Chris Grindling vs. Bert Sam Fong; et al.

Filing 14

ORDER RE: MOTION TO BIFURCATE re 12 - Signed by JUDGE SUSAN OKI MOLLWAY on 6/2/2014. "Plaintiff's Motion to Bifurcate is DENIED. The Clerk of Court is DIRECTED to send Plaintiff a copy of the court's prisoner civ il rights complaint and in forma pauperis application forms and instructions." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronica lly 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 June 3, 2014. A copy of the court's prisoner civil rights complaint form and in forma pauperis application and 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.
BERT SAM FONG, et al.,
Defendants.

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CIV. NO. 14-00098 SOM/BMK
ORDER RE: MOTION TO BIFURCATE

ORDER RE: MOTION TO BIFURCATE
On February 27, 2014, Plaintiff commenced this action
by filing a “Notice of Removal.”

Doc. No. 1.

On March 4, 2014,

the court remanded the action to the Circuit Court of the Second
Circuit, State of Hawaii (“circuit court”), after determining
that Plaintiff had improperly removed his own action from the
state to the federal court.
also 28 U.S.C. § 1441(a).

See Order of Remand, Doc. No. 4; see
The action was terminated.

More than two months later, Plaintiff sought
reconsideration, Doc. No. 7, and then clarification, Doc. No. 11,
of the decisions to remand this case and to credit his civil fee
payment, which was received after this action was remanded, to
this case.

The court carefully considered Plaintiff’s motions,

and, in the course of denying reconsideration, thoroughly
explained the basis for remanding this action and for accepting
and crediting his civil fee partial payment to the present case.
See Doc. Nos. 8 and 13.

Before the court is Plaintiff’s Motion to Bifurcate.
Doc. No. 12.

The court reads Plaintiff’s Motion as seeking to

reopen this terminated action by “bifurcating” Plaintiff’s
federal claims from his state circuit action to this court, and
proceeding concurrently with proceedings in state and federal
court.

Plaintiff appears to be trying to avoid incurring

additional filing fees by commencing a new case.
The case Plaintiff cites, Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 122 (1984), does not support
Plaintiff’s proposition.

Rather, in Pennhurst, the Supreme Court

held that the Eleventh Amendment prohibits suits brought against
a State in federal court, and observed that its holding might
result in bifurcation of certain state claims from actions that
were otherwise properly brought in a federal court.

Id. (holding

further that this principle applies equally to state-law claims
alleged against the State that are brought into federal court
under pendent jurisdiction).

Because that holding is premised on

the existence of state claims that are otherwise properly before
a federal court, it is inapplicable to this action, in which no
claims were ever properly before this court.
here to “bifurcate.”

There are no claims

Plaintiff’s Motion is DENIED for the

reasons set forth in this court’s Order Denying Reconsideration,
Doc. No. 8, and Order Re: Clarification, Doc. No. 11.

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Plaintiff may commence a new action in this court if he
chooses.

As Pennhurst indicates, nothing prevents a party from

pursuing concurrent actions in the state and federal courts.

See

465 U.S. at 122 (“It may be that applying the Eleventh Amendment
to pendent claims results in federal claims being brought in
state court, or in bifurcation of claims.
in this area.”).

That is not uncommon

To file a new action in this court stating his

federal claims, Plaintiff must use the court’s prisoner civil
rights complaint form and concurrently pay the civil filing fees
or submit an in forma pauperis application.

Because he is a

prisoner, the court will then screen Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915A(a).
Plaintiff’s Motion to Bifurcate is DENIED.

The Clerk

of Court is DIRECTED to send Plaintiff a copy of the court’s
prisoner civil rights complaint and in forma pauperis application
forms and instructions.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 2, 2014.

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

Grindling v. Fong, et al., 1:14-cv-00098 SOM/BMK; dmp/ords 2014 Grindling 14-98
(bifurcate);

J:\Denise's Draft Orders\SOM\Grindling 14-98 som (re M to Bifurcate).wpd

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