Lagmay v. Nobriga et al

Filing 21

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1) §§ 1915 re 1 Complaint, filed by Henry Lagmay. Signed by JUDGE LESLIE E. KOBAYASHI on 01/11/2016. (1 ) The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (2) Plaintiff may file an amended complaint curing the identified deficiencies in his Complaint, on or before February 11, 2016. (3) The Clerk of Court is directed to mail Plaintiff a prisoner civil rights complaint form so that he can comply with the directions in this Order if he chooses to amend his complaint. (4) Failure to timely file an amended complaint on or b efore February 11, 2016 that cures the deficiencies identified above, without good cause shown, may result in AUTOMATIC DISMISSAL of this action without further notice. (eps)CERTIFICATE OF SERVICEPart icipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Plaintiff served with the Order Dismissing Complaint and the Prisoner Civil Rights Complaint Form with Instructions by first class mail on January 13, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HENRY LAGMAY, #A0191119,
Plaintiff,
vs.
MRS. SHELLY NOBRIGA, et
al.,

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CIV. NO. 15-00463 LEK/BMK
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) and
1915(A)(b)(1) §§ 1915

ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1) §§ 1915
Before the court is pro se Plaintiff Henry Lagmay’s
prisoner civil rights complaint brought pursuant to 42
U.S.C. §§ 1983 & 1985.

Doc. No. 1.

Plaintiff is

incarcerated at the Halawa Correctional Facility
(“HCF”) and has paid the civil filing fee for this
action.

Plaintiff names eleven Hawaii Department of

Public Safety (“DPS”) or HCF employees and officials as
defendants to this suit.1

Plaintiff alleges that

Defendants denied him access to the court, due process,

1

Plaintiff names: DPS Director Nolan Espinda and Litigation
Coordinator Shelley Nobriga; HCF Warden Francis Sequeira, Library
staff Janice Kahlua, Marina Higgins and Mr. Hakon; Unit Team
Managers Keone Morreira, Jan Ahn, and Nolan Uehara; Case Manager
Mrs. Janice, and Adult Corrections Officer (“ACO”) Sgt. Kuamoo.

and equal protection in violation of the First, Fifth,
and Fourteenth Amendments.
Plaintiff’s Complaint is DISMISSED as set forth
below, pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1), for failure to state a claim.

Plaintiff

may file an amended complaint on or before [INSERT
DATE].
I.
A.

BACKGROUND

Plaintiff’s Claims
Plaintiff alleges that Defendants conspired to deny

him access to the courts, which resulted in the
dismissal with prejudice of his civil proceedings in In
re: Henry Lagmay, Civ. No. 15-00166 DKW/RLP, 2015 WL
5970667 (D. Haw. Oct. 13, 2015).

Plaintiff alleges

this constitutes an actual injury to his access to the
court.
During the course of his litigation in In re: Henry
Lagmay, Plaintiff alleges Defendants ignored or denied
his requests to attend the law library while other
inmates in different housing pods were allowed to
attend.

Plaintiff states that this prevented him from
2

making copies of his documents, and thus, amending his
pleading in In re: Henry Lagmay, as ordered by the
court.

Plaintiff alleges that all Defendants were made

aware of this alleged denial of access to the court
through his formal and informal grievances, which he
alleges were often unanswered.

He further alleges that

Defendants’ actions were discriminatory and violated
his rights to due process.

He seeks compensatory and

punitive damages.
B.

In re: Henry Lagmay, Civ. No. 15-00166 DKW/RLP.2
Plaintiff filed In re: Henry Lagmay on May 6, 2015.

See Civ. No. 15-00166 DKW, Compl., Doc. No. 1.
pleading was unsigned and nearly incoherent.

The

It

vaguely alleged a vast conspiracy against him among
Mainland and Hawaii prison officials, inmates, his
criminal defense attorney, state legislators, the
Hawaii Attorney General’s and Prosecutor’s Offices, and
others between 2003 and 2009, ostensibly because he was

2

The court takes judicial notice of the proceedings in In
re: Henry Lagmay, Civ. No. 15-00166 DKW, as Plaintiff’s
allegations here have a “direct relation” to that case. See Bias
v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007).
3

or is a confidential informant.

On May 15, 2015, the

court dismissed the complaint with leave to amend, for
Plaintiff’s failure to state a cognizable claim or
comply with the Federal Rules of Civil Procedure.
Order, Doc. No. 4.

Id.,

Plaintiff was notified that he

could voluntarily dismiss the action without payment or
penalty if he was not prepared to proceed and was told
that he must sign any amended pleading or other
document that he submitted to the court.

Id., PageID

#13.
Plaintiff immediately began filing extraneous
motions, letters, notices, exhibits, and documents that
generally made little sense and were non-responsive to
the court’s directions and order.
9-12, 14, 17, 18, 20, 22-33.

See Doc. Nos. 5, 6,

The court reviewed each

filing, granted Plaintiff several extensions of time to
comply with its order to amend the pleadings, sent him
court forms and copies of rules, explained that a
failure to file a signed amended complaint would result
in dismissal of his action, and answered his daily
telephone calls and questions.
4

While Plaintiff continued to file non-responsive
documents, he also claimed that prison officials were
denying him attendance at the law library and
photocopies, which he alleged was delaying his ability
to file an amended pleading.

See Doc. Nos. 36-39.

After carefully reviewing the record and
Plaintiff’s submissions, the court found that Plaintiff
had, in fact, attended the law library and clearly had
the ability to copy his pleadings and documents by
photocopy requests or by hand.
PageID #223.

See Order, Doc. No. 40,

Plaintiff’s grievances, submitted as

evidence that he was being denied law library time,
actually showed that he had consistently failed to
timely submit his requests for attendance, was told
several times how and when to submit law library
scheduling requests for the following week, and had
attended the law library on occasions when he correctly
submitted a request.

See id., PageID #223-24.

The

court found that Plaintiff was not complying with
prison procedures and had not been denied access to the

5

court.
motions.

Id.

Plaintiff continued to submit letters and

Id., Doc. Nos. 41, 42, 44, 45.

On September 21, 2015, the court finally dismissed
In re: Henry Lagmay with prejudice for Plaintiff’s
willful failure to prosecute or comply with the court’s
instructions and orders.
46.

See Dismissal Order, Doc. No.

Plaintiff filed four additional documents,

including a motion for reconsideration and a notice of
appeal.

Doc. Nos. 48-52.

The court denied

reconsideration, Doc. No. 53, and the case is now on
appeal.

See Ninth Cir. App. No. 15-17068.

Plaintiff continues to submit documents and
memoranda in In re: Henry Lagmay, see Doc. Nos. 48-51,
57, 58, 65, and he recently moved in the instant case
for an order requiring the prison to allow him to
telephone the appellate court.
LEK, Doc. No. 14.

See Civ. No. 15-00463

Plaintiff has never submitted a

signed, amended complaint in Civ. No. 15-00166 DKW.
II.

SCREENING

The court must screen all civil actions brought by
prisoners proceeding in forma pauperis or seeking
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redress from a government entity, officer, or employee.
28 U.S.C. §§ 1915(e)(2) & 1915A(a).

Complaints or

claims that are frivolous, malicious, fail to state a
claim, or seek relief from a defendant who is immune
from such relief must be dismissed.

28 U.S.C.

§§ 1915(e)(2) & 1915A(b); 42 U.S.C. § 1997e(c)(1).
A complaint that lacks a cognizable legal theory or
alleges insufficient facts under a cognizable legal
theory fails to state a claim.

Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

To

state a claim, a pleading must contain a “short and
plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This

“demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“[A] complaint must contain

sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’”

Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

To state a plausible claim, a plaintiff must

plead sufficient facts to allow “the court to draw the
7

reasonable inference that the defendant is liable for
the misconduct alleged.”

Id.

The court must identify “the allegations in the
complaint that are not entitled to the assumption of
truth,” that is, allegations that are legal
conclusions, bare assertions, or simply conclusory.
Id. at 679-80.

The court must then consider the

factual allegations “to determine if they plausibly
suggest an entitlement to relief.”

Id. at 681.

If the

allegations state a plausible claim for relief, the
claim may proceed.

Id. at 680.

Plausibility “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. at 678 (internal quotation marks omitted).

A court

must “accept factual allegations in the complaint as
true and construe the pleadings in the light most
favorable to the nonmoving party.”

Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th
Cir. 2008).

The court is not required to “‘assume the

truth of legal conclusions merely because they are cast
in the form of factual allegations.’”
8

Fayer v. Vaughn,

649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)
(quoting W. Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir. 1981)).

“[C]onclusory allegations of law and

unwarranted inferences are insufficient.”

Adams v.

Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord
Iqbal, 556 U.S. at 678.
Leave to amend should be granted if it appears the
plaintiff can correct the defects in the complaint.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en
banc).

When it is clear the complaint cannot be saved

by amendment, however, dismissal without leave to amend
is appropriate.

Sylvia Landfield Trust v. City of

L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
III. DISCUSSION
To state a civil rights claim under 42 U.S.C.
§ 1983, a plaintiff “must allege the violation of a
right secured by the Constitution and laws of the
United States, and must show that the alleged
deprivation was committed by a person acting under
color of state law.”

West v. Atkins, 487 U.S. 42, 48

(1988).
9

To state a cause of action under 42 U.S.C.
§ 1985(3), a plaintiff must show: (1) a conspiracy; (2)
to deprive a person or class of persons of equal
protection or privileges and immunities under the laws;
(3) an act by one of the conspirators in furtherance of
the conspiracy; and (4) a personal injury, property
damage or a deprivation of any right or privilege of a
citizen of the United States.

Gillespie v. Civiletti,

629 F.2d 637, 641 (9th Cir. 1980).
Because § 1985 derives from the Thirteenth
Amendment, a plaintiff must also allege “invidiously
discriminatory, racial or class-based animus.”
Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th
Cir. 1989); Gillespie, 629 F.2d at 641.

If predicated

on the same allegations, the absence of a deprivation
of rights for a § 1983 claim precludes a § 1985
conspiracy claim.
A.

Caldeira, 866 F.2d at 1182.

Right of Access to the Court
Plaintiff’s primary claim is that Defendants denied

him access to the law library and photocopier,
allegedly resulting in the dismissal with prejudice of
10

In re: Henry Lagmay, Civ. No. 15-00166 DKW.

He alleges

this constituted a denial of access to the court.
Inmates have a fundamental constitutional right of
access to the courts.
346

Lewis v. Casey, 518 U.S. 343,

(1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101

(9th Cir. 2011); Phillips v. Hust, 588 F.3d 652, 655
(9th Cir. 2009).

This right has been variously

described as stemming from the Due Process and Equal
Protection Clauses of the Fifth and Fourteenth
Amendments, see Lewis, 518 U.S. at 367, or from the
First Amendment’s right to petition the government, see
Blaisdell v. Frappeia, 729 F.3d 1237, 1243 (9th Cir.
2013).
Regardless of which constitutional guarantee
protects the right, to state a viable claim for relief,
a plaintiff must allege an actual injury, which
requires “actual prejudice to contemplated or existing
litigation.”

Nev. Dep’t of Corr. v. Greene, 648 F.3d

1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at
348) (internal quotation marks omitted); Christopher v.
Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at
11

351; Phillips, 588 F.3d at 655.

That is, a prisoner

must allege facts that show: (1) a nonfrivolous legal
attack on his conviction, sentence, or conditions of
confinement was frustrated or impeded, and (2) he
suffered an actual injury as a result.

Lewis, 518 U.S.

at 353-55.
An “actual injury” requires the inmate to:
demonstrate that the alleged shortcomings in
the library or legal assistance program
hindered his efforts to pursue a legal claim.
He might show, for example, that a complaint he
prepared was dismissed for failure to satisfy
some technical requirement which, because of
deficiencies in the prison’s legal assistance
facilities, he could not have known. Or that
he suffered arguably actionable harm that he
wished to bring before the courts, but was so
stymied by inadequacies of the law library that
he was unable even to file a complaint.
Lewis, 518 U.S. at 351.

An actual injury is required

even in cases “involving substantial systematic
deprivation of access to court,” including those
alleging “total denial of access to a library,” or an
absolute deprivation of access to all legal materials.”
Id., 518 U.S. at 353 n.4.

12

Accepting that In re: Henry Lagmay was a
“nonfrivolous” civil action, despite its apparent
timebar and wild, conclusory allegations of conspiracy
among unnamed far-flung defendants, Plaintiff fails to
allege any act by any Defendant in this case that
interfered with or impeded his ability to prosecute In
re: Henry Lagmay and caused its dismissal.
Plaintiff claims that Defendant Kuamoo told other
inmates to prepare for law library sessions, but he,
Higgins, Kahlua, and Hakon told Plaintiff that he was
not scheduled for library, or that his sessions had
been rescheduled.

Plaintiff says that Defendants

Uehara and Ahn failed to respond to his grievances and
that the remaining Defendants knew or should have known
that he was being denied access to the law library
because of their supervisory positions or through his
grievances.

These allegations do not show that

Defendants’ actions caused an actual injury to
Plaintiff’s prosecution of In re: Henry Lagmay.
First, the court told Plaintiff that he need not
provide copies of his documents and should not make
13

legal arguments in his amended pleading, but must
simply set forth his claims on a court complaint form,
explain who harmed him and how, sign the amended
complaint, and mail it to the court.
Second, Plaintiff’s submissions in In re: Henry
Lagmay showed that he had attended the law library and
had received copies of his documents at times, and that
he consistently failed to request law library sessions
early enough to be scheduled attendance for the
following week.
Third, Plaintiff was able to submit more than
thirty documents in In re: Henry Lagmay, including a
notice of appeal.

Yet he does not explain why he was

unable to submit a signed amended complaint detailing
the basis for his claims and clearly naming the
defendants.

These filings do not support a finding

that Defendants interfered with his ability to file an
amended pleading in any form.
Fourth, Plaintiff admitted that his claims in In
re: Henry Lagmay were not exhausted when he filed the
complaint and would not be exhausted until September
14

30, 2015.

See In re: Henry Lagmay, Civ. No. 15-00166

DKW, Doc. No. 44, PageID #243 (stating that Plaintiff
“Will Answer In This Court Upon Exhaustion 9-30-15
Grievance Document 275959”).

It is apparent from his

statements, delaying tactics, and from his allegations
in the present Complaint, that Plaintiff was actively
grieving the claims he presents here, as support for
his nonsensical claims in In re: Henry Lagmay, and this
was the reason that he was “unable” to comply with the
court’s orders to file an amended complaint that
explained the basis for his action.
The court accepted and liberally reviewed each of
Plaintiff’s documents in In re: Henry Lagmay to
determine if they represented an inartful attempt to
submit an amended pleading.

Plaintiff was granted

several extensions of time to amend and submit a
signed, cognizable pleading.

He was given the

opportunity to voluntarily dismiss his action before he
paid the civil filing fee if he was unprepared to go
forward, as it appeared.

Finally, the court concluded

that Plaintiff wilfully ignored and defied its
15

directions and purposely impeded the prosecution of his
own action.

See Order, Doc. No. 53, PageID #329.

Defendants did not interfere or impede Plaintiff’s
access to the court in In re: Henry Lagmay. Plaintiff’s
own actions precipitated the dismissal of his claims.
Plaintiff fails to allege an actual injury to his
right of access to the court in In re: Henry Lagmay,
thus, he fails to state a claim and this claim is
DISMISSED.
B.

Equal Protection
To the extent Plaintiff claims Defendants

discriminated against him when they scheduled other
inmates from different housing units for law library
sessions but informed him that he was not scheduled or
rescheduled, he fails to state a claim.
A plaintiff can state an equal protection claim in
two ways.

First, he or she can allege that “defendants

acted with an intent or purpose to discriminate against
the plaintiff based upon membership in a protected
class.”

See Barren v. Harrington, 152 F.3d 1193,

16

1194-95 (9th Cir. 1998) (citing Washington v. Davis,
426 U.S. 229, 239-40 (1976)).
If the challenged acts do not involve a suspect
classification, he or she can establish a “class of
one” claim by alleging that he was “intentionally
treated differently from others similarly situated and
that there is no rational basis for the difference in
treatment.”

See Vill. of Willowbrook v. Olech, 528

U.S. 562, 564 (2000); Squaw Valley Dev. Co. v.
Goldberg, 375 F.3d 936, 944 (9th Cir. 2004), overruled
on other grounds by Action Apartment Ass’n v. Santa
Monica Rent Control Bd.,509 F.3d 1020, 1025 (9th Cir.
2007).
Plaintiff alleges no facts suggesting that
Defendants intentionally discriminated against him
because he is a member of a protected class, see
Thornton v. City of St. Helens, 425 F.3d 1158, 1166
(9th Cir. 2005), or that he was treated differently
than other similarly situated inmates without a
rational basis, N. Pacifica LLC v. City of Pacifica,
526 F.3d 478, 486 (9th Cir. 2008).
17

Inmates are not a

protected class, Webber v. Crabtree, 158 F.3d 460, 461
(9th Cir. 1998), Plaintiff is not similarly situated to
inmates in another housing unit, and his grievances in
In re: Henry Lagmay show that he failed to follow
prison procedures when he requested attendance at the
law library.
C.

Due Process
To the extent Plaintiff alleges Defendants violated

his right to due process by ignoring, delaying a
response to, or denying his grievances, he fails to
state a claim.

Inmates have no separate constitutional

right to any specific procedures in a state-created
prison grievance system.

Ramirez v. Galaza, 334 F .3d

850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.3d 639,
640 (9th Cir. 1988); Bullock v. Nevens, 2015 WL
5474669, at *6 (D. Nev. Sept. 16, 2015).

“[B]ecause

inmates have no constitutional right to a prison
grievance system, the actions of the prison officials
in reviewing [the plaintiff’s] internal appeal cannot
create liability under § 1983.”
860.
18

Ramirez, 334 F.3d at

Further, Plaintiff cannot show that Defendants’
alleged delay or denial of his grievances impeded his
access to the court in In re: Henry Lagmay, as the
grievances that he alleges were stymied were each filed
after he commenced that action.
D.

Supervisor Liability
Plaintiff apparently names Defendants DPS Director

Nolan Espinda, Litigation Coordinator Shelley Nobriga;
HCF Warden Francis Sequeira, and possibly others,
solely based on their positions within the Department
of Public Safety.

Government officials may not be held

liable for the actions of their subordinates under a
theory of respondeat superior.

Iqbal, 556 U.S. at 673.

“A defendant may be held liable as a supervisor under
§ 1983 if there exists either (1) his or her personal
involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.”
Starr v. Baca, 652 F .3d 1202, 1207 (9th Cir. 2011).
A supervisor who is informed of an alleged
constitutional violation, e.g., pursuant to reviewing
19

an inmate’s administrative grievance, may be liable if
he failed to remedy it.
1098 (9th Cir. 2006).

Jett v. Penner, 439 F.3d 1091,

If a constitutional violation is

complete, however, and a supervisory grievance reviewer
is simply making a determination on whether the prison
should provide a remedy for a past violation, the
supervisory grievance reviewer has no part in causing
the constitutional violation.
Plaintiff alleges insufficient facts for the court
to infer that DPS Director Espinda, Litigation
Coordinator Nobriga, or Warden Sequeira had any
personal participation or knowledge of his claims while
they were occurring, even if there had been a
violation.
IV.

LEAVE TO AMEND

Plaintiff may file an amended complaint on or
before February 11, 2016, that cures the deficiencies
detailed above.

An amended complaint generally

supersedes the previous complaint.

See Loux v. Rhay,

375 F.2d 55, 57 (9th Cir. 1967), overruled in part by
Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012)
20

(en banc).

Thus, an amended complaint should stand on

its own without incorporation or reference to a
previous pleading.

Defendants not named and claims

dismissed without prejudice that are not realleged in
an amended complaint may be deemed voluntarily
dismissed.

See Lacey, 693 F.3d at 928 (stating that

claims dismissed with prejudice need not be repled in
an amended complaint to preserve them for appeal, but
claims that are voluntarily dismissed are considered
waived if they are not repled).
V.
(1)

CONCLUSION

The Complaint is DISMISSED for failure to

state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b).
(2)

Plaintiff may file an amended complaint curing

the identified deficiencies in his Complaint, on or
before February 11, 2016.
(3)

The Clerk of Court is directed to mail

Plaintiff a prisoner civil rights complaint form so
that he can comply with the directions in this Order if
he chooses to amend his complaint.
21

(4) Failure to timely file an amended complaint on
or before February 11, 2016 that cures the deficiencies
identified above, without good cause shown, may result
in AUTOMATIC DISMISSAL of this action without further
notice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 11, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Lagmay v. Nobriga, 1:15-cv-00463 LEK/BMK; scrn 2016 Lagmay 15-463 lek (ftsc acc. cts,
lv amd)

22