Tia v. Suzuki et al

Filing 11

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915A & 1915: "1. The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). 2. Plaintiff may file an amended complaint on or before May 10, 2013. If Plaintiff fails to timely amend the Complaint or cure the deficiencies noted in this order, this action will be AUTOMATICALLY DISMISSED, without further notice and the Clerk SHALL enter judgment stating that the dism issal was made pursuant to 28 U.S.C. § 1915........ 4. Plaintiff's 7 Motion to amend the complaint is GRANTED and Counts IX and X in the supplement are considered as part of the original Complaint. 5. Plaintiff's 9 , 10 Motion to compel the filing of his temporary restraining order is DENIED. The Motion for Temporary Restraining Order was filed on April 2, and denied on April 9, 2013. ECF Nos. 4 and 6. 6. All other pending motions are DENIED. Plaintiff is NOTIFIED that he may not file, and the court will take no action, on any motions he files until he has submitted a sufficient amended complaint that cures the deficiencies noted in the original Complaint.IT IS SO ORDERED.". Signed by JUDGE LESLIE E. KOBAYASHI o n April 12, 2013. (bbb, )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. **1983 Form along with Instructions have been served by first class mail to Pltf Tia at the address of record. Modified on 4/12/2013 (bbb, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA, #A1013142,

)
)
Plaintiff,
)
)
vs.
)
)
DEPUTY ATTORNEY GENERAL
)
SUZUKI, et al.,
)
)
Defendants.
)
______________________________ )

CIV. NO. 13-00157 LEK/KSC
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A
& 1915

ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915A & 1915
On April 2, 2013, Plaintiff, a prisoner incarcerated at
the Halawa Correctional Facility (“HCF”), commenced file this pro
se civil rights Complaint pursuant to 42 U.S.C. § 1983.

On

April 11, 2013, Plaintiff filed a supplemental complaint adding
two additional claims.

Plaintiff complains, inter alia, that

Defendants1 violated his constitutional rights by perpetrating
fraud on the court, conspiring to cover up this fraud, seeking to
forcibly medicate him, and denying him access to the court.

1

Plaintiff names twenty-eight Defendants: Hawaii Attorney
General David Louie and Deputy Attorney General Russell A.
Suzuki; Office of the Ombudsman employees Robin K. Matsunaga,
Ganson Li, Marcie McWayne, and Rene Dela Cruz; HCF Medical Staff
Dr. Steven DeWitt, Mary Tumminello, and Nurse Heather Doe; HCF
Kitchen Staff Supv. Alfredo Doe, Santiago-Lopez, and “Dietician
Does;” HCF Special Housing Adult Correctional Officers (ACOs)
Sergeant Henry Hope, Sgt. Kaiser, Sgt. Amerino, Casey K. Lau, Ray
Fonoti, Guevarra, Michael Gribbin, and Captain Paleka; HCF Unit
Manager Dovie Borges; HCF Mental Health Social Workers Tom Doe,
Jason Akasaki, and Dr. Sheila Wendler; HCF Warden Nolan Espinda,
Deputy Warden Eric Tanaka, Chief of Security Lyle Antonio, and
Healthcare Administrator Wesley Munn.

Plaintiff seeks declaratory judgment, compensatory and punitive
damages.
Plaintiff’s Complaint and supplement are dismissed for
failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1) and
§ 1915(e)(2).

Plaintiff is given leave to amend, as discussed

and limited below.
I.

LEGAL STANDARD

The court must screen all civil actions brought by
prisoners relating to prison conditions and/or seeking 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, 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,

2

the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

“Threadbare recitals of the

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

Id.

A complaint fails to state a

claim if it does not plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

“A claim has facial

plausibility 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, 556 U.S.

at 678.
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.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 611
F.3d 1202, 1205 (9th Cir. 2010) (stating that “we continue to
construe pro se filings liberally”).

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. PLAINTIFF’S CLAIMS
Plaintiff’s claims are rambling and exceedingly
difficult to decipher.

Plaintiff says that he is at least 5’11”

tall, possibly 6’, and that, as of March 2013, he weighs 156
pounds.

He asserts that the National Institutes of Health
3

(“NIH”) weight and body mass index (“BMI”) standards show that a
person his height should weigh at least 179 pounds, and that his
ideal weight is 215 pounds.

Plaintiff believes that he is

therefore underweight and requires an enhanced calorie diet.
Plaintiff primarily alleges that Defendant Dr. DeWitt2
fraudulently misrepresented the NIH’s weight and BMI standards at
a hearing held on February 13, 2012, in Tia v. Paderes, Civ. No.
11-00459 LEK.

See Compl., (Count I), ECF No. 1 PageID #2.

He

further alleges that: (1) certain Defendants are conspiring to
cover up Dr. DeWitt’s “fraud” and deprive him of adequate
nutrition (Counts II, III, IV, V, VII);3 (2) Defendant Tumminello
told him that his spitting up blood, which he alleges is due to
inadequate nutrition, is not a medical but a facility issue
(Count II); (3) certain Defendants sought a court order to
forcibly medicate him, but withdrew their request on or about
March 20, 2013 (Count V, VI);4 (4) certain Defendants conspired

2

Although Plaintiff apparently disputes this, the Honolulu
Star Advertiser reported that Dr. DeWitt died on December 26,
2012. See http://obits.staradvertiser.com/2013/01/06 (last
visited April 8, 2013).
3

Plaintiff names Defendants Tumminello, Heather, Hope,
Kaiser, Amerino, Matsunaga, McWayne, Delacruz, Espinda, Borges,
Hope, Guevarra, Case, Mun, Santiago-Lopez, Fonoti, Gribben, Lau,
Alfredo, and Antonio as liable for this claim.
4

Plaintiff names Defendants Akasaki, Dr. Wendler, Tom Doe,
and the Hawaii Department of Public Safety (DPS) as liable for
these claims. Plaintiff suggests that Attorney General Louie and
Deputy Attorney General Suzuki are also liable.
4

with the federal court in Civ. Nos. 12-00324 JMS, and 12-00473
LEK to obstruct justice regarding his claims that they mishandled
his mail (Count V);5 (5) certain Defendants failed to timely
respond to or denied his grievances (Count IV, VII);6 and (6)
certain Defendants violated his right to due process and access
to the court because (a) the prison’s grievance forms contain
carbon copy pages, (b) he must request copies of documents from
the law library (but fears that prison officials may then steal
his documents or see his claims), and (c) they denied him
highlighter pens and “white out” fluid (Counts VII, VIII, IX, X).
The Complaint and supplement may contain other claims that are
not readily evident.
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.

5

Plaintiff names Defendants Fonoti, Gribben, Lau, Antonio,
Espinda, Borges as liable for this claim.
6

Plaintiff names Defendants Espinda, Mun, Borges as liable
for this claim.
5

A.

Count I: Fraud
Whether Plaintiff is seeking reconsideration of the

Order dismissing Civ. No. 11-00459 LEK under Fed. R. Civ. P.
60(b)(3), based on Dr. DeWitt’s alleged fraud, or is alleging a
state law fraud claim, Plaintiff’s claim is meritless.

At the

February 13, 2012, hearing in Tia v. Paderes, Civ. No. 11-00459
LEK, and in his declaration in that action, Dr. DeWitt stated
that Plaintiff was 5’11” tall and weighed 163.4 pounds.

Dr.

DeWitt explained that the NIH’s weight standards for a 5’11”
person of healthy weight is between 133 and 178.5 pounds.
Dr. DeWitt opined that Plaintiff’s weight was a “perfectly
reasonable weight for a man his height.”
No. 38-1 PageID #180.

Id., DeWitt Decl. ECF

Plaintiff claims that Dr. DeWitt

misrepresented the NIH standards, perpetrating fraud on the court
and perjuring himself.7
The current NIH weight standards for a 5’11” person is
between 133 and 178.5 pounds, representing a BMI of 18.5-24.9.8
An online review of other weight and BMI calculators track the

7

At that hearing, the court received extensive evidence
regarding Plaintiff’s diet and weight and thereafter denied
Plaintiff’s motion for a temporary restraining order providing
him with an enhanced calorie diet. See Civ. No. 11-00459 LEK,
ECF No. 42. The case was later dismissed for Plaintiff’s failure
to exhaust his administrative remedies. Id., ECF No. 156.
8

See http://www.nhlbi.nih.gov/guidelines/obesity/bmi_tbl.
6

NIH standards.9

Dr. DeWitt did not misrepresent these standards

or Plaintiff’s height and weight, or incorrectly apply the
standards to Plaintiff.

Plaintiff admits he was 163.5 pounds

during the February 13, 2012 hearing, which is well within the
NIH normal weight and BMI index.

Moreover, Plaintiff’s current

weight of 156 pounds remains within the NIH’s normal weight and
BMI standards.

If Plaintiff weighed 179 pounds, or succeeded to

his “goal” weight of 215 pounds, he would be considered
overweight or obese under the NIH’s and other weight/BMI
standards.

Id.
Dr. DeWitt did not commit fraud or perjury at the

February 13, 2012 hearing.

Moreover, the court did not rely on

Dr. DeWitt’s statements when it dismissed Civ. No. 11-00459 LEK
for Plaintiff’s failure to exhaust administrative remedies.
Thus, reconsideration of that decision is DENIED.

Finally,

Plaintiff fails to state a state law fraud stemming from
Dr. DeWitt’s statement because cannot show substantial actual
damages.

See Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De

Nemours, 116 Hawai’i 277, 292, 172 P.3d 1021, 1036 (Haw. 2007)
(stating “in a fraud case, ‘the plaintiff must have suffered
substantial actual damage, not nominal or speculative

9

See e.g., Centers for Disease Control bmi calculator at:
http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_
bmi_calculator/bmi_calculator.html.
7

[damages]’”) (citations omitted).

Count I is DISMISSED for

Plaintiff’s failure to state a claim.
B.

Conspiracy: Counts II, II, IV, V, VII
A conspiracy claim under § 1983 requires proof of “‘an

agreement or meeting of the minds to violate constitutional
rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001)
(quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865
F.2d 1539, 1540–41 (9th Cir. 1989) (citation omitted)), and “‘an
actual deprivation of constitutional rights,’”

Hart v. Parks,

450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward
Cnty., Okla., 866 F.2d 1121, 1126 (9th Cir. 1989)).

Vague and

conclusory allegations with no supporting factual averments are
insufficient to support a conspiracy claim under § 1983.
Woodrum, 866 F.2d at 1126; Aldabe v. Aldabe, 616 F.2d 1089, 1090
(9th Cir. 1980).
Dr. DeWitt did not commit fraud or perjury regarding
Plaintiff’s weight and the NIH standards.

Under NIH standards,

which are generally accepted by the medical community, Plaintiff
is not underweight.

See Civ. No. 11-00459 LEK, DeWitt Decl., ECF

No. 38-1 PageID #179-181.

Defendants, therefore did not conspire

to “cover up” Dr. DeWitt’s alleged fraud and perjury, or to deny
him adequate nutrition because he is not entitled to an enhanced
calorie diet.

Plaintiff’s claim that he is underweight pursuant

to NIH standards is delusional and he cannot show a
8

constitutional deprivation sufficient to support his conspiracy
claims.

Plaintiff’s conspiracy claims in Counts II, III, IV, V,

and VII, concerning and Defendants’ alleged conspiracy to cover
up Dr. DeWitt’s alleged fraud and to deny him adequate nutrition
are DISMISSED for failure to state a claim.
C.

Count II: Defendant Tumminello
In Count II, Plaintiff vaguely says that Tumminello

“responded to Plaintiff’s spitting up blood due to lack of
nutrition as a facility not a medical issue and stated Plaintiff
doesn’t qualify for extra food.”

Comp., ECF No. 1 PageID #3.

To

the extent Plaintiff alleges Tumminello said this in furtherance
of a conspiracy, as suggested by his other statements in this
claim, he fails to state a claim.

Plaintiff may, however, be

attempting to allege an Eighth Amendment claim against
Tumminello.
Prison officials must provide inmates adequate food,
clothing, shelter, and medical care.
825, 832 (1994).

Farmer v. Brennan, 511 U.S.

To state a constitutional violation for the

denial or delay of medical care, a prisoner must allege that: (1)
the deprivation was objectively sufficiently serious, and (2) the
prison official acted with a sufficiently culpable state of mind.
Farmer, 511 U.S. at 834.

With respect to the subjective prong,

the state of mind is one of deliberate indifference to inmate
health or safety.

Id.

Prison officials must be aware of facts

9

from which the inference could be drawn that a substantial risk
of serious harm exists, and must also draw that inference.
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).

Prison

officials act with deliberate indifference to a prisoner’s
serious medical needs when they “deny, delay, or intentionally
interfere with medical treatment, or it may be shown by the way
in which prison physicians provide medical care.”

Jett v.

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations
omitted).
Plaintiff’s conclusory statement regarding Defendant
Tumminello fails to provide sufficient facts to satisfy Rule 8.
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.”
at 678; Twombly, 550 U.S. at 556.

Iqbal, 556 U.S.

“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.”

Iqbal, 556 U.S. at

679.
Plaintiff does not explain the context for Tumminello’s
alleged statements.

It is unclear whether he requested medical

care for spitting up blood and was denied, or was treated but
told that his condition was not due to inadequate nutrition or
lack of an enhanced diet.

As it stands, Plaintiff’s allegation

10

against Tumminello is not consistent with a constitutional claim.
He provides no background from which the court can infer that
Tumminello acted with deliberate indifference to his health,
other than his faulty claims that she was conspiring to cover up
Dr. DeWitt’s fraud and deny him an enhanced calorie diet.
The court must assess whether there are other “more
likely explanations” for Tumminello’s statement.
at 680.

Iqbal, 556 U.S.

“[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the
complaint has alleged — but it has not ‘show[n]’ — “that the
pleader is entitled to relief.’”
Civ. Proc. 8(a)(2)).

Id. at 679 (quoting Fed. Rule

Plaintiff fails to state a claim against

Tumminello for the denial or delay of medical care and this claim
is DISMISSED.
D.

Counts V, VI: Forcible Medication
Prison officials may forcibly treat a mentally ill

inmate with anti-psychotic drugs “if the inmate is dangerous to
himself or others and the treatment is in the inmate’s medical
interest.”

Washington v. Harper, 494 U.S. 210, 227 (1990); Sell

v. United States, 539 U.S. 166, 180-81 (2003) (adopting a more
restrictive standard for medicating a defendant facing trial than
Harper’s standard for medicating a convicted inmate to render him
non-dangerous); United States v. Loughner, 672 F.3d 731, 745 (9th
Cir. 2012).

Such forcible medication must be “‘reasonably
11

related to legitimate penological interests.’” Harper, 494 U.S.
at 223 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
Plaintiff provides few details regarding this claim.
Its context suggests that he believed Defendants Akasaki,
Wendler, Tom Doe, DPS, Louie, and Suzuki conspired to have him
forcibly medicated to cover up Dr. DeWitt’s alleged fraud.
Plaintiff unequivocally states, however, that Defendants withdrew
their state court motion to forcibly medicate him on March 20,
2013.

See Compl., ECF No. 1 PageID #8.

Consequently, Plaintiff

was not forcibly medicated and therefore fails to state a claim.
Counts V and VI, to the extent they allege Defendants violated
his constitutional rights by forcibly medicating him, are
DISMISSED.
E.

Count V: Conspiracy to Obstruct Justice
Civil No. 12-00324 JMS was dismissed without prejudice

on July 3, 2012, pursuant to 28 U.S.C. § 1915(g), because
Plaintiff had accrued three strikes, failed to allege imminent
danger of serious physical injury, and failed to concurrently pay
the civil filing fee.

See ECF No. 6.

Civil No. 12-00473 LEK was

dismissed for the same reason on August 27, 2012.

See ECF No. 4.

Plaintiff fails to allege any facts that plausibly
suggest an agreement or meeting of the minds between Defendants
and the court regarding these cases.
441.

See Franklin, 312 F.3d at

Nor can he allege an actual deprivation of a constitutional
12

right stemming from the dismissal of these cases, because the
record is clear that they were subject to dismissal under
§ 1915(g), for his failure to concurrently pay the filing fee.
See Hart, 450 F.3d at 1071 (requiring an actual deprivation of
constitutional rights to prove conspiracy).

Plaintiff’s vague,

conclusory, and largely incoherent allegations regarding this
alleged conspiracy, with no supporting facts, are insufficient to
support a conspiracy claim under § 1983.
at 1126.

See Woodrum, 866 F.2d

To the extent Plaintiff suggests that certain

Defendants conspired with this court to obstruct justice in Civ.
Nos. 12-00324 JMS and 12-00473 LEK, he fails to state a claim and
this claim is DISMISSED.
F.

Count IV, VII, VIII: Grievance Claims
Plaintiff alleges that Defendants Espinda, Borges, and

Mun violated his rights when they denied or failed to respond to
his grievances.

Plaintiff also alleges that HCF’s grievance

procedures violates his constitutional rights by requiring him to
provide the attached carbon copies of his grievances to prison
officials when he files his grievances.
Whether Defendants refused to process Plaintiff’s
grievances, lost them, denied them, or required a specific
procedure to exhaust them, is an insufficient basis on which to
state a claim.

See, e.g., Ramirez v. Galaza, 334 F.3d 850, 860

(9th Cir. 2003) (holding that a prisoner has no constitutional
right to an effective grievance or appeal procedure); Mann v.
Adams, 855 F.2d 639, 640 (9th Cir. 1988); Apple v. Glenn, 183
13

F.3d 477, 479 (6th Cir. 1999) (holding a prison grievance
procedure is a right of expression only and “does not guarantee a
response . . . or the right to compel government officials to act
on” it); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)
(same).
That is, “[r]uling against a prisoner on an
administrative complaint does not cause or contribute to the
[underlying] violation.”

George v. Smith, 507 F.3d 605, 609-10

(7th Cir. 2007); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999) (holding that a prison official whose only role involved
the denial of a grievance cannot be held liable under § 1983);
Wright v. Shapirshteyn, No. CV 1-06-0927-MHM, 2009 WL 361951, *3
(E.D. Cal. Feb. 12, 2009) (same); Velasquez v. Barrios, No.
07cv1130-LAB (CAB), 2008 WL 4078766, *11 (S.D. Cal. Aug. 29,
2008) (same).

Plaintiff’s claims that Defendants mishandled his

grievances and that the DPS PPMs are unconstitutional fail to
state a claim and are DISMISSED.
G.

Counts IX, X:

Denial of Access to the Court and Due Process

Plaintiff believes that prison officials look at or
steal his legal documents when he leaves his cell.

He has

alleged this claim numerous times in many of his previous cases.
As a result of this, Plaintiff fears to attend the law library or
to have his documents sent to the library to be copied.
Plaintiff claims that Defendants have also denied him
highlighters, corrective fluid, and adequate amounts of

14

stationery.

Plaintiff alleges this denies him due process and

access to the court.

These claims are frivolous.

An inmate has a constitutionally protected right of
meaningful access to the courts.
820–821 (1977).

Bounds v. Smith, 430 U.S. 817,

This right encompasses more than access to an

adequate law library: it includes access to “paper and pen to
draft legal documents with notarial services to authenticate
them, and with stamps to mail them.”

Id. at 824–25.

To prevail,

however, it is not enough for an inmate to show some sort of
denial; he must also show “actual injury” from the denial or
delay of services.

The Supreme Court has described the actual

injury requirement as follows:
[T]he inmate therefore must go one step
further and demonstrate that the alleged
shortcomings in the library or legal
assistance program hindered his efforts to
pursue a legal claim. He might show, for
example, that a complaint he prepared was
dismissed for failure to satisfy some
technical requirement which, because of
deficiencies in the prison's legal assistance
facilities, he could not have known. Or that
he suffered arguably actionable harm that he
wished to bring before the courts, but was so
stymied by inadequacies of the law library
that he was unable even to file a complaint.
Lewis v. Casey, 518 U.S. 343, 351 (1996).
Plaintiff does not require highlighters or corrective
fluid to present his claims to the court or to submit his
grievances.

Moreover, the court has explained to Plaintiff many

times that if he refuses to allow the prison to copy his
documents, he may hand copy them.

15

See e.g., Tia v. Paderes, Civ.

No. 11-00459 LEK, ECF Nos. 46 (Order denying motion for
stationery and legal service) and 119 (Order denying motion for
copies).

Plaintiff has filed many, many actions in this court,

with their attendant complaints, in forma pauperis requests, and
numerous motions, requests, declarations, notices, and letters
submitted in each.

See generally, id.

Plaintiff has adequately

communicated his claims to the court and has not been hampered by
the denial of highlighters, corrective fluid, additional
stationery, and copies.

Counts IX and X are DISMISSED for

failure to state a claim.
IV.

LEAVE TO AMEND

Plaintiff’s Complaint is DISMISSED for failure to state
a claim.

Plaintiff may file a proposed amended complaint on or

before May 10, 2013, curing the deficiencies noted above, if
possible.

The amended complaint must contain short, plain

statements explaining each Defendant’s involvement in Plaintiff’s
claims and specific facts supporting a finding that Defendants
violated his constitutional rights.
The proposed amended complaint must clearly designate
that it is the “First Amended Complaint.”

It 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.
565, 567 (9th Cir. 1987).
16

King v. Atiyeh, 814 F.2d

V.

28 U.S.C. § 1915(g)

If Plaintiff fails to file an amended complaint
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 for failure to state a

claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
2.

Plaintiff may file an amended complaint on or

before May 10, 2013.

If Plaintiff fails to timely amend the

Complaint or cure the deficiencies noted in this order, this
action will 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 prisoner civil rights complaint and instructions to
Plaintiff so that he may comply with this Order.

17

4.

Plaintiff’s Motion to amend the complaint is

GRANTED and Counts IX and X in the supplement are considered as
part of the original Complaint.
5.

Plaintiff’s Motion to compel the filing of his

temporary restraining order is DENIED.

The Motion for Temporary

Restraining Order was filed on April 2, and denied on April 9,
2013.

ECF Nos. 4 and 6.
6.

All other pending motions are DENIED.

Plaintiff

is NOTIFIED that he may not file, and the court will take no
action, on any motions he files until he has submitted a
sufficient amended complaint that cures the deficiencies noted in
the original Complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 12, 2013.

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

Tia v. Suzuki, 1:13-cv-00157 LEK/KSC;G:\docs\prose attys\Scrng\DMP\2013\Tia 13-157 lek
(NIHstds).wpd

18