In re: Henry Lagmay

Filing 40

ORDER EXTENDING TIME. Signed by JUDGE DERRICK K. WATSON on 8/18/2015. (1) Plaintiff is GRANTED until on or before SEPTEMBER 14, 2015 to file an amended complaint. The amended complaint must allege this court's jurisdiction an d venue, identify the defendants in the caption and within each claim, explain defendants' capacity for suit and personal involvement in his claims, and be set forth in separately numbered paragraphs explaining how each defendant personally vi olated Plaintiff's civil rights. See Fed. R. Civ. P. 10; see also 42 U.S.C. § 1983. Plaintiff must explain his request for relief and sign the amended complaint. In this instance, Plaintiff need not provide copies of the amended complain t; he will be sent a complete, endorsed copy of the amended complaint upon its receipt at court. (2) Plaintiff is NOTIFIED again that, until he submits a legible, signed amended complaint set forth on this court's prisoner civil rights form , the court will not consider other documents, motions, pleadings, notices, or miscellaneous filings. (3) The Clerk is DIRECTED to send Plaintiff a prisoner civil rights complaint form, a copy of Rules 10-12, 18, and 20 of the Federal Rules of Civil Procedure, and another copy of the May 15, 2015 Order Dismissing Complaint With Leave to Amend, Doc. No. 4 . (4) The Clerk is further DIRECTED to send a copy of this Order to the Halawa Correctional Facility Acting Warden Frances Sequeira, the Director of theHawaii Department of Public Safety Nolan Espinda, and the Department of PublicSafety Litigation Coordinator Shelley Nobriga, Esq., to alert them to Plaintiff's allegations regarding law library access and copies. Related docs 38 , 4 , 35 , 36 (ecs, )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. Documents and parties served as directed.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

IN RE: HENRY LAGMAY,
#A0191119,
Plaintiff,

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CIV. NO. 15-00166 DKW/RLP
ORDER EXTENDING TIME

ORDER EXTENDING TIME
Before the court are Plaintiff’s memorandum and notice detailing the
difficulties he is allegedly experiencing at the Halawa Correctional Facility
(“HCF”), accessing the law library and making copies of his documents. See Doc.
Nos. 36, 38. Plaintiff asserts these difficulties made it impossible for him to file an
amended complaint on or before August 6, 2015, as ordered. He seeks relief from
the July 24, 2015 Order Denying Motions and Extending time under Rule 60(b)(3)
of the Federal Rules of Civil Procedure. See Doc. No. 35. For the following
reasons, the court extends the deadline to file an amended complaint until on or
before September 14, 2015.
I. BACKGROUND
Plaintiff commenced this prisoner civil rights action on May 6, 2015.
Compl., Doc. No. 1. The court dismissed Plaintiff’s complaint for failure to state a
claim on May 15, 2015, with leave granted to amend on or before June 19, 2015.

See Order Dismissing Complaint With Leave to Amend, Doc. No. 4. The court
notified Plaintiff that failure to timely file an amended complaint on court forms,
and submit either payment or an in forma pauperis (“IFP”) application, could result
in dismissal of the action. Id., PageID #29. Plaintiff filed numerous motions,
requests, and other documents before the June 19, 2015 deadline. See Doc. Nos. 5,
6, 9-11, 14, 17, and 18. He failed to submit an amended complaint, the filing fees,
or an IFP application, however, and instead moved for an extension of time to do
so. See Doc. No. 17.
The court extended the deadline to file the amended complaint until on or
before July 17, 2015. Entering Order, Doc. No. 19. The court informed Plaintiff
that he may not file any further ancillary motions, requests, or documents until he
either paid the civil filing fee, or submitted an in forma pauperis application, and
filed a properly amended complaint. Id.
Plaintiff submitted five additional documents before July 17, 2015. See
Doc. Nos. 20-25. On July 17, 2015, Plaintiff requested another extension of time
to file an amended complaint. Doc. No. 26. He continued to file additional
documents after the filing deadline passed. See Doc. Nos. 29-32.
Plaintiff paid the filing fee on July 24, 2015, and the court extended the time
to file the amended complaint until on or before August 6, 2015. See Doc. Nos.
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34, 35. The court notified Plaintiff again that he may not file, and the court will
not act on, any motions, requests, letters, or notices until he filed an amended
complaint. Order, Doc. No. 35.
On July 29, 2015, Plaintiff filed a memorandum stating that, while he is
capable of complying with the court’s order to properly amend the complaint, he
has been denied attendance at the law library on at least five occasions since he
was ordered to amend his original complaint. See Doc. No. 36.
On August 12, 2015, Plaintiff filed a “notice” that he did not receive full
copies of his “Motion to Inforce [sic] A Restraining Order,” that was mailed to the
court on July 14, 2015. See Notice, Doc. No. 38 (referring to Mot., Doc. No. 24).
Plaintiff also says that he (1) was denied law library attendance again on August 5,
2015; (2) attended the law library on June 23, 2015; and (3) has received no
responses from prison counselors to his requests for copies. Id. He seeks relief
from the August 6, 2015 deadline to file an amended complaint pursuant to Rule
60(b)(3) of the Federal Rule of Civil Procedure.
II. DISCUSSION
First, to the extent Plaintiff complains that the Clerk of Court failed to return
a complete copy of his motion to enforce a restraining order, Doc. No. 24, he is

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notified that the court normally does not return full copies of documents submitted
by litigants, beyond the complaint, petition, and amendments thereto.
Second, to the extent Plaintiff complains prison counselors failed to respond
to his request for copies, this has not prevented him from accessing the court,
obtaining copies of his documents, or amending the complaint. Plaintiff admits he
received copies of unidentified documents within seven days after requesting them
on June 23, 2015, at the law library. See Doc. No. 26-2. Plaintiff also mailed
eighteen pages of copied federal statutes to the court on June 21, 2015. Clearly,
Plaintiff attended the law library at least once before June 23, 2015, and has
received copies from the law library within one week after he makes a request. See
Doc. Nos. 21-1, 21-2. Plaintiff has the means to pay for copies. See Order
Denying In Forma Pauperis Application, Doc. No. 22 (finding Plaintiff is not a
pauper). Moreover, the court does not require copies of federal statutes or caselaw
to understand Plaintiff’s claims. Finally, Plaintiff may hand copy his documents
before he sends them to the court.
Third, Plaintiff’s attachments show that he is not complying with prison
procedures when he requests law library attendance. Plaintiff attaches two
grievances to his notice. See Administrative Remedy Forms, Nos. 272763 &
272771, Doc. Nos. 38-1, 38-2. In Step 1 Grievance No. 2727763, Plaintiff grieved
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the prison’s failure to schedule him for the law library on June 16, 30, and July 7,
2015, after he had submitted his requests on the Sunday before these dates. Doc.
No. 38-1. There is no prison response on this copy. In Plaintiff’s Step 2 Appeal
No. 272771, Plaintiff states that he is unsatisfied with the prison’s response to No.
2727763, that
Law Library Requests Are Processed for the Week after We Recieve
[sic] Them Providing We Recieve [sic] [them] Before Wednesday.
Some of Our Staff Is on Vacation and We Are Short Staffed. Normal
Tuesday Law Library at the SNF Should Resume in August.
Had Plaintiff simply made a request to attend the law library by the
Wednesday before he wished to attend, particularly while the prison was shortstaffed, he would have been accommodated. Plaintiff has had since May 15, 2015,
to plan for law library sessions to accommodate his deadlines for filing an
amended complaint, but he continued to fail to comply with the prison’s
regulations.
“Prisoners have a constitutional right of access to the courts.” See Silva v.
Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)). Plaintiff, however, does not
allege facts showing that he has suffered a “specific instance” when he was denied
access to the court based on the prison’s alleged denial of copies or failure to
schedule him for the law library. Lewis v. Casey, 518 U.S 343, 349 (1996). That
is, Plaintiff cannot show an “actual injury” in this action based on these
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unsupported and misplaced claims regarding the unavailability of copy services
and law library sessions. Christopher v. Harbury, 536 U.S. 403, 415-16 (2002).
If Plaintiff cannot get copies at the law library because he will not comply
with the prison’s rules concerning how to schedule law library sessions, he is
informed that he may hand copy his amended complaint and other documents.
Moreover, Plaintiff does not require copies of federal statutory or case law to
properly amend. Plaintiff must simply and concisely state the facts underlying his
claims, include the date and place the events at issue allegedly occurred, and name
the defendants that he believes have personally violated his rights. Plaintiff must
do so on court forms and he must sign his amended complaint. He may not allege
unconnected claims against multiple unconnected defendants unless those claims
arise out of the same transactions or occurrences. See Fed. R. Civ. P. 18 & 20. In
short, Plaintiff must follow the detailed instructions the court provided in the Order
Dismissing Complaint With Leave to Amend, Doc. No. 4.
Plaintiff is GRANTED a final extension of time to file an amended
complaint until on or before SEPTEMBER 14, 2015. Except on a written and
supported showing of good cause, Plaintiff will not be given another extension of
time to submit a verified amended complaint.

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III. CONCLUSION
(1) Plaintiff is GRANTED until on or before SEPTEMBER 14, 2015 to file
an amended complaint. The amended complaint must allege this court’s
jurisdiction and venue, identify the defendants in the caption and within each
claim, explain defendants’ capacity for suit and personal involvement in his claims,
and be set forth in separately numbered paragraphs explaining how each defendant
personally violated Plaintiff’s civil rights. See Fed. R. Civ. P. 10; see also 42
U.S.C. § 1983. Plaintiff must explain his request for relief and sign the amended
complaint. In this instance, Plaintiff need not provide copies of the amended
complaint; he will be sent a complete, endorsed copy of the amended complaint
upon its receipt at court.
(2) Plaintiff is NOTIFIED again that, until he submits a legible, signed
amended complaint set forth on this court’s prisoner civil rights form, the court
will not consider other documents, motions, pleadings, notices, or miscellaneous
filings.
(3) The Clerk is DIRECTED to send Plaintiff a prisoner civil rights
complaint form, a copy of Rules 10-12, 18, and 20 of the Federal Rules of Civil
Procedure, and another copy of the May 15, 2015 Order Dismissing Complaint
With Leave to Amend, Doc. No. 4.
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(4) The Clerk is further DIRECTED to send a copy of this Order to the
Halawa Correctional Facility Acting Warden Frances Sequeira, the Director of the
Hawaii Department of Public Safety Nolan Espinda, and the Department of Public
Safety Litigation Coordinator Shelley Nobriga, Esq., to alert them to Plaintiff’s
allegations regarding law library access and copies.
IT IS SO ORDERED.
DATED: August 18, 2015 at Honolulu, Hawai’i.

---------------------------------------------------------------------------------------------------In Re: Henry Lagmay., Civ. No. 15-00166 DKW/RLP;
ORDER EXTENDING TIME; psa recon2015

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