In re: Henry Lagmay

Filing 53

ORDER Denying 51 Motion for Reconsideration filed by Henry Lagmay. Signed by JUDGE DERRICK K. WATSON on 10/13/2015. ~ Plaintiff sets forth no clear or convincing evidence showing that anyone perpetrated fraud or prevented him from amending his complaint and prosecuting this action. There is no persuasive reason to reconsider the decision to dismiss this action with prejudice, and Plaintiff's Motion for Reconsideration is DENIED. The Clerk shall terminate this action. (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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

IN RE: HENRY LAGMAY,
#A0191119,
Plaintiff,

)
)
)
)
)
)

CIV. NO. 15-00166 DKW/RLP
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
On September 21, 2015, this action was dismissed for Plaintiff’s failure to
state a claim and comply with court orders. Doc. No. 46. The court found that,
although given ample opportunity to do so, Plaintiff willfully failed to file a signed
amended complaint that cured the original pleading’s deficiencies within a
reasonable period of time despite several court orders to do so.
Before the court is Plaintiff’s “Motion Pursuant to Rule 60.(b)(3),” seeking
reconsideration of the dismissal of this action with prejudice. Plaintiff’s Motion
for Reconsideration is DENIED.
I. LEGAL STANDARD
When a ruling has resulted in final judgment, a motion for reconsideration
may be construed either as a motion to alter or amend judgment pursuant to
Federal Rule of Civil Procedure 59(e), if filed within twenty-eight days after entry

of judgment, or as a motion for relief from judgment pursuant to Rule 60(b). Sch.
Dist. No. 1J, Multnomah Cty. v. AC & S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
Although judgment entered less than twenty-eight days before this motion was
received, Plaintiff specifically seeks relief under Rule 60(b)(3), and the court
reviews it as such.
To prevail under Rule 60(b)(3), “the moving party must prove by clear and
convincing evidence that the verdict was obtained through fraud,
misrepresentation, or other misconduct and the conduct complained of prevented
the losing party from fully and fairly presenting the defense.” De Saracho v.
Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000). Rule 60(b)(3)
“require[s] that fraud . . . not be discoverable by due diligence before or during the
proceedings.” Pac. & Arctic Ry. and Navigation Co. v. United Transp. Union, 952
F.2d 1144, 1148 (9th Cir. 1991); United States v. Tanoue, 165 F.R.D. 96, 98 (D.
Haw. 1995).
Disagreement with a previous order is an insufficient basis for
reconsideration, and reconsideration may not be based on evidence and legal
arguments that could have been presented at the time of the challenged decision.
Hawaii Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw.
2005). The decision to grant reconsideration “is committed to the sound discretion
2

of the court.” Navajo Nation v. Confederated Tribes & Bands of the Yakama
Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enter., Inc. v.
Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)).
II. DISCUSSION
Plaintiff apparently argues that Halawa Correctional Facility prison officials,
who he now alleges are defendants, committed fraud or prevented him from fairly
presenting his claims when they allegedly denied him law library sessions and
brought disciplinary proceedings against him for destroying thirty-four grievances.
See Mot., Doc. No. 51, PageID #298. Plaintiff claims that he showed good cause
for failing to file an amended complaint when he notified the court that he would
exhaust administrative remedies on or before September 30, 2015, regarding the
alleged denial of law library access and his ability to make copies. Id., PageID
#299, 301. He argues that he named Sequeira, Espinda, Nobriga, Janice Kahlua,
Hakon, and Higgins as defendants when he referred to them in his motions and
documents. Id., PageID #300. Plaintiff complains that he cannot afford to make
copies, his claims are not frivolous, he did not frustrate the proceedings, and the
dismissal with prejudice was a “fundamental error.” Id., PageId 304.

3

The court addressed each of these argument in its September 21, 2015
Dismissal Order. See Doc. No. 46. First, this court rejected Plaintiff’s claims that
Halawa prison officials prevented him from filing an amended complaint by
denying him law library and copier access. See Order, Doc. No. 40. Plaintiff’s
submissions showed that he had, in fact, received and made many copies, attended
the law library, and failed to appropriately request library time. Id. Moreover,
Plaintiff was told that he need not provide copies of his amended complaint nor
cite law, and instead simply needed to submit a signed complaint that set forth his
claims, named the defendants, and explained the bases for his claims against those
defendants so that this action could proceed. Thus, the bases for Plaintiff’s fraud
claim was clearly known to, considered, and rejected by the court when this action
was dismissed and cannot serve as a basis for reconsideration. See Pac. & Arctic
Ry. and Navigation Co., 952 F.2d at 1148.
Second, Plaintiff has never named or served any prison official as a
defendant, whether in Hawaii, Oklahoma, Tennessee, Arizona, or Mississippi. His
original claims were not directed toward Hawaii prison officials. It is therefore
incomprehensible how or why Halawa prison officials committed fraud or other
misconduct that prevented Plaintiff from presenting his claims, when they have

4

not been named, served, or even alleged to have been part of the alleged 2004-2009
Mainland prison conspiracy that underlies Plaintiff’s claims.
Third, it is immaterial whether Plaintiff’s claims are or will be exhausted by
September 30, 2015. Exhaustion is an affirmative defense that need not be pled in
a complaint, and the court made no determination on this issue. See Jones v. Bock,
549 U.S. 199, 216 (2007); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014).
Finally, to the extent Plaintiff complains that dismissal is with prejudice, his
claim fails. Rule 41 authorizes a court to dismiss an action with prejudice when
the plaintiff “fails to prosecute or to comply with these rules or a court order.”
Fed. R. Civ. P. 41(b); see also Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir.
2002) (affirming dismissal of habeas petition with prejudice for want of
prosecution); Curtis v. Bank of America, N.A., 2013 WL 1561475, at *2-3 (C.D.
Cal. Apr. 12, 2013) (dismissing action with prejudice for failure to file amended
complaint); West v. City of New York, 130 F.R.D. 522, 524 (S.D.N.Y. 1990) (“It is
plaintiff’s obligation to move his case to trial, and should he fail to do so in a
reasonable manner, his case may be dismissed with prejudice as a sanction for his
unjustified conduct.”).
“A Rule 41(b) dismissal is deemed a sanction for disobedience,” and is
appropriate when a plaintiff’s claims have been dismissed with leave to amend and
5

he or she takes no action. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th
Cir. 2004). While “[d]ismissal is a harsh penalty and is to be imposed only in
extreme circumstances,” dismissal with prejudice is not beyond the acceptable
range of sanctions. See Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir.
2011). Such dismissal is appropriate when “at least three factors strongly support
dismissal.” Id.; Pagtalunan, 291 F.3d at 643. “In addition, in order to warrant a
sanction of dismissal, the party’s violations must be due to willfulness or bad
faith.” Dreith, 648 F.3d at 788 (citation omitted).
Before dismissing this action, this court weighed: “(1) the public’s interest in
expeditious resolution of litigation; (2) the court’s need to manage its docket; (3)
the risk of prejudice to the defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (internal quotation marks and
citation omitted). At least three of these factors strongly supported dismissal: the
court’s need to manage its docket, the public’s interest in expeditious resolution,
and the lack of less drastic options. Moreover, even though defendants here were
never served, there is a “risk of prejudice . . . related to the plaintiff’s reason in
defaulting in failing to timely amend.” Yourish v. Cal. Amplifier, 191 F.3d 983,

6

991 (9th Cir. 1999). Plaintiff’s inadequate excuses for failing to amend further
supports a finding of prejudice to the unserved defendants.
Plaintiff was explicitly notified of the deficiencies in his pleading. Instead
of complying with the court’s directions, and despite several extensions of time to
do so, Plaintiff ignored the court’s directions and filed motions and documents that
confused rather than furthered the proceedings. In light of the numerous
opportunities to amend that Plaintiff was given, his decision to file irrelevant
motions and documents and defy the court’s orders to amend, and his apparent
inability to amend his claims to state a claim, this court concluded that Plaintiff’s
failure to amend was, at a minimum, willful, and dismissal with prejudice was
warranted.
III. CONCLUSION
Plaintiff sets forth no clear or convincing evidence showing that anyone
perpetrated fraud or prevented him from amending his complaint and prosecuting
this action. There is no persuasive reason to reconsider the decision to dismiss

//

//

//

//
7

this action with prejudice, and Plaintiff’s Motion for Reconsideration is DENIED.
The Clerk shall terminate this action.
IT IS SO ORDERED.
DATED:

October 13, 2015 at Honolulu, Hawai’i.

In Re: Henry Lagmay, Civil No. 15-00166 DKW-RLP; ORDER DENYING
RECONSIDERATION
PSA Recon 2015;Lagmay 15-166 dkw (60(b)(3)).wpd

8