Marler v. Derr
| Decision Date | 15 June 2022 |
| Docket Number | CIVIL 22-00108 LEK-KJM |
| Parties | THOMAS E. MARLER, Plaintiff, v. ESTELLA DERR, et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
THOMAS E. MARLER, Plaintiff,
v.
ESTELLA DERR, et al., Defendants.
CIVIL No. 22-00108 LEK-KJM
United States District Court, D. Hawaii
June 15, 2022
ORDER DISMISSING COMPLAINT WITH PARTIAL LEAVE GRANTED TO AMEND
LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE
Before the Court is a Prisoner Civil Rights Complaint (“Complaint”), ECF No. 1, filed by pro se Plaintiff Thomas E. Marler (“Marler”) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Marler alleges that three officials[1] at the Federal Detention Center in Honolulu, Hawaii (“FDC Honolulu”) violated the Eighth Amendment by denying him adequate medical care.[2] ECF No. 1 at 5-13. After screening the Complaint pursuant to 28 U.S.C. § 1915A(a), the Court DISMISSES the Complaint with
partial leave granted to amend. If Marler wants this action to proceed, he must file an amended pleading that cures the noted deficiencies in his claims on or before July 15, 2022. In the alternative, Marler may voluntarily dismiss this action pursuant to Federal Rule of Civil Procedure 41(a)(1), and such a dismissal will not count as a “strike” under 28 U.S.C. § 1915(g).
I. STATUTORY SCREENING
Pursuant to 28 U.S.C. § 1915A(a), the Court is required to screen all civil actions filed by prisoners seeking redress from a government entity or an officer or employee of a government entity.[3] See Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). During screening, the Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, ” if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks damages from defendants who are immune from suit. See 28 U.S.C. § 1915A(b); Byrd v. Phx. Police Dep't, 885 F.3d 639, 641 (9th Cir. 2018). “If the . . . court determines that any of these grounds is satisfied, it must dismiss the case, and enter a ‘strike' against the plaintiff prisoner.” Byrd, 885 F.3d at 641.
Failure to state a claim under 28 U.S.C. § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citation omitted). Under this standard, 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 and citation omitted). A claim is “plausible” when the facts alleged support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. See id.
During screening, the Court liberally construes pro se litigants' pleadings and resolves all doubts in their favor. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The Court must grant leave to amend if it appears the plaintiff can correct the defects in the complaint. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). When it is clear a claim cannot be saved by amendment, dismissal with prejudice is appropriate. See Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013).
II. BACKGROUND[4]
Marler commenced this action by signing the Complaint on March 15, 2022. ECF No. 1 at 14. He paid the required fees on May 9, 2022. ECF No. 14.
Marler alleges in Count I that he is a “two-time melanoma survivor.” ECF No. 1 at 5. Marler underwent his first successful “melanoma surgery” in 1991, and a second successful surgery in 2021. Id. Following the 2021 surgery, Marler was instructed to see his “skin cancer physician” for a follow-up appointment every three to four months, for a period of three years. Id. During his last appointment in November 2021, “three newly developed atypical skin lesions were identified as possibly malignancies.” Id. Surgery and a “histopathology diagnosis” were not scheduled, however, because of Marler's December 9, 2021 sentencing hearing. See Criminal Minutes, United States v. Marler, No. CR-19-00031-1 (D. Guam Dec. 9, 2021), ECF No. 243.[5] In the Judgment from Marler's criminal case, the court recommended to the Bureau of Prisons (“BOP”) that Marler “receive medical treatment before March 2022 from a board[-]certified dermatologist.” Judgment in
a Criminal Case, Marler, No. CR-19-00031-1 (D. Guam Dec. 14, 2021), ECF No. 245 at 3; see also Amended Judgment in a Criminal Case, Marler, No. CR-19-00031-1 (D. Guam Jan. 10, 2022), ECF No. 254 at 3. According to Marler, he was not seen by a dermatologist while he was at FDC Honolulu. Id. at 5-6.
Marler alleges in Count II that he self-surrendered at FDC Honolulu on January 18, 2022. See ECF No. 1 at 1. Marler brought with him to FDC Honolulu a “custom designed nasal dilator, ” “orthopedic knee braces, ” and “prescription bifocal reading glasses.” Id. at 8. The nasal dilator allowed Marler to exercise and sleep. Id. Marler experienced reduced “nasal flow” due to injuries sustained during a 2013 vehicular accident. Id. Marler wore the knee braces for chronic knee pain. Id. at 9. Marler wore the glasses “due to poor vision in [his] left eye and a slowly developing cataract in [his] right eye.” Id.
An unnamed “intake officer” at FDC Honolulu told Marler that he could keep only cash, identification cards, and religious materials. Id. Another intake officer confiscated a “generic nasal dilator” that Marler also had in his possession. Id. at 8-9.
Dr. Kwon met Marler for his initial medical screening on February 11, 2022. Id. at 9. Dr. Kwon told Marler that his “unit team” could process a “Special Purchase Order” to acquire a nasal dilator. Id. When Marler asked his case manager to purchase the nasal dilator, however, Marler was told that the medical
team needed to process the request. Id. Marler waited two days, then he sent an electronic request to Dr. Kwon. Id. Marler also submitted a Request for Administrative Remedy on March 9, 2022.[6] Id. Marler's requests were “ignored.” Id.
On February 11, 2022, Marler told Dr. Kwon about his knee pain. Id. Dr. Kwon told Marler that, after he was released from quarantine, Marler should ask if knee sleeves in the medical stockroom fit him. Id. Marler submitted a request on February 21, 2022, and a Request for Administrative Remedy on March 9, 2022. Id. These requests were also “ignored.” Id.
Regarding his glasses, Marler submitted an “electronic emergency request” for replacement glasses on February 22, 2022. Id. He also submitted a Request for Administrative Remedy on March 9, 2022. Id. These requests were “ignored.” Id.
Marler alleges in Count III that two correctional officers found him on the floor of his cell on the afternoon of March 6, 2022. Id. at 12. According to Marler, he had fainted, fallen, and cut his head. Id. One of the correctional officers eventually escorted Marler to the medical unit, where he was seen by Nurse
Dayton. Id. Dayton took Marler's vital signs, located a cut on his head, and stopped the bleeding. Id. When Marler asked Dayton how he would be monitored for signs of a concussion, Dayton told Marler to report to medical staff any cognitive issues. Id.
Marler experienced a headache and pain in his jaw on March 7. Id. That day, Marler sent an “electronic ‘medical emergency' message” to Dr. Kwon “indicating [Marler's] surprise that he was not called for a follow up.” Id. at 13. The message went unanswered. Id. According to Marler, Dayton did not ask him if there were any lingering issues from the previous day. Id. On March 8, Marler discovered that he had lost twenty pounds since January 3, 2022. Id. Marler's headache and jaw pain persisted until at least March 9, when he submitted a Request for Administrative Remedy. Id.
Marler seeks: (1) $1, 000, 000, (2) an “Order instructing BOP to follow court order regarding skin cancer specialist”; (3) an “Order instructing Defendant's to replace confiscated medical devices”; (4) an “Order to replace prescription eye glasses”; (5) an “Order instructing FDC Honolulu Health Services to schedule [a] colonoscopy”; (6) an “Order instructing Dr. Kwon and Defendant's to schedule an MRI and other diagnostics to evaluate concussion risk due to Plaintiff's head injury on March 6, 2022.” Id. at 14.
III. DISCUSSION
A. Legal Framework for Bivens Claims
In Bivens, the Supreme Court “recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Hernandez v. Mesa, 582 U.S.__, 137 S.Ct. 2003, 2006 (2017) (per curiam) (internal quotation marks and citation omitted). Bivens involved a suit against individual federal agents who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. See Bivens, 403 U.S. at 389-90. Since Bivens, the Supreme Court has expanded this implied cause of action only twice. See Ziglar v. Abbasi, 582 U.S.__, 137 S.Ct. 1843, 1855 (2017) (“These three cases - Bivens, Davis, and Carlson - represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.”); Davis v. Passman, 442 U.S. 228 (1979) (suit under the Fifth Amendment's Due Process Clause for gender discrimination by a United States Congressman); Carlson v. Green, 446 U.S. 14 (1980) (suit under the Eighth Amendment's Cruel and Unusual Punishment Clause for failure to provide adequate medical treatment by federal prison officials).
The Supreme Court “has made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity.” Abbasi, 582 U.S. at __, 137 S.Ct. at 1857 (quoting Iqbal, 556 U.S. at 675). “This is in accord with the Court's observation
that it has ‘consistently refused to extend Bivens to any new context or new category of defendants.'”[7] Id. (quoting Malesko, 534 U.S. at 68). Indeed, the...
To continue reading
Request your trial