Blaisdell v. Hawaii Department of Public Safety

Filing 6

ORDER DISMISSING COMPLAINT AND ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). Signed by JUDGE LESLIE E. KOBAYASHI on 11/20/2012. re: 1 . ~ Excerpt of Conclusion: "Plaintiff is NOTIFIED that he has accrued two strikes pursuant to 28 U.S.C. § 1915(g), and that this dismissal may later be counted as a strike." "The court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Proce dure 24(a)(3)(A), that an appeal of this decision would not be taken in good faith." ~ (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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD BLAISDELL,
#A0200813,
Plaintiff,
vs.
HAWAII DEP’T OF PUBLIC
SAFETY,
Defendants.
____________________________

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CIV. NO. 12-00554 LEK/BMK
ORDER DISMISSING COMPLAINT AND
ACTION PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) and 1915A(b)(1)

ORDER DISMISSING COMPLAINT AND ACTION PURSUANT TO
28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1)
Before the court is pro se Plaintiff Richard
Blaisdell’s prisoner civil rights complaint.

Plaintiff is

incarcerated at the Halawa Correctional Facility (“HCF”), and
names the Hawaii Department of Public Safety (“DPS”) as the only
defendant to this action.

Plaintiff alleges that DPS violated

the Fifth and Fourteenth Amendment by conspiring to deny him
interest on funds in his prison trust account.

The Complaint is

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).
Because amendment is futile, this dismissal is with prejudice.
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 in full or in part if its claims are legally
frivolous, 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 fails 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.”
8(a)(2).

Fed. R. Civ. P.

While Rule 8 does not demand detailed factual

allegations, “it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
662, 678 (2009).

Ashcroft v. Iqbal, 556 U.S.

“Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not
suffice.”

Id.
“[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.”

Iqbal, at 678.

2

“Determining whether a

complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”

Id.

Thus,

although a plaintiff’s factual allegations may be consistent with
a constitutional claim, a court must assess whether there are
other “more likely explanations” for a defendant’s conduct.

Id.

at 681.
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.
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

Hebbe

A “complaint

[filed by a pro se prisoner] ‘must be held to less stringent
standards than formal pleadings drafted by lawyers.’”

Id.

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam)).
If a pleading can be cured by the allegation of other
facts, a pro se litigant is entitled to an opportunity to amend a
complaint before dismissal of the action.

See Lopez v. Smith,

203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc).

The court

should not, however, advise the litigant how to cure the defects.
This type of advice “would undermine district judges’ role as
impartial decisionmakers.”

Pliler v. Ford, 542 U.S. 225, 231

(2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to

3

decide whether the court was required to inform a litigant of
deficiencies).
II.

THE COMPLAINT

To understand Plaintiff’s prolix Complaint, a brief
summary of Plaintiff’s state court civil action is necessary.1
A.

State Civil Case History and Background
On August 10, 2004, Plaintiff filed a state civil suit

challenging DPS’s alleged unconstitutional denial of accrued
interest in its prisoners’ trust accounts.

See Blaisdell v.

Dep’t of Public Safety, Civ. No. 04–1–1455, Haw. App. No. 30469.
On November 18, 2008, the Hawaii Supreme Court agreed with
Plaintiff, and held that Hawaii’s prisoners’ rights to accrued
interest on their prison trust accounts are protected by the
Fifth and Fourteenth Amendments to the United States
Constitution, as well as by Hawaii Revised Statute (“Haw. Rev.
Stat.”) § 353-20, as it then stood.

See

Blaisdell v. Dep’t of

Public Safety, 196 P.3d 277, 288 (Haw. 2008).

The supreme court

remanded the case to the circuit court with instructions to enter
judgment declaring DPS’s “restricted” accounts violative of Haw.
Rev. Stat. § 353-20, to order such relief as appropriate, and to

1

Plaintiff relates these facts in the Complaint, albeit in
somewhat confusing detail. The court has read the relevant
published and unpublished Hawaii cases to which he refers and
supplies their citations to make better sense of the Complaint.
4

order interest paid if a factual determination showed that it was
due on Plaintiff’s accounts.

Id.

On May 22, 2009, the Hawaii circuit court entered an
order on granting Plaintiff’s motion for summary judgment and
ordering DPS to “(1) implement policies and procedures ‘which
comply with [§] 353-20’ and (2) ‘pay [Plaintiff] any interest, if
any is owing, to the extent due but not yet credited to
[Plaintiff’s] account.”

See Blaisdell v. Dep’t of Public Safety,

2011 WL 6144274 *1 (Haw., Nov. 28, 2011) (dissent Acoba, J.)
(emphasis added).
On May 26, 2009, as a result of the Hawaii Supreme
Court’s 2008 decision, the Hawaii state legislature enacted Act
75, amending Haw. Rev. Stat. § 353-20 to permit DPS to maintain
more than one account for each inmate and to designate that a
percentage of funds earned by an inmate may be deposited and held
in a nonspendable (i.e., restricted) account to provide funds for
the inmate upon release.
172–73.

2009 Haw. Sess. L. Act 75, § 2 at

Act 75 also provides that inmate accounts maintained by

DPS “shall not bear interest.”

2

Id. at 172.2

Section 352-20 now provides in pertinent part:

All sums collected under this chapter . . . shall be
deposited . . . into one or more accounts . . . opened by
the department for the specific purpose of maintaining
[inmates’] funds. The department shall maintain accounts for
each [inmate] . . . for approved expenses and purchases
during incarceration. The director may designate a
(continued...)
5

On June 22, 2009, after Act 75 became effective, DPS
filed a Motion to Vacate the circuit court’s May 22, 2009 Order,
arguing that several of Plaintiff’s claims for injunctive relief
were now moot, and, for the first time asserting that Plaintiff’s
individual trust accounts had accrued no interest since at least
1998.

Id. at *2.

Motion to Vacate.

The circuit court agreed, and granted DPS’s
See Blaisdell, 2011 WL 3805765 *2.

On August

29, 2011, the Hawaii Intermediate Court of Appeals (“ICA”)
affirmed the circuit court’s factual determination that DPS had
not withheld accrued interest on Plaintiff’s accounts and
specifically rejected Plaintiff’s argument that Act 75 was
unconstitutional.

Id. at *3 (“Blaisdell fails to cite any

authority to support his claims that Act 75 is unconstitutional,
that vested rights were violated, or that his property was
unconstitutionally taken, and we reject those claims.”)

On

November 28, 2011, the Hawaii Supreme Court rejected Plaintiff’s
application for writ of certiorari.

Id.

Approximately one year

2

(...continued)
percentage of all funds . . . to be . . . held in a
nonspendable account for the purpose of providing funds for
that same committed person upon release. . . . Accounts
maintained by the department for committed persons shall not
bear interest. No interest of any kind shall be paid to [an
inmate] on any account maintained by the department for the
[inmate]. . . .
Haw. Rev. Stat. § 353-20 (West 2009) (emphasis added).
6

later, Plaintiff filed the present Complaint challenging the
state courts’ decisions and the constitutionality of Act 75.
B.

Plaintiff’s Claims
In Count I, Plaintiff alleges that DPS “[f]ailed to

follow Hawaii Supreme Ct. opinion,” apparently referring to the
November 18, 2008, supreme court opinion remanding the case to
the circuit court with instructions to order appropriate relief,
rather than the later supreme court opinion affirming dismissal
of his claims.

Compl. ECF #1 PageID #6.

Plaintiff alleges that

the state circuit court purposely stalled the case after the
Hawaii Supreme Court’s remand, as a “tactic [] designed by
conspiring between the DPS, the then Governor Lingle, and the
Legislature” to amend the law to conform with DPS’s procedures
rather than requiring DPS to conform to the law as it then stood.
Compl., ECF #1 PageID #7-8.
In Count II, Plaintiff alleges that Act 75 violates the
Fifth and Fourteenth Amendments and the Ex Post Facto Clause of
the United States Constitution, as well as article I, sections 5
and 14 of the Hawaii Constitution.

Plaintiff complains that he

was deprived accrued interest on: (1) $3,500 that DPS maintained
in his prison accounts between September 1990, and March 1994,
when he was released from Oahu Community Correctional Center
(“OCCC”); (2) $626.70, when DPS transferred him from Hawaii to
Tennessee to a Corrections Corporation of America (“CCA”)

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facility;3 and (3) $1,345.12 that he inherited in 2002.

Finally,

Plaintiff asserts that it is unfair for DPS to defer part of his
wages to a restricted account that is only payable on his
release, when he is serving a life term.4
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Hawaii Department of Public Safety
Plaintiff sues only the Hawaii Department of Public

Safety.

Under the Eleventh Amendment to the Constitution of the

United States, neither a state nor its agencies may be sued in
federal court without its consent. Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989).

The State of Hawaii has not waived

its Eleventh Amendment immunity with respect to claims brought
3

The circuit court determined that CCA’s inmate accounts
accrued no interest since at least 1998.
4

Plaintiff is actually serving a life term with the
possibility of parole. Hawaii SAVIN: https://www.vinelink.com.
8

under § 1983 in federal court.

See Neal v. Shimoda, 131 F.3d

818, 832 n.17 (9th Cir. 1997).

The State of Hawaii and its arms,

such as the Department of Public Safety, also are not “persons”
within the meaning of § 1983.

See Pennhurst, 465 U.S. at 106;

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996);
see also Hale v. State of Arizona, 993 F.2d 1387, 1398 (9th Cir.
1993) (en banc); Gilbreath v. Cutter Biological, Inc., 931 F.2d
1320, 1327 (9th Cir. 1991).

The Hawaii Department of Public

Safety is DISMISSED.
B.

Takings Clause and Act 75
To the extent Plaintiff claims that Act 75 is

unconstitutional because it dictates that inmate accounts be held
in non-interest bearing accounts, he is mistaken.

“The Takings

Clause of the Fifth Amendment prohibits the government from
taking private property for public use without just
compensation.”

Ward v. Ryan, 623 F.3d 807, 810 (9th Cir. 2010)

(discussing the Takings Clause as it applies to inmate trust fund
accounts).

“This right is applicable to the states through the

Due Process Clause of the Fourteenth Amendment.”

Id. (citing

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160
(1980).
“To establish a violation of the Takings Clause, [a
plaintiff] must first demonstrate he has a property interest that
is constitutionally protected.

Only if [the plaintiff] does
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indeed possess such an interest will a reviewing court proceed to
determine whether the expropriation of that interest constitutes
a ‘taking’ within the meaning of the Fifth Amendment.

Property

interests are not constitutionally created; rather, protected
property rights are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law.”

Ward, 623 F.3d at 810

(internal

citations and quotations omitted).
Plaintiff has no property interest in requiring DPS to
maintain interest bearing accounts for its prisoners, or in
receiving interest on funds in his trust account under Hawaii
law.

See Ward, 623 F.3d at 810.

Section 353-20 prohibits DPS

from depositing inmates’ funds in interest bearing accounts.

If

Hawaii maintained interest-bearing accounts for inmates, and
refused to pay the inmates that interest, or diverted that
interest to another purpose, the Takings Clause would be
implicated, as the Hawaii Supreme Court held.
P.3d at 288.

See Blaisdell, 196

That is not the case here.

For example, in Schneider v. Calif. Dep’t of Corr., 151
F.3d 1194, 1201 (9th Cir. 1998), the court held that an inmate’s
right to interest that has accrued on his prison trust account
funds “is sufficiently fundamental that States may not
appropriate it without implicating the Takings Clause”.
Schneider is easily distinguished from the scenario presented

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here, however.

In Schneider, California state law authorized

inmates’ funds to be placed in interest bearing accounts and the
interest was allocated not to the prisoners, but deposited in a
joint inmate welfare fund.

Id.

Act 75 prohibits DPS from

placing Hawaii’s prisoners trust funds in interest bearing
accounts -- thus, no interest accrues, no interest is diverted,
and no property interest is created.

Plaintiff has had no

protected property interest on funds in his trust account since
at least May 26, 2009, when Act 75 was enacted.5

Plaintiff

therefore cannot state a cognizable claim that Act 75 is
unconstitutional under the Takings Clause.
To the extent Plaintiff alleges that Act 75
unconstitutionally withholds discharge funds from him, because he
is serving a life term and will never receive such funds, this
claim is similarly foreclosed.

A prison may withhold funds for

an inmate’s discharge, even when the inmate is serving a life
term, because such funds, “while not currently accessible by [the
inmate, are] being held for the [inmate’s] benefit.

[They] will

be paid to him upon discharge, used for his final expenses, or
left to his heir.

[They have] not and will not be taken and used

by the government for its own benefit or for the benefit of
anyone else.”

Ward, 623 F.3d at 813.

5

In any event, Plaintiff is

And, as the state courts held, because DPS never held
inmates’ funds in interest bearing accounts, Plaintiff never had
a property interest in lost accrued interest.
11

serving a term of life with the possibility of parole.

It is

therefore not certain that he will never be released and never
personally receive funds from his restricted account.
C.

Conspiracy Claim
Plaintiff alleges a broad conspiracy between unnamed

DPS officials, ex-Hawaii Governor Linda Lingle, and unnamed state
legislators to deprive him of interest.

These allegations are

completely conclusory, implausible, and insufficient to state a
conspiracy claim.

See Price v. Hawaii, 939 F.2d 702, 708–09 (9th

Cir. 1991).
“To state a cause of action [for conspiracy to
interfere with civil rights], a complaint must allege (1) a
conspiracy, (2) to deprive any person or a class of persons of
the equal protection of the laws, or of equal privileges and
immunities under the laws, (3) an act by one of the conspirators
in furtherance of the conspiracy, and (4) a personal injury,
property damage or a deprivation of any right or privilege of a
citizen of the United States.”

Gillespie v. Civiletti, 629 F.2d

637, 641 (9th Cir. 1980); see also 42 U.S.C. § 1985.

However,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice,” by
themselves, to state a claim.

Iqbal, 556 U.S. at 678.

First, Plaintiff cannot show an injury, as he has no
property interest in accruing interest on his funds.
12

That is,

Plaintiff has no constitutional right to an interest bearing
account, thus, there was no conspiracy to deprive him of his
constitutional rights by enacting Act 75.
Second, Plaintiff fails to allege facts showing that
any individual conspired to deprive him of his constitutional
rights, by explaining the nature and purpose of the conspiracy,
and specifically alleging what each individual defendant did as a
participant in the conspiracy.

See Starr v. Baca, 652 F.3d 1202,

1216 (9th Cir. 2011) (requiring “sufficient allegations of
underlying facts” showing the involvement of each defendant in
the constitutional violation to state a claim).

Plaintiff’s

allegations do not even arise to a “threadbare recital” of the
elements of a conspiracy claim.

Iqbal, at 678.

Finally, a more likely and plausible explanation for
the Hawaii Legislature’s decision to enact Act 75, is that it was
a reasoned response to the Hawaii Supreme Court’s November 18,
2008 decision and was done to ensure that Hawaii’s laws comply
with the United States and Hawaii Constitutions and to the DPS’s
long-standing practice of maintaining separate funds for
prisoners and paying no interest on those funds.
D.

Remaining Claims
To the extent Plaintiff seeks review in this court of

the state courts’ decisions denying his claims for interest that
he alleges accrued before Act 75 was enacted, those claims fail.

13

First, the Rooker–Feldman doctrine bars federal court
jurisdiction where a federal plaintiff is “complaining of
injuries caused by state-court judgments” and is “inviting
district court review and rejection of those judgments.”

Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005); but cf., Skinner v. Switzer, 131 S. Ct. 1289, 1297 (2011)
(holding that the Rooker–Feldman doctrine did not bar prisoner’s
independent § 1983 action challenging constitutionality of Texas
postconviction DNA statute).

While Rooker-Feldman does not bar

Plaintiff’s independent constitutional challenge to Act 75, it
bars his challenge to the Hawaii appellate courts’ affirmance of
the circuit court’s determination that no interest was owed to
him because no interest accrued on his funds.
Second, Plaintiff’s claims that allegedly accrued
between 1995 to 2009, when Act 75 was enacted, are barred by the
statute of limitation.

See Pele Defense Fund v. Paty, 837 P.2d

1247, 1260 (1992) (the statute of limitation applicable to § 1983
actions in Hawaii is Haw. Rev. Stat. § 657-7, the two-year
“general personal injury” provision); see also Levald, Inc. v.
City of Palm Desert, 998 F.2d 680, 686-87 (9th Cir. 1993)
(holding that a district court may sua sponte raise the statute
of limitation and dismiss the complaint if defendant has not
waived the issue).

14

Accordingly, Plaintiff’s Complaint is DISMISSED.
Because Plaintiff cannot cure the noted deficiencies in his
pleading, amendment is futile, and this dismissal is WITH
PREJUDICE AND WITHOUT LEAVE TO AMEND.
IV. 28 U.S.C. § 1915(g)
Under the 3-strikes provision 28 U.S.C. § 1915(g), 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).
Although Plaintiff says that he has filed only four
previous lawsuits as a prisoner, the federal courts’ civil
database reveals that Plaintiff has filed nearly thirty civil
actions and appeals in the federal courts.
Locator, http://pacer.psc.uscourts.gov.

See PACER Case

A careful review of

these actions reveals that two of Plaintiff’s earlier actions
were dismissed as frivolous or for failure to state a claim.

See

Blaisdell v. Padilla, No. 1:96-cv-00591 ACK (D. Haw. 1997), ECF
#28, Findings and Recommendation (recommending “dismissing
[Plaintiff’s] complaint in its entirety as frivolous and for
failure to state a claim”), ECF #29 (adopting F&R and granting
15

defendants’ motion for judgment on the pleadings); Blaisdell, et
al. v. Penarosa, No. 1:98-cv-01261-JDT (D. Tenn. 1998), ECF #2,
#3, & #12 (construing multi-prisoner plaintiff action as brought
under § 1983 not habeas, requiring payment of $150 civil filing
fee (not $5.00 habeas fee), and finding that “the complaint lacks
an arguable basis either in law or in fact and is therefore,
frivolous . . . it is dismissed pursuant to 28 USC
1915(e)(2)(B)(i)”), entering judgment, and denying
reconsideration).
Because Plaintiff did not appeal either of these
judgments, they may be counted as strikes under § 1915(g).

See

Silva v. Di Vitorrio, 658 F.3d 1090, 1099 (9th Cir. 2011).
Plaintiff is NOTIFIED of his two previous strikes, and that this
dismissal may later count as a “strike” under the “3-strikes”
provision.
V.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)
claim.

The Complaint is DISMISSED for failure to state a
See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).

Because

amendment is futile, this dismissal is WITH PREJUDICE AND WITHOUT
LEAVE TO AMEND.
(2)

Plaintiff is NOTIFIED that he has accrued two strikes

pursuant to 28 U.S.C. § 1915(g), and that this dismissal may
later be counted as a strike.
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(3)

The Clerk of Court is directed to TERMINATE this action

and enter judgment.
(4)

Any pending motions are DENIED.

The court certifies, pursuant to 28 U.S.C. § 1915(a)(3)

and Federal Rules of Appellate Procedure 24(a)(3)(A), that an
appeal of this decision would not be taken in good faith.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 20, 2012.

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

Blaisdell v. Dep’t of Public Safety, No. 1:12-cv-00554 LEK/BMK, ORDER DISMISSING
COMPLAINT WITH PREJUDICE PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1);
G:\docs\prose attys\Screening\DMP\2012\Blaisdell 12-554 lek (dsm C w prej Not. 3
strikes).wpd

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