Nakamoto v. Kay

Filing 5

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT AND ACTION. Signed by JUDGE HELEN GILLMOR on 4/27/2012. (1) The Complaint is DISMISSED with prejudice for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(b ) & 1915A(b)(1).(2) Plaintiffs in forma pauperis request is DENIED.(3) The Clerk of Court is DIRECTED to terminate this caseand note on the docket that this case may constitute a strike pursuant to 28 U.S.C. § 1915(g). **Motions terminat ed: 3 Application to Proceed Informa Pauperis (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

KENNETH K. NAKAMOTO, Fed. ID
#84037-022,
Plaintiff,
vs.
ALAN C. KAY,
Defendant.
____________________________

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CIV. NO. 12-00201 HG/KSC
ORDER DENYING IN FORMA PAUPERIS
APPLICATION AND DISMISSING
COMPLAINT AND ACTION

ORDER DENYING IN FORMA PAUPERIS APPLICATION
AND DISMISSING COMPLAINT AND ACTION
Before the court is pro se Plaintiff Kenneth K.
Nakamoto’s (“Plaintiff”) prisoner civil rights complaint brought
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), and in forma pauperis application.

Plaintiff names

United States District Judge Alan C. Kay as the only Defendant to
this suit.

Judge Kay presided over Plaintiff’s numerous

revocation proceedings following his prosecution for bank
robbery, including his most recent revocation proceedings held on
January 10th, and February 23, 2011.1
#111, #117, #118.
1

See 1:92-cr-00199, ECF

Plaintiff alleges that Judge Kay violated

The Honorable Harold M. Fong presided over Plaintiff’s
criminal proceedings, finding Plaintiff not guilty by reason of
insanity. See 1:92-cr-001199, ECF #111.

unspecified constitutional rights by participating in an “openended co-conspiracy” and “fraud upon the court.”

ECF #1, Compl.

at 6.
The Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim.
Plaintiff’s in forma pauperis request is DENIED.
I. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e(c)(1).
A complaint may be dismissed for failure to state a
claim for (1) lack of a cognizable legal theory; or (2)
insufficient facts under a cognizable legal theory.

Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To

state a claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

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

While Rule 8 does not demand

detailed factual allegations, “it demands more than an unadorned,

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the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v.

Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted unless it appears that amendment is
futile.

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II.

BACKGROUND

In 1992, Plaintiff was indicted for allegedly
robbing a bank.

See 1:92-cr-01199.

On October 9, 1992, the

Honorable Harold M. Fong found Plaintiff not guilty by reason of
insanity and thereafter ordered a mental examination of
Plaintiff.

In February 1993, Judge Fong committed Plaintiff to

the custody of the Attorney General for hospitalization and
treatment at a suitable medical facility.
released with various conditions.

In 1994, Plaintiff was

Since then, Plaintiff’s

release has been revoked several times, most recently on February
23, 2011, when Judge Kay revoked Plaintiff’s conditional release
and ordered him to the U.S. Medical Center for Federal Prisoners
(“MCFP”) in Springfield, Missouri for reevaluation and
adjustment.

1:92-cr-01199, ECF #118-119.
3

On July 19, 2011, Plaintiff filed a document titled
“Motion to Vacate Judgment of Civil Commitment [Also U.S.
Probation and Supervised Release] under Rule 60(b) and 60(d)(3)
Fed. R. Civ. P. under the Entire U.S. Constitution and Under the
United Nations Treaty and United Nations Participation Act of
1945 [Never Rescinded an [Sic] Ratified into U.S. Law by Pres.
Truman & U.S. Senate-U.C.C.”

See 1:92-cr-01199.

This document

listed Judge Kay as a Defendant in the caption, argued that Judge
Kay committed misconduct in the course of the criminal
proceeding, and sought relief pursuant to Rule 60 of the Federal
Rules of Civil Procedure.
United States District Judge Susan Oki Mollway ordered
Plaintiff to clarify the basis for this filing, to explain why
Rule 60 of the Federal Rules of Civil Procedure was available to
challenge his order of commitment and revocation proceedings, why
his motion was not time-barred, and to determine whether it
should be construed as a motion under 28 U.S.C. § 2255.

See

1:92-cr-01199, ECF #122, Order Seeking Clarification.
Although Plaintiff responded to the Order Seeking
Clarification, Judge Mollway found that his response was
insufficient and she again directed him to clarify his intent in
filing the motion.

1:92-cr-01199, ECF #124.

When Plaintiff

failed to do so, Judge Mollway denied the motion and declined to
issue a certificate of appealability.

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Id., ECF #125, #128.

Plaintiff appealed, ECF #126, and that appeal is
pending as of the date of this order.

See USCA 11-17505 (9th

Cir., Oct. 19, 2011.)
III.

DISCUSSION

Plaintiff’s Complaint is nearly indecipherable.
Plaintiff gives no coherent details to support his civil rights
claims against Judge Kay, although he vaguely complains that his
criminal defense attorney was ineffective.

Plaintiff appears to

challenge the finding of not guilty by reason of insanity in the
underlying criminal matter and revocation of conditional release,
rather than any particular action of Judge Kay’s that has
allegedly affected the conditions of his confinement or denied
him his constitutional rights, although he provides no details to
support such a challenge.

Plaintiff states several times that he

is not, or soon will no longer be, incarcerated.

Nonetheless,

Plaintiff seeks release from prison and $1 billion in damages.
See Compl. at 4-6.
A.

Judicial Immunity
To the extent that Plaintiff seeks relief against Judge

Kay based on his current confinement, his claims fail.

Judges

are absolutely immune from liability for damages based on acts
performed in their official capacities.
F.2d 1072 (9th Cir. 1986) (en banc).

Ashelman v. Pope, 793

Judicial immunity applies

no matter how “erroneous the act may have been, and however
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injurious in its consequences it may have proved to the
plaintiff.”

Id. at 1074 (citing Cleavinger v. Saxner, 474 U.S.

193 (1985) (quotations omitted)).

Judicial immunity is not

affected “by the motives with which their judicial acts are
performed.”

Ashelman, 793 F.2d at 1077.

“A judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority; rather he will be subject to liability
only when he has acted in the clear absence of all jurisdiction.”
Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quotations
omitted).

The public policy that underlies judicial immunity is

the furtherance of independent and disinterested judicial
decision making.

Ashelman, 793 F.2d at 1078.

The Ninth Circuit

broadly construes the scope of judicial immunity, which applies
even if there are allegations that a judicial decision resulted
from a bribe or a conspiracy.

Id.

Absolute immunity “is not

limited to immunity from damages, but extends to actions for
declaratory, injunctive and other equitable relief.”

Moore v.

Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996) (discussing federal
judges’ immunities).
Judicial immunity is not absolute; there is no immunity
if a judge acts in the clear absence of all jurisdiction or
performs an act that is not judicial in nature.
F.2d at 1075.

Ashelman, 793

An act is judicial in nature if it is a function

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normally performed by a judge.

Id.

To determine whether an act

is judicial or non-judicial, the Ninth Circuit asks whether:
(1) the act is a normal judicial function; (2) the
events occurred in the judge’s chambers; (3) the
controversy centered around a case then pending before
the judge; and (4) the events at issue arose directly
and immediately out of a confrontation with the judge
in his or her official capacity.
In re Complaint of Judicial Misconduct, 366 F.3d 963, 965 (9th
Cir. 2004).
Judge Kay acted within his official judicial capacity
when he presided over Plaintiff’s numerous revocation proceedings
in 1:92-cr-001199.

To the extent that Plaintiff challenges these

core judicial functions, and this is unclear from the Complaint,
Plaintiff’s claims are barred by the doctrine of judicial
immunity.
B.

Heck v. Humphrey
To the extent that Plaintiff is seeking damages against

Judge Kay relating to his 2011 revocation proceedings, those
claims are barred by the doctrine set forth in Heck v. Humphrey,
512 U.S. 477 (1994).
“[T]o recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
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determination, or called into question by a federal court’s
issuance of a writ of habeas corpus[.]”

Id. 512 U.S. at 486-87.

Any determination that Judge Kay or Plaintiff’s
attorney acted improperly at his revocation proceedings would
call into question Plaintiff’s continuing incarceration.
Plaintiff’s sentence has not been reversed, expunged, declared
invalid, or otherwise set aside.

Plaintiff’s claims regarding

his revocation proceedings are barred under Heck v. Humphrey, 512
U.S. 477 (1994), fail to state a claim, and are DISMISSED.
C.

28 U.S.C. § 2255
To the extent that Plaintiff is challenging the 2011

revocation of conditional release proceedings, he must do so by
filing a motion pursuant to 28 U.S.C. § 2255.
Ollison, 519 F.3d 952, 954 (9th Cir. 2008).

Harrison v.
Judge Mollway

explained this procedure to Plaintiff in 1:11-cv-00455 and gave
him ample time to respond to her Order of Clarification.

As

noted, Plaintiff’s appeal of Judge Mollway’s decision is
currently pending before the appellate court.
D.

28 U.S.C. § 1915(g)
Plaintiff’s Complaint is DISMISSED pursuant to 28

U.S.C. §§ 1915(e)(2) & 1915A(b), for failure to state a claim.
Amendment is futile and this dismissal is with prejudice and
without leave to amend.
application is DENIED.

Plaintiff’s in forma pauperis
See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii);
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O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (finding
that the court may deny an IFP application when it finds the
complaint is frivolous or fails to state a claim).
Plaintiff is notified that, pursuant to 28 U.S.C.
§ 1915(g), a prisoner may not bring a civil action or appeal a
civil judgment under 28 U.S.C. § 1915 “if the prisoner has, on 3
or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious
physical injury.”

This dismissal may constitute a strike under

28 U.S.C. § 1915(g).
IV.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED with prejudice for failure

to state a claim.

See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).

(2)

Plaintiff’s in forma pauperis request is DENIED.

(3)

The Clerk of Court is DIRECTED to terminate this case

and note on the docket that this case may constitute a strike
//
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pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: April 27, 2012, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Nakamoto v. Kay, 1:12-cv-00201 HG/KSC; ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING COMPLAINT AND ACTION; psas\screening\dmp 2012\Nakamoto 12-201 HG (ftsc jud
imm, heck, etc)

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