Chris Grindling vs. Bert Sam Fong; et al.

Filing 13

ORDER RE: CLARIFICATION re 11 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/29/2014. " To clarify any confusion Plaintiff may still have, the court notifies him that he owes $50 in Fong, Civ. No. 14-00098 SOM, and that he must file an in forma pauperis application or the full $400.00 filing fee in Shores, Civ. No. 14-00198 SOM. Because the time has passed for timely filing an in forma pauperis application in Shores, Civ. No. 14-00198 SOM, Plaintiff is GRANTED ten days from the date of this order to submit an in forma pauperis application. If he does so and his in forma pauperis application is granted, Plaintiff will only owe $350.00. If his in forma pauper is application is denied, he will owe $400.00. In the alternative, Plaintiff may voluntarily dismiss Shores, Civ. No. 14-00198 SOM, in lieu of submitting the fee or an in forma pauperis application, and the court will then waive the fees based on his mistaken impression that he paid the fees when he sent his check to this court on March 12, 2014. To the extent Plaintiff seeks reconsideration of any decisions to date in Fong or Shores, his Motions are DENIED." (e mt, )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 May 30, 2014. An IFP application as to CV 14-00198 SOM-RLP shall be included in the mailing to Mr. Grindling.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
)
vs.
)
)
BERT SAM FONG, et al.,
)
)
Defendants.
_____________________________ )
)
)
CHRIS GRINDLING, #A0721079,
)
)
Plaintiff,
)
)
vs.
)
)
ACO SHORES, et al.,
)
)
Defendants.
_____________________________ )
CHRIS GRINDLING, #A0721079,

CIV. NO. 14-00098 SOM/BMK
CIV. NO. 14-00198 SOM/RLP

ORDER RE: CLARIFICATION
Before the court are Plaintiff’s Motions to Clarify, in
the above-captioned cases.

See Civ. No. 14-00098, Doc. No. 11;

Civ. No. 14-00198, Doc. No. 9.

These motions ostensibly seek

clarification of the Deficiency Orders and the Orders Denying
Reconsideration in both cases.1

See Civ. No. 14-00098, Orders,

Doc. Nos. 3 and 6; Civ. No. 14-00198, Orders, Doc. Nos. 3 and 8.
Plaintiff’s Motions consist primarily of further arguments to
reconsider the Deficiency Orders, however, and also complain
1

These Deficiency Orders notified Plaintiff that he must
pay the filing fee or submit an in forma pauperis (“IFP”)
application within thirty days or risk dismissal of the action.

about the remand and dismissal of his action in Grindling v.
Fong, Civ. No. 14-00098 SOM on March 4, 2014.
No. 4.

See Order, Doc.

The court substantially addressed Plaintiff’s arguments

in its Orders Denying Reconsideration in both actions, although
Plaintiff raises several new theories allegedly supporting
reconsideration or “clarification.”
To the extent Plaintiff seeks clarification of the
records, the Orders Denying Reconsideration in these actions, or
any other orders issued in these cases, his requests are
addressed below.

To the extent he seeks reconsideration of the

Deficiency Orders or of the Orders Denying Reconsideration in
these cases, or of any other decisions issued to date in either
case, his Motions are DENIED.
I.

LEGAL STANDARD

Plaintiff’s Motions appear to be brought under Rule
60(a) of the Federal Rules of Civil Procedure, which permits the
court to grant relief from an order to “correct a clerical
mistake or a mistake arising from oversight or omission whenever
one is found in a judgment, order, or other part of the record.”
Fed. R. Civ. P. 60(a).

He may also be seeking clarification or

reconsideration under Rule 60(b), which permits the court to
relieve a party from an order for mistake or any other reason
that justifies relief.

Id. at 60(b).

2

Rule 60(b) may be used when “extraordinary
circumstances prevented a party from taking timely action to
prevent or correct an erroneous judgment.”

It should be invoked

“sparingly as an equitable remedy to prevent manifest injustice.”
United States v. Wash., 98 F.3d 1159, 1163 (9th Cir. 1996)
(internal quotation marks and citations omitted).

Whether to

grant relief is within the sound discretion of the district
court.

Am. Fin. Life Ins. and Annuity Co. v. Llewellyn, 139 F.3d

664, 665 (9th Cir. 1997).
II.

BACKGROUND

Plaintiff is incarcerated at the Maui Community
Correctional Center (“MCCC”).

He has accrued three strikes

pursuant to 28 U.S.C. § 1915(g), and may not proceed IFP without
a plausible allegation of imminent danger of serious physical
injury as of the date he files an action in the federal courts.2
See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
Plaintiff has been notified of his strikes numerous times.

See

Grindling v. Martone, App. No. 12-15298 (9th Cir. 2012) (denying
motion to proceed IFP “because appellant has had three or more
prior actions or appeals dismissed as frivolous or for failure to
state a claim and because appellant has not alleged any imminent
2

See also Grindling v. Thomas, Civ. No. 09-2635 (D. Ariz.
2010) (dismissing as frivolous and malicious); Grindling v.
Hawaii, Civ. No. 09-00536 (D. Haw. 2009) (dismissing as
frivolous), IFP denied on appeal, Grindling v. Hawaii, App. No.
10-15010 (9th Cir. 2010) (finding appeal frivolous).
3

danger of serious injury in this appeal”); Grindling v. Thomas,
Civ. No. 11-0611 (D. Ariz. 2011) (notifying Plaintiff of his
strikes and denying IFP status).
Plaintiff has also been declared a vexatious litigant
by the Hawaii State Judiciary.

See Civ. No. 14-00098 SOM, Pl.’s

Ex. A, Doc. No. 7-1, PageID #29 (Order of the Circuit Court of
the Second Circuit (“circuit court”) stating, “[Plaintiff] is a
vexatious litigant in the State of Hawaii”).

Nevertheless,

Plaintiff commenced an action in the state circuit court on
December 27, 2013, by filing a Motion for Prefiling Order.

See

Grindling v. Fong, CV. No. 13-1-1116(1) (Haw. 2d Cir. 2013),
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/main.htm (last
accessed May 28, 2014).

On February 14, 2014, the circuit court

struck Plaintiff’s return of service and supplement to the
complaint, Doc. No. 4, although Plaintiff’s state action remains
pending as he awaits determination on his Motion for Prefiling
Order.

Consequently, Defendants have not entered an appearance

in this state circuit court action.
On February 18, 2014, one business day after the state
circuit court issued its order striking his certificate of
service, Plaintiff signed a Notice of Removal, to remove CV. No.
13-1-1116(1) to the federal court.3

3

On February 27, 2014, the

February 14, 2014, was a Friday, and February 17, 2014,
was President’s Day.
4

court received Plaintiff’s Notice of Removal and opened a case.
See Grindling v. Fong, Civ. No. 14-00098 SOM, Doc. No. 1.
Because Plaintiff had not submitted payment or an IFP application
with his Notice of Removal, a Deficiency Order was immediately
issued, informing Plaintiff that he had to concurrently pay the
civil filing fees or submit an IFP application upon commencing an
action in federal court.

Id., Doc. No. 3.

On March 4, 2014, this court screened Plaintiff’s
removal documents in the Fong case, Civ. No. 14-00098 SOM,
pursuant to 28 U.S.C. § 1915A(a).

Finding that Plaintiff could

not remove his own action from the state to the federal court,
the court remanded the action to the circuit court.

See id.,

Order of Remand, Doc. No. 4; see also 28 U.S.C. § 1441(a).
In the interim, Plaintiff directed MCCC to withdraw
money from his prison account and send it to the federal court.
On or about March 12, 2014, MCCC withdrew $350.00 from
Plaintiff’s account and issued a check for the “US Court District
of Hawaii,” and mailed it to this court.
SOM, Pl.’s Ex. A, Doc. No. 4-1.4
on March 17, 2014.

See Civ. No. 14-00198

The court received this check

Because it contained no civil filing number,

the court’s financial office searched its records, discovered
that a Deficiency Order had issued two weeks earlier in the Fong

4

Plaintiff’s exhibit also shows that he had $5,025.96 in
his prison account on March 1, 2014, $4,615.21 when this check
was issued, and #2,310.85 on March 31, 2014. Id.
5

case, Civ. No. 14-00098 SOM, and credited the $350.00 to that
action.

See Civ. No. 14-00098 SOM, Doc. No. 10.

Plaintiff

apparently owed no other fees to the District of Hawaii.
On April 22, 2014, six weeks after Fong, Civ. No. 1400098 SOM, was remanded and more than a month after Plaintiff
authorized MCCC to withdraw funds and send $350.00 to the court,
Plaintiff filed the complaint in Grindling v. Shores, Civ. No.
14-00198 SOM, again without submitting the civil filing fee or an
IFP application.

On the last page of the Complaint, however,

Plaintiff said that he had sent an IFP application with $350.00
on March 12, 2014, suggesting that the payment was meant for this
then-unopened action, rather than as payment in the Fong case.
See Civ. No. 14-00198 SOM, Compl., PageID #11.
2014, a Deficiency Order issued in Shores.

On April 24,

See id., Doc. No. 3.

On April 30, 2014, Plaintiff moved for reconsideration
of the Deficiency Order in the Shores case, arguing that he had
paid the filing fees for this action when he authorized MCCC to
send the $350.00 check to this court on or about March 12, 2014.
See Mot., Doc. No. 4.

The court denied Plaintiff’s Motion,

finding his explanation implausible in light of when MCCC sent
the check and Plaintiff’s failure at the time to have commenced
the Shores case, or to have even completed and signed the
complaint in Shores when he authorized the payment.

6

III.

DISCUSSION

Plaintiff first argues that he did not intend to remove
the Fong case, originally filed in the state circuit court as CV.
No. 13-1-1116(1), to this court.

Rather, he claims he intended

to initiate a “bifurcated” action in state and federal court,
suggesting that the Fong case should not have been remanded and
that he should not have been charged a filing fee for this
bifurcated action.

Plaintiff argues that this court failed to

liberally construe his “Notice of Removal” as the initiation of a
new action or as an attempt to maintain a bifurcated state and
federal action.

In asserting that a bifurcated action is

appropriate because there are “no defendants” in his state
circuit court case, CV. No. 13-1-1116(1), Plaintiff is apparently
referring to the circuit court’s order striking his return of
service and consequent lack of defendants’ appearances in that
case.

He also claims that he raised federal claims against

Heather Kimura in his circuit court action, allegedly making
bifurcation of this action appropriate.5
5

Plaintiff says he raised “the issue of Heather Kimura
retaliatory transfer from Halawa to Saguaro,” in the circuit
court, and “[t]his court previously assessed Plaintiff $350 and
dismissed the case as lack of jurisdiction ruling the matter
belonged in Arizona[,] now it belongs in Hawaii.” See Mot., Doc.
No. 9, PageID #46-47. Plaintiff named Kimura in Grindling v.
Martone, Civ. No. 12-00361 LEK, claiming Kimura had transferred
him to Arizona in or about 2009 in retaliation for his filing
lawsuits. See id., Compl., Doc. No. 1, PageID #18. Plaintiff
voluntarily dismissed this action on September 28, 2012. It was
never transferred to Arizona. Id., Doc. No. 22. Another case,
7

Plaintiff’s arguments make no sense.

Even if a case

could be “bifurcated” to, in effect, allow a partial removal to
federal court, the language of Plaintiff’s Notice of Removal
allows no other interpretation than that he intended to remove
his entire state court action to this court to preempt outright
dismissal of his claims in state court and to avoid payment for a
civil action in this court.

Although this court must “continue

to construe pro se filings liberally,” Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010), it may not “supply essential elements
of the claim that were not initially pled.”

Ivey v. Bd. of

Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
1982).

“Courts should not undertake to infer in one cause of

action when a complaint clearly states a claim under a different
cause of action,” and should review a complaint as it is pled.
Bogovich v. Sandoval, 189 F.3d 999, 1001(9th Cir. 1999).

This

court will not construe Plaintiff’s documents in a manner that
contradicts their plain meaning.
Plaintiff knew the state circuit court had stricken one
document, and he apparently feared it would soon dismiss the
entire action.

He therefore sought what he thought was the

cheapest and most expeditious way to maintain his claims by
moving them to the federal court.

Plaintiff has considerable

Grindling v. Jinbo, Civ. No. 11-00190 DAE, was transferred to
Arizona on March 30, 2011, but did not name Kimura. See id.,
Doc. No. 4.
8

experience in the federal court, knows that he has accrued three
strikes, knows that he is required to pay the entire filing fee
for any action he initiates, and knows that he was not required
to pay a filing fee for his earlier actions when defendants
removed them to this court.

See, e.g., Civ. Nos. 06-00438 DAE;

06-00460 JMS; 06-00461 JMS.

Although his maneuver was

unsuccessful, his intent was clear.
Even if Plaintiff intended to initiate a new
“bifurcated” matter that would proceed in federal court
concurrently with his state action, he was still required to pay
the filing fee or submit an IFP application with his Notice of
Removal and complaint.

And when the court received payment for

commencing the action (without an IFP application), whether it is
considered new, removed, or “bifurcated,” it correctly credited
it to his outstanding balance in Fong, Civ. No. 14-00098 SOM.
When a defendant removes an action to the federal court, payment
is required regardless of whether it is later remanded.

Although

he is pro se, he “is not excused from knowing the most basic
pleading requirements.”

Am. Ass’n of Naturopathic Physicians v.

Hayhurst, 227 F.3d 1104, 1107–08 (9th Cir. 2000).
Plaintiff next suggests that he intended the $350.00
check to be credited to the Shores case, even though that action
had not been filed when the check was received, rather than to
the Fong case.

He argues that he cannot be held responsible if

9

MCCC officials failed to correctly label his check of March 12,
2014.

He overlooks the absence of a docket number for the Shores

case at that time.

That is, MCCC officials could not have

labeled the check for Civ. No. 14-00198 SOM as it did not yet
exist.

He also claims that he had no notice that the court would

assess a fee in the Fong case, and that there was no order
directing him to pay the filing fee.

He alleges this violated

his right to due process.
Plaintiff’s assertion that he authorized payment on
March 12 of $350.00 for an action that he had not filed as of
that date, rather than in response to the Deficiency Order in
Fong, defies logic and is contradicted by the records in Fong and
Shores.

And if MCCC officials failed to alert the court that the

check was intended for an unfiled action, that “failure” can only
be attributed to Plaintiff.

Moreover, his assertion that he is

subject to delays from the MCCC library does not explain how MCCC
could have issued his check prematurely.
Plaintiff also ignores the clear language of the
Deficiency Orders issued in both of his federal actions, which
each informed him that an action commenced in the federal court
“may only proceed without prepayment of the filing fee if the
party is granted leave to proceed in forma pauperis[,]” and
unambiguously directed him to “either pay the statuory filing fee
or submit a fully-completed and executed in forma pauperis

10

application within thirty days[.]”

See Civ. No. 14-00098 SOM,

February 27, 2014, Deficiency Order, Doc. No. 3; Civ. No. 1400198 SOM, April 24, 2014, Deficiency Order, Doc. No. 3.

Nor

does he mention the many previous notifications he has received
from the federal courts informing him that, as a prisoner, he is
required to pay the full filing fee for any action he commences,
regardless of IFP status.

Plaintiff received notice that he owed

a fee in Fong and in Shores, via the Deficiency Orders.

The

court is not required to separately order litigants to pay filing
fees after they have already been notified that fees are due.
There was no due process violation.
Plaintiff additionally asserts that this court’s
authority regarding filing fees is limited.

He argues that a

court may neither waive outstanding fees nor assess a fee if he
voluntarily dismisses a case before his complaint is screened.
See Mot., Civ. No. 14-00198 SOM, Doc. No. 9, PageID #46-47.
Plaintiff is mistaken, and the cases he cites do not support his
argument.

In Sloan v. Lesza, 181 F.3d 857 (7th Cir. 1999), the

court explicitly stated that a prisoner’s filing fee remains due
regardless of termination of the action.

Id. at 859.

In Dupree

v. Palmer, 284 F.3d 1234 (11th Cir. 2002), the court held that a
district court should dismiss a prisoner’s case without prejudice
if it denies IFP, and that the prisoner cannot simply pay the
filing fee to continue his suit.

11

Id. at 1236.

Fong was

remanded; it was not dismissed with prejudice.

That does not

negate Plaintiff’s obligation to pay the fee for attempting to
open the case without payment.
The cases Plaintiff cites are not binding on this
court, and they clearly do not prevent this court from applying
Plaintiff’s filing fee to Fong, particularly when it arrived
without an IFP application.

Nor do they support Plaintiff’s

contention that this court may not waive a filing fee if it
believes a pro se litigant mistakenly commenced an action in this
court.
Finally, Plaintiff states that he will pay the entire
$400 filing fee in Shores and the outstanding $50 fee in Fong “if
this court allows cases to proceed by screening both cases either
bifurcate or complete removal from state court due to no
service[.]”

Civ. No. 14-00198 SOM, Mot., Doc. No. 9, PageId #47

(Conclusion).

The court understands this to mean that Plaintiff

is asking for reinstatement of Fong and agreeing to pay the full
fees in both actions if the court allows them to proceed without
screening.
First, the court cannot reinstate Fong because it was
never properly before this court; a plaintiff may not remove a
case from state court.

See 28 U.S.C. § 1441(a); see also Kelton

Arms Condominium Owners Ass’n v. Homestead Ins. Co., 346 F.3d

12

1190, 1192 (9th Cir. 2003) (“[W]e have held that the district
court must remand if it lacks jurisdiction.”).
Second, the court is required to screen all complaints
“in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity,” regardless of
payment of fees.

29 U.S.C. § 1915A(a).

Even if this were not

the case, in light of Plaintiff’s three strikes, his vexatious
litigant designation in the state courts, and the record in these
two cases, the court is not inclined to forgo screening of
Plaintiff’s pleadings.
Plaintiff provides no facts supporting a need to
correct a clerical mistake, oversight, or omission in the record
or orders under Rule 60(a) of the Federal Rules of Civil
Procedure in either of his cases.

Nor does he present

extraordinary circumstances justifying relief under Rule 60(b).
The court has clarified the proceedings in his cases and declines
to reconsider its decisions.
IV.

CONCLUSION

To clarify any confusion Plaintiff may still have, the
court notifies him that he owes $50 in Fong, Civ. No. 14-00098
SOM, and that he must file an in forma pauperis application or
the full $400.00 filing fee in Shores, Civ. No. 14-00198 SOM.
Because the time has passed for timely filing an in
forma pauperis application in Shores, Civ. No. 14-00198 SOM,

13

Plaintiff is GRANTED ten days from the date of this order to
submit an in forma pauperis application.

If he does so and his

in forma pauperis application is granted, Plaintiff will only owe
$350.00.

If his in forma pauperis application is denied, he will

owe $400.00.

In the alternative, Plaintiff may voluntarily

dismiss Shores, Civ. No. 14-00198 SOM, in lieu of submitting the
fee or an in forma pauperis application, and the court will then
waive the fees based on his mistaken impression that he paid the
fees when he sent his check to this court on March 12, 2014.
To the extent Plaintiff seeks reconsideration of any
decisions to date in Fong or Shores, his Motions are DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 29, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Grindling v. Fong, 1:14-cv-00098 SOM/BMK; Grindling v. ACO Shores, 1:14-cv-00198
SOM/RLP; Order; recon/dmp2014/Grindling 14-198 (ord clarify); J:\Denise's Draft
Orders\SOM\Grindling, 14-98; 14-198 som (Ord Clarify). ord).wpd

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