Ciacci v. State of Hawaii

Filing 5

DISMISSAL ORDER. Signed by JUDGE HELEN GILLMOR on 3/16/2012. ~ 1. This Action is DISMISSED for failure to state a claim, frivolousness, lack of jurisdiction, and improper venue. This dismissal is without prejudice, but without leave to amend. 2. The request to proceed in forma pauperis is DENIED. 3. The motion to appoint counsel is DENIED. 4. With the exception of a Notice of Appeal to the Ninth Circuit Court of Appeals, the Clerk is DIRECTED to docket any further documents in this action as Received, and to close the file. (ecs, )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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 12-00142 HG/BMK
)
Plaintiff,
)
) DISMISSAL ORDER
vs.
)
)
STATE OF HAWAII,
)
)
)
Defendant.
______________________________ )
MICHAEL K. CIACCI,

DISMISSAL ORDER
Before the court is pro se plaintiff Michael Kekoa
Ciacci’s prisoner civil rights complaint, brought pursuant to 42
U.S.C. § 1983, and in forma pauperis application.

Ciacci is not

incarcerated in Hawaii and does not appear to be in prison
elsewhere, as his return address is a post office box in Austin,
Texas.

Nor does Ciacci have any past federal or state criminal

convictions or pending criminal charges of which this court is
aware.

See http://hoohiki1.courts.state.hi.us/jud/Hoohiki/;

http://pacer.psc.uscourts.gov. (“PACER”).

Along with this

Complaint, Ciacci also filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241, see Ciacci v. State of Hawaii, Civ. No.
1:12-cv-00141, and under 28 U.S.C. § 2254, see Ciacci v. State of
Hawaii, Civ. No. 1:12-cv-00143.
Ciacci’s Complaint makes no claims, provides no facts,
and names no defendants.

In the “Cause of Action,” and

supporting facts sections of the Complaint, Ciacci simply states,
“Unknown.”

ECF #1, Compl. at 5-7.

In his request for relief, he

states, “‘exactly’ is unknown; Known is request for bar certified
legal representation.”

Id. at 8.

Because Ciacci’s Complaint is

incomprehensible and so insubstantial that it is impossible to
determine what relief he seeks or who he names, this action is
DISMISSED without prejudice.

Ciacci’s in forma pauperis

application is DENIED, and to the extent he seeks appointment of
counsel, it is DENIED.
I. The Complaint Fails to State A Claim
A federal court may dismiss any case wherein the
plaintiff is proceeding or has requested in forma pauperis if the
court determines that the action is frivolous, malicious, or
fails to state a claim on which relief may be granted.

See

Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam)
(holding that the provisions of 28 U.S.C. § 1915(e)(2)(B) are not
limited to prisoners); 28 U.S.C. § 1915(e)(2).

“[A] complaint

must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”

Id.

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

A claim is plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Id.

complaint is frivolous for purposes of section 1915 if it lacks
any arguable basis in fact or law.
U.S. 319, 328-30 (1989).

See Neitzke v. Williams, 490

While the facts alleged in a complaint
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A

should generally be accepted as true for purposes of entering
judgment on the pleadings, clearly baseless factual contentions
may dismissed as frivolous under section 1915.

See Denton v.

Hernandez, 504 U.S. 25, 32 (1992).
Rule 8 of the Federal Rules of Civil Procedure requires
a “short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Ciacci’s Complaint is unintelligible and utterly fails to provide
a short plain statement of his claims for relief or notify any
defendant what his claims against them may be.

As such, the

Complaint is frivolous and fails to state a claim for relief.
II.

Improper Venue and Lack of Jurisdiction

A civil action not founded solely on diversity of
citizenship, such as a § 1983 civil rights complaint, may, except
as otherwise provided by law, be brought only in (1) a judicial
district where any defendant resides, if all defendants reside in
the same state, (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred, or (3) a judicial district in which any defendant may
be found, if there is no district in which the action may
otherwise be brought.

28 U.S.C. § 1391(b).

Although the Complaint is incomprehensible, it is clear
that whatever the form of relief Ciacci seeks, this court is not
the proper forum to raise his claims.

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Ciacci’s documents

indicate that he lives in Austin, Texas; he raises no claims and
names no defendants in Hawaii, other than the State itself.

If

Ciacci has a cause of action, it presumably arose in Texas
against parties residing in Texas.

This court is not the proper

venue to hear Ciacci’s claims.
Moreover, the State of Hawaii is neither a ‘person’
subject to civil rights suits under 42 U.S.C. § 1983, see Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1989), nor subject
to suit in federal court without its explicit consent, see
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53 (1996);
Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,
100 (1984).
Title 28 U.S.C. § 1406(a) provides that an improperly
venued action shall be dismissed unless it is “in the interest of
justice” that it be transferred to a district or division in
which it could have been brought.

It is unclear why Ciacci chose

to file this action in this court.

Perhaps he did so because he

has been unsuccessful in other courts, or perhaps it is a whim.
Ciacci has also recently filed several suits in the Western
District of Texas and in the District Court for the District of
Columbia, while he resided in those districts.

See Civ. Nos.

1:2011-cv-00590 (Dist. D.C. closed 03/22/2011); 1:2011-cv-01442
(Dist. D.C. closed 08/08/2011); 1:2012-cv-00184 (W.D. Tex, closed
03/01/2012); 1:2012-cv-00185 (W.D. Tex., closed 03/01/2012);

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1:2012-cv-00207 (W.D. Tex. pending); 1:2012-cv-00208 (W.D. Tex.
pending).

In light of Ciacci’s failure to allege any claims or

supporting facts and to name a proper defendant it is not in the
interests of justice to transfer this matter another court.
III.

Leave to Amend is Not Granted

The court is aware of its duty to grant leave to amend
if it appears at all possible that the plaintiff can correct the
defects of his or her complaint.
1130 (9th Cir. 2000).

Lopez v. Smith, 203 F.3d 1122,

It appears futile, however, to grant leave

to amend here, when Ciacci has failed to provide even the barest
minimum of facts for the court to surmise that a cause of action
is not only plausible, but possible.

Although this action is

dismissed without prejudice, this dismissal is without leave to
amend.
IV. In Forma Pauperis and Appointment of Counsel
A court may deny an in forma pauperis application if it
appears that the action is frivolous, fails to state a claim upon
which relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief.

See e.g., Tripati v.

First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).
Ciacci’s in forma pauperis application is DENIED.
To the extent that Ciacci seeks appointment of counsel,
and that is not clear from his pleadings, it is DENIED.
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
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See

V.

CONCLUSION

IT IS HEREBY ORDERED that:
1.

This Action is DISMISSED for failure to state a claim,

frivolousness, lack of jurisdiction, and improper venue.

This

dismissal is without prejudice, but without leave to amend.
2.

The request to proceed in forma pauperis is DENIED.

3.

The motion to appoint counsel is DENIED.

4.

With the exception of a Notice of Appeal to the Ninth

Circuit Court of Appeals, the Clerk is DIRECTED to docket any
further documents in this action as “Received,” and to close the
file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 16, 2012.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Ciacci v. State, 1:12-cv-00142 HG/BMK; Dismissal Order; psas/Screening/DMP/non
pris pro se 2012 Ciacci 12-141 (1983 & IFP non pris)

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