Williams v. State of Hawaii et al
ORDER : (1) GRANTING DEFENDANT'S MOTION TO DISMISS FIRST VERIFIED AMENDED COMPLAINT, FILED ON APRIL 24, 2017 [DKT NO. 28 ] OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT; AND (2) DISMISSING THE COMPLAINT IN ITS ENTIRETY re 33 Motion to Dis miss. Signed by JUDGE LESLIE E. KOBAYASHI on 09/19/2017. Defendant Joseph Self, Jr.'s Motion to Dismiss First Verified Amended Complaint, Filed on April 24, 2017 [Dkt no. 28 ] or, in the Alternative, for Summary Judgment, filed on May 19, 2017, is HEREBY GRANTED and the claims against Self are DISMISSED WITH PREJUDICE. In addition, the remainder of the Amended Complaint is DISMISSED in its entirety. Plaintiff's claims that were dismissed for lack of venue, as well as the claim that is barred by Heck v. Humphrey, are DISMISSED WITHOUT PREJUDICE. All of the other claims are DISMISSED WITH PREJUDICE. There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to enter f inal judgment and close this case on October 5, 2017, unless Plaintiff files a motion for reconsideration of this Order by October 4, 2017. (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 the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANTHONY T. WILLIAMS,
STATE OF HAWAII, et al.,
CIVIL 16-00411 LEK-RLP
ORDER: (1) GRANTING DEFENDANT’S MOTION TO DISMISS FIRST
VERIFIED AMENDED COMPLAINT, FILED ON APRIL 24, 2017
[DKT NO. 28] OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT;
AND (2) DISMISSING THE COMPLAINT IN ITS ENTIRETY
On May 19, 2017, Defendant Joseph Self, Jr. (“Self”)
filed a Motion to Dismiss First Verified Amended Complaint, Filed
on April 24, 2017 [Dkt no. 28] or, in the Alternative, for
Summary Judgment (“Motion”).
[Dkt. no. 33.]
Pro se Plaintiff
Anthony T. Williams (“Plaintiff”) filed a memorandum in
opposition on June 6, 2017,1 and Self filed a reply on June 14,
[Dkt. nos. 37, 38.]
The Court finds this matter suitable
for disposition without a hearing pursuant to Rule LR7.2(d) of
The document that Plaintiff filed on June 6, 2017 is
titled “Motion to Dismiss Defendant Joseph Self, Jr’s Motion to
Dismiss First Verified Amended Complaint, Filed on April 24, 2017
[Dkt. No. 28] or in the Alternative for Summary Judgment.”
However, given Plaintiff’s pro se status, in an Entering Order
filed on June 14, 2017, [dkt. no. 40,] the Court construed the
filing as his memorandum in opposition to the Motion. See, e.g.,
Hester v. Horowitz, CIVIL 17-00014 LEK-KSC, 2017 WL 1536401, at
*4 (D. Hawai`i Apr. 28, 2017) (“This Court must liberally
construe [the d]efendant’s filings because he is proceeding pro
se.” (citation omitted)).
the Local Rules of Practice of the United States District Court
for the District of Hawai`i (“Local Rules”).
is hereby granted for the reasons set forth below.
Plaintiff’s First Verified Amended Complaint
Plaintiff filed his Civil Rights Complaint
(“Complaint”) on June 28, 2016 in the United States District
Court for the District of Columbia.
[Dkt. no. 1.]
On June 28,
2016, the District of Columbia court filed a Transfer Order,
pursuant to 28 U.S.C. § 1406(a), that transferred the instant
matter to this Court.
[Dkt. no. 3.]
On July 27, 2017, Plaintiff
filed an Application to Proceed in District Court Without
Prepaying Fees or Costs (“Application”), [dkt. no. 2,] which this
Court granted in an Order filed August 31, 2016 (“8/31/16 Order”)
[dkt. no. 10].
The 8/31/16 Order also summarized Plaintiff’s
Based on the foregoing, the Complaint asserts
claims for judicial misconduct pursuant to 28
U.S.C. § 351(a), violation of constitutional
rights pursuant to 42 U.S.C. §§ 1983 and 1985,
conspiracy and deprivation of rights pursuant to
18 U.S.C. §§ 241, 242, and 249, violation of oaths
of office pursuant to 5 U.S.C. § 3331-33 and state
law, and/or violation of state criminal and civil
[8/31/16 Order at 10 (footnotes omitted).]
Further, the 8/31/16
- Plaintiff’s claims brought pursuant to federal and state
criminal laws, as well as Plaintiff’s claims to enforce
alleged violations of any oath of office, with prejudice;
[id. at 11-13;]
- the claims against Defendant Judge Richard Perkins (“Judge
Perkins”) with prejudice based on absolute judicial
immunity; [id. at 13-15;]
- the §§ 1983 and 1985 claims brought against Defendants State of
Hawai`i, Georgia, and Florida, and their agencies and
current and former officers in their official capacities
(Governor David Ige (“Governor Ige”); Governor Nathan Deal
(“Governor Deal”); Governor Rick Scott (“Governor Scott”);
former Governor Neil Abercrombie (“Governor Abercrombie”);
Lieutenant Governor Shan Tsutsui (“Lieutenant Governor
Tsutsui”); Hawai`i Bureau of Conveyances (“BOC”) and its
employee, Nikki Ann Thompson (“Thompson”); Oahu Community
Correctional Center (“OCCC”) and OCCC Warden Francis
Sequeira (“Warden Sequeira”); State of Hawai`i, Department
of the Attorney General (“Hawai`i Attorney General”) and its
employee, Self; former Hawai`i Attorney General David Louie
(“Louie”); Florida Office of the Attorney General (“Florida
Attorney General”) and its employees Catherine Maus
(“Maus”), Christopher Killoran (“Killoran”), and
Ellen St. Lauren (“St. Lauren”); and the Florida Bar and its
employees Ramon Abadin (“Abadin”) and Jacqueline Plasner
Needelman (“Needelman”)) with prejudice; [id. at 15-17;]
- the 42 U.S.C. § 1983 claim against Warden Sequeira for
violation of due process with prejudice, and the § 1983
claim against Warden Sequeira for access to the courts
without prejudice; [id. at 19-23;] and
- dismissed any remaining claim without prejudice for failure to
comply with Fed. R. Civ. P. 8 [id. at 24-25].
The 8/31/16 Order liberally construed the claims against Self as
a claim for excessive force in violation of the Fourteenth
Amendment’s Due Process Clause, as well as state common law
claims of assault and battery, and allowed them to go forward.
[Id. at 23-24.]
The Court informed Plaintiff that he
may file an amended complaint on or before
October 17, 2016, that cures the deficiencies
noted above. If Plaintiff chooses to file an
amended complaint, he must write short, plain
statements telling the court: (1) the
constitutional or statutory right Plaintiff
believes was violated; (2) the specific basis for
this court’s jurisdiction; (3) the name of the
defendant who violated that right; (4) exactly
what that defendant did or failed to do; (5) how
the action or inaction of that defendant is
connected to the violation of Plaintiff’s rights;
and (6) what specific injury Plaintiff suffered
because of that defendant’s conduct. Plaintiff
must repeat this process for each person or entity
that he names as a defendant. If Plaintiff fails
to affirmatively link the conduct of each named
defendant with the specific injury he suffered,
the allegation against that defendant will be
dismissed for failure to state a claim.
An amended complaint generally supersedes a
prior complaint, and must be complete in itself
without reference to the prior pleading. King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),
overruled in part by Lacey v. Maricopa Cty., 693
F.3d 896 (9th Cir. 2012) (en banc). 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 not
voluntarily dismissed are considered waived if
they are not repled.).
The amended complaint must designate that it
is the “First Amended Complaint,” and may not
incorporate any part of the original Complaint,
but rather, any specific allegations must be
retyped or rewritten in their entirety. This
includes claims against Defendant Self that were
not dismissed. Plaintiff may include only one
claim per count. Any cause of action not already
dismissed with prejudice that is not raised in the
First Amended Complaint is waived.
[Id. at 25-26 (emphasis and footnote omitted).]
After a series
of extensions of time to file his amended complaint, see dkt.
nos. 15, 18, 26, Plaintiff filed his First Verified Amended
Complaint (“Amended Complaint”) on April 24, 2017 [dkt. no. 28].
This Court has explained:
Courts may authorize the commencement of a
suit without prepayment of fees by a person who
submits an affidavit that the person is unable to
pay such fees. 28 U.S.C. § 1915(a)(1). The Court
must subject each civil action commenced pursuant
to Section 1915(a) to mandatory screening and
order the dismissal of any claim that 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, 1127 (9th Cir. 2000)
(stating that 28 U.S.C. § 1915(e) “not only
permits but requires” the court to dismiss a
§ 1915(a) complaint that fails to state a claim);
Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.
2001) (holding that provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners).
The Court may also dismiss a complaint for
failure to comply with Federal Rule of Civil
Procedure 8. See Hearns v. San Bernardino Police
Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008).
Rule 8 requires that a complaint include “a short
plain statement of the claim” and that each
allegation “be simple, concise, and direct.” Fed.
R. Civ. P. 8(a)(2), (d)(1).
Cataluna v. Vanderford, Civ. No. 14-00480 LEK-RLP, 2014 WL
6490466, at *1 (D. Hawai`i Nov. 18, 2014).
[T]he pleading standard Rule 8 announces does
not require “detailed factual allegations,” but it
demands more than an unadorned, the-defendantunlawfully-harmed-me accusation. [Bell Atl. Corp.
v. Twombly, 550 U.S. 544], at 555, 127 S. Ct. 1955
[(2007)] (citing Papasan v. Allain, 478 U.S. 265,
286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A
pleading that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause
of action will not do.” 550 U.S., at 555, 127 S.
Ct. 1955. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further
factual enhancement.” Id., at 557, 127 S. Ct.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (some alterations in
Accordingly, the Court must screen the Amended
Similarities with the Complaint
The Amended Complaint is fifty pages, over double the
length of the Complaint.2
Further, half of the Amended Complaint
is copied almost verbatim from the Complaint.
After a thorough
review, the Court found only three differences in the first half
of Plaintiff’s claims:
(1) the Amended Complaint uses paragraph
The Amended Complaint names the following parties as
defendants: Hawai`i; Hawai`i Attorney General; Self; Governor
Ige; Georgia; Georgia Attorney General; Florida; Florida Attorney
General; Governor Abercrombie; Governor Deal; Judge Perkins;
Lieutenant Governor Tsutsui; BOC; Thompson; Warden Sequeira;
OCCC; Department of Public Safety (“DPS”); Federal Bureau of
Investigation (“FBI”); Special Agent Megan Crawley (“Crawley”);
Special Agent Joseph Lavelle (“Lavelle”); Louie; Fulton County
District Attorney Paul Howard, Jr. (“Howard”); Judge
Robert McBarney (“Judge McBarney”); Fulton County Jail; Sheriff
Theodore “Ted” Jackson (“Jackson”); WSVN Channel 7 News and
Carmel Cafiero (“Cafiero”); Judge Andrew L. Siegel (“Judge
Siegel”); Gayle M. Siegel (“G. Siegel”); Maus; Killoran; Broward
County Sheriffs Scott Israel (“Israel”), John Calabro
(“Calabro”), James Hoy (“Hoy”), and Timothy Lettieri
(“Lettieri”); Mary Calabro (“M. Calabro”); Broward County Clerk
of Court Barbara Brown (“Brown”); the Florida Bar; Needelman; and
Abadin (collectively “Defendants”). [Amended Complaint at pgs.
numbers, compare Complaint at pg. 4, with Amended Complaint at
¶ 14; (2) Plaintiff adds what appears to be a claim for
defamation;3 and (3) Plaintiff deleted a portion of his claim for
malicious prosecution, compare Complaint at pg. 16, with Amended
Complaint at ¶ 65.
Insofar as the Amended Complaint simply
repeats, word for word, the allegations in the Complaint, it is
axiomatic that all but the claims against Self fail to state a
claim because they were all previously dismissed.
There are a number of new claims in the Amended
Complaint – some stated more clearly than others – that fail to
52. WSVN Channel 7 News and their reporter Carmel
Cafiero, knowingly published lies to defame the
character and slander the name of the Plaintiff.
WSVN Channel 7 News also conspired with the
Broward County Sheriff’s Office to be present when
Plaintiff was arrested at the airport to have it
televised to further harass, embarrass, and defame
the character of the Plaintiff. This is in direct
violation of established case law. “[T]he Fourth
Amendment does require that police actions in
execution of a warrant be related to the
objectives of the authorized intrusion.” Wilson
v. Layne, 526 U.S. 603, 611 (1999).
53. “We hold that it is a violation of the Fourth
Amendment for police to bring members of the media
or other third parties into a home during the
execution of a warrant when the presence of the
third parties in the home was not in aid of the
execution of the warrant.” Wilson v. Layne, 526
U.S. 603, 614 (1999).
[Amended Complaint at ¶¶ 52-53.]
state a claim upon which relief can be granted.
Further, to the
extent that the Amended Complaint brings claims against
individual states and/or “seeks damages against any Defendant
state agencies, departments, and officials, in their official
capacities, such claims are . . . barred by Eleventh Amendment
See 8/31/16 Order at 15 (citing Will v. Mich. Dep’t
State Police, 491 U.S. 58, 71 (1989)).
Insofar as the Amended Complaint brings a claim for
defamation against the news agency and its reporter, see Amended
Complaint at ¶¶ 52-53, it fails.
To state a claim for defamation under Hawaii law,
Plaintiff must allege: “(1) a false and
defamatory statement concerning another; (2) an
unprivileged publication to a third party;
(3) fault amounting at least to negligence on the
part of the publisher; and (4) either
actionability of the statement irrespective of
special harm or the existence of special harm
caused by the publication.” Gonsalves v. Nissan
Motor Corp. in Hawaii, Ltd., 58 P.3d 1196, 1218
RKM Int’l Ltd. v. Fujita, Civil No. 14-00539 JMS-RLP, 2015 WL
2451187, at *5 (D. Hawai`i Apr. 29, 2015).4
Plaintiff does not
It appears that the actions in question took place in
Florida, though Plaintiff does not directly state the location.
However, Florida law still requires a false, defamatory
statement. See Jeter v. McKeithen, No. 5:14-cv-00189-RS-EMT,
2014 WL 4996247, at *2 (N.D. Fla. Oct. 7, 2014) (“Under Florida
law, to state a claim for defamation, the plaintiff must show
that the statement had the following elements: ‘(1) publication;
(2) falsity; (3) actor must act with knowledge or reckless
explain what information was allegedly false and defamatory and
provides only conclusory statements about how he was harmed.
Plaintiff fails to state a claim upon which relief can be
granted, and this claim must therefore be dismissed.
See Fed. R.
Civ. P. 12(b)(6).
Conspiracy and RICO
Plaintiff also asserts that:
the FBI and the Broward
County Sheriff’s Office “conspire[d] to deprive Plaintiff of his
private property under the disguise of color of law without any
probable cause to do so or without there ever being a complaint
from a consumer”; [Amended Complaint at ¶ 66;] Defendants
“routinely violate their Oaths of office” and have “conspired to
aid, abet, encourage, and supported the one another [sic] in
their corrupt and criminal enterprises while receiving the
financial benefit of their public officials’ corrupt activities,”
[id. at ¶¶ 67-71;] Defendants have obstructed justice and
conspired to obstruct justice, in violation of 18 U.S.C. §§ 1503
and 1961; [id. at ¶¶ 72-75;] Defendants violated the Racketeering
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
disregard as to the falsity on a matter concerning a public
official, or at least negligently on a matter concerning a
private person; (4) actual damages; and (5) statement must be
defamatory.’” (quoting Jews for Jesus, Inc. v. Rapp, 997 So.2d
1098, 1106 (Fla. 2008))); see also Restatement (Second) of Torts
§ 1961 et seq.;5 [id. at ¶¶ 76-92;] and Defendants violated a
separate section of the RICO statute, 18 U.S.C. § 1962(a)(d) [id.
at ¶¶ 92-108].
He also “reallege[s] and incorporate[s] in this
42 U.S.C. § 1983 Claim for Relief each and every allegation set
forth above, as though fully set forth herein,” and includes
quotations from a number of cases, constitutional amendments,
statutes, and treatises; [id. at ¶¶ 109-116;] and alleges a
general claim that Defendants violated 42 U.S.C. § 1986 because
they “had knowledge that the wrongs were about to occur, and
having power to prevent them, neglected or refused to intervene
to prevent the violations from occurring” [id. at ¶¶ 117-19].
First, the Court has already determined that Plaintiff
may not bring any claims for violations of oaths of office and
has dismissed any such claim with prejudice.
See 8/31/16 Order
Next, the Court also informed Plaintiff that he may
not bring any claims seeking to enforce federal or state criminal
statutes, such as 18 U.S.C. § 1503, and has dismissed these
claims with prejudice.
See id. at 12.
Finally, the 8/31/16
Order provided Plaintiff with detailed instructions for filing
his Amended Complaint, which Plaintiff has failed to follow.
8/31/16 Order at 25-26.
Instead, Plaintiff provides only
RICO provides for a civil remedy. See 18 U.S.C. § 1964(c)
(“Any person injured in his business ro property by reason fo a
violation of section 1962 of this chapter may sue therefore in
any appropriate United States district court . . . .”).
“formulaic recitation[s] of the elements of a cause of action” or
“naked assertions devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678 (citations and internal quotation marks
These additional claims fail to state a claim upon
which relief can be granted, and they all must be dismissed.
A handwritten section at the end of the Amended
Complaint titled “Legal Claims” appears to set out specific
allegations against individual defendants.
attempts to bring claims against two different judges.
See Amended Complaint at ¶¶ 120 (claim against Judge Perkins),
128 (claim against Judge Siegel).
The 8/31/16 Order already
dismissed the claims against Judge Perkins with prejudice, and
the claims against Judge Siegel must be dismissed with prejudice
for the same reason.
See 8/31/16 Order at 14 (citing Swift v.
California, 384 F.3d 1184, 1188 (9th Cir. 2004)).
Second, Plaintiff states that Warden Sequeira “fail[ed]
to transport [him] to his hearing which caused Plaintiff to lose
his case by default.”
[Amended Complaint at ¶ 121.]
Order concluded that “the Complaint fails to allege facts showing
that Sequeira’s conduct caused the alleged failure to transport
Plaintiff to court for that November 2013 Hearing.
Nor does it
allege that the case had a reasonable basis in law or fact or
that it was subsequently dismissed.”
[8/31/16 Order at 23.]
Plaintiff’s claim in the Amended Complaint fails for the same
Plaintiff also appears to bring a claim for violation
of the Eighth Amendment to the United States Constitution against
Warden Sequeira for “failing to protect Plaintiff” and “allowing
Plaintiff to be assaulted while in Protective Custody.”
Complaint at ¶ 121.]
These conclusory statements are
insufficient, and do not state “exactly what [Warden Sequeira]
did or failed to do” or “how the action or inaction of [Warden
Sequeira] is connected to the violation of Plaintiff’s rights.”
See 8/31/16 Order at 25.
Plaintiff may not bring a claim under
§ 1983 based on a theory of respondeat superior, see Bonner v.
Lewis, 857 F.2d 559, 566 (9th Cir. 1988), and Plaintiff does not
allege that the warden was deliberately indifferent to a known
risk of an attack on Plaintiff, see Lemire v. Cal. Dep’t of Corr.
& Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013).
claim must also dismissed.
Third, Plaintiff alleges that Howard violated his
constitutional rights by “causing [him] to be arrested and
charged” when Howard “knew [he] was not even in the State of
Georgia during the time of the alleged crime.”
Complaint at ¶ 124.]
Plaintiff asserts that Howard received a
copy of a flight itinerary as well as affidavits showing that
Plaintiff was not in Georgia during the relevant time period, and
that Howard also had medical records supporting Plaintiff’s
Other district courts in the Ninth Circuit
Absolute immunity attaches to actions
“intimately associated with the judicial phase of
the criminal process.” Broam v. Bogan, 320 F.3d
1023, 1028 (9th Cir. 2003) (quoting Imbler, 424
U.S. at 430). Caselaw has fleshed out what
actions qualify as “intimately associated with the
judicial phase.” Absolute immunity extends to
“acts undertaken by a prosecutor in preparing for
the initiation of judicial proceedings or for
trial, and which occur in the course of his role
as an advocate for the State . . . Those acts
must include the professional evaluation of the
evidence assembled by the police and appropriate
preparation for its presentation at trial or
before a grand jury after a decision to seek an
indictment has been made.” Buckley [v.
Fitzsimmons], 509 U.S. [259,] 273 [(1993)].
Prosecutors also have absolute immunity for their
decision whether or not to prosecute a case,
Botello [v. Gammick], 413 F.3d [971,] 976 [(9th
Cir. 2005)]; for their professional evaluation of
a witness, even if that judgment “is harsh, unfair
or clouded by personal animus,” id.; for their
failure to investigate accusations against a
defendant before filing charges, Broam, 320 F.3d
at 1029; for knowingly using false testimony, id.;
and for withholding exculpatory material before
trial, during trial, or after conviction, id.
Sanchez v. Maricopa Cty., No. CV 07-1244-PHX-JAT, 2007 WL
2903027, at *3 (D. Ariz. Oct. 2, 2007) (alterations in Sanchez).
The claim against Howard is therefore barred by prosecutorial
immunity, and this claim must be dismissed with prejudice.
Next, Plaintiff argues that he was convicted of an
unnamed crime because Calabro “conspired with the State Attorneys
Office to impose excessive bail and unreasonable bond
conditions,” which kept him from being able “to properly research
and prepare a defense.”
[Amended Complaint at ¶ 126.]
judgment in favor of Plaintiff “would necessarily imply the
invalidity of his conviction or sentence,” and this claim must
therefore be dismissed without prejudice.
See Heck v. Humphrey,
512 U.S. 477, 487 (1994).
Finally, this Court has explained:
“Venue in federal courts is governed by
statute.” Spagnolo v. Clark Cty., CIVIL NO. 1500093 DKW-BMK, 2014 WL 7566672, at *2 (D. Hawai`i
Nov. 24. 2015) (citing Leroy v. Great Western
United Corp., 443 U.S. 173, 181 (1979)). “The
plaintiff has the burden of showing that venue is
proper in this district.” Id. (citing Piedmont
Label Co. v. Sun Garden Packing Co., 598 F.2d 491,
496 (9th Cir. 1979)). 28 U.S.C. § 1391(b) states:
Venue in general. – A civil action may be
brought in -(1) a judicial district in which any
defendant resides, if all defendants are
residents of the State in which the district
(2) a judicial district in which a
substantial part of the events or omissions
giving rise to the claim occurred, or a
substantial part of property that is the
subject of the action is situated; or
(3) if there is no district in which an
action may otherwise be brought as provided
in this section, any judicial district in
which any defendant is subject to the court’s
personal jurisdiction with respect to such
Drake v. Mercedes Benz USA, CIVIL 16-00478 LEK-RLP, 2016 WL
5796763, at *3 (D. Hawai`i Sept. 30, 2016).
Under 28 U.S.C. § 1406(a), if a case is filed
in the wrong venue, the court “shall dismiss, or
if it be in the interest of justice, transfer such
case to any district or division in which it could
have been brought.” 28 U.S.C. § 1406(a). A court
should examine a plaintiff’s claim to determine
whether the interests of justice require transfer
instead of dismissal. See, e.g., King v. Russell,
963 F.2d 1301, 1305 (9th Cir. 1992).
Rosiere v. United States, CIVIL NO. 16-00260 HG-RLP, 2016 WL
3408848, at *2 (D. Hawai`i June 1, 2016), adopted as modified by
2016 WL 3440566 (June 20, 2016).
According to the Amended Complaint, Lavelle
“confiscate[d] Plaintiff[’]s personal property from his vehicle
upon a routine traffic stop by Miramar[, Florida] police” on
August 28, 2015.
[Amended Complaint at ¶ 122.]
contends that there was no probable cause for the search and
seizure, and no charges were ever filed as a result.
Further, Plaintiff alleges that Crawley and Calabro conspired
with Lavelle to “confiscate” his personal property.
¶¶ 123, 125.]
According to the Amended Complaint, Crawley is
located in Kapolei, Hawai`i, but Lavelle and Calabro are both in
See Amended Complaint at pgs. 2-3.
orchestrated the unlawful seizure, two of the three participants
are in Florida, and the only search location noted in the Amended
Complaint is also in Florida, the Court concludes that these
claims must be dismissed for improper venue and without
The allegedly improper searches occurred in 2015.
applicable statute of limitations in a § 1983 lawsuit is the
four-year Florida state statute of limitations for personal
Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1252
(11th Cir. 2003) (citations omitted).
Thus, “Plaintiff would not
be time barred from re-filing this action in another venue,” and
“[i]n these circumstances, the Court finds that it is not in the
interests of justice to transfer this action.”
3408848, at *2.
Rosiere, 2016 WL
Plaintiff’s claim against Calabro and Israel
alleges a violation of the Fourth Amendment, as well as the
Florida State Constitution.
See Amended Complaint at ¶ 127.
must be dismissed for the same reasons, without prejudice.
The Court has dismissed the unlawful search claims
against Lavelle, Crawley, Calabro, and Israel for improper venue
and without prejudice.
in another venue.
Thus, Plaintiff may re-file these claims
Further, Plaintiff’s bail claim against
Calabro has also been dismissed without prejudice.
In order to
re-file this claim, Plaintiff would need to “demonstrate that the
[relevant] conviction or sentence has already been invalidated.”
See Heck, 512 U.S. at 487.
The Court has not yet considered the
claims against Self in the Amended Compliant, which are the
subject of the Motion to Dismiss.
See infra Section II.
The Court has considered all of Plaintiff’s remaining
claims, and has noted where some claims were already dismissed
with prejudice in the 8/31/16 Order and has also dismissed the
claims against Judge Siegel and Howard with prejudice.
regard to any remaining claims, they are the same type of claims
that Plaintiff alleged in his Complaint, and the 8/31/16 Order
provided Plaintiff with detailed instructions on the requirements
for stating a plausible claim for relief.
See, e.g., 8/31/16
Order at 25 (“If Plaintiff fails to affirmatively link the
conduct of each named defendant with the specific injury he
suffered, the allegation against that defendant will be dismissed
for failure to state a claim.”).
He failed to comply with these
instructions, and any further amendment would be futile.
e.g., Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995)
(“Unless it is absolutely clear that no amendment can cure the
defect, however, a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to
dismissal of the action.” (citations omitted)).
of these remaining claims are dismissed with prejudice.6
As the Court noted in the 8/31/16 Order, any claims that
Plaintiff did not re-allege in his Amended Complaint are deemed
voluntarily dismissed. See 8/31/16 Order at 26 (citation
Motion to Dismiss
The background of this matter was discussed in the
8/31/16 Order and in the screening of the Amended Complaint.
Only two paragraphs of the Amended Complaint concern Self:7
48. Plaintiff was assaulted at Queens Medical
Center on 12-4-13 at approximately between 12 noon
and 12:20 p.m., by Agent Joseph Self who hit
Plaintiff with two fists in Plaintiff’s chest and
gagged and choked Plaintiff from behind with a
towel. This occurred in the Hazmat room while
waiting for the discharge papers from the earlier
assault at the sheriff’s department when four
sheriffs tried to forcibly take digital
fingerprints when Plaintiff told them beforehand
that Plaintiff would only do normal fingerprints
because they can’t be manipulated like digital
49. They bent Plaintiff’s fingers and pulled
Plaintiff’s arms apart while Plaintiff was still I
handcuffs [sic] causing deep cuts and bruises to
Plaintiff wrist [sic] which was the reason
Plaintiff had to be taken to the ER at Queens
Medical Center. . . .
Self argues that, pursuant to Haw. Rev. Stat. § 657-7, the
relevant statute of limitations is two years, and that
Plaintiff’s claim accrued on or before December 4, 2013.
in Supp. of Motion at 6-8.]
Further, Self asserts that the
tolling provision of § 657-7 does not apply in the instant
matter, and that there is no relation back to another case that
Plaintiff filed in Florida.
[Id. at 8-11.]
These claims are the same as the claims against Self in
the Complaint. See Complaint at pg. 11.
Section 657-7 states that “[a]ctions for the recovery
of compensation for damage or injury to persons or property shall
be instituted within two years after the cause of action accrued,
and not after, except as provided in section 657-13.”
because “Congress did not provide a specific statute of
limitations for a claim brought under § 1983[,] . . . ‘federal
courts look to the law of the state in which the cause of action
arose and apply the state law of limitations governing an
analogous cause of action.’”
Eager v. Honolulu Police Dep’t,
CIVIL NO. 15-00098 JMS-KSC, 2016 WL 471282, at *6 (D. Hawai`i
Feb. 4, 2016) (quoting Pouncil v. Tilton, 704 F.3d 568, 573 (9th
“The applicable statute is a forum’s statute of
limitations for personal injury actions.”
Id. (some citations
omitted) (citing Wilson v. Garcia, 471 U.S. 261, 280 (1985)).
Pursuant to the allegations in the Amended Complaint, Plaintiff’s
claim against Self accrued on December 4, 2013.
Complaint at ¶ 48.
Plaintiff did not file the original Complaint
in this matter until June 28, 2016.
Consequently, this claim is
Plaintiff argues that he filed a complaint in Florida
on December 29, 2014, which is within the statute of limitations.
[Mem. in Opp. at 1.]
Further, Plaintiff argues that the
Complaint in this matter relates back to the Florida case under
Fed. R. Civ. P. 15(c) because “the claims were the exact claims
filed in the District of Columbia lawsuit.”8
district court has explained:
Rule 15(c) allows for an amendment of a
pleading to relate back to the date of the
original pleading in certain circumstances. Those
circumstances, however, do not exist here – a
“second complaint does not ‘relate back’ to [a]
first complaint because [the] second complaint was
not an “amendment” to [the] first complaint, but
rather a separate filing.” O’Donnell v. Vencor,
Inc., 465 F.3d 1063, 1066 (9th Cir. 2006) (per
curiam); see also Neverson v. Bissonnette, 261
F.3d 120, 126 (1st Cir. 2001) (noting that a
dismissal without prejudice leaves the plaintiff
“in the same situation as if [the] first suit had
never been filed” for purposes of Rule 15(c));
Bailey v. N. Ind. Public Serv. Co., 910 F.2d 406,
413 (7th Cir. 1990) (“Rule 15(c), by its terms,
only applies to amended pleadings in the same
action as the original, timely pleading. Because
the simulator claim was not contained in an
amended pleading in Suit 1 but in a second,
separate complaint, Rule 15(c) is inapplicable.”);
see also Morgan Distrib. Co. v. Unidynamic Corp.,
868 F.2d 992, 994 (8th Cir. 1989) (“Rule 15(c)
concerns amendments to pleadings. Its plain
language makes clear that it applies not to the
filing of a new complaint, but to the filing of an
amendment . . . .” (citation and quotation signals
Maki v. Dep’t of Pub. Safety - State of Haw., Civil No. 07-00588
JMS/BMK, 2010 WL 1904967, at *3 (D. Hawai`i May 10, 2010)
The Court notes that Plaintiff states that he “filed the
exact suit in a different district because of the bias Florida
displayed against Plaintiff by dismissing case without
considering its merits.” [Mem. in Opp. at 2.] This is the
definition of forum-shopping. See Forum-Shopping, Black’s Law
Dictionary (10th Ed. 2014) (“The practice of choosing the most
favorable jurisdiction or court in which a claim might be
heard.”). Because the Court has determined that the claim must
be dismissed on other grounds, it does not need to consider what
impact, if any, this has on the Motion.
(alterations in Maki).
In short, Plaintiff’s argument fails, and
the Complaint filed on June 28, 2016 does not relate back to the
Finally, the tolling provisions of Haw. Rev. Stat.
§ 657-13 are inapplicable here.10
Section 657-13 states:
If any person entitled to bring any action
specified in this part (excepting actions against
the sheriff, chief of police, or other officers)
is, at the time the cause of action accrued,
(1) Within the age of eighteen years;
(2) Insane; or
(3) Imprisoned on a criminal charge, or in
execution under the sentence of a criminal
court for a term less than the person’s
such person shall be at liberty to bring such
actions within the respective times limited in
this part, after the disability is removed or at
any time while the disability exists.
On a motion to dismiss, the Court must accept the allegations in
the complaint as true.
See Iqbal, 556 U.S. at 678 (“To survive a
Self argues that the Florida case did not “identif[y]
[him] as a defendant, the pleading alleges no personal injuries
to Plaintiff on account of any assault or physical confrontation
and the complaint does not describe the incident alleged to have
occurred between Plaintiff and Self on December 4, 2013 at
Queen’s Medical Center.” [Reply at 3.] Because the relevant
case law establishes that the Complaint does not relate back to
Plaintiff’s Florida case, the Court does not need to address this
Plaintiff did not address this matter in his memorandum
in opposition, but the Court considers it because Plaintiff is
pro se and for the sake of judicial efficiency.
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” (quoting Twombly, 550 U.S. at 570)).
Here, Plaintiff described Self as an “Agent” and states that he
works for the State of Hawai`i, Attorney General’s Office.
[Amended Complaint at pg. 1, ¶ 48.]
In addition, Self states
that he is “a commissioned investigator and special agent of the
[Mem. in Supp. of Motion at 8-9.]
Stat. § 28-11(a) provides:
The attorney general shall appoint and commission
one or more investigators as the exigencies of the
public service may require. Persons appointed and
commissioned under this section shall have and may
exercise all of the powers and authority and the
benefits and privileges of a police officer or of
a deputy sheriff. These investigators shall
consist of personnel whose primary duty will be to
conduct investigations as directed by the attorney
The plain language of § 657-13 and § 28-11(a) indicates that the
tolling provision does not apply to Self, and the Motion is
Moreover, because it cannot be cured by
amendment, the claims against Self must be dismissed with
On the basis of the foregoing, Defendant Joseph Self,
Jr.’s Motion to Dismiss First Verified Amended Complaint, Filed
on April 24, 2017 [Dkt no. 28] or, in the Alternative, for
Summary Judgment, filed on May 19, 2017, is HEREBY GRANTED and
the claims against Self are DISMISSED WITH PREJUDICE.
addition, the remainder of the Amended Complaint is DISMISSED in
Plaintiff’s claims that were dismissed for lack of
venue, as well as the claim that is barred by Heck v. Humphrey,
are DISMISSED WITHOUT PREJUDICE.
DISMISSED WITH PREJUDICE.
All of the other claims are
There being no remaining claims in
this case, the Court DIRECTS the Clerk’s Office to enter final
judgment and close this case on October 5, 2017, unless Plaintiff
files a motion for reconsideration of this Order by October 4,
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 19, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
ANTHONY T. WILLIAMS VS. STATE OF HAWAI`I, ET AL.; CIVIL 16-00411
LEK-RLP; ORDER: (1) GRANTING DEFENDANT’S MOTION TO DISMISS FIRST
VERIFIED AMENDED COMPLAINT, FILED ON APRIL 24, 2017 [DKT NO. 28]
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT; AND (2) DISMISSING
THE COMPLAINT IN ITS ENTIRETY
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