Blaisdell v. Hawaii Department of Public Safety
Filing
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ORDER DENYING MOTION TO SET ASIDE JUDGMENT 8 . Signed by JUDGE LESLIE E. KOBAYASHI on 11/30/2012. (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.
)
____________________________ )
CIV. NO. 12-00554 LEK/BMK
ORDER DENYING MOTION TO SET
ASIDE JUDGMENT
ORDER DENYING MOTION TO SET ASIDE JUDGMENT
Before the court is Plaintiff’s “Motion to Set Aside
Judgment and Allow Voluntary Dismissal Without Prejudice.”
ECF #8.
Mot.,
Plaintiff, who is incarcerated at the Halawa
Correctional Facility (“HCF”), seeks reconsideration of this
court’s November 21, 2012, Order dismissing his action pursuant
to U.S.C. §§ 1915(e)(2) and 1915A(b)(1), with prejudice for
failure to state a claim.
See Order, ECF #6.
Plaintiff asks the
court to vacate judgment so that he may voluntarily dismiss the
action without prejudice.
For the following reasons, Plaintiff’s
Motion is DENIED.
I. LEGAL STANDARD
The court treats Plaintiff’s Motion as brought pursuant
to Federal Rule of Civil Procedure 60(b)(6), under which a party
may seek relief from a judgment or order.
Rule 60(b)(6) allows
the court to relieve a party from an order for any reason that
justifies relief.
It “is to be used sparingly as an equitable
remedy to prevent manifest injustice and is to be utilized only
where extraordinary circumstances” exist.
Harvest v. Castro, 531
F.3d 737, 749 (9th Cir. 2008) (internal quotation marks and
citation omitted).
The moving party “must demonstrate both
injury and circumstances beyond his control[.]”
Id. (internal
quotation marks and citation omitted).
“A motion for reconsideration should not be granted,
absent highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear error,
or if there is an intervening change in the controlling law.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d
873, 880 (9th Cir. 2009) (internal quotations marks and citations
omitted).
“A party seeking reconsideration must show more than a
disagreement with the Court’s decision[.]”
United States v.
Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal.
2001); see also In re Pacific Far East Lines, Inc., 889 F.2d 242,
250 (9th Cir. 1989) (Rule 60(b)(6) may provide relief where
parties were confronted with extraordinary circumstances but it
does not provide a second chance for parties who made deliberate
choices).
II.
DISCUSSION
Plaintiff argues that he mistakenly believed that he
had until January 14, 2013, before the court would screen his
complaint, because the court’s automatic “Status Report Order”
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reflects that the court would assess his case on that date.
Status Report Order, ECF #4.
See
Plaintiff says he realized he filed
this action in the wrong court and “began to prepare a voluntary
dismissal . . . the first week in November,” but was surprised by
“an erroneous dismissal ‘with prejudice.’”
Mot., ECF #8 PageID
#45.
Plaintiff next argues that he should have been allowed
to file an amended complaint under Fed. R. Civ. P. 15 before his
action was dismissed with prejudice, because Defendants had not
yet filed an answer to his pleading.
Finally, Plaintiff says the
Hawaii Supreme Court has held that his claims here have merit,
therefore he “should be allowed to pursue a voluntary dismissal
to file his state claims in the state courts.”
A.
Id. PageID #47.
Analysis
First, the court is required by statute to “review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.”
§ 1915A(a).
28 U.S.C.
The court followed the dictates of the statute and
screened the Complaint within one month of filing.
The court’s
automatic Status Report Order has no effect on this statutory
command; it is entered in all cases in this district as a case
management tool only.
The Status Report Order simply set
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January 14, 2013, as the date the court would assess the status,
that is, the progress of this case.
Nor does Plaintiff explain why, if he realized he had
misfiled the Complaint in this court on or about October 30,
2012, when he received the State’s pretrial statement in his
state court civil case No. 11-1-002008, he did not immediately
file a notice of dismissal in this action.
See Hawai’i State
Judiciary’s Public Access to Court Information:
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/.
Voluntarily
dismissing a case before a responsive pleading is served is not a
complicated “proceeding” as Plaintiff labels it, but simply
requires a one statement requesting the Clerk of Court dismiss
the case.
See Fed. R. Civ. P. 41(a).
Second, while a party may amend once as a matter of
right after service without leave of court under Fed. R. Civ. P.
15(a)(1), service had not been effected in this case.
Further,
Defendants may waive their right to reply to a prisoner’s
complaint unless ordered to answer by the court.
§ 1997e(g).
See 42 U.S.C.
Defendants failure to answer is therefore immaterial
to whether Plaintiff could file an amended complaint.
More
important, the court determined that amendment would not cure the
deficiencies in the Complaint, and dismissed the action with
prejudice.
See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th
Cir. 2007) (“Dismissal of a pro se complaint without leave to
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amend is proper only if it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment.”).
Plaintiff has no right, under Fed. R. Civ. P. 15, to file an
amended Complaint in light of that determination.
Third, the court disagrees that the Hawaii Supreme
Court determined that Plaintiff’s claims herein had merit.
As
explained in the Order dismissing the Complaint, while the Hawaii
Supreme Court held that the Department of Public Safety cannot
withhold accrued interest in its inmate’s accounts, see Blaisdell
v. Dep’t of Public Safety, 196 P.3d 277, 288 (Haw. 2008), it
later affirmed the lower courts’ determination that Plaintiff had
accrued no interest and that Act 75, Haw. Rev. Stats. § 353-20
was constitutional.
See Blaisdell v. Dep’t of Public Safety,
2011 WL 6144274 *1 (Haw., Nov. 28, 2011) (dissent Acoba, J.).
Further, the present action sought a determination that
Act 75 is unconstitutional under the federal constitution and
laws, and that the Hawaii Governor, Legislature, and Department
of Public Safety conspired to deny Plaintiff his constitutional
rights.
Plaintiff’s assertion now that he mistakenly filed these
federal claims in this court, on the District of Hawaii’s
prisoner civil rights complaint form and in forma pauperis form,
is not credible.
Plaintiff clearly made a deliberate choice to
file this action in this court and now seeks relief from the
consequences of that choice.
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Finally, to vacate judgment and allow Plaintiff to
voluntarily dismiss his Complaint without prejudice would
frustrate Congress’s purpose in enacting Prison Litigation Reform
Act of 1995 (“PLRA”): to discourage prisoners from filing
baseless lawsuits.
See Crawford-El v. Britton, 523 U.S. 574, 596
(1998); Grindling v. Hawaii, No. 1:09-cv-00536 JMS, 2009 WL
4857399 (D. Haw. 2009).
Congress drafted the “three strikes”
provision of 28 U.S.C. § 1915(g), to curtail a prisoner’s ability
to proceed without the payment of a filing fee 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.”
Plaintiff seeks to circumvent any later
determination that he has accrued a strike in this action by
allowing him to voluntarily dismiss this action.
The court expended considerable energy reviewing
Plaintiff’s claims, assessing their merits, and determining
whether Plaintiff’s action should proceed in the six weeks
between his filing this action and its dismissal.
Allowing
Plaintiff to voluntarily dismiss this action now, after screening
is complete and a decision has been rendered, would frustrate
Congress’s aim of deterring exactly this type of “frivolous
prisoner gamesmanship.”
Grindling, 2009 WL 4857399, *1.
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While
the Ninth Circuit has not yet considered whether a prisoner
should be allowed to voluntarily dismiss his action after
screening has found it deficient, several district courts have
disapproved of this practice.
See e.g., Sumner v. Tucker, 9 F.
Supp. 2d 641, 644 (E.D. Va. 1998) (“It would frustrate the
purpose of Section 1915(g) if an inmate was allowed to exploit
this system by filing a meritless action and waiting until after
it was reviewed to move for its dismissal.”); Grindling, 2009 WL
4857399, *1; Stone v. Smith, 2009 WL 368620, *1 (S.D. Ga. Feb.
13, 2009); see also, Neu v. Adams Cnty. Jail, 2012 WL 3878717
(S.D. Ohio, Sept. 6, 2012) (allowing prisoner’s voluntary
dismissal because he had received erroneous advice and filed no
other frivolous lawsuits, but noting that normally a prisoner may
not dismiss an action after screening to avoid a strike);
Bloodworth v. Timmerman-Cooper, 2011 WL 1740031 (S.D. Ohio)
(same, stating “generally speaking, a plaintiff should not be
allowed to dismiss a case before an adverse Report and
Recommendation is adopted just to avoid a strike).
To the extent Rule 41(a) generally allows voluntary
dismissal, this right is not unlimited and the PLRA’s screening
requirement and three-strikes provisions trump the civil rule.
See Gonzalez v. Secy for Dep’t of Corr., 366
F.3d 1253, 1270
(11th Cir. 2004) (stating that “if the earlier adopted rule is
inconsistent with the later enacted statutory provision, the rule
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yields to the statute to the extent of the inconsistency”); Young
v. Leonard, 2006 WL 3447662, at *1 (S.D. Tex. Nov. 21, 2006)
(finding a conflict between Rule 41 and the PLRA, and noting that
the PLRA, as the more recent statute, takes precedence); see also
Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976)
(recognizing repeal by implication in such cases where provisions
in two acts are in irreconcilable conflict -- the later act
impliedly repeals the earlier “to the extent of the conflict”).
Plaintiff presents no newly discovered evidence or
intervening change in controlling law, or show that the court
committed clear error.
Nor does he demonstrate extraordinary
circumstances warranting reconsideration of the Order dismissing
this action with prejudice.
Accordingly, Plaintiff’s Motion for
Reconsideration is DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 30, 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 DENYING MOTION TO
SET ASIDE JUDGMENT; G:\docs\prose attys\Screening\DMP\2012\Blaisdell 12-554 lek (seeks
vol dsm w out prej).wpd
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