Quichocho v. Carbullido

• Court: Superior Court of Guam
• Decided: June 3, 2024
• Docket: CV0429-21
• Status: Unknown

Opinion

CLERK Qf CGURT IN THE SUPERIOR COURT OF GUAM RICHARD R. QUICHOCHO, CIVIL CASE NOsf.V04~9-21 ~ Plaintiff,

vs.

JOSEPH S. CARBULLIDO, Acting DECISION AND ORDER Director of the Department of Corrections, RE DEFENDANT BRENNAN'S in his Official Capacity; MOTION TO DISMISS

SAMANTHA J. BRENNAN, Former Director of the Department of Corrections, in her Official and Personal Capacity;

ANTONE F. AGUON, Major, Operations Commander of the Department of Corrections, in his Official and Personal Capacity;

MARK PEREZ, Case Social Worker Division Administrator of the Department of Corrections, in his Official and Personal Capacity;

PATRICIA TAIMANGLO, Psychologist of the Department of Corrections, in her Official and Personal Capacity;

MARK ANDERSON, Physician of Guam Memorial Hospital, in his Official and Personal Capacity;

DENNIS CRUZ, Nurse of Guam Memorial Hospital, in his Official and Personal Capacity;

LILLIAN POSADAS, Administrator of Guam Memorial Hospital, in her Official and Personal Capacity,

Defendants. Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

This matter came before the Honorable Dana A. Gutierrez on February 27, 2024 upon a

Motion to Dismiss under GRCP 12(b)(6), (5), and (1) ("Motion to Dismiss" or "MTD"), filed by

Defendant Samantha J. Brennan ("Brennan"). Present at the hearing was Deputy Attorney Genera)

Graham Botha representing Brennan and Plaintiff Richard R. Quichocho ("Quichocho") with

counsel Assistant Public Defender David Highsmith. Upon review of the arguments and applicable

Guam law, the Court issues the following Decision and Order.

PROCEDURAL BACKGROUND

On May 25, 2021, Quichocho filed his Civil Complaint. With leave of court, on September

7, 2021, Quichocho filed his First Amended Complaint (also referred to as "FAC"). 1

On May 27, 2021, Quichocho filed his Motion for Service of Process by Marshals, which

the Court granted on June 25, 2021, ordering that "the Marshals of the Superior Court of Guam

shall serve all documents filed by Quichocho upon each Defendant named in the above-captioned

case and shall make proof of such service as provided in Rule 4(1) of the GRCP." (emphasis in

original). Order Granting Motion for Service of Process by Marshals ("Order for Marshal

Service") at 2 (June 25, 2021 ).

Brennan filed her Motion to Dismiss on February 14, 2022. Quichocho filed his Opposition

to Brennan's Motion to Dismiss ("Opposition") on March 22, 2022. Brennan filed her Reply Brief

1 On July 12, 2021, Quichocho filed a Motion to Amend Civil Complaint. On July 23, 2021, the Court issued an Order Re Motion to Amend Civil Complaint, allowing Quichocho to file his First Amended Complaint by August 27, 2021. Quichocho filed his First Amended Complaint on September 7, 2021. On September 17, 2021, Brennan filed a Motion for Default; Renewed Motion to Dismiss ("Motion for Default"). Brennan argued that she was entitled to default because Quichocho's First Amended Complaint was filed untimely. On January 13, 2022, the Court issued its Decision and Order Denying Motion for Default, finding that Quichocho's controlling pleading is his First Amended Complaint, and ordering Brennan to file a responsive pleading and/or any motions regarding the First Amended Complaint within thirty (30) days.

2 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

in Support of Her Motion to Dismiss ("Reply") on March 28, 2022. 2

From the onset of this case until July 3, 2023, Quichocho appeared in this matter pro se. 3

However, on July 3, 2023, the Court issued its Order Granting Appointment of Counsel For

Limited Purposes ("Order Appointing Counsel"), specifically to address Quichocho's request for

immediate medical care and to address Brennan's Motion to Dismiss. On August 4, 2023, the

Court issued a Notice of Court Appointed Counsel For Limited Purposes to the Public Defender

Service Corporation ("PDSC"). 4

At the Status hearing on October 27, 2023, Attorney Highsmith requested that the Court

accept Quichocho's Opposition, but to allow Attorney Highsmith to supplement the opposition

with additional legal arguments. Min. Entry, 1:38 PM (Oct. 27, 2023). Hearing no objection from

opposing counsel, the Court granted Attorney Highsmith leave to file a supplemental pleading by

November 6, 2023, and allowed Attorney Botha to file a response by November 20, 2023. Attorney

2 On March 22, 2022, Quichocho also filed a Motion to Strike Brennan's Motion to Dismiss, arguing predominantly that Brennan's Motion to Dismiss was ''unsigned/certified by Brennan or legal representative." Mot. to Strike at 1. On April 6, 2022, Quichocho filed his Notice/Request For Withdrawal of Plaintiffs Motion to Strike. 3 On December 31, 2020 and May 25, 2021, Quichocho filed his Notice and Motion for Appointment of Counsel. On November 9, 2021, the Court issued its Decision and Order Denying Motion for Appointment of Counsel, denying Quichocho's motion without prejudice, and stating that Quichocho may file a new motion for appointment of counsel if he is able to demonstrate circumstances necessary to warrant appointment of counsel. On December 10, 2021, Quichocho filed his Motion for Reconsideration, requesting that the Court reconsider its denial of counsel. The Court denied Quichocho's Motion for Reconsideration on October 3, 2022. At the March 14, 2023 Status hearing, Quichocho again raised his need for counsel based on his worsening health, and the Court considered Quichocho's request in light of the information provided by Quichocho. 4 The Court first issued a Notice of Court Appointed Counsel For Limited Purpose to the Alternate Public Defender on July 3, 2023 . On July 26, 2023, Alternate Public Defender Ana Maria C. Gayle filed an Ex Parte Motion to Withdraw as Court-Appointed Counsel ("Motion to Withdraw") because the Alternate Public Defender "was not authorized to represent individuals in domestic or civil matters," and because Miscellaneous Rule 1.1.3 of the Local Rules of the Superior Court of Guam requires that the PDSC be appointed as counsel prior to the Alternate Public Defender. Mot. to Withdraw at 1. The Court granted the Motion to Withdraw on August 4, 2023.

3 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

Highsmith filed a Memorandum in Opposition to Defendant Brennan's Motion to Dismiss

("Supplement to Opposition") on November 6, 2023. Attorney Botha did not file a response. The

Court heard oral argument on the Motion to Dismiss on February 27, 2024. 5

At the February 27, 2024 Motion hearing, the Court inquired about Quichocho's allegation

in his First Amended Complaint that his doctor had recommended cataract surgery, but that

Quichocho had not received the surgery. Attorney Highsmith confirmed that, to date, Quichocho

has still not received the surgery. Based on the discussion at the Motion hearing, the Court issued

an Order After Hearing on March 6, 2024, ordering that "Attorney Highsmith and Attorney Botha

file an Informational Report after their respective inquiries with Director of DOC and/or any other

relevant party regarding the status of [Quichocho' s] allegations related to his medical condition( s),

including his cataract condition." Order After Hearing at 2 (March 6, 2024). The Informational

Reports were due on March 27, 2024. On April 4, 2024, Attorney Botha filed a Submission of

Documents Under Seal in response to the Court's Order After Hearing. To. date, Attorney

Highsmith has not filed an Informational Report.

FACTUAL BACKGROUND

In his First Amended Complaint, Quichocho alleges the following facts, which are relevant

to Brennan's Motion to Dismiss:

1. Brennan was the former Director of the Department of Corrections ("DOC") in

Mangilao, Guam, and resigned from her position on or about November 22, 2019.

5 Oral argument on Brennan's Motion to Dismiss was originally set for December 9, 2022, but was delayed for a variety of reasons. First, Quichocho filed several motions which required attention before hearing the Motion to Dismiss, including his Motion for Reconsideration regarding the Court's denial of counsel, his Motion to Strike the Motion to Dismiss, and his Motion for Leave of Court filed December 14, 2022. Additionally, Quichocho failed to appear at several hearings scheduled related to the Motion to Dismiss.

4 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

2. Quichocho was diagnosed as diabetic by DOC former physician, Dr. Y.K. Chang

"years ago," and was prescribed medication. Quichocho was primarily seen by Guam Memorial

Hospital ("GMH") attending physician, Dr. Florencio Lizama ("Dr. Lizama"). Quichocho is also

occasionally seen by Defendant Dr. Anderson ("Dr. Anderson") for other medical reasons, but not

primarily for his diabetes.

3. In May of 2019, Dr. Lizama recommended that Quichocho change his prescription,

and prescribed that Quichocho take Amaryl and Medformin. Dr. Lizama scheduled a lab test to

take place at Quichocho's August 2019 diabetic review in order to monitor Quichocho's blood

sugar level. Quichocho did not see Dr. Lizama after May 2019. Quichocho was not called for his

August 2019 diabetic review.

4. After his May 2019 appointment with Dr. Lizama, the infirmary staff issued

Quichocho his Amaryl and Medformin, which Quichocho self-administered. About two weeks

later, Quichocho suffered from severe stomachaches daily, lasting over two weeks. Quichocho

concluded that Amaryl was the cause of his pain. After three weeks of pain, Quichocho

discontinued taking Amaryl with the intention of consulting Dr. Lizama in August 2019.

5. In July or August of 2019, Quichocho experienced recurring severe earaches and

swelling of his neck.

6. At an unknown date, Quichocho was summoned for an unscheduled sick-call for

his annual physical checkup by Dr. Anderson. At the physical, Dr. Anderson did not have

Quichocho's medical records. Quichocho requested that Dr. Anderson examine his ear due to his

pain. Dr. Anderson checked Quichocho's ear and stated that it was not swollen nor infected, and

that it was clear of wax buildup. Dr. Anderson told Quichocho to return if the pain reoccurs. Dr.

Anderson did not address Quichocho's diabetes.

5 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbul/ido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

7. On August 13, 2019, Quichocho visited Dr. Anderson for sick-call due to his

earache. Dr. Anderson again did not have Quichocho's medical records but had Quichocho's lab

results. Dr. Anderson prescribed Quichocho antibiotic eardrops. Dr. Anderson accused Quichocho

of not taking his medication and stated that his earache was due to his diabetes, and that

Quichocho's sugar level was problematic. Quichocho informed Dr. Anderson that he stopped

taking his medication due to stomach pains and wanted to consult with Dr. Lizama. Dr. Anderson

explained the consequences of failing to take his diabetes medication, including telling Quichocho

that he will die if he does not take his medicine. Dr. Anderson then explained that Quichocho's

stomach pains were a result of stomach acid, and that he would prescribe medication for Quichocho

to soothe his stomach pains. Dr. Anderson then told Quichocho, "I will make the nurse administer

your meds!" FAC at 7. Quichocho replied, "no, no, no ... I had a good valid reason for not taking

my meds. I had stomach pains ... " Id. Quichocho then asked Dr. Anderson if he knew what

medicine Quichocho was prescribed. Dr. Anderson replied Medformin, but not Amaryl. Based on

Quichocho's description of his August 13, 2019 visit with Dr. Anderson, the interaction was hostile

and Dr. Anderson was aggressive. After this visit, Quichocho resumed taking the remainder of his

prescribed diabetes medicine which Quichocho had in his possession.

8. On August 19, 2019, Quichocho submitted a sick-call slip, requesting a refill of his

prescription diabetes medicine and an issuance of newly prescribed eardrops. On August 20, 2019,

Quichocho received a sick-call slip response from infirmary nurse, Defendant Dennis Cruz

("Cruz"), stating that Quichocho must write a Remedy Request to Defendant Major A.F. Aguon

("Major Aguon").

6 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

9. On August 20, 2019, Quichocho submitted a Remedy Request to Cruz, stating that

Major Aguon is a corrections officer, not medical staff, and requesting a reason for withholding

Quichocho's medications. Cruz referred Quichocho's request to Major Aguon.

10. On August 20, 2019, Quichocho also submitted a Remedy Request to Brennan,

requesting a copy of his medical records for legal purposes, including records pertaining to his

August 13, 2019 physical conducted by Dr. Anderson. To date, Quichocho never received a

response to this Remedy Request.

11. On August 21, 2019, Quichocho submitted a Remedy Request to Cruz, asking

whether he was withholding Quichocho's medications. To date, Quichocho has not received a

response.

12. On August 21, 2019, Quichocho submitted a Remedy Request to Dr. Anderson,

requesting, for legal purposes, a response as to whether Dr. Anderson was withholding

Quichocho's medications. To date, Quichocho has not received a response.

13. On August 21, 2019, Quichocho submitted a Remedy Request to Brennan,

requesting, for legal purposes, a copy of his recent lab results from his medical records.

14. On August 22, 2019, Quichocho received a Response to his August 20, 2019

Remedy Request from Major Aguon ("Major Aguon's August 22, 2019 Response"), stating that

because Quichocho was not compliant when self-medicating, he would receive his medications at

the infirmary pill line until he demonstrates compliance with the self-administration medication

system.

15. On August 26, 2019, Quichocho submitted his first grievance ("First Grievance")

to Brennan, concerning three issues: (1) his August 13, 2019 physical with Dr. Anderson; (2) Major

Aguon's August 22, 2019 Response; and (3) his August 21, 2019 Remedy Request to Dr.

7 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

Anderson, to which Dr. Anderson did not reply. Quichocho sent the same First Grievance to Head

of GMH, Defendant Lillian Posadas. To date, Quichocho has not received a response to his First

Grievance.

16. On August 27, 2019, Quichocho received a response from Major Aguon regarding

Quichocho's August 21, 2019 Remedy Request to Brennan ("Major Aguon's August 27, 2019

Response"), stating that Brennan forwarded his August 21, 2019 Remedy Request to him with

instructions to respond. Major Aguon denied Quichocho's request for his medical records, citing:

Code of Federal Regulations (CFR) 164.524 Section (B)(2)(ii): ... a correctional institution ... may deny, in whole or in part, an inmate's request to obtain a copy of protected health information if obtaining such copy would jeopardize the health, safety, security, custody, or rehabilitation of the individual or other inmates, or the safety of any officer, employee, or other person at the correctional institution.

FAC at Ex. Dl. Major Aguon suggested that Quichocho submit a sick-call slip to discuss his lab

results with medical professionals.

17. On August 29, 2019, Quichocho submitted a Remedy Request to Major Aguon

replying to Major Aguon's August 27, 2019 Response, requesting clarification for denying him a

copy of his lab results and requesting an examination of why receiving his lab results would pose

any concern for the health and safety of any prisoner. Quichocho did not receive a response.

18. On August 29, 2019, Quichocho submitted a Remedy Request to Warden Col. A.P.

Borja, requesting a copy of the DOC Medical Policy.

19. On August 29, 2019, Quichocho submitted his second gnevance ("Second

Grievance''). In response to Major Aguon' s denial of Quichocho 's request for his medical records,

Quichocho indicated that Brennan should not have ordered Major Aguon to respond to

Quichocho's Remedy Request because on August 26, 2019 Quichocho filed his First Grievance

8 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

regarding Major Aguon, and therefore a conflict of interest existed.

20. On September 18, 2019, Quichocho received a Memorandum from Brennan in

response to Quichocho's Second Grievance, in which Brennan stated that she concurred with

Major Aguon's assessment to deny Quichocho his medical records.

21. On September 18, 2019, Unit Officer R.A.G. Naputi ("Officer Naputi") contacted

Case Social Worker Division Administrator, Defendant Mark Perez ("Perez"), who was

Quichocho's assigned case worker, to inquire why Quichocho never received a response to his

First Grievance. After several days and after Quichocho followed up several times, Perez stated

that he did not know what happened to Quichocho's First Grievance and stated that they did not

receive the First Grievance nor was it logged. Despite Quichocho showing Perez the First

Grievance, Perez offered Quichocho no solution. Quichocho never received any further response.

22. On or about October 29, 2019, Quichocho had an eye exam. According to

Quichocho, Dr. Marjorie DeBenedictis 6 performed the exam and recommended a cataract

operation in both eyes.

23. On December 9, 2019, Quichocho brought to Officer Naputi's attention that

Quichocho· was experiencing abnormalities in both of his feet. Officer Naputi submitted an

Informational Report regarding his observations of Quichocho's feet, including discoloration and

swelling. Quichocho also reported pain in his feet and hands.

24. On December 19, 2019, Quichocho submitted a Remedy Request to DOC

Psychologist Defendant Patricia Taimanglo, requesting an appointment for consultation.

Quichocho did not receive a response.

6 In his First Amended Complaint, Quichocho refers to the doctor as "Dr. DeBenedictis" and "Dr. DeBenedictus."

9 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

25. On January l 0, 2020, Quichocho submitted a second Remedy Request expressing

concerns about his mental health. Quichocho again did not receive a response, nor was he seen by

a psychologist.

26. On January 14, 2020, Quichocho submitted a Remedy Request, requesting a

follow-up appointment with Dr. DeBenedictis regarding his need for cataract surgery.

27. On December 11, 2020, Quichocho was called for sick-call by Dr. Anderson, but

Quichocho refused to see Dr. Anderson because Quichocho believed there was a conflict of interest

in seeing Dr. Anderson due to pending legal issues and also because Quichocho alleged that Dr.

Anderson committed a Health Insurance Portability and Accountability Act ("HIP AA") violation

regarding another inmate. 7

28. On December 16, 2020, Quichocho had a second eye doctor appointment with Dr.

DeBenedictis and was informed a second time that he needs cataract surgery.

29. On January 19, 2021, Quichocho submitted a Remedy Request for another follow-

up regarding his cataract surgery. To date, Quichocho received no response to the Remedy Request

and Quichocho has not undergone cataract surgery.

30. On or about July 7, 2021, Quichocho was informed that he was to visit Dr.

Anderson for medical treatment. Quichocho refused to go, and insisted that he would see another

doctor, but not Dr. Anderson.

7 Quichocho alleges that Dr. Anderson named another inmate and discussed the other inmate's medical condition with Quichocho, and that this is a HIPAA violation. However, Quichocho does not raise the HIP AA violation as a cause of action, but instead as his justification for refusing to visit Dr. Anderson. Therefore, the Court need not address the allegation that Dr. Anderson committed a HIP AA violation in order to analyze Brennan's Motion to Dismiss.

10 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

DISCUSSION

1. Ouichocho Seeks Relief Under 42 USC§ 1983

In his First Amended Complaint, Quichocho states that he is "seeking declaratory

judgment, damages, and injuncti[ve] relief under 42 USC§ 1983, alleging violations of the First

Amendment right to petition the government for redress of grievances; Eighth Amendment

protection right from cruel and unusual punishment inflicted, deliberate indifference to medical

care; and Due Process and Equal Protection rights of the Fourteenth Amendment to the United

States Constitution; law, and statutory rights." FAC at 2. However, in Quichocho's section titled

"Claims for Relief," he only names two causes of action: (A) Deliberate Indifference to Serious

Medical Needs; and (B) Due Process and Equal Protection Rights Violated. Id. at 18, 27.

42 USC § 1983 ("Section 1983") provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

"Section 1983 allows an individual to sue a 'person' in their personal capacities if the

'person' violates an individual's constitutional rights while under color of law." Law Office of

Phillips & Borda/lo, P.C. v. Birn, No. 20-00018, 2021 WL 2229037 (D. Guam App. Div. June 2,

2021).

Regarding suing a party in their official capacity, the Supreme Court of the United States

has stated that "[n]either the Territory of Guam nor its officers acting in their official capacities

are 'persons' under§ 1983." Ngiraingas v. Sanchez, 495 U.S. 182, 192 (1990). However, in Guam

Soc. of Obstetricians and Gynecologists v. Ada, 962 F.2d 1366, 1370 (9th Cir. 1992), the Ninth

11 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

Circuit explicitly enumerated an exception to that rule, stating a Guam official is a "person" when

sued in his or her official capacity for prospective relief.

2. Brennan Moves the Court to Dismiss Ouichocho's First Amended Complaint

Generally, motionsto dismiss are "viewed with disfavor and [are] rarely granted." Gilligan

v. Jamco Dev. Corp., 108 F.3d 246,249 (9th Cir. 1997). "Dismissal is only proper if it is clear ..

. that the complaint could not be saved by any amendment." Taitano v. Calvo Finance Corp., 2008

Guam 12 ,r 9.

Additionally, pro se litigants are afforded "considerable leeway." San Union, Inc. v.

Arnold, 2017 Guam 10 ,r 34. Thus, "deference should be given toward a pro se party's litigation

efforts." McGhee v. McGhee, 2008 Guam 17 ,r 11. The Court shall "provide lenient treatment of

those efforts and give the parties every fair opportunity to present their cases." Linsangan v.

Government of Guam, 2020 Guam 27 ,r 34. However, "the leniency accorded to pro se litigants

generally applies to the liberal construction of their pleadings and is not without limits" and

"cannot extend to depriving their opponent of due process." James D.J. Ji v. Toves, 2020 Guam 2

,r 13. At times, Brennan appears to advocate that the Court should dismiss Quichocho's First

Amended Complaint in its entirety, while other times Brennan argues only to dismiss it against

Brennan. See MTD at 1 (Brennan stating that she "moves to dismiss this case with prejudice"); see

also Min. Entry, 10:26 AM (Feb. 27, 2024) (Attorney Botha stating, "as this motion is only to

Defendant Brennan ... we ask to dismiss her in official and personal capacities."). Thus, the Court

will first analyze whether to dismiss Quichocho's First Amended Complaint in its entirety, and

then whether to dismiss it as against Brennan.

12 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director ofthe Department of Corrections, in his Official Capacity, et al.

3. The Court Declines to Dismiss Ouichocho's First Amended Complaint in Its Entirety

a. The Court Declines to Dismiss Ouichocho's First Amended Complaint for Lack of Subiect Matter Jurisdiction

Guam Rules of Civil Procedure ("GRCP") Rule 12(b)(l) provides for dismissal when the

Court does not have jurisdiction over the subject matter of a claim. Subject matter jurisdiction "can

be raised at any time, either by a party or by the court." Sumitomo Constr., Co. v. Gov't of Guam,

2001 Guam 23 ,r 22. Brennan argues the Court lacks subject matter jurisdiction in this case

because: (1) Quichocho lacks standing, (2) Quichocho has failed to exhaust his administrative

remedies, and (3) the cause is barred by the statute of limitations.

i. Quichocho Has Standing

Brennan argues that Quichocho lacks standing to bring suit because he "has not suffered

an invasion of a 'legally protected interest' because Ms. Brennan has not denied him medical care

or provided inadequate medical care." MTD at 8.

"If a party does not have standing to bring a claim, a court has no subject matter jurisdiction

to hear the claim." Taitano v. Lujan, 2005 Guam 26 ,r 15. To satisfy the "irreducible constitutional

minimum of standing," a plaintiff must: (I) have suffered an injury in fact, (2) demonstrate a causal

connection between the injury and the complained-of conduct, and (3) show that a favorable

decision by the court will likely redress the injury. Benavente v. Taitano, 2006 Guam 15 ,r 15.

Quichocho has stated that he has suffered an injury in that his medical conditions-diabetes

and deteriorating eye health-have progressed significantly. FAC at 19. Quichocho has alleged

that the cause of that injury is a lack of medical attention, for which the defendants are responsible,

and which amounts to a violation of his constitutional rights. Id. Finally, Quichocho's relief

requested, which he seeks in the form of money damages and in the form of injunctive relief to

13 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

obtain medical care, would redress the injury. Therefore, Quichocho has standing to bring this suit.

ii. Brennan Failed to Demonstrate that Quichocho Has Not Exhausted His Administrative Remedies

Brennan argues that Quichocho has failed to exhaust his administrative remedies and

therefore the Court lacks subject matter jurisdiction. MTD at 9. Quichocho argues that he has

exhausted his administrative remedies. FAC at 18.

"Generally, when a statute requires exhaustion of administrative remedies, a party's failure

to exhaust deprives the court of subject matter jurisdiction." Barrett-Anderson v. Camacho, 2015

Guam 20 ,i 32. ''No action shall be brought with respect to prison conditions under section 1983

of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

"Section 1997e(a) requires 'proper exhaustion'; that is, the inmate must file a timely grievance

utilizing the procedures and rules of the state's prison grievance process." Maddox v. Love, 655

F.3d 709, 720 (7th Cir. 2011). Failure to exhaust administrative remedies is an affirmative defense

with the burden of proof on the defendants. Jones v. Bock, 549 U.S. 199,216 (2007).

Quichocho attaches as Exhibit N to his First Amended Complaint an "Inmate Request

Form" which is meant "[t]o establish inmate procedures on the proper use of the Inmate Request

form." FAC at Ex. N. Brennan references Exhibit N, stating that the form explains "the DOC

procedure is to submit materials through the chain of command; it is only if the inmate is

dissatisfied with the initial response given to him that he is then able to forward a copy of the

responded grievance up the chain of command." MTD at 8.

Upon review of the Inmate Request Form, the Court notes the section entitled "Process"

states that first an inmate completes the form and then submits it to his "assigned Unit Senior

14 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbu/lido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

Officer of the inmate's housing unit. The assigned Unit Senior Officer is to review the request and

ensure it is addressed to the proper division or staff member." FAC at Ex. N. Then, the responding

staff member shall immediately complete "PART C" of the form, and forward "INMATE'S

RECEIPT" to the inmate. Id. A response should be made within ten days, excluding weekends and

holidays. Id. The responding staff member is to ensure the requesting inmate receives the response.

Id.

Quichocho alleges that he submitted two Grievances as well as numerous Remedy

Requests on at least five different dates to various individuals, including Cruz, Dr. Anderson,

Brennan, Major Aguon, and Warden Col. A.P . Borja. Id. at 8-12. First, the Court notes that at least

some of Quichocho's Remedy Requests and Grievances were responded to on their merits, and

therefore Brennan cannot claim procedural deficiencies on those Grievances or Remedy Request.

Maddox, 655 F.3d at 721 ("Where prison officials address an inmate's grievance on the merits

without rejecting it on procedural grounds, the grievance has served its function of alerting the

state and inviting corrective action, and defendants cannot rely on the failure to exhaust defense.").

Further, Brennan has not expressed to the Court to whom Quichocho was required to

submit his Remedy Request or otherwise specifically how Quichocho failed to follow procedure.

Brennan also did not outline Quichocho's required actions if prison officials do not respond to his

Grievances. Additionally, at the Motion hearing, Attorney Botha conceded that Quichocho did

exhaust his administrative remedies on certain issues, including those raised in his First and Second

Grievances. Min. Entry, 11 :05 (Feb. 27, 2024).

However, Attorney Botha argued that Quichocho did not exhaust his administrative

remedies on issues regarding any medical issues with Quichocho's eyes. Id. Attorney Botha did

not elaborate why Quichocho's January 14, 2020 and January 19, 2021 Remedy Requests

15 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director ofthe Department of Corrections, in his Official Capacity, et al.

requesting further examination regarding his cataract surgery did not exhaust his administrative

remedies. Further, the Court notes that the Informational Report filed by Attorney Botha regarding

Quichocho's eye health stated that Quichocho's cataract surgery was denied. 8 Brennan has not

commented on how that impacts Quichocho's exhaustion of administrative remedies, and further

it is not clear to the Court whether the denial of his cataract surgery was conveyed to Quichocho.

Finally, Brennan has failed to make clear to the Court the procedure which Quichocho had to

follow to exhaust his administrative remedies on those claims. Therefore, Brennan fails to meet

her burden to show that Quichocho has not exhausted his administrative remedies.

iii. The Matter Is Not Barred by the Statute of Limitations

In her Motion to Dismiss, Brennan argues that the one-year statute of limitations outlined

in 7 GCA § 11308 is applicable. MTD at 9-10. However, in his Supplemental Opposition,

Quichocho argues that 7 GCA § 11308, which governs medical malpractice claims, is not

applicable, and instead the two-year statute oflimitations in 7 GCA § 11306 applies. Suppl. Opp'n

at 5-6. At the Motion hearing, Attorney Botha conceded that 7 GCA § 11308 only applies if

Quichocho is alleging medical malpractice on the part of Dr. Anderson or anyone else, but that

otherwise 7 GCA § 11306 applies. Min. Entry, 11:12 AM (Feb. 27, 2024). Attorney Highsmith

confirmed that Quichocho does not mention medical malpractice, but instead is making a Section

1983 claim. Id. at 11: 14 AM. Both parties agree that the alleged wrongdoing in this matter occurred

within two years prior to Quichocho bringing suit.

"[A]ll [Section] 1983 suits must be brought within a State's statute of limitations for

8 The Court will not disclose any information regarding Attorney Botha's Informational Report that is not pertinent to deciding the instant Motion to Dismiss due to the sensitive nature of the document and the fact that it was filed under seal.

16 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

personal-injury actions." Nance v. Ward, 597 U.S . 159, 174 (2022). 7 GCA § 11306 provides that

actions must be brought within two years " ... for injury to, or for the death of, a person caused by

the wrongful act or neglect of another .... "

Because Quichocho's claims fall under Section 1983, the Court shall apply the two-year

statute of limitations dictated by 7 GCA § 11306. The first event that Quichocho complains of is

his August 13, 2019 physical with Dr. Anderson, and Quichocho filed his Civil Complaint on May

25, 2021. 9 Because all allegations of wrongdoing in this matter took place within two years prior

to Quichocho filing suit, the matter is not barred by the statute oflimitations.

b. Brennan Argues that Ouichocho Failed to State a Claim

Brennan argues that Quichocho's First Amended Complaint must be dismissed for failure

to state a claim under Section 1983. MTD at 11-14.

GRCP Rule 12(b)(6) provides grounds for dismissal for failure to state a claim upon which

relief can be granted. The Supreme Court of Guam has articulated the standard for analyzing a

Motion to Dismiss under GRCP Rule 12(b)(6) as follows:

Dismissal under Rule 12(b)(6) is not proper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. When reviewing a claim under this standard, we must, of course, take as true the material facts alleged in the counterclaim, construe the pleading in the light most favorable to the non-moving party, and resolve all doubts in the non-moving party' s favor. The court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.

First Hawaiian Bank v. Manley, 2007 Guam 2 ,i 9 (internal citations omitted).

9 The Court is not making a finding that August 13, 2019 is the date which triggers the beginning of the two-year statute oflimitations pursuant to 7 GCA § 11306. Instead, the Court notes that all conduct alleged in this matter falls within two years prior to Quichocho filing suit, and thus there is no statute of limitations bar.

17 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al. ·

GRCP Rule 8(a) requires that.a pleading which sets forth a claim for relief shall contain "a

short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme

Court of Guam has explicitly declined to adopt the heightened pleading standard-the plausibility

standard-set forth in U.S. Supreme Court cases. Ukau v. Fusheng Wang, 2016 Guam 18 ,r 27

("[W]e now decline to adopt the plausibility standard from Twombly and Iqbal, choosing instead

to rely on our traditional interpretation of GRCP 8(a)."). In other words, "Guam law requires only

notice pleading, not fact pleading." Id. (quoting Joseph v. Guam Bd. Of Allied Health Exam 'rs,

2015 Guam 4 ,r 9).

i. Ouichocho Has Stated a Deliberate Indifference to Serious Medical Needs Claim under Section 1983

The Eighth Amendment of the U.S. Constitution, which protects against unnecessary and

wanton infliction of pain, obliges the government to provide medical care for prisoners. Egberto

v. Nevada Dep 't of Corrections, 678 F.App'x 500 (9th Cir. 2017). "An inmate's complaint of

inadequate medical care amounts to a constitutional violation if the inmate alleges 'acts or

omissions sufficiently harmful to evidence [of] deliberate indifference to serious medical needs."'

Jessy v. Palacios, No. 10-00020, 2010 WL 3702452 (D. Guam App. Div. Sept. 14, 2010) (quoting

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

The Ninth Circuit has employed a two-part test for deliberate indifference: "[f]irst, the

plaintiff 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." Egberto, 678 F.App'x at 502-03.

Regarding the first part of the test, the Ninth Circuit identified three situations in which a

18 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

medical need is considered serious: "(1) the existence of an injury that a reasonable doctor or

patient would find important and worthy of comment or treatment; (2) the presence of a medical

condition that significantly affects an individual's daily activities; or (3) the existence of chronic

and substantial pain." Id. at 503 (internal citations omitted). Regarding the second element of the

two-part test, a prison official is deliberately indifferent if the official "knows of and disregards an

excessive risk to inmate health and safety." Id. (citing Colwell v. Bannister, 763 F.3d 1060, 1066

(9th Cir. 2014)). "This requires more than ordinary lack of due care." Id.

Quichocho has clearly alleged that he has a serious medical condition. Quichocho states

that he has been diagnosed with diabetes which has progressed so severely that it has caused

discoloration in his toes and fingers, numbness, stiffness, constant sharp pains, and pain to his

kidney. FAC at 16-17. Quichocho has also alleged that a medical doctor has recommended that

he have a cataract operation in both eyes because his eyes became progressively opaque and

because he suffered from blurred vision. Id. at 15.

Further, Quichocho provides a detailed account spanning nearly two years of advising

prison officials of his condition and filing numerous Remedy Requests and Grievances, some of

which he alleges have gone entirely unanswered. Id. at 3-18. Moreover, Quichocho alleges that

he needs cataract surgery, but has been unable to schedule it. Id. at 15. Quichocho also alleges that

he has sought psychiatric care, which he has not received. Id. at 17.

Based on Quichocho's allegations, it is possible that Quichocho can prove facts to indicate

that certain prison officials had subjective knowledge of the risk of serious harm to Quichocho and

disregarded that risk by deliberately ignoring his medical needs. Therefore, temporarily accepting

Quichocho's allegations as true, Quichocho has stated a claim regarding Deliberate Indifference

to Serious Medical Needs.

19 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

ii. Ouichocho Has Failed to State a Claim That His Equal Protection Rights Were Violated under Section 1983

Quichocho alleges that he "has been treated differently from others of general population

similarly situated in regards to self-medication system (issue of meds), intentionally and without

rational basis states an equal protection claim as a 'Class of One."' FAC at 29. The Court cannot

discern any other argument from Quichocho's First Amended Complaint that would indicate that

his Equal Protection rights have been violated.

The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall

deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend.

XIV. A class of one equal protection claim is cognizable where a plaintiff alleges that he has been

"intentionally treated differently from others similarly situated and that there is no rational basis

for the difference in treatment." Vil/. of Willowbrook v. O/ech, 528 U.S. 562, 564 (2000) (per

curiam). In Gov 't ofGuam v. 162. 40 Square Meters ofLand More or Less, Situated in Municipality

of Agana, 2011 Guam 17 ,r 32, the Supreme Court of Guam acknowledged that courts have

suggested differing "class of one" standards. Some courts have held that the plaintiff need only

demonstrate that he was singled out for treatment different than other prisoners for no legitimate

governmental reason. Id. (citing Jackson v. Burke, 256 F.3d 93, 97 (2d Cir. 2001)). Other courts

have required the plaintiff present evidence "not merely of arbitrariness but of malice or ill-will

against the plaintiff." Id. (citing Lindquist v. City ofPasadena, 656 F.Supp.2d 662,680 (S.D. Tex.

2009)). However, the Supreme Court of Guam found that the facts in 162.40 Square Meters did

not compel it to adopt which "class of one" test to apply, and therefore declined to do so. Id.

Even if the Court applies the more lenient standard that Quichocho only needed to

demonstrate that he was treated differently for no legitimate governmental reason, Quichocho has

20 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

failed to state a claim that his Equal Protection rights were violated. By Quichocho's own

admission, Quichocho ceased taking his prescribed medication without consulting a doctor. FAC

at 4. Major Aguon clearly dictated a legitimate reason for requiring Quichocho to receive his

medication from the infirmary line when he stated "[Quichocho was] non-compliant with self-

medication system ... in order to receive [his] medication, [he is] required to report to the

medication (pill) line until [he] can demonstrate compliance with the self-medication system." Id.

at Ex. B. See U.S. v. Moore, 543 F.3d 891, 900 (7th Cir. 2008) ("class-of-one equal protection

theory is a 'poor fit' where the challenged governmental action is the product of a broadly

discretionary decision-making process ... class-of-one theory is better suited to those contexts

involving 'a clear standard against which departures, even for a single [individual], could be

readily assessed.'").

Nevertheless, as stated previously, motions to dismiss are highly disfavored and the Court

shall only dismiss Quichocho's First Amended Complaint if it cannot be saved by an amendment.

Gilligan, 108 F.3d at 249; Calvo Finance Corp., 2008 Guam 12 ,r 9. Leave to amend shall be

"freely given when justice so requires." GRCP Rule 15(a). The Court must review whether certain

factors are present which may mitigate against granting leave to amend, including "undue delay,

bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). An

amendment may not be granted if "no set of facts can be proved under the amendment that would

constitute a valid claim or defense .... Denials based solely on futility 'are rare."' Hill v. Booz

Allen Hamilton, Inc., No. 07-00034, 2009 WL 10680868, at *7 (D. Guam App. Div. Jan. 16, 2009).

21 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

In this matter, Quichocho amended his Civil Complaint once, but without the benefit of an

attorney. The Court does not find, nor does Brennan allege, that Quichocho's failure to state a

claim regarding his Equal Protection Clause rights were a result of bad faith or dilatory motive.

Further, as explained below, the Court will allow Quichocho to file a Second Amended Complaint

which is consistent with this Decision and Order, so whether Quichocho includes an amended

version of his Equal Protection claims in his Second Amended Complaint will not cause any

additional delay which could prejudice defendants.

Finally, it is not clear to the Court whether an amendment regarding that claim would be

futile because it is not clear whether Quichocho's only allegation regarding his Fourteenth

Amendment rights is based on Major Aguon's requirement that Quichocho receive his medication

from the infirmary rather than via self-medication. Thus, the Court will offer Quichocho an

opportunity to allege facts to support that his Equal Protection rights have been violated. See

Simpson v. AOL Time Warner, Inc., 452 F.3d 1040, 1054 (9th Cir. 2006) (holding "[f]utility of

amendment may be shown by Plaintiffs failure to plead additional facts when given the

opportunity," and concluding that "Plaintiff should have the opportunity to seek leave to file an

amended complaint."). Thus, ifhe chooses to do so, the Court grants Quichocho leave to include

an amended claim of a violation of his Equal Protection rights in his Second Amended Complaint.

iii. Ouichocho Has Failed to State a Due Process Clause Claim

Quichocho alleges that Major Aguon failed to provide Quichocho with due process by

knowingly and intentionally violating DOC policies and ordering Quichocho to take his prescribed

medications at the infirmary pill line rather than through the medical self-administration system.

FAC at 28.

22 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

The Due Process Clause of the Fourteenth Amendment provides that no State shall

"deprive any person of life, liberty, or property, without due process oflaw." U.S. Const. amend.

XIV. "To assess whether an individual was denied procedural due process, courts must engage in

a two-step inquiry: (1) did the individual possess a protected interest such that the due process

protections were applicable; and if so, then (2) was the individual afforded an appropriate level of

process." Heard v. Chavez, 699 F.App'x 788, 791 (10th Cir. 2017).

Quichocho has not alleged, and it is not clear to the Court, which protected interest he

possesses that triggers due process protections. Therefore, the Court finds that Quichocho has not

stated a Due Process Clause claim. Nevertheless, for the same reasons as stated above, the Court

will permit Quichocho to amend his Due Process Clause claim if he so chooses.

iv. Ouichocho Has Failed to State a First Amendment Claim

In the first sentence of his First Amended Complaint, Quichocho states that he is "alleging

violations of the First Amendment right to petition the government for redress of grievances." FAC

at 2.

"It is well-established that, among the rights they retain, prisoners have a First Amendment

right to file prison grievances." Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). "Retaliation

against prisoners for their exercise of this right is itself a constitutional violation, and prohibited

as a matter of 'clearly established law."' Id. (citing Rhodes v. Robinson, 408 F.3d 559, 566 (9th

Cir. 2005)). The Ninth Circuit set forth five elements to state a First Amendment retaliation claim

from a prisoner:

(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.

23 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

Id. "[A] plaintiff who fails to allege a chilling effect may still state a claim ifhe alleges he suffered

some other harm." Id.

Although Quichocho states that he has a First Amendment claim, in his "Claims for Relief'

section of his First Amended Complaint, Quichocho names only: (A) Deliberate Indifference to

Serious Medical Needs; and (B) Due Process and Equal Protection Rights Violated. Id. at 18, 27.

Quichocho does not reference his First Amendment rights or how such rights were violated.

Under his section alleging Deliberate Indifference to Serious Medical Needs, Quichocho

claims that defendants Dr. Anderson, Cruz, Major Aguon, and Brennan, after "being informed that

plaintiff is to pursue legal rights, retaliated, failing to provide medical care to plaintiff by

withholding, delaying and denying plaintiff of medical care." FAC at 21. However, the Court

declines to speculate whether that is Quichocho's statement of the facts showing that he is entitled

to relief under the First Amendment. Even if that were Quichocho's statement of the claim, it

would be insufficient because he fails to allege that a state actor took adverse action against him

for filing a prison grievance.

Therefore, the Court finds that Quichocho has not sufficiently complied with GRCP 8(a)

to state a First Amendment claim. Nevertheless, for the same reasons that it will allow Quichocho

to amend his Fourteenth Amendment claim, the Court will allow Quichocho to amend his First

Amendment claim in his Second Amended Complaint ifhe so chooses.

4. The Court Dismisses Ouichocho's First Amended Complaint Against Brennan

a. The Court Dismisses Ouichocho's First Amended Complaint Against Brennan in Her Official Capacity

In his First Amended Complaint, Quichocho names Brennan in her official and personal

capacities. At the Motion hearing, Attorney Botha argued that the relief that Quichocho seeks from

24 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

Brennan in her official capacity is unattainable because Brennan is no longer in that official

capacity. Min. Entry, 10:50 AM (Feb. 27, 2024). Attorney Highsmith agreed with Attorney Botha

regarding this argument, and stated, "as far as her official capacity, I think that has to go because

she's not in an official capacity anymore." Id. at 10:48 AM, 10:51 AM.

"When a public officer is a party to an action in an official capacity and during its pendency

dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's

successor is automatically substituted as a party." GRCP 25(d)(l). Based on GRCP 25(d)(l)'s

statement that an officer who resigns is substituted by their successor and based on Attorney

Highsmith's concession that withdrawal of the First Amended Complaint against Brennan in her

official capacity is appropriate, the Court shall dismiss the First Amended Complaint against

Brennan in her official capacity.

b. The Court Dismisses Ouichocho's First Amended Complaint Against Brennan in Her Personal Capacity

i. The Court May Dismiss a Matter Against a Government Officer with Qualified Immunity

"Qualified immunity balances two important interests-the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably." Pangelinan v.

Dep 't ofCorrections, No. 23-00016, 2023 WL 5276324, at *8 (D. Guam App. Div. Aug. 16, 2023).

''The doctrine of qualified immunity protects government officials 'from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known."' Adkins v. Guam Police Dep't, No. 09-00029,

2010 WL 3385176, at *8 (D. Guam App. Div. Aug. 24, 2010). "The qualified immunity defense

25 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

'provides ample protection to all but the plainly incompetent or those who knowingly violate the

law."' Id. (citing Malley v. Briggs, 475 U.S. 335,341 (1986)).

In Saucier v. Katz, 533 U.S. 194 (2001), the U.S. Supreme Court provided a two-step

analysis to determine whether a governmental officer is immune from suit based on the doctrine

of qualified immunity. The District Court of Guam described the two-step analysis as:

The first step is to ask whether [t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? If the answer is no, the analysis ends, with qualified immunity protecting the defendant from liability. However, if the court finds that a constitutional right was violated, then the court must further inquire whether the right was clearly established.

Adkins, 2010 WL 3385176, at *9 (internal citations omitted).

Since Saucier, the Supreme Court of the United States has withdrawn its mandate that a

qualified immunity analysis must proceed under the sequence stated above and held that either

question may be addressed first in the inquiry. Id. (citing Pearson v. Callahan, 129 S. Ct. 808

(2009)).

ii. Brennan Has Qualified Immunity Regarding Ouichocho's Deliberate Indifference to Serious Medical Needs Claim

As explained above, Quichocho has failed to state a claim that any Defendant in this matter

has violated his First or Fourteenth Amendment rights. However, Quichocho stated a claim that

his Eighth Amendment right to medical treatment has been violated.

As stated, a public official may violate a prisoner's right to medical care if the plaintiff

shows (1) that he has a serious medical condition which, without treatment, could result in

significant injury; and (2) that the defendant knows of and disregards an excessive risk to inmate

health and safety, which requires more than ordinary lack of due care. Egberto, 678 F.App'x at

26 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

502-03.

The conduct that Quichocho alleges regarding Brennan is summed up as follows: ( 1)

Brennan never responded to Quichocho's August 20, 2019 Remedy Request, in which he

requested, for legal purposes, records of his sick-call and physical from August 13, 2019; (2)

Brennan ordered Major Aguon to respond to Quichocho's August 20, 2019 Remedy Request,

which was allegedly improper because a conflict of interest existed; (3) Brennan agreed with Major

Aguon's August 22, 2019 Response to Quichocho's August 20, 2019 Remedy Request, requiring

Quichocho to receive his medication at the infirmary pill line until he demonstrates compliance

with the self-administration medication system; and (4) Brennan did not respond to Quichocho's

First Grievance. Accepting all of these facts as true, and weighing them in favor of Quichocho,

none of these allegations amounts to deliberate indifference of a serious medical need.

First, in Quichocho's words, his August 20, 2019 Remedy Request to Brennan was to

obtain his medical records/or legal purposes. Failing to respond to that Remedy Request is not a

deprivation of medical care because the request was not for medical care. Second, ordering Major

Aguon to respond to Quichocho's Remedy Request also did not strip Quichocho of medical care.

Further, it is not clear to the Court what conflict of interest Quichocho alleges prevented Major

Aguon from answering, and more importantly, the prison's policy on when a conflict of interest

prevents an officer from responding to a Remedy Request.

Third, Brennan agreeing that Quichocho had to receive his medication at the infirmary pill

line rather than using the self-administration medication system again does not amount to an

indifference toward medical needs because Quichocho was being offered his medication, even if

he was not satisfied with the method of acquiring it. Finally, Brennan's lack of response to the

First Grievance is, again, not a denial of medical care because his First Grievance was not a request

27 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

for medical care but instead was about his dissatisfaction with the way Dr. Anderson had treated

Quichocho. Notwithstanding the above, Quichocho seems to admit that Brennan may have never

received his First Grievance because Quichocho stated that Perez did not know what happened to

the First Grievance. FAC at 13.

Although Quichocho may be dissatisfied with the medical care he has received, Brennan

did not deprive him of medical care. Based on Quichocho's allegations, during Brennan's tenure,

Quichocho was offered and denied sick-call several times to see Dr. Anderson. Quichocho was

also offered medication through the infirmary pill line but declined. Even when viewing the facts

in the light most favorable to Quichocho, Brennan did not violate Quichocho's constitutional

rights, and therefore Brennan is protected by qualified immunity. The Court need not further

inquire whether the right was clearly established. Adkins, 2010 WL 3385176, at *9.

5. Ouichocho Must Properly Serve His Second Amended Complaint

Brennan argues that Quichocho's Amended Complaint should be dismissed as against

Brennan pursuant to GRCP Rule 12(b)(5), which allows the Court to dismiss a complaint for

ineffective service of process, because Quichocho failed to properly serve Brennan pursuant to

GRCP Rule 4(i). MTD at 5.

The Court need not analyze Brennan's argument to dismiss Quichocho's First Amended

Complaint for ineffective service of process because it is dismissed against Brennan for the

° aforementioned reasons. 1 Further, if Quichocho files a Second Amended Complaint, he must

serve the Second Amended Complaint and Summons to any person which he names as a defendant

in his Second Amended Complaint in accordance with the GRCP and any other applicable Guam

10 The Court has not made a finding regarding whether Quichocho 's First Amended Complaint was properly served on Brennan or any other defendant.

28 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

rules or law. Therefore, at this time, the Court will not address whether service of his First

Amended Complaint to any other defendant was proper.

6. The Court Extends Appointment of Counsel for Limited Purposes

As explained in the Court's July 3, 2023 Order Appointing Counsel, the Court has

discretion to appoint counsel for indigent plaintiffs in Section 1983 actions and should ask

"whether the difficulty of the case-factually and legally-exceeds the particular plaintiffs

capacity as a layperson to coherently present it to the judge or jury itself." Order Appointing

Counsel at 6. The Court further stated that "when the plaintiff alleges issues pertaining to his eye

health, the court can review whether it is practical for the inmate to proceed prose, considering

the severity of the eye [condition] and the prejudice the plaintiff will face because of the lack of

counsel." Id. at 7 (citing Dewitt v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014)). Therefore, as

a result of Quichocho's representation regarding his inability to see clearly and his deteriorating

eye health, the Court appointed legal counsel for the limited purpose of addressing Quichocho's

medical care and assisting with Brennan's Motion to Dismiss. Id. at 7-9.

At the Motion hearing, Quichocho and Attorney Highsmith confirmed that Quichocho "has

needed cataract surgery for two years and has not gotten it." Min. Entry, 11 :24 AM (Feb. 27, 2024).

Further, as noted, Attorney Botha's Informational Report indicates that Quichocho's cataract

surgery has been denied, although it is not clear to the Court whether that information was

communicated to Quichocho or Attorney Highsmith prior to Attorney Botha filing the

Informational Report. Additionally, Attorney Highsmith has not filed an Informational Report

regarding Quichocho's health.

Based on the information that has been provided to the Court, issues concerning

Quichocho's current health status, including his representation regarding his inability to see clearly

29 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director of the Department of Corrections, in his Official Capacity, et al.

which affects his ability to represent himself, remam unresolved. Further, PDSC has not

demonstrated that they have fulfilled the limited purpose of their representation to address

Quichocho's medical care. Therefore, it remains necessary that PDSC continue to assist

Quichocho to address his medical needs, and further that it remains impractical for Quichocho to

proceed pro se due to his reported deteriorating eye health. Thus, the Court finds that it is within

its discretion to extend the appointment of legal counsel for Quichocho in this matter. The Court

extends the limited scope of counsel, and PDSC shall continue to represent Quichocho until further

notice of the Court.

CONCLUSION

For the foregoing reasons, the Court hereby ORDERS the following:

1. Quichocho states an Eighth Amendment Deliberate Indifference to Serious Medical

Needs claim;

2. Quichocho fails to state a claim regarding his First and Fourteenth Amendment

rights; however, Quichocho may amend his First and Fourteenth Amendment claims in a Second

Amended Complaint, which must be filed within thirty (30) days of the issuance of this Decision

and Order;

3. Quichocho's First Amended Complaint as against Brennan in her official capacity

is DISMISSED with prejudice;

4. Quichocho's First Amended Complaint as against Brennan in her personal capacity

regarding the Eighth Amendment Deliberate Indifference to Serious Medical Needs claim is

DISMISSED with prejudice; 11

11 Because the Court is granting Quichocho leave to amend his First and Fourteenth Amendment claims in

30 Decision and Order Re Defendant Brennan's Motion to Dismiss CV0429-21; Richard R. Quichocho v. Joseph S. Carbullido, Acting Director ofthe Department of Corrections, in his Official Capacity, et al.

5. Any Second Amended Complaint filed must be consistent with this Decision and

Order;

6. If Quichocho files a Second Amended Complaint, he must issue a Summons to any

defendant named in his Second Amended Complaint; and Quichocho must ensure that each

defendant named in his Second Amended Complaint is properly served in accordance with Guam

rules and/or law, as applicable;

7. The failure to file a Second Amended Complaint within thirty (30) days of the

issuance of this Decision and Order may result in the dismissal of Quichocho's First and

Fourteenth Amended claims with prejudice; and

8. PDSC shall continue to represent Quichocho until further notice of the Court.

JUN O3 202~ SO ORDERED: - - - ------

RREZ

his Second Amended Complaint, Quichocho is not barred from including Brennan as a defendant regarding those claims.