Grindling v. Martone et al

Filing 8

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915 re 1 - Signed by JUDGE LESLIE E. KOBAYASHI on 7/19/12. -- "2. Plaintiff is granted leave to file an amended complaint and/or new complaints on or before August 20, 2012, in comp liance with this Order. If Plaintiff fails to do so, this action shall be AUTOMATICALLY DISMISSED, without further notice and the Clerk SHALL enter judgment stating that the dismissal was made pursuant to 28 U.S.C. § 1915. 3. The Clerk of Court is DIRECTED to forward a copy of the court's approved prisoner civil rights complaint and instructions to Plaintiff so that he may comply with this Order." (emt, )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). Chris Grindling shall be served by first class mail at the address of record on July 23, 2012. A copy of the court's prisoner civil rights complaint form with instructions shall be included in the mailing to Mr. Grindling.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRIS GRINDLING, #A0721079,
Plaintiff,
vs.
FREDERICK MARTONE, et al.,
Defendants.

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CIV. NO. 12-00361 LEK/BMK
DISMISSAL ORDER PURSUANT TO 28
U.S.C. § 1915

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915
Before the court is pro se Plaintiff Chris Grindling’s
prisoner civil rights complaint brought pursuant to 42 U.S.C.
§ 1983.

Plaintiff is incarcerated at the Maui Community

Correctional Center (“MCCC”).

Plaintiff names twenty-seven

defendants in Hawaii and Arizona, including federal and state
judges, and prison and other state officials, alleging that they
have violated his constitutional rights over the past several
years.

Plaintiff’s Complaint is dismissed for failure to state a

claim pursuant to 28 U.S.C. § 1915A(b)(1).

Plaintiff is given

leave to amend, as discussed and limited below.
I. BACKGROUND
The Complaint is somewhat disjointed, rambling, and
difficult to comprehend.

Plaintiff names numerous state and

federal officials as defendants, including: (1) U.S. District
Judge Frederick Martone, District of Arizona; (2) U.S. District
Judge David A. Ezra, District of Hawaii; (3) U.S. Magistrate
Judge Kevin S.C. Chang, District of Hawaii; (4) Second Circuit

Judge Shackley Raffetto, State of Hawaii; (5) Second Circuit
Judge Rhonda Loo, State of Hawaii; (6) Chief Judge Craig
Nakamura, Hawaii Intermediate Court of Appeals (“IAC”); (7) Judge
Alexa D.M. Fujise, IAC; (8) Judge Katherine Leonard, IAC; (9)
Judge Daniel R. Foley, IAC; (10) Justice Simeon R. Acoba, Hawaii
Supreme Court (“HSC”); (11) Justice Richard W. Pollack, HSC; (12)
Justice James E. Duffy, HSC (ret.); (13) Chief Justice
Ronald T.Y. Moon, HSC (ret.); (14) Chief Justice Mark E.
Rectenwald, HSC; (15) Justice Sabrina McKenna, HSC; (16) Justice
Paula A. Nakayama, HSC; (17) Scott Jinbo, Hawaii Department of
Public Safety (“DPS”); (18) Heather Kimura, DPS; (19) David M.
Louie, Hawaii Attorney General; (20) Moana M. Lutey, Deputy
Corporation Counsel, Maui; (21) Captain Paleka, Halawa
Correctional Facility (HCF); (22) DPS Director Joedie MaesakaHirata; (23) MCCC Warden James Hirano; (24) DPS Administrator
Shari Kimoto; (25) Saguaro Correctional Center (“SCC”) Grievance
Coordinator Juan Valenzuela; (26) SCC Unit Manager Dobson; and
(27) SCC Property Officer Streeter (collectively “Defendants”).
Plaintiff claims that Defendants violated his rights
under the First, Eighth, and Fourteenth Amendments to the United
States Constitution.

Plaintiff alleges five causes of action, as

discussed in more detail below, and seeks compensatory damages,
declaratory and injunctive relief.

2

II. LEGAL STANDARD
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 if it (1) lacks a cognizable legal theory; or (2) contains
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,
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
3

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).
III.

DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2)
that the violation was committed by a person acting under the
color of state law.

See West v. Atkins, 487 U.S. 42, 48 (1988).

The statute plainly requires that there be an actual
connection or link between the actions of the defendants and the
deprivation alleged to have been suffered by plaintiff.

See

Monell v. Dep’t of Soc. Serv., 436 U.S. 658(1978); Rizzo v.
Goode, 423 U.S. 362 (1976).

The Ninth Circuit has held that “[a]

person ‘subjects’ another to the deprivation of a constitutional
right, within the meaning of section 1983, if he does an
affirmative act, participates in another’s affirmative acts or
omits to perform an act which he is legally required to do that
causes the deprivation of which complaint is made.”
Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
//
//
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4

Johnson v.

A.

The Complaint Fails to Comply With The Federal Rules Of
Civil Procedure
1.

Rule 8
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).

Although the Federal Rules adopt a flexible pleading policy, a
complaint must give fair notice and state the elements of the
claim plainly and succinctly.

Jones v. Cmty. Redev. Agency of

City of L.A., 733 F.2d 646, 649 (9th Cir. 1984).

“All that is

required [by Fed. R. Civ. P. 8(a)] is that the complaint gives
‘the defendant fair notice of what the plaintiff’s claim is and
the ground upon which it rests.’”

Kimes v. Stone, 84 F.3d 1121,

1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett-Packard
Co., 941 F.2d 864, 870 (9th Cir. 1991)).
A complaint with the factual elements of a cause of
action scattered throughout the complaint and not organized into
a “short and plain statement of the claim” may be dismissed for
failure to satisfy Rule 8(a).

See Sparling v. Hoffman Constr.

Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry, 84 F.3d
1172.

That is, a complaint that is so confusing that its “true

substance, if any, is well disguised” may be dismissed sua sponte
for failure to satisfy Rule 8.

Hearns v. San Bernardino Police

Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v.

5

City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also
McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (“Something
labeled a complaint but written . . ., prolix in evidentiary
detail, yet without simplicity, conciseness and clarity as to
whom plaintiffs are suing for what wrongs, fails to perform the
essential functions of a complaint.”).
Plaintiff’s claims are rambling, difficult to decipher,
repetitive, and fail to plainly and succinctly show how and when
each Defendant violated his constitutional rights and that he is
entitled to relief.

Plaintiff fails to specify the dates when

his claims allegedly took place, where each of these violations
allegedly occurred, or how any specific Defendant violated the
laws, treaties, or Constitution of the United States.

Plaintiff

repeats his claims against many Defendants over and over,
providing the same details and alleging the same conclusions in
several of his counts.

That is, Plaintiff alleges supporting

facts against various Defendants throughout his claims without
regard to what his stated cause of action in the specific claim
might allege.
In short, Plaintiff’s Complaint fails to clearly
separate and allege sufficient factual details relevant to each
claim against each Defendant to “state a claim to relief that is
plausible on its face.”
U.S. 544, 570 (2007).

Bell Atlantic Corp. v. Twombley, 550
As written, it is extremely difficult, if

6

not impossible to determine who did what to Plaintiff, when his
claims accrued, what his specific claims against each individual
Defendant entails, and how his constitutional rights were
violated.

See McHenry, 84 F.3d at 1178–80 (affirming dismissal

of complaint where “one cannot determine from the complaint who
is being sued, for what relief, and on what theory, with enough
detail to guide discovery”).
2.

Rules 18 and 20
More importantly, the Complaint includes unrelated

claims against wholly unrelated defendants, based on separate
factual scenarios, that occurred at different times and places in
Hawaii and Arizona, and that involve different legal theories and
causes of action.

The Federal Rules of Civil Procedure set forth

the rules regarding joinder of parties or claims.

“A party

asserting a claim, counterclaim, crossclaim, or third-party claim
may join, as independent or alternate claims, as many claims as
it has against an opposing party.”

Fed. R. Civ. P. 18(a); see

also, Aul v. Allstate Life Ins. Co., 993 F.2d 881, 884 (9th Cir.
1993) (“A claim based on different rights and established by
different transactional facts will be a different cause of
action.”).

“Unrelated claims against different defendants belong

in different suits, not only to prevent the sort of morass [a
multiple claim, multiple defendant] suit produce[s], but also to
ensure that prisoners pay the required filing fees -- for the
7

Prison Litigation Reform Act limits to 3 the number of frivolous
suits or appeals that any prisoner may file without prepayment of
the required fees. 28 U.S.C. § 1915(g).”

George v. Smith, 507

F.3d 605, 607 (7th Cir. 2007).
Additionally, a claim may be brought against multiple
defendants so long as (1) the claim arises out of the same
transaction or occurrence, or series of transactions and
occurrences, and (2) there are common questions of law or fact.
Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351
(9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North
America, 623 F.3d 1371, 1375 (9th Cir. 1980).
Plaintiff’s claims do not conform with Rules 18 and 20,
and cannot proceed in a single action.

His claims alleging

inadequate conditions of confinement at SCC against the Arizona
Defendants have no connection to his claims against DPS and HCF
Defendants in Hawaii for the conditions of confinement at HCF.
Nor do his claims challenging the conditions of confinement at
HCF relate to his claims challenging the conditions of
confinement at MCCC.
Similarly, Plaintiff’s claims challenging the
constitutionality of various Hawaii statutes do not relate to his
claims regarding the conditions of confinement at SCC, HCF, or
MCCC.

Nor do these claims arise out of the same transactions or

occurrences as his allegations against the various federal and

8

state judges, or his claims against Hawaii Attorney General
David Louie or Maui Deputy Corporation Counsel Moana Lutey.

It

appears that Plaintiff has asserted these disparate claims
against unrelated defendants in this single action because he has
paid the filing fee for this action and hopes to forego paying
additional filing fees.1
Plaintiff’s Complaint is DISMISSED for failure to state
a claim under Rule 8 and for failure to comply with Rules 18 and
20 of the Federal Rules of Civil Procedure.

This dismissal is

without prejudice and with leave to amend so that Plaintiff may
decide which of his claims he will proceed with in this action,
and which he will raise in other actions.

That is, if Plaintiff

chooses to file an amended complaint, he must allege related
facts against related Defendants for claims that arise from the
same transactions and occurrences.

Separate unrelated

allegations against wholly unrelated Defendants must be submitted
in separate complaints.

For example, Plaintiff’s claims

challenging the conditions of confinement at HCF, SCC, or MCCC
are unrelated to each other in time, place, and as against the
alleged defendants.

Similarly, Plaintiff’s allegations

concerning alleged violations that occurred in Arizona are
unrelated to his claims involving incidents in Hawaii.

1

Plaintiff has apparently paid the filing fee in this
action in anticipation of being barred from proceeding in forma
pauperis under 28 U.S.C. § 1915(g).
9

Plaintiff’s claims concerning the constitutionality of several
Hawaii statutes and challenging his conviction and sentence are
unrelated to his claims challenging the conditions of confinement
at the various prisons at which he was confined.

These claims

belong in separate complaints, each subject to separate filing
fees and screening requirements.
B.

Immunities
1. Official Capacity and Eleventh Amendment Immunity
It is unclear in what capacity, individual and/or

official, that Plaintiff names Defendants.

To the extent that he

names Defendants in their official capacities, he is notified
that state officials sued in their official capacities are not
persons subject to civil rights suits under § 1983.

See Will v.

Michigan Dept. of State Police, 491 U.S. 58, 70 (1989); Flint v.
Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).

Further, “[t]he

Eleventh Amendment bars suits against a state or its agencies,
regardless of the relief sought, unless the state unequivocally
consents to a waiver of its immunity.”

Wilbur v. Locke, 423 F.3d

1101, 1111 (9th Cir. 2005) (quoting Yakama Indian Nation v. State
of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999)).
The only exception is “for prospective declaratory and injunctive
relief against state officers, sued in their official capacities,
to enjoin an alleged ongoing violation of federal law.”

Id.

(quoting Agua Caliente Band of Cahuilla Indians v. Hardin, 223
10

F.3d 1041, 1045 (9th Cir. 2000); see Ex parte Young, 209 U.S. 123
(1908).
2.

Judicial Immunity
Plaintiff alleges that sixteen state and federal judges

violated his constitutional rights when they allegedly “refused”
to rule on motions or issues that he raised during civil and
criminal court proceedings.
Judges are absolutely immune from liability for damages
based on acts performed in their official capacities.
v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc).

Ashelman

Judicial

immunity applies no matter how “erroneous the act may have been,
and however 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 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.
11

Ashelman, 793 F.2d at 1078.
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).
Moreover, in 1996 Congress amended 42 U.S.C. § 1983 to prohibit
the grant of injunctive relief against any judicial officer,
state or federal, acting in his or her official capacity “unless
a declaratory decree was violated or declaratory relief
unavailable.”

was

42 U.S.C. § 1983.

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

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).
Plaintiff’s allegations against these judicial
Defendants appear to challenge decisions that these judges made
while acting within their normal, official judicial capacities
12

and functions.

Although Plaintiff claims that, “these actions

cannot be said judicial [as] its [sic] a judges [sic] sole role
to rule on issues presented[,]” this statement actually shows
that Plaintiff understands that these judges made their
determinations during his civil and criminal proceedings as part
of their official capacities and functions.
C.

Heck v. Humphrey
To the extent that Plaintiff alleges due process

violations that allegedly occurred during his criminal
proceedings in a challenge to his conviction and sentence, 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 determination, or called into question by
a federal court’s issuance of a writ of habeas corpus[.]”

Id.

512 U.S. at 486-87.
Plaintiff concedes that his sentences have not been
reversed, expunged, declared invalid, or otherwise set aside, as
that is the basis for at least some of his claims.

Because

Plaintiff is given leave to amend, and in light of the sparse and

13

confusing facts alleged in the Complaint regarding his conviction
and sentence, Plaintiff is notified that if he files an amended
complaint, or new complaints, that include claims challenging his
conviction and sentence, as it appears, these claims are subject
to a possible Heck bar.
Moreover, to the extent that Plaintiff challenges his
conviction and sentence those claims should be raised in an
action pursuant to 28 U.S.C. § 2254.

Plaintiff, however, has

already unsuccessfully pursued a habeas petition in this court,
see 1:10-cv-00429 KSC, and he must seek permission from the Ninth
Circuit Court of Appeals before bringing another habeas action to
this court.
D.

See 28 U.S.C. § 2244(b)(3)(A).

Claims For Injunctive Relief Against SCC and HCF Officials
Are Moot
Because Plaintiff is no longer incarcerated at SCC or

HCF, his claims for injunctive relief against SCC and HCF
officials are moot.

Constitutional standing to sue requires

three elements: (1) an injury in fact (2) that is fairly
traceable to the defendant and (3) that is likely to be redressed
by a favorable decision.

See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992).

An inmate’s transfer to another prison

while his claims are pending generally moots claims seeking
injunctive or declaratory relief regarding prison policies.
Preiser v. Newkirk, 422 U.S. 395 (1975) (inmate’s request for
declaratory judgment rendered moot by inmate’s transfer to
14

See

another prison); Dilley v. Gunn, 64 F.3d 1365, 1368–69 (9th Cir.
1995) (inmate’s request for injunctive relief rendered moot by
inmate’s transfer to another prison); Johnson v. Moore, 948 F.2d
517, 519 (9th Cir. 1991) (per curiam) (same); Darring v.
Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (same).
Plaintiff’s transfer to MCCC renders his claims against
SCC and HCF officials moot, as there is no indication that
Plaintiff will be transferred back to either prison.

See Wiggins

v. Rushen, 760 F.2d 1009 (9th Cir. 1985) (chance that prisoner
might be returned to prison where injury occurred is too
speculative to demonstrate reasonable expectation that injury may
recur).
E.

Access to the Court (Count I)
Plaintiff alleges that he was denied access to the

courts by: (1) the judicial Defendants, for their alleged refusal
to rule on claims he raised in judicial proceedings or on appeal;
(2) Defendant Moana Lutey, for successfully having him declared a
vexatious litigant in the Hawaii state courts; (3) DPS Defendant
Scott Jinbo, for ordering others to deny him a check for a filing
fee, allegedly causing a delayed filing in an unspecified case;
and (4) SCC Unit Manager Dobson and others in Arizona for denying
him adequate access to the law library, hampering his mail,
denying him copies, and denying him the ability to file
grievances.
15

Inmates have a fundamental constitutional right of
access to the courts.

Lewis v. Casey, 518 U.S. 343, 346 (1996).

That right is limited to direct criminal appeals, habeas
petitions, and civil rights actions.

Id. at 354.

Claims for

denial of access to the courts may arise from the frustration or
hindrance of “a litigating opportunity yet to be gained”
(forward-looking access claim) or from the loss of a meritorious
suit that cannot now be tried (backward-looking claim).
Christopher v. Harbury, 536 U.S. 403, 412-15 (2002).

To state a

claim based on denial of access to the courts, a plaintiff must
allege facts demonstrating that he suffered an actual injury by
being shut out of court.
U.S. at 351.

Harbury, 536 U.S. at 415; Lewis, 518

In other words, a claim for deprivation of the

constitutional right of access to the courts must allege both the
underlying cause of action, whether that action is merely
anticipated or already lost, and the official acts that
frustrated the litigation.

Harbury, 536 U.S. at 415-16.

Plaintiff fails to adequately identify any case or
cases that were lost, or provide details of any actual injury he
suffered with respect to a direct criminal appeal, a habeas
petition, or a non-frivolous civil rights suit due to Defendants’
actions.
354.

See Harbury, 536 U.S. at 415; Lewis, 518 U.S. at 351,

Although Plaintiff refers to his state criminal prosecution

throughout his Complaint, the court takes judicial notice of its

16

own files and records and notes that Plaintiff challenged his
conviction through direct appeal to the Hawaii Supreme Court and
by means of an unsuccessful habeas petition in this court.2

See

Grindling v. Thomas, 1:10-cv-00429 KSC (D. Haw., Mar. 29, 2011)
(denying petition) aff’d, No. 11-16094 (9th Cir. Dec. 21, 2011)
(denying certificate of appealability).

He cannot show that he

was denied access to the courts either in his criminal
proceedings or in his challenges to those proceedings.
Plaintiff also refers to unspecified actions in the
federal courts but does not explain how and in which cases he was
denied access to the court.

A review of Plaintiff’s seventeen

previous federal civil actions does not demonstrate such a
denial.

In each of these cases, the court carefully considered

Plaintiff’s claims, issued orders to show cause where required,
and issued decisions based on the claims Plaintiff set forth.
The court is unable to find any civil rights case filed by
Plaintiff that was dismissed because he failed to timely file a
document or pleading, as he claims.

Plaintiff’s claims are

simply conclusions; he does not adequately allege any actual

2

A court “may take notice of proceedings in other courts,
both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.” United
States ex rel. Robinson Rancheria Citizens Council v. Borneo,
Inc., 971 F.2d 244, 248 (9th Cir. 1992). A court may also take
judicial notice of the existence of matters of public record,
such as a prior order or decision, but not the truth of the facts
cited therein. See Lee v. City of Los Angeles, 250 F.3d 668,
689-690 (9th Cir. 2001)
17

injury to his ability to initiate or prosecute such actions.
Silva v. DiVittorio, 658 F.3d 1090, 1101-04

See

(9th Cir. 2011).

Plaintiff fails to sufficiently allege that Defendants’ alleged
“tampering” with Plaintiff’s legal mail, denying him postage, or
refusing to process his IFP requests, hindered his ability to
prosecute his direct criminal appeal, habeas corpus petition, or
non-frivolous civil rights actions.
F.

Retaliation and Conspiracy Claim (Count II)
Plaintiff claims that his denial of access to the

courts claim in Count I and his conspiracy/retaliation claim in
Count II are “one and the same.”

To properly assert a conspiracy

claim pursuant to § 1983, the complaint must “allege specific
facts to support the existence of a conspiracy among the
defendants.”

Buckey v. Cnty. of Los Angeles, 968, 791, 794 (9th

Cir. 1992); Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d
621, 626 (9th Cir. 1988).

Plaintiff must allege that defendants

conspired or acted jointly in concert and that some overt act was
done in furtherance of the conspiracy.

Sykes v. State of Calif.,

497 F.2d 197, 200 (9th Cir. 1974).
A prisoner must set forth five essential elements to
state a viable claim for retaliation.

See Rhodes v. Robinson,

408 F.3d 559, 566 (9th Cir. 2005).
(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
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rights, and (5) the action did not reasonably advance a
legitimate correctional goal.
408 F.3d at 567-68.

See also Brodheim v. Cry, 584 F.3d 1262,

1269 (9th Cir. 2009) (applying Rhodes test); Barnett v. Centoni,
31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam).
Plaintiff’s retaliation and/or conspiracy claim is the
quintessential “unadorned, the-defendant-unlawfully-harmed-me
accusation[,]” that the Supreme Court held insufficient to state
a claim.

See Iqbal, 129 S. Ct. at 1949 (2009).

Plaintiff

provides no facts suggesting that virtually all of his twentyseven named Defendants conspired or retaliated against him so as
to deny his First Amendment rights.

Plaintiff simply reiterates

and incorporates by reference his allegations in Count I, then
concludes that, because he was allegedly denied access to the
courts, named a vexatious litigant, and his criminal appeal and
federal civil cases were unsuccessful, Defendants must be
conspiring with each other to retaliate against him.

“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

Plaintiff’s

allegation that Defendants conspired and retaliated against him
is insufficient.

Because Plaintiff fails to include nonclusory

allegations containing evidence of unlawful intent, the court
finds that he has failed to meet the heightened pleading standard
required to state a claim for conspiracy.
//
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G.

Venue
When jurisdiction is not founded solely on diversity,

venue is proper in the district in which: (1) any defendant
resides, if all of the defendants reside in the same state; (2) a
substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the
subject of the action is situated; or (3) any defendant may be
found, if there is no district in which the action may otherwise
be brought.

28 U.S.C. § 1391(b); see also Ziegler v. Indian

River County, 64 F.3d 470 (9th Cir. 1995) (extensive discussion
on jurisdiction); Lee v. Corr. Corp. of America, 525 F. Supp. 2d
1238, 1241 (D. Haw. 2007).
Plaintiff’s claims that SCC Defendants Valenzuela,
Dobson, and Streeter reside in Arizona.

Claims against them

relate to their allegedly improper handling or denial of his
grievances and the loss of his personal property while he was
incarcerated in Arizona.

It appears that venue of these claims

therefore lies in Arizona.
IV.

LEAVE TO AMEND

Plaintiff’s Complaint is DISMISSED.

Plaintiff may file

a proposed amended complaint and any additional separately-filed
complaints on or before August 20, 2012 curing the specific
deficiencies noted above.

The proposed amended complaint and new

complaints, if any, must allege related facts, concerning related
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transactions and occurrences, against related Defendants that
cures the deficiencies noted in this order.

Separate unrelated

allegations against wholly-unrelated Defendants must be submitted
in separate complaints, each subject to separate filing fees,
docket numbers, and screening requirements.
In the amended or new complaints, Plaintiff must write
short, plain statements explaining: (1) the constitutional right
allegedly violated; (2) the name of the defendant who allegedly
violated that right; (3) facts connecting defendant’s action or
inaction to the alleged violation of Plaintiff’s constitutional
right; and (4) what specific injury Plaintiff suffered because of
that defendant’s conduct.

Rizzo, 423 U.S. at 371-72.

Plaintiff

must repeat this process for each person he names as a defendant.
Any amended complaint must clearly designate that it is
the “First Amended Complaint.”

The amended complaint must be

retyped or rewritten in its entirety on court-approved forms and
may not incorporate any part of the original Complaint by
reference.

Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992).

Any cause of action that was raised in the original complaint is
waived if it is not raised in an amended complaint.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

King v.

If Plaintiff submits

any new complaints, they must designate that they are “Original”
complaints, and should not refer to the docket number assigned to
this action.

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V.

28 U.S.C. § 1915(g)

If Plaintiff fails to file an amended complaint, or new
complaints, correcting the deficiencies identified in this Order,
this dismissal may count as a “strike” under the “3-strikes”
provision of 28 U.S.C. § 1915(g).

Under the 3-strikes provision,

a prisoner may not bring a civil action or appeal a civil
judgment in forma pauperis 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.
28 U.S.C. § 1915(g).
VI.
1.

CONCLUSION

The Complaint is DISMISSED in its entirety for

failure to state a claim under Fed. R. Civ. P. 8 and for failure
to comply with Fed. R. Civ. P. 18 and 20.
2.

Plaintiff is granted leave to file an amended

complaint and/or new complaints on or before August 20, 2012, in
compliance with this Order.

If Plaintiff fails to do so, this

action shall be AUTOMATICALLY DISMISSED, without further notice
and the Clerk SHALL enter judgment stating that the dismissal was
made pursuant to 28 U.S.C. § 1915.
3.

The Clerk of Court is DIRECTED to forward a copy of

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the court’s approved prisoner civil rights complaint and
instructions to Plaintiff so that he may comply with this Order.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, July 19, 2012.

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

Grindling v. Martone, et al., 1:12-cv-00361 LEK/BMK; DISMISSAL ORDER PURSUANT TO 28
U.S.C. § 1915; psas/Screening/dmp 2012/Grindling 12-361 (R18 R8 ftsc jud. imm. imp.
ven)

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