Abordo v. Hawaii Department of Public Safety

Filing 22

ORDER DENYING MOTION FOR RECONSIDERATION re: 18 . Signed by JUDGE LESLIE E. KOBAYASHI on 11/28/2012. [Order denies plaintiff's Motion for Reconsideration of the Court's Order filed 11/5/2012 (doc 16 ), the "Or der Severing Case and Denying Plaintiff Abordo's Motion for Preliminary Injunction" (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry [Transferred from hid on 11/30/2012.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EDMUND M. ABORDO, #A0080735,

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Plaintiff,
vs.
DEPT. OF PUBLIC SAFETY,
Defendant.
____________________________

NO. 1:12-cv-00503 LEK/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
On September 7, 2012, Defendant initiated this prisoner
civil rights action by filing a Notice of Removal pursuant to 28
U.S.C. § 1441(c).

ECF #1.

Plaintiff Edmund M. Abordo is a

Hawaii prisoner incarcerated at the Saguaro Correctional Center
(SCC), located in Eloy, Arizona.

Before the court is Abordo’s

Motion for Reconsideration of this court’s decision to sever his
action from Plaintiff Cedric Ah Sing’s action, which is now
docketed as 1:12-cv-00599 LEK.

See Order Severing Case, ECF #16.

Abordo’s Motion for Reconsideration is DENIED.1
I.

BACKGROUND

Abordo and Ah Sing commenced this action as joint
habeas petitioners in the state circuit court on July 26, 2012,
alleging claims under Hawaii Rules of Penal Procedure 40.
Petition for Post-Conviction Relief, ECF #1-1.
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See

The state circuit

Abordo purports to file this motion on his own and Ah
Sing’s behalf. Because Ah Sing has not signed the motion and has
been severed from this action, the court considers the motion as
to Abordo’s action only.

court ordered Abordo’s and Ah Sing’s pleading to be treated as a
civil complaint, because they “allege[d] neither illegality of
judgment nor illegality of custody or restraint, but allege[] a
civil rights action or some other cause of action.”

ECF #1-2,

PageID #11-12; see also, Haw. R. Penal P. 40(c)(3).
Because the pleading alleged federal constitutional
violations, Defendant removed the action to this court and moved
to change venue.

ECF #8.

Abordo and Ah Sing jointly sought

remand, ECF #6, and Abordo sought an injunction preventing prison
officials from “separating” him from Ah Sing and allowing them to
confer as needed to jointly litigate their case, ECF #14.
On October 31, 2012, the court denied Abordo’s motion
for injunctive relief and severed Abordo’s and Ah Sing’s cases.
See ECF #15 (minute order), ECF #16 (written order entered Nov.
5, 2012).
On November 19, 2012, Abordo filed the present motion
for reconsideration.

ECF #18.

On November 20, 2012, the court

denied Abordo’s and Ah Sing’s motion for remand and granted
Defendant’s motion for change of venue.

See Order, ECF #19

(docketed Nov. 21, 2012).
II.

DISCUSSION

Abordo argues that: (1) “[u]nder 28 U.S.C. § 2242 . . .
any person [may] file habeas corpus cases for any one;” (2)
Hawaii’s laws allow a person to file a habeas petition on behalf

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of another; (3) Ah Sing and he have a First Amendment right to
petition the government for redress of grievances; and (4) a
prison “cannot prohibit prisoners from helping each other with
legal matters unless they provide reasonable alternative forms of
assistance.”
A.

Mot. ECF #18 PageID #127.

Standard of Review
Generally, motions to reconsider are appropriate if the

court “(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in controlling
law.”

School Dist. No. 1J, Multnomah County, Or. v. ACandS,

Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

A motion for

reconsideration should not be used to ask a court “to rethink
what the court had already thought through, rightly or wrongly.”
Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99,
101 (E.D. Va. 1983)).

Rather, such arguments should be directed

to the court of appeals.

Sullivan v. Faras-RLS Group, Ltd., 795

F. Supp. 305, 309 (D. Ariz. 1992).
B.

Abordo May Not Proceed as Ah Sing’s “Next Friend” in This
Civil Rights Action
This case is not proceeding under 28 U.S.C. § 2254 as a

habeas action nor is it proceeding in the Hawaii state courts as
such.

The state court deemed it a civil action and this court

has reviewed that determination over Abordo’s objections and

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accepted it as a prisoner civil rights action.
#19.

See Order, ECF

Therefore, the doctrine set forth in Whitmore v. Arkansas,

495 U.S. 149 (1990), allowing non-parties to file a habeas
petition and establish standing as a “next friend,” for a habeas
petitioner, does not apply here.

Moreover, a next friend is not

a party to the habeas petition he signs on behalf of another,
“but simply pursues the cause on behalf of the detained person,
who remains the real party in interest.”

Id.

Abordo wants to

remain a co-plaintiff with Ah Sing and be allowed to file motions
on Ah Sing’s behalf, not to simply pursue Ah Sing’s putative
habeas action.

Further, to be deemed a next friend in a habeas

action, a person must provide an adequate explanation -- such as
inaccessibility, mental incompetence, or other disability - why
the real party in interest cannot appear on his own behalf to
prosecute the action.

Id. at 163-64; see also Brewer v. Lewis,

989 F.2d 1021, 1025-26 (9th Cir. 1993) (“next friend” must prove
party to be protected is incompetent to assert his own rights).
Ah Sing signed the original pleading in this action and has made
no showing of incompetence, disability, or inaccessibility.

This

argument is rejected.
C.

Abordo May Not Represent Ah Sing
Abordo has no constitutional right to represent Ah Sing

in this action.

See Johns v. Cnty. of San Diego, 114 F.3d 874,

876 (9th Cir. 1997) (“While a non-attorney may appear pro se on
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his own behalf, he has no authority to appear as an attorney for
others than himself.”) (internal quotations and citation
omitted); Jorss v. Schwarzenegger, 168 Fed. Appx. 825 *1 (9th
Cir. 2006).
Severing this action and allowing Abordo and Ah Sing to
proceed separately does not prevent them from petitioning the
government for redress of their grievances, and any claim Ah Sing
has that Arizona prison officials have failed to provide him
reasonable alternative forms of legal assistance, other than help
from Abordo, should be directed by Ah Sing to the Arizona court,
where the two actions have been transferred.
III.

CONCLUSION

Abordo fails to demonstrate that this court clearly
erred or that its previous decisions were manifestly unjust.

He

presents no newly discovered evidence or intervening changes in
controlling law.

Rather, he asks the court to rethink what

it has already thought through.
reconsideration.

That is not a basis for

Abordo’s Ex Parte Motion to the Court to

Reconsider is DENIED.
IT IS SO ORDERED.

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DATED:

HONOLULU, HAWAII, November 28, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Abordo and Ah Sing v. Dep’t of Public Safety, 1:12-cv-00503 LEK-BMK, ORDER DENYING
MOTION FOR RECONSIDERATION; G:\docs\prose attys\Recon\DMP\2012\Abordo 12-cv-00503 lek
(recon severance).wpd

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