Shavelson v. Nakamura

Filing 25

ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER OVERLOOKED DEFENDANTS PLUS LACK OF PROCEDURAL FAIRNESS/CALL FOR REHEARING (ECF No. 19 ). Signed by JUDGE HELEN GILLMOR on 12/7/2015. ~ Plaintiff's MOTION TO RECONSIDER OVERL OOKED DEFENDANTS PLUS LACK OF PROCEDURAL FAIRNESS/CALL FOR REHEARING (ECF NO. 19) is DENIED. The Clerk of the Court is ordered to close the case. No further filings in this case will be accepted by the District Court without prior permission of the District Judge. (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
)
)
)
Plaintiff,
)
)
vs.
)
)
)
CHIEF JUSTICE CRAIG NAKAMURA OF )
ICA, STATE OF HAWAII
)
INTERMEDIATE COURT OF APPEALS, )
AND SUPREME COURT
)
ADMINISTRATION OFFICE,
)
)
Defendant.
)
)
EILEEN SHAVELSON,

Civ. No. 15-00286 HG-BMK

ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER OVERLOOKED
DEFENDANTS PLUS LACK OF PROCEDURAL FAIRNESS/CALL FOR REHEARING
(ECF No. 19)

Plaintiff Eileen Shavelson, proceeding pro se, has filed a
Motion seeking reconsideration of the Court’s Order dismissing
her Complaint with prejudice.

Plaintiff asserts that the Court

did not address her claims against the Hawaii Attorney General’s
Office and argues there was insufficient “procedural fairness.”
Plaintiff’s MOTION TO RECONSIDER OVERLOOKED DEFENDANTS PLUS
LACK OF PROCEDURAL FAIRNESS/CALL FOR REHEARING (ECF No. 19) is
DENIED.

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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.

(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
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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).

On November 23, 2015, the Court issued an ORDER GRANTING
PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS AND DISMISSING PLAINTIFF’S COMPLAINT WITH
PREJUDICE.

(ECF No. 17).

Also on November 23, 2015, Judgment was entered against
Plaintiff.

(ECF No. 18).

On November 27, 2015, Plaintiff filed a MOTION TO RECONSIDER
OVERLOOKED DEFENDANTS PLUS LACK OF PROCEDURAL FAIRNESS/CALL FOR
REHEARING.

(ECF No. 19).
STANDARD OF REVIEW

A motion for reconsideration filed within twenty-eight days
of entry of judgment is considered a motion filed pursuant to
Federal Rule of Civil Procedure 59(e).

Am. Ironworks & Erectors,

Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir.
2001).

The Ninth Circuit Court of Appeals has set forth the

following grounds justifying reconsideration pursuant to Rule
59(e):

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(1)

If such motion is necessary to correct manifest errors
of law or fact upon which the judgment rests;

(2)

If such motion is necessary to present newly discovered
or previously unavailable evidence;

(3)

If such motion is necessary to prevent manifest
injustice; or,

(4)

If an amendment to the judgment is justified by an
intervening change in controlling law.

Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir.
2011).

There may also be other, highly unusual, circumstances

warranting reconsideration.

Sch. Dist. No. 1J, Multnomah Cnt.,

Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
ANALYSIS

Plaintiff asserts in her Motion to Reconsider that the Court
did not address her claims against the Hawaii Attorney General’s
Office.

(Pla.’s Motion to Reconsider, ECF No. 19).

Plaintiff

also claims that there was “a breach of procedural fairness.”
(Id.)
The Court construes the pleading 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
litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982)
(per curiam))).
Even liberally construed, Plaintiff’s Motion does not

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establish grounds to justify reconsideration pursuant to Federal
Rule of Civil Procedure 59(e).
I.

Plaintiff Has Not Demonstrated Reconsideration Is Warranted
Where She Failed to Comply With Fed. R. Civ. P. 10(a)
A.

Plaintiff Did Not Name the Hawaii Attorney General’s
Office in the Caption of Her Complaint

Federal Rule of Civil Procedure 10(a) requires that the name
of each defendant be included in the caption of the complaint.
Fed. R. Civ. P. 10(a); Ferdik v. Bonzelet, 963 F.2d 1258, 1262
(9th Cir. 1992); West v. Marsh, 2010 WL 624303, *6 (E.D. Cal.
Feb. 22, 2010).
Plaintiff’s Complaint filed on July 30, 2015, named the
following Defendant in the caption: “Chief Justice Craig Nakamura
of ICA, State of Hawaii Intermediate Court of Appeals, and
Supreme Court Administration Office.”

(ECF No. 1).

On November 23, 2015, the Court dismissed Plaintiff’s
Complaint against Judge Nakamura based on well-settled and
binding precedent that holds that judges are absolutely immune
from civil liability for acts performed in the exercise of their
judicial functions.

(Order Dismissing Plaintiff’s Complaint With

Prejudice at pp. 7-11, ECF No. 17).
Plaintiff asserts in her Motion that she seeks
reconsideration of the Court’s order because the Court did not
address her claims against the Hawaii Attorney General’s Office.
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(Pla.’s Motion to Reconsider, ECF No. 19).
Plaintiff did not name the Hawaii Attorney General’s Office
as a defendant in her Complaint.

Plaintiff has not established

that her failure to comply with Fed. R. Civ. P. 10(a) warrants
reconsideration of the Court’s order dismissing her Complaint.
The leniency given to pro se pleadings does not relieve a
pro se plaintiff of the duty to satisfy the pleading standard
prescribed by Fed. R. Civ. P. 10.

McNeil v. United States, 508

U.S. 106, 113 (1993); Faretta v. California, 422 U.S. 806, 834
n.46 (1975) (finding the “right of self-representation is not a
license...not to comply with relevant rules of procedural and
substantive law”).

B.

Plaintiff’s Complaint Does Not State a Claim Against
the Hawaii Attorney General’s Office

The Ninth Circuit Court of Appeals has found that a
complaint may be dismissed for failing to comply with Fed. R.
Civ. P. 10(a) unless it is clear from the allegations and the
prayer for relief in the complaint that the plaintiff intended to
name a different defendant.

Ferdik, 963 F.2d at 1262; Welch v.

Sethi, 177 Fed. Appx. 626 (9th Cir. 2006); Rice v. Hamilton Air
Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983).
A court is not required to “comb through the voluminous
complaint and guess who Plaintiff intended to sue.”
Quinn, 2014 WL 3252201, *1 (S.D. Ill. July 8, 2014).
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Watford v.

The only allegations in Plaintiff’s complaint that refer to
the Hawaii Attorney General’s Office are as follows:
Also, the State of Hawaii Attorney Generals Office
staff attorney John Cleghorn was the defense counsel
for Judge Valenciano in case CV-15-00047, dismissed In
Feb 2015 In that dismissal Judge Seabright made
recommendations for Judge Valenciano to follow through,
which he did NOT do, even after several additional
motions were filed in March, April, and May 2015 by
Plaintiff in the circuit court case, and copies filed
in appellate cases where the attorney is electronically
served.
Since February, 5 months ago, the AG staff attorney not
only did not follow through in getting their clients to
comply with these recommendations, but it appears the
staff attorneys ignored them as well.
(Complaint at p. 2, ECF No. 1).
There is no indication that the statements in Plaintiff’s
Complaint are anything other than factual allegations.

The

allegations do not assert any cause of action or seek relief from
the Hawaii Attorney General’s Office.
The Complaint requested the following in the prayer for
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
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.

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Plaintiff pleads to the US District court to
administer, and require the justices of the Hawaii
state court to administer, justice, fair and due
procedural process at both the circuit and appellate
levels, and to refrain from biased and prejudicial
practices, which are unfair, outdated, and unacceptable
in a court of law.
(Complaint at pp. 2, 3, ECF No. 1).
Plaintiff’s prayer for relief does not name the Hawaii
Attorney General’s Office.
There is no evidence that Plaintiff served the Hawaii
Attorney General’s Office with her Complaint.

Wei v. State of

Hawaii, 763 F.2d 370, 371 (9th Cir. 1985).
Even if Plaintiff had named the Hawaii Attorney General’s
Office as a defendant, Plaintiff’s Complaint has not provided
sufficient allegation to state a plausible claim against the
Hawaii Attorney General’s Office pursuant to the pleading
standards set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).
II.

Plaintiff Has Not Demonstrated Reconsideration Is Warranted
Based on Procedural Fairness
Plaintiff states that there was a breach of procedural

fairness and appears to request a hearing.
Plaintiff has not identified any error of law or fact, any
newly discovered or previously unavailable evidence, any change
in law, or any other circumstance that would require
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reconsideration of this matter.

Allstate Ins. Co., 634 F.3d at

1111.
CONCLUSION
Plaintiff’s MOTION TO RECONSIDER OVERLOOKED DEFENDANTS PLUS
LACK OF PROCEDURAL FAIRNESS/CALL FOR REHEARING (ECF NO. 19) is
DENIED.
The Clerk of the Court is ordered to close the case.

No further filings in this case will be accepted by the
District Court without prior permission of the District
Judge.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, December 7, 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 DENYING
PLAINTIFF’S MOTION TO RECONSIDER OVERLOOKED DEFENDANTS PLUS LACK
OF PROCEDURAL FAIRNESS/CALL FOR REHEARING (ECF No. 19)
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