NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
NO. 26536
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
EUGENE
JAMES HUTCH, Plaintiff-Appellant, v. DOCTOR S.
PADERES; CLAYTON FRANK,
Warden, Halawa Correctional
Facility, Department of Public Safety, State of
Hawai`i; DOCTOR CHUNG; IWALANI WHITE, Director,
Department of Public Safety, State
of Hawaii; RUSS K.
SAITO, Comptroller, Department of Accounting and
General
Services, State of Hawaii; LINDA LINGLE,
Governor, State of Hawai`i; PATRICIA M.
GUARNACCIA,
Defendants-Appellees (1)
Plaintiff-Appellant Eugene James Hutch (Hutch) appeals from the April 16, 2004 final judgment by the Circuit Court of the First Circuit (circuit court) (2) in favor of Defendant-Appellees (collectively Defendant-Appellees) Dr. Sisar Paderes, Dr. Soon Hyung Chung (Dr. Chung), Nolan Espinda (currently Clayton Frank), Ted Sakai (currently Iwalani White), Raymond H. Sato (currently Russ K. Saito) (Sato), Governor Benjamin J. Cayetano (currently Governor Linda Lingle), and Patricia Guarnaccia (Guarnaccia). After a careful review of the issues raised, arguments advanced, law relied upon, and the record in the instant case, we conclude that the circuit court did not err, and affirm.
1. The circuit court properly dismissed Hutch's medical claims for lack of jurisdiction. Hawaii Revised Statutes (HRS) § 671-12(a) requires that medical tort claims be submitted to the Medical Claim Conciliation Panel "before a suit based on the claim may be commenced in any court of this State." The medical claims procedures outlined in HRS § 671-12(a) are "jurisdictional prerequisites to suit[.]" Garcia v. Kaiser Foundation Hospitals, 90 Hawai`i 425, 439, 978 P.2d 863, 877 (1999) (quoting Tobosa v. Owens, 96 Haw. 305, 314-15, 741 P.2d 1280, 1286-87 (1987)). Hutch's non-compliance with HRS § 671-12(a) divested the circuit court of subject matter jurisdiction. Id. at 440-41, 978 P.2d at 878-879.
The circuit court also properly dismissed Hutch's claims against Dr. Chung, Sato and Guarnaccia who were not served properly pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 4. The circuit court lacks "jurisdiction over the person of the [defendants]" when such a defendant "was never served, in any manner, with proper process, specifically a summons, as required by HRCP 4." In re Lease Cancellation of Smith, 68 Haw. 466, 471, 719 P.2d 397, 401 (1986).
2. Hutch failed to demonstrate facts establishing that genuine issues of material fact existed at the time the circuit court granted Defendant-Appellees' motion for summary judgment. Although under Bounds v. Smith, 430 U.S. 817, 821 (1977), "prisoners have a constitutional right of access to the courts" under the Fourteenth Amendment, prisoners asserting this right must "demonstrate that the alleged shortcomings in the [prison] library or legal assistance program hindered his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 351 (1996). Hutch has failed to set forth specific facts to support his claim that repealed Hawai`i Administrative Rule § 17-202-1(b) hindered his efforts to pursue his medical tort claim. Thus, Hutch did not meet his burden under Lewis and HRCP Rule 56(e).
3. The circuit court did not err in denying Hutch's Motion for Appointment of Counsel. Hutch did not have a constitutional right to appointed counsel for his discretionary appeal. Bounds, 430 U.S. at 823. The circuit court properly declined to exercise its discretion under Wolff v. McDonnell, 418 U.S. 539 (1974), after reviewing the legal issues raised in Hutch's complaint.
4. Finally, Hutch's other arguments on appeal fail under Hawai`i Rules of Appellate Procedure Rule 28(b)(7) ("[p]oints not argued may be deemed waived[ ]"), and State v. Moses, 102 Hawai`i 449, 456, 77 P.3d 940, 947 (2003) (arguments not raised in the lower court proceedings are deemed waived on appeal).
Therefore,
The Circuit Court of the First Circuit's April 16, 2004 final judgment is hereby affirmed.
DATED: Honolulu, Hawai`i, February 7, 2007.
On the briefs:
1. At the time this case
arose, Nolan Espinda was the Warden at Halawa Correctional Facility,
Department of Public
Safety, State of Hawa`i; Ted Sakai was the Director, Department of
Public Safety, State of Hawai`i; Raymond H. Sato was
the Comptroller for the Department of Accounting and General Services,
State of Hawai`i; and Benjamin Cayetano was the
Governor of the State of Hawai`i, four of the named
Defendants-Appellees in this appeal. Pursuant to Hawai`i Rules of
Appellate Procedure, Rule 43(c)(1), relating to substitution of
parties, Clayton Frank, current Warden at Halawa
Correctional Facility, Department of Public Safety, State of Hawai`i;
Iwalani White, current Director, Department of Public
Safety, State of Hawai`i; Russ K. Saito, current Comptroller for the
Department of Accounting and General Services, State
of Hawai`i; and Linda Lingle, current Governor of the State of Hawai`i
are substituted as named parties to this case.
2. The Honorable
Richard W. Pollack presided.