U.S.C. [§] 1983 [2000], inter alia," id. ¶ 45.¹ Currently before the Court is the plaintiffs Renewed Motion for Preliminary Injunction. After carefully considering the parties' pleadings,² the plaintiff's renewed motion, and all memoranda and exhibits relevant thereto,³ the Court concludes that it must deny the plaintiffs renewed motion.

I. Background

The plaintiff is a "citizen of the United States who is and has been residing temporarily in the United States Territory of American Samoa at all times pertinent" to this case. Am. Compl. ¶ 5.⁴ "American Samoa is an unincorporated territory of the United States consisting of a cluster of small islands in the South Pacific." King v. Morton, 520 F.2d 1140, 1142 (D.C.Cir. 1975). The territory is governed by a constitution, which creates three independent branches of government (executive, legislative, and judicial) and contains a Bill of Rights. Rev. Const. Am. Samoa Art. I-V.

The executive branch of the American Samoa government consists of a governor and lieutenant governor, both of whom are popularly elected. Id. at Art. W § 2. The judicial branch consists of a High Court District Courts, and "such other courts as may from time to time be created by law." Id. at Art. III § 1. Decisions by the High Court can be appealed to an appellate division made up of the chief justice of the High Court, the associate chief justice, acting associate judges, and associate judges. Am. Samoa Code § 3.0220 (1981). The High Court is considered a "territorial court" under Article IV of the United States Constitution. See Meaamaile v. American Samoa, 550 F.Supp. 1227, 1235 (D.Haw.1982) ("[t]he courts established for American Samoa are not Article III courts, but, rather, legislative courts" (emphasis in original)).

On February 16, 2006, the plaintiff was convicted by the High Court of murder in the first degree, felonious restraint, tampering with physical evidence, and property damage in the first degree. Am. Compl. ¶ 19. He was sentenced to life imprisonment for his first-degree murder conviction, seven years for his felonious restraint conviction to run concurrently with his life sentence, and terms of five years on each of his convictions for tampering with physical evidence and property damage to run concurrently with each other and consecutive to the plaintiffs other prison terms on May 18, 2006. Id. ¶ 20. The plaintiffs convictions are currently on appeal to the appellate division of the High Court. Id. ¶ 21.

The plaintiff asserts that, beginning on February 22, 2007, he has suffered "fainting episodes during which he has suffered loss of consciousness and physical injuries to his head."Id. ¶ 22. He claims that in March of 2007, he was treated by the former director of and staff physician at the LBJ Center, Dr. Iotamo T. Saleapaga, "who recommended that [the p]laintiff be provided neurological and cardiac evaluations that are not capable of being performed at [the] LBJ Center or elsewhere in American Samoa." Id. ¶ 25. Specifically, the plaintiff asserts that Dr. Saleapaga "recommended that [the p]laintiff receive neurological evaluations to include EEG, MRI[,] and [a]ngiograthy procedures, and cardiology evaluations that may include echocardiogram, Holter monitor and cardiac cathe[ter]ization procedures." Id. ¶ 28. Dr. Saleapaga memorialized his recommendations in a letter dated June 13, 2007. Id. ¶ 27; Seitz Aff. ¶ 5, Ex. A (Letter from Dr. Iotamo T. Saleapaga to Unnamed Recipient (June 13, 2007) (the "Saleapaga Letter")).

In support of the plaintiffs motion for a preliminary injunction, his attorney states that his office "immediately informed [d]efendant Mark R. Hales and representatives of the Attorney General and the Governor of American Samoa ... about Dr. Saleapaga's recommendations." Seitz Aff. ¶ 4. When that approach to have the recommendations implemented proved unsuccessful, the plaintiff filed a motion for his emergency release with the High Court, id., Ex. B (Defendant-Appellant's Motion for Emergency Release, filed June 23, 2007), so that he could "travel directly to Hayward, California, and reside with his mother, Vicki Majhor," where he could receive the medical evaluations recommended by Dr. Saleapaga, id., Ex. B at Ex. 1 (Affidavit of Eric A. Seitz (the "Seitz Emergency Motion Affidavit")) ¶ 5(a). Following a hearing on the plaintiffs emergency motion on July 12, 2007, the plaintiffs attorney met with Fepuleaì Afa Ripley, the Attorney General for American Samoa, and "two of his deputies," Seitz Aff. ¶ 8, at the direction of the High Court, id. ¶ 7 & Ex. C at 2 (Follow-Up Order on Defendant's Medical Condition Determination (the "High Court Order")), after which the plaintiffs attorney "believed that these representatives understood the urgency of [the p]laintiffs situation," Seitz Aff. ¶ 8. The very next day, on July 13, 2007, the High Court directed Ripley "to oversee a complete and thorough investigation into [the d]efendant's present medical condition and needs for medical attention and treatment in order to properly determine whether or not [the p]laintiff ... must arrange to provide [the d]efendant with necessary medical care outside of the Territory of American Samoa." High Court Order at 2.

The plaintiff's attorney further states that he requested assistance in effecting the transfer of the plaintiff from Terry Lovelace, general counsel for the LBJ Center, via facsimile communication on July 14, 2007, Seitz Aff. ¶ 9 & Ex. D (Facsimile from Eric A. Seitz, Esq. to Terry Lovelace, Esq. (July 14, 2007)), and again on July 23, 2007, id. ¶ 11 & Ex. E (Facsimile from Eric A. Seitz, Esq. to Terry Lovelace, Esq. (July 23, 2007)), without success, id. ¶ 12. After receiving a reply facsimile from Lovelace on July 24, 2007, in which Lovelace declined to discuss the plaintiff's medical condition but volunteered to "discuss LBJ Tropical Medical Center's Policy and Procedure for [O]ff-Island referrals," id., Ex. F (Facsimile from Terry Lovelace, Esq. to Eric A. Seitz, Esq. (July 24, 2007)), the plaintiff's attorney states that he sent a lengthy facsimile to Togiola Tulafono, the Governor of American Samoa, Seitz Aff. ¶ 13, in which he threatened to bring "a civil legal action in the United States District Court in Washington, D.C.," id., Ex. G (Facsimile from Eric A. Seitz, Esq. to the Honorable Togiola T. Tulafono (July 27, 2007)), for "not only injunctive relief but also general and punitive damages for the violations of [the plaintiff's] constitutional rights," id. The plaintiff's attorney claims that he sent another letter by facsimile that same day to Dr. Annie Fuavai, the chair of the Off-Island Referral Committee at the LBJ Center, in which he requested that the committee consider the plaintiff's request "on an expedited basis." Seitz Aff. ¶ 14 & Ex. II (Facsimile from Eric A. Seitz, Esq. to Dr. Annie Fuavai, Off-Island Referral Committee Chair, LBJ Tropical Medical Center (July 27, 2007)).

Sometime around August 10, 2007, the plaintiffs attorney conferred with Mark Hales, at that time an Assistant Attorney General for American Samoa, about a possible transfer for the plaintiff from American Samoa to Hawaii. Seitz Aff. ¶ 18; Hales Aff. ¶ 12.⁵ According to the plaintiff's attorney, Hales indicated that Hawaii corrections officials were willing to house the plaintiff "contingent upon the necessary payment of expenses associated with the transfer and care that he would be provided in Hawaii," Seitz Aff. ¶ 19, and that "the process might be expedited" if the plaintiff would "pay for some of the transportation and medical costs," id. ¶ 20. Hales remembers this exchange somewhat differently: according to him, Seitz was told "that if the [p]laintiff was approved by the Off[-] Island Referral [Committee], the American Samoa Government would pay for all those costs," but that "if the [p]laintiff was not approved, the [p]laintiff would have to pay for all additional costs." Hales Aff. ¶ 12. Hales represents that he then added that "if the [p]laintiff wanted to pay for his offHisland care now, he could leave as soon as transportation arrangement[s] could be made." Id.

The plaintiff's attorney states that he has been "informed that [the p]laintiff has continued to suffer fainting episodes and loss of consciousness" since the attorney's last conversation with Hales, Seitz Aff. ¶ 22, and further avers that the plaintiff "now is being denied his previously prescribed pain medications for pre-existing migraine and other neurological treatments in response to [the plaintiffs] efforts to ensure that [he] receives the basic medical care and treatment to which he is entitled under the United States Constitution," id. ¶ 23. Hales asserts that he has maintained regular contact with Lovelace, general counsel for the LBJ Center, since his August 10 conversation with the plaintiffs attorney. Hales ...