Shavelson v. Nakamura
Filing
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ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (ECF No. 15 ) and DISMISSING PLAINTIFF'S COMPLAINT (ECF NO. 1 ) WITH PREJUDICE re 15 Motion for Leave to Proceed in forma pau peris. Signed by JUDGE HELEN GILLMOR on 11/20/2015. The Clerk of the Court is ordered to close the case.IT IS SO ORDERED. (eps)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
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Plaintiff,
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vs.
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CHIEF JUSTICE CRAIG NAKAMURA OF )
ICA, STATE OF HAWAII
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INTERMEDIATE COURT OF APPEALS, )
AND SUPREME COURT
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ADMINISTRATION OFFICE,
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Defendant.
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EILEEN SHAVELSON,
Civ. No. 15-00286 HG-BMK
ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT
COURT WITHOUT PREPAYING FEES OR COSTS (ECF No. 15)
and
DISMISSING PLAINTIFF’S COMPLAINT (ECF NO. 1) WITH PREJUDICE
Plaintiff Eileen Shavelson, proceeding pro se, has filed a
Complaint.
Plaintiff has also filed an Application to Proceed in
District Court Without Prepaying Fees or Costs.
The named defendant in the Complaint is Craig Nakamura in
his capacity as the Chief Judge of the Hawaii Intermediate Court
of Appeals.
Plaintiff’s filing is difficult to decipher and
contains unintelligible pleadings.
The Court construes
Plaintiff’s pleading liberally and concludes that it does not
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contain any claim upon which relief may be granted.
Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs is GRANTED (ECF No. 15).
Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH
PREJUDICE.
PROCEDURAL HISTORY
On July 30, 2015, Plaintiff filed a Complaint.
(ECF No. 1).
On the same date, the Court issued a Deficiency Order
because Plaintiff’s Complaint was not accompanied by either a
filing fee or an Application to Proceed in District Court Without
Prepaying Fees or Costs.
(ECF No. 4).
Plaintiff was provided
with thirty days to either pay the filing fee or submit the
appropriate Application to Proceed in District Court Without
Prepaying Fees or Costs.
(Id.)
On August 6, 2015, Plaintiff filed Criminal Justice Act Form
23, which is not the appropriate Application to Proceed in
District Court Without Prepaying Fees or Costs.
(ECF No. 5).
On August 24, 2015, Plaintiff made a filing entitled “MOTION
TO DECLARE DEFAULT AS SUMMARY JUDGEMENT.”
(ECF No. 7).
On September 10, 2015, the Court issued a Minute Order
dismissing Plaintiff’s Complaint for failing to either pay the
filing fee or to submit the appropriate Application to Proceed in
District Court Without Prepaying Fees or Costs.
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(ECF No. 8).
On September 21, 2015, Plaintiff filed a Motion for
Reconsideration of Dismissal.
(ECF No. 11).
On September 28, 2015, the Court granted Plaintiff’s Motion
for Reconsideration and provided Plaintiff with an additional
thirty days to either pay the filing fee or submit the
appropriate Application to Proceed in District Court Without
Prepaying Fees or Costs.
On October 8, 2015, Plaintiff filed an Application to
Proceed in District Court Without Prepaying Fees or Costs.
(ECF
No. 15).
On November 20, 2015, Plaintiff filed a MOTION TO DECLARE
DEFAULT BY DEFENDANTS.
(ECF No. 16).
BACKGROUND
According to the Complaint, Plaintiff has filed numerous
complaints, writs, and appeals in Hawaii State Court.
at p. 1, ECF No. 1).
(Complaint
Plaintiff’s Complaint here concerns an
appeal that she filed with the Hawaii Intermediate Court of
Appeals on November 4, 2013.
(Id.)
Plaintiff claims that on
January 8, 2014, Chief Judge Nakamura of the Hawaii Intermediate
Court of Appeals issued a decision dismissing Plaintiff
Shavelson’s appeal.
(Id.)
Plaintiff has named Chief Judge Craig Nakamura as the
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Defendant in her Complaint.1
(Id. at p. 1).
Plaintiff alleges
that Defendant Chief Judge Nakamura has deprived her of her
procedural due process rights.
(Id. at pp. 1-2).
STANDARD OF REVIEW
Screening Applications to Proceed In Forma Pauperis
The Court must subject each civil action where the plaintiff
has filed an Application to Proceed Without Prepayment of Fees
and seeks to proceed in forma pauperis to mandatory screening
pursuant to 28 U.S.C. § 1915(a).
The Court shall order the dismissal of any claims it finds
“frivolous, malicious, failing to state a claim upon which relief
may be granted, or seeking monetary relief from a defendant
immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating
that 28 U.S.C. § 1915(e) “not only permits but requires” the
court to sua sponte dismiss an in forma pauperis complaint that
fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th
Cir. 2001) (per curiam) (holding that “the provisions of 28
U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).
For screening purposes, the Court accepts as true the
1
Defendant’s title is “Chief Judge” of the Hawaii
Intermediate Court of Appeals rather than “Chief Justice” as
stated in the Complaint.
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allegations of the Complaint.
Hosp. Bldg. Co. v. Trs. of Rex
Hosp., 425 U.S. 738, 740 (1976).
The Court also recognizes that
“[u]nless it is absolutely clear that no amendment can cure the
defect ... a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to
dismissal of the action.”
Lucas v. Dep’t of Corr., 66 F.3d 245,
248 (9th Cir. 1995); Lopez, 203 F.3d at 1126.
Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
The Court may dismiss a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6) for “failure to state a claim upon
which relief can be granted[.]”
A Rule 12(b)(6) dismissal is
proper when there is either a lack of a cognizable legal theory
or the absence of sufficient facts as alleged by the plaintiff.
UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d
1006, 1014 (9th Cir. 2013).
The court may dismiss a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6) if it fails to contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
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inference that the defendant is liable for the misconduct
alleged.
556).
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully.
at 556).
Id. (quoting Twombly, 550 U.S.
Where a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to
relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”
AE ex rel. Hernandez v. Cnty of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
omitted).
ANALYSIS
I.
Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs (ECF No. 15)
Plaintiff has filed an Application to Proceed in District
Court Without Prepaying Fees or Costs (ECF No. 15).
A court may authorize a litigant to proceed without
prepayment of fees if the litigant submits an affidavit that
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includes a statement that the litigant is unable to pay the
required fees.
28 U.S.C. § 1915(a)(1).
An affidavit is
sufficient to support an application to proceed without
prepayment of fees if it demonstrates that the litigant “cannot
because of his poverty pay or give security for the costs and
still be able to provide himself and dependents with the
necessities of life.”
Adkins v. E.I. Du Pont De Nemours & Co.,
Inc., 335 U.S. 331, 339 (1948).
Plaintiff’s Application states that she receives $722 per
month from Social Security Disability payments and has minimal
savings.
(Id. at p. 1).
Plaintiff indicates that she has
significant debts and financial obligations.
(Id. at p. 2).
The Court finds that Plaintiff has demonstrated that she is
unable to pay court fees at this time.
Plaintiff’s Application
to Proceed in District Court Without Prepaying Fees of Costs (ECF
No. 15) is GRANTED.
II.
Plaintiff’s Complaint (ECF No. 1)
The Court screens Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915(a) because she is proceeding in forma pauperis.
The Court construes the pleadings liberally because Plaintiff is
proceeding pro se.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987) (“The Supreme Court has instructed the federal courts
to liberally construe the ‘inartful pleading’ of pro se
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litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982)
(per curiam))).
Even liberally construed, Plaintiff’s Complaint fails to
state a claim upon which relief can be granted.
The basis of Plaintiff’s claim is that she has filed a
lawsuit in the Circuit Court of the Fifth Circuit, State of
Hawaii, which remains on-going.
(Complaint at p. 1, ECF No. 1).
Plaintiff states that during the course of the litigation, she
has filed numerous appeals with the Hawaii Intermediate Court of
Appeals.
(Id.)
Plaintiff asserts that Defendant Chief Judge
Nakamura of the Hawaii Intermediate Court of Appeals denied her
second appeal, and Plaintiff claims that the Defendant Chief
Judge denied her “right to procedural fairness.”
(Id.)
Plaintiff claims that over the course of the two years while
her case has been on-going, she has filed “3 writ of mandamuses
in the State of Hawaii Supreme Court and another appellate case
CAAP-14-0001425, plus filed numerous motions and pleas for relief
in both the appellate cases and the original circuit case,
neither the circuit judge Randall Valenciano, and the Chief
Justice of ICA, Nakamura have responded appropriately to resolve
this issue.”
(Complaint at p. 1, ECF No. 1).
The Complaint requests the following relief:
Plaintiff pro se requests that the US District Court
Justice require Chief Justice Nakamura to rule by writ
of procedendo for the circuit Judge Valenciano to make
a ruling, and then hold the lower judge in contempt of
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court if he does not comply. In the alternative,
Plaintiff request the immediate removal of Chief
Justice from these appellate cases, and that action be
taken to get another Justice to do the ruling. Since
Judge Nakamura has repeatedly denied the Plaintiff fair
and due procedural fairness himself, it is most likely
that such a removal (he has ignored requests by
plaintiff for his recusal so far) would restore
procedural fairness.
(Id. at p. 2).
Plaintiff’s claims against Defendant Chief Judge Nakamura
fail because judges are absolutely immune from liability for acts
done by them in the exercise of their judicial functions.
See
Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008); Mullis v.
Bankr. Ct. For the Dist. Of Nev., 828 F.2d 1385, 1388 (9th Cir.
1987) (holding that judges are absolutely immune from civil
liability for damages for their judicial acts).
Judicial immunity is not limited to immunity from damages,
but it extends to actions for declaratory, injunctive, and other
equitable relief.
Moore v. Brewster, 96 F.3d 1240, 1243 (9th
Cir. 1996), superceded by statute on other grounds as recognized
in Tia v. Mollway, 2011 WL 2945813, at *4 (D. Haw. July 20,
2011).
The doctrine of absolute judicial immunity is based on the
policy that “judges should be at liberty to exercise their
functions with independence and without fear of consequences.”
Pierson v. Ray, 386 U.S. 547, 554 (1967) (applying judicial
immunity to an action pursuant to 42 U.S.C. § 1983).
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Judicial immunity is an immunity from suit, not just from
the ultimate assessment of damages.
11 (1991) (per curiam).
Mireles v. Waco, 502 U.S. 9,
Judicial immunity is not overcome by
allegations of bad faith or malice, the existence of which
ordinarily cannot be resolved without engaging in discovery and
eventual trial.
Id.; Meek v. Cnty. of Riverside, 183 F.3d 962,
965 (9th Cir. 1999).
Judicial immunity applies however erroneous
the act may have been, and however injurious in its consequences.
Moore, 96 F.3d at 1244.
The allegations in the Complaint pertaining to the Defendant
Chief Judge are directed at acts done in the exercise of his
judicial functions.
Defendant Chief Judge Nakamura is absolutely
immune from suit and Plaintiff’s claims fail.
Plaintiff has previously filed a complaint against Hawaii
state court judges in this District containing similar
allegations, which was also dismissed for failure to state a
claim.
Shavelson v. Judge Randall Valenciano, Civ. No. 15-00047
JMS-KSC, 2015 WL 846534, *3 (D. Haw. Feb. 26, 2015) (finding that
Plaintiff Shavelson’s claims against Judge Valenciano, the Hawaii
Intermediate Court of Appeals, and Chief Judge Craig Nakamura,
were barred by judicial immunity).
To the extent Plaintiff’s Complaint seeks review by the
federal District Court of a decision issued by a Hawaii state
court, Plaintiff’s claims are barred pursuant to the Rooker-
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Feldman doctrine set forth in Rooker v. Fidelity Trust Co, 263
U.S. 413 (1923) and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
See Reusser v. Wachovia Bank,
N.A., 525 F.3d 855, 858-59 (9th Cir. 2008) (The Rooker-Feldman
doctrine prohibits federal district courts from exercising
appellate jurisdiction over final state court judgments).
The claims in Plaintiff’s Complaint are barred based on
judicial immunity and the Rooker-Feldman doctrine.
There are no
additional facts that could remedy Plaintiff’s Complaint.
Amendment is not permitted as it is apparent that granting leave
to amend would be futile.
Carrico v. City & Cnty. of S.F., 656
F.3d 1002, 1008 (9th Cir. 2011); W. Shoshone Nat’l Council v.
Molini, 951 F.2d 200, 204 (9th Cir. 1991).
CONCLUSION
Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs is GRANTED.
(ECF No. 15).
Plaintiff’s Complaint (ECF NO. 1) is DISMISSED WITH
PREJUDICE.
//
//
//
//
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The Clerk of the Court is ordered to close the case.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, November 20, 2015.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Eileen Shavelson v. Chief Justice Craig Nakamura of ICA, State of
Hawaii Intermediate Court of Appeals, and Supreme Court
Administration Office; Civ. No. 15-00286 HG-BMK; ORDER GRANTING
PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS (ECF No. 15) and DISMISSING PLAINTIFF’S
COMPLAINT (ECF NO. 1) WITH PREJUDICE
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