Lagmay v. Nobriga et al
Filing
29
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(A)(b)(1). Signed by JUDGE LESLIE E. KOBAYASHI on 04/04/2016. (1) The Amended Complaint is DISMISSED for failure to state a claim. See 28 U.S.C. § 1915(e)(2)( b) & 1915A(b)(1). Because amendment is futile, this dismissal is with prejudice and without leave to amend.(2) This dismissal shall count as a strike under 28 U.S.C. § 1915(g) unless later overturned on appeal.(3) The Clerk is DIRECTED t o enter judgment and terminate this action. Any pending motions are DENIED. (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 served by first class mail on April 6, 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/KJM
ORDER DISMISSING ACTION
PURSUANT TO 28 U.S.C.
§ 1915(A)(b)(1)
ORDER DISMISSING ACTION PURSUANT
TO 28 U.S.C. § 1915(A)(b)(1)
On January 12, 2016, this Court dismissed
Plaintiff’s prisoner civil rights complaint brought
pursuant to 42 U.S.C. §§ 1983 & 1985, for failure to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1).
Order”).
complaint.
See Order, Doc. No. 21 (“January 21
Before the court is Plaintiff’s amended
Am. Compl., Doc. No. 26.
Plaintiff alleges
Defendants1 denied him access to the court, due process,
1
Plaintiff names: Hawaii Department of Public Safety
(“DPS”) Director Nolan Espinda and Litigation Coordinator Shelley
Nobriga; Halawa Correctional Facility (“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
and equal protection in violation of the First, Fifth,
and Fourteenth Amendments.
Plaintiff’s amended complaint is DISMISSED pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for
failure to state a claim.
Because it is clear that
amendment is futile, this action is DISMISSED with
prejudice.
I.
A.
BACKGROUND
Plaintiff’s Claims
Plaintiff first alleges that Defendants denied him
access to the law library and photocopy services.
He
claims that this prevented him from amending his
pleading in In re: Henry Lagmay, Civ. No. 15-00166
DKW/RLP, 2015 WL 5970667 (D. Haw. Oct. 13, 2015), which
resulted in dismissal of that action with prejudice.2
Plaintiff next alleges Defendants discriminated against
him when they allowed other inmates to attend the law
(“ACO”) Sgt. Kuamoo (all Defendants named in their individual
capacities only).
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).
2
library on days that he was denied.
Plaintiff finally
alleges Defendants violated his right to due process
when they denied or mishandled his grievances.
B.
In re: Henry Lagmay, Civ. No. 15-00166 DKW/RLP.
Plaintiff filed In re: Henry Lagmay on May 6, 2015.
See Civ. No. 15-00166 DKW, Compl., Doc. No. 1.
The
pleading was not on court forms and was unsigned.
Although the pleading was nearly incoherent, the court
construed the pleading as seeking relief under 42
U.S.C. §§ 1983 and 1985.
Plaintiff broadly alleged
that Mainland and Hawaii prison officials, inmates, his
criminal defense attorney, state legislators, the
Hawaii Attorney General’s Office, the Honolulu City and
County Prosecutor’s Offices, and countless others
conspired against him between 2003 and 2009, possibly
continuing to the present, because he was a
confidential informant.
On May 15, 2015, the court dismissed this complaint
for failure to state a claim and for failure to comply
with the Federal Rules of Civil Procedure.
Doc. No. 4.
Id., Order,
Plaintiff was granted leave to amend on or
3
before June 19, 2015, and given the option to dismiss
the action without payment or penalty if he was not
prepared to proceed.
Id., PageID #13.
Plaintiff filed numerous motions, letters, notices,
exhibits, objections, and documents thereafter, but
failed to comply with the June 19, 2015 deadline to
amend.
See id., e.g., Doc. Nos. 5-7, 9-12, 14-18, 20,
22-33.
The court extended the time to amend the
pleadings twice, sent Plaintiff additional copies of
court forms and federal and local rules, explained that
he must sign any amended pleading, and reminded him
that a failure to file a signed amended complaint could
result in dismissal of his action.
See Doc. Nos. 13,
35, 40, 43.
Plaintiff continued to delay, however, claiming
that prison officials were preventing him from
attending the law library or making photocopies, which
he alleged impeded his ability to file an amended
pleading.
See Doc. Nos. 36-39.
The court carefully
reviewed the entire record and found, however, that
Plaintiff did not comply with prison procedures,
4
despite being given clear instructions on how to do so
by prison officials.
#223-24.
See Order, Doc. No. 40, PageID
Plaintiff’s exhibits showed that he had, in
fact, attended the law library and received photocopies
when he submitted timely requests.
Consequently, the
court held that Defendants were not impeding
Plaintiff’s ability to file an amended complaint or
denying him access to the court, and warned him again
to submit an amended complaint.
Id.
Plaintiff
submitted more letters and motions, but he did not file
an amended complaint.
See id., Doc. Nos. 41, 42, 44,
45.
On September 21, 2015, the court 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.
The case is now on appeal.
See Ninth Cir. App.
No. 15-17068.
Plaintiff commenced this action on November 3,
2015.
5
II.
SCREENING
The court must screen all civil actions brought by
prisoners proceeding in forma pauperis or seeking
redress from a government entity, officer, or employee.
28 U.S.C.§ 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. § 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.’”
6
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
reasonable inference that the defendant is liable for
the misconduct alleged.”
Id.
Plausibility requires
“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).
“[C]onclusory allegations of law and
unwarranted inferences are insufficient” to state a
claim.
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
7
is appropriate.
Sylvia Landfield Trust v. City of
L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
III. DISCUSSION
The first twenty-two pages of the Amended Complaint
are nearly identical to those pages in the original
Complaint, except that Plaintiff has added notations
describing his alleged losses on the margins of these
claims.
Compare Doc. No. 1 with Doc. No. 26.
The
following seventeen pages is comprised of rambling
references to sometimes non-existent notes to the
United States Code, unexplained citations to caselaw,
and arguments concerning summary judgment, qualified
immunity, and exhaustion of remedies.
See Doc. No. 26,
PageID #188-206. Plaintiff has given little regard to
this Court’s careful instructions regarding the
problems with his original statement of claims.
A.
42 U.S.C. §§ 1983 & 1985
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
8
deprivation was committed by a person acting under
color of state law.”
West v. Atkins, 487 U.S. 42, 48
(1988).
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) 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 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.
Caldeira, 866 F.2d at 1182.
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B.
Right of Access to the Court
Plaintiff’s overarching claim is that Defendants
denied him access to the court when they allegedly
denied him law library sessions and photocopy services
while he was litigating In re: Henry Lagmay.
Inmates have a constitutional right of access to
the courts.
Lewis v. Casey, 518 U.S. 343, 346 (1996);
Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.
2011); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir.
2009).
To state a claim, a prisoner must allege that:
(1) a nonfrivolous legal attack on his conviction,
sentence, or the conditions of his confinement was
frustrated or impeded, and (2) he
injury as a result.
suffered an actual
Lewis, 518 U.S. at 353-55.
An actual injury is defined as “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 351; Phillips, 588 F.3d
at 655.
An actual injury is required even in cases
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“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.
First, the Amended Complaint alleges no facts
showing that In re: Henry Lagmay was a “nonfrivolous”
attack on Plaintiff’s conviction, sentence, or
conditions of confinement.
The complaint in that
action was addressed to the Clerk of Court and the
United States Attorney for the District of Hawaii.
It
named no defendants, asserted no separate cause of
action, made no request for relief, and was unsigned.
See Civ. No. 15-00166 DKW, Doc. No. 1.
It alleged an
undefined conspiracy beginning in approximately 2003
involving state and private Hawaii and Mainland prison
officials, unnamed inmates, Plaintiff’s criminal
defense attorney, the City and County of Honolulu
Prosecutor’s Office, the Hawaii Attorney General’s
Office, Hawaii state representatives and senators, and
11
others, based on Plaintiff’s alleged status as a
confidential informant.
Plaintiff’s claims made no sense and were largely
incoherent.
He provided no details explaining why
these diverse individuals conspired against him, or
what actions they took in further of a conspiracy.
The
court dismissed the pleading for failure to state a
claim, and it is also objectively frivolous as well.
Moreover, Plaintiff admitted that his claims were
unexhausted in In re: Henry Lagmay.
See id., Doc. No.
44, PageID #243 (stating that Plaintiff “Will Answer In
This Court Upon Exhaustion 9-30-15 Grievance Document
275959”).
Plaintiff has also made statements in the
present action showing that he was waiting to file an
amended pleading in In re: Henry Lagmay until he
grieved the claims he presents in the present action:
that Defendants were denying him access to the law
library and to photocopy services.
Second, Plaintiff fails to show that Defendants’
actions caused an actual injury to his ability to
litigate In re: Henry Lagmay.
12
The court explained to
Plaintiff that he should not make legal arguments and
need not provide copies of his documents when filing
his amended Complaint in In re: Henry Lagmay.
He was
told to simply set forth his claims on a court
complaint form, explain who harmed him, when, and how,
sign the pleading, and mail it to the court.
Plaintiff
ignored these directions and continued to submit
nonresponsive documents that failed to clarify his
claims, confused the issues, frustrated the court’s
ability to understand his claims, and impeded the
timely disposition of his suit.
The court granted Plaintiff several extensions of
time to amend, and 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.
Based on the entire record, the court
concluded that Plaintiff wilfully ignored its
directions and purposely impaired the timely
prosecution of his own action.
PageID #329.
See Order, Doc. No. 53,
Defendants did not impede Plaintiff’s
access to the court in In re: Henry Lagmay.
13
Plaintiff’s own actions precipitated the dismissal of
his claims.
Because Plaintiff fails to allege an actual injury
to his right of access to the court in In re: Henry
Lagmay, he fails to state a claim in the present
action.
Amendment to this claim is futile, and it is
DISMISSED with prejudice.
C.
Equal Protection
Plaintiff concludes that Defendants discriminated
against him because other inmates in different housing
units attended the law library when he was either not
scheduled or was rescheduled.
To state an equal
protection claim, a plaintiff must allege that
“defendants acted with an intent or purpose to
discriminate against the plaintiff based upon
membership in a protected class,” Barren v. Harrington,
152 F.3d 1193, 1194-95 (9th Cir. 1998), or that he was
“intentionally treated differently from others
similarly situated and that there is no rational basis
for the difference in treatment,” Vill. of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000).
14
Plaintiff does not allege that he was denied law
library sessions and photocopies because of his
membership in a protected class.
Nor is he similarly
situated to inmates in other housing units.
Moreover,
Plaintiff’s exhibits in In re: Henry Lagmay show that
he attended the law library and received copies when he
made proper requests, indicating that there was a
rational basis for any allegedly different treatment he
received.
See N. Pacifica LLC v. City of Pacifica, 526
F.3d 478, 486 (9th Cir. 2008).
Plaintiff’s equal
protection claims are DISMISSED with prejudice.
D.
Due Process
Plaintiff again fails to clarify his due process
claims.
If he alleges Defendants violated due process
by ignoring, delaying a response to, or denying his
grievances, as it appears, he fails to state a claim.
Inmates have no constitutional right, that is, no
protected liberty interest, in 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.
15
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.”
334 F.3d at 860.
Ramirez,
This claim is DISMISSED with
prejudice.
E.
Conspiracy Under 42 U.S.C. § 1985
Because Plaintiff fails to state a claim under
§ 1983, his conspiracy claims under § 1985 fail to
state a claim and are DISMISSED.
See Caldeira, 866
F.2d at 1182.
IV. 28 U.S.C. § 1915(g)
Plaintiff is notified that this dismissal
constitutes a strike under the “three strikes”
provision set forth in 28 U.S.C. § 1915(g).
Coleman v.
Tollefson, ––– U.S. ––––, ––––, 135 S. Ct. 1759, 1764
(2015); see also Knapp v. Hogan, 738 F.3d 1106, 1110
(9th Cir. 2013) (holding “dismissals following the
repeated violation of Rule 8(a)’s ‘short and plain
statement’ requirement, following leave to amend, are
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dismissals for failure to state a claim under
§ 1915(g)”).
V.
CONCLUSION
(1) The Amended Complaint is DISMISSED for failure
to state a claim.
1915A(b)(1).
See 28 U.S.C. § 1915(e)(2)(b) &
Because amendment is futile, this
dismissal is with prejudice and without leave to amend.
(2) This dismissal shall count as a strike under 28
U.S.C. § 1915(g) unless later overturned on appeal.
(3) The Clerk is DIRECTED to enter judgment and
terminate this action.
Any pending motions are DENIED.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, April 5, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Lagmay v. Nobriga, 1:15-cv-00463 LEK/KJM; scrn 2016 Lagmay 15-463 lek (FAC ftsc acc.
cts, lv amd)
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