Grindling v. Shibao et al

Filing 11

ORDER (1) GRANTING 6 APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING IN PART FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND; AND (3) GRANTING 7 MOTION FOR SERVICE. Signed by JUDGE DERRICK K. WATSON on 9/29/2016. -The Court GRANTS the IFP Application and DISMISSES in part the First Amendment and conspiracy claims with leave to amend. Grindling is GRANTED leave to file a Second Amended Complaint by no later than October 28, 2016 in order to cure the defici encies noted in this order. Grindling's Motion for Service is GRANTED. Service is appropriate for Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong, Reef Shook, and Paulo Faleafine. The Clerk's Office is directed to send to Plaint iff for each Defendant to be served: one copy of the endorsed First Amended Complaint (if he has not already received a copy), one summons, one USM-285 form, one Notice of Lawsuit and Request for Waiver of Service for Summons form (AO 398), two ( 2)Waiver of Service of Summons forms (AO 399), and an instruction sheet. Grindling shall complete the forms as directed and submit these documents to the U.S. Marshal in Honolulu, Hawaii. The Clerk shall send a copy of this order to the U.S. Ma rshal. (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. Served as directed to Plaintiff (5 sets) and USM (Certified Order).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CHRIS GRINDLING,
Plaintiff,
vs.
GILBERT SHIBAO, et al.,
Defendants.

CV 16-00426 DKW-RLP
ORDER (1) GRANTING
APPLICATION TO PROCEED IN
FORMA PAUPERIS;
(2) DISMISSING IN PART FIRST
AMENDED COMPLAINT WITH
LEAVE TO AMEND; AND
(3) GRANTING MOTION FOR
SERVICE

ORDER (1) GRANTING APPLICATION TO PROCEED
IN FORMA PAUPERIS; (2) DISMISSING IN PART FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND; AND
(3) GRANTING MOTION FOR SERVICE
INTRODUCTION
On August 18, 2016, Plaintiff Chris Grindling, proceeding pro se, filed a
First Amended Complaint against defendant correctional officers1 at an institution
at which Grindling was formerly incarcerated, alleging violations of federal law
pursuant to 42 U.S.C. § 1983. He also submitted a fully executed Application to

1

Although Gilbert Shibao is the only defendant named in the caption of the First Amended
Complaint, throughout the body of the pleading, Grindling alleges conduct by other correctional
officers who were previously named in his original complaint, including Isaac Gazmen, Bert
Sam Fong, Reef Shook, Jared Tajon, Ross Andre and Paulo Faleafine. Liberally construing the
First Amended Complaint, it appears that Grindling intended for these additional parties to be
named as defendants, despite their omission from the caption or heading of the First Amended
Complaint.

Proceed In Forma Pauperis (“IFP Application”), as directed by the Court’s August
8, 2016 Order dismissing his original Complaint. On August, 29, 2016, Grindling
filed a Motion for Service by U.S. Marshal (“Motion for Service”).2
Because the First Amended Complaint fails to state a claim with respect to
Grindling’s conspiracy and grievance-based allegations, the Court DISMISSES
those portions of the First Amended Complaint with leave to amend pursuant to 28
U.S.C. § 1915(e). As discussed more fully below, Grindling is once again
GRANTED leave to file an amended complaint by no later than October 28, 2016.
Further, the Court finds that, liberally construed, the First Amended Complaint
states a Section 1983 claim for violation of Grindling’s Eighth Amendment rights,
and, accordingly, the Motion for Service is GRANTED, with instructions below.
The IFP Application is also GRANTED.
DISCUSSION
I.

Grindling’s IFP Application Is Granted
Federal courts can authorize the commencement of any suit without

prepayment of fees or security by a person who submits an affidavit that
demonstrates he is unable to pay. See 28 U.S.C. § 1915(a)(1). “An affidavit in
support of an IFP application is sufficient where it alleges that the affiant cannot
pay the court costs and still afford the necessities of life.” Escobedo v. Applebees,

2

Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.
2 

787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours &
Co., 335 U.S. 331, 339 (1948)); see also United States v. McQuade, 647 F.2d 938,
940 (9th Cir. 1981) (The affidavit must “state the facts as to affiant’s poverty with
some particularity, definiteness and certainty.”) (internal quotation omitted).
When reviewing an application filed pursuant to § 1915(a), “[t]he only
determination to be made by the court . . . is whether the statements in the affidavit
satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1307 (11th Cir. 2004). While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must
nonetheless show that he is “unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a).
Here, the IFP Application indicates that Grindling is not employed and lists
income in the form of $340 in food stamps and $340 in cash per month.
Grindling’s debts include $4,700 in district court traffic fines. Based on the IFP
Application, Grindling’s income falls below the poverty threshold identified by the
Department of Health and Human Services (“HHS”) 2016 Poverty Guidelines. See
2016 HHS Poverty Guidelines, available at
https://www.federalregister.gov/articles/2016/01/25/2016-01450/annual-update-ofthe-hhs-poverty-guidelines. Accordingly, the Court finds that Grindling has made

3 

the required showing under Section 1915 to proceed without prepayment of fees,
and GRANTS his IFP Application.
II.

Grindling’s First Amended Complaint Is Dismissed In Part
A.

Standard of Review

The Court subjects each civil action commenced pursuant to 28 U.S.C.
§ 1915(a) to mandatory screening and can 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”).
Because Grindling is appearing pro se, the Court liberally construes the First
Amended Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also
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)).
The Court 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
4 

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); see also Crowley v. Bannister,
734 F.3d 967, 977-78 (9th Cir. 2013). The Court notes that, although he is
proceeding pro se, Grindling is familiar with the federal court filing system, and
initiated the instant case along with three other civil actions on the same day.3
Prior to the simultaneous filing of those four actions, Grindling has filed at least
fifteen actions in the federal courts.4
Nevertheless, 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 alleged.’” UMG
Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990)). A plaintiff must allege “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see

3

See Civ. Nos. 16-cv-00423DKW-KSC; 16-cv-00424ACK-KJM; 16-cv-00425JMS-KSC; 16-cv00426DKW-RLP.
4
See, e.g., Civ. Nos. 1991-cv-00457 (D. Haw.) (civil rights); 2002-cv-00144 (D. Haw.) (habeas);
2003-cv-00054 (D. Haw.) (habeas); 2005-cv-00694 (D. Haw.) (civil rights); 2006-cv-00438 (D.
Haw.) (habeas); 2006-cv-00460 (D. Haw.) (civil rights); 2006-cv-00461 (D. Haw.) (civil rights);
2007-cv-00502 (D. Haw.) (civil rights); 2007-cv-00561 (D. Haw.) (habeas); 2009-cv-00536 (D.
Haw.) (civil rights); 2009-cv-00243 (D. Haw.) (habeas); 2009-cv-01685 (D. Ariz.) (civil rights);
09-cv-00547 (D. Haw.) (civil rights); 10-cv-00429 (D. Haw.) (habeas); 14-cv-0009 (D. Haw.)
(civil rights); 14-cv-00198 (D. Haw.) (civil rights). This list is not exhaustive.
5 

also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
tenet that the court must accept as true all of the allegations contained in the
complaint “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations
in a complaint or counterclaim may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying facts to give fair notice
and to enable the opposing party to defend itself effectively.”).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Factual allegations that only permit the Court to infer “the mere possibility of
misconduct” do not show that the pleader is entitled to relief as required by Rule 8.
Id. at 679.
B.

Claims In The First Amended Complaint

The First Amended Complaint alleges that defendants were correctional
officers at “MCCC” during the period of Grindling’s incarceration there. He
alleges violations of his Eighth and First Amendment rights as a result of a
conspiracy by defendants to both deny him food and prevent him from reporting
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their misconduct through the institution’s grievance process. Although he appears
to allege facts that would support an Eighth Amendment claim against some of the
defendants, he fails to state a claim under the First Amendment or sufficiently
allege a conspiracy.
1.

Eighth Amendment

Grindling alleges that he was intentionally denied food and basic necessities
during his incarceration at MCCC:
2.

Correctional officers’ duty is to report any evidence of
malnutrition. The kitchen does not see the meals served
to me ever.

3.

Shibao, Sam Fong, Shook, Gazman, Faleafine all ACO’s
who deliberately denied me food failed to report others
who also were denying me food. They would write me
up for complaining of them starving me [] they would
give me trays that did not have all the required items to
sustain me. This denial of food took place whenever I
lost access to store order food my weight would drop to
dangerous levels when I could buy food my mom sent
me maximum allowed.

4.

All food is provided by ACOs. They serve all meals.
They pass out all commissary. They can take away
access to commissary. The kitchen and medical have no
control of the actual food I am given. The ACOs know
how much food I am given.

FAC at 2. With respect to particular defendants and time periods, Grindling asserts
as follows:
1.

In 2014 to 2016 the defendants starved the plaintiff on
repeated occasions.
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2.

The plaintiff is 6’4” tall and weighed over 300 lbs. On
two occasions my weight dropped to 150 lbs. Plaintiff
looked like a walking corpse. The weight loss would
occur at a rate of 10 lbs. per week.

3.

The plaintiff would be allowed to purchase food at which
time the weight would return to 230 lbs. to 240 lbs.

4.

When the weight was restored the defendants proceeded
in starving the plaintiff a second time.

5.

On a few occasion they would take food for just 2 weeks
and plaintiff would drop 20 lbs.

6.

In June of 2015 ACO Shibao even poisoned plaintiff
repeatedly. It took months to recover. Plaintiff[’]s
stomach would boil. Would stay up all night due to
cramps diarrhea was persistent 6 months.

7.

C.O.S. Taylor ordered all meals to be recorded on video.
When these were subpoenaed they were promptly
destroyed. This civil conspiracy by all named defendants
to starve me.

8.

Plaintiff was housed in solitary confinement and all food
is controlled by a C.O.S. The defendants would even
stop other inmates from sliding food under my door to
feed.

FAC at 3-4.
Grindling alleges that between 2014 and 2016, Shibao, Sam Fong, Shook,
Gazman, and Faleafine deliberately denied him food, resulting in weight loss of 10
pounds per week. The Eighth Amendment’s prohibition against cruel and unusual
punishment imposes duties on prison officials to “provide humane conditions of
8 

confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[P]rison officials
must ensure that inmates receive adequate food, clothing, shelter, and medical
care.” Id.
Grindling’s allegations of the intentional denial of food resulting in a
significant loss of weight and illness over the course of months state a sufficiently
serious deprivation. See Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996)
(“Adequate food is a basic human need protected by the Eighth Amendment.”); see
also Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (finding sufficiently
serious deprivation where inmate was denied 16 meals in 23 days); Simmons v.
Cook, 154 F.3d 805, 807-09 (8th Cir. 1998) (affirming Eighth Amendment
violation where inmates were deprived of four consecutive meals); Robles v.
Coughlin, 725 F.2d 12, 16 (2d Cir. 1983) (finding that allegations of deprivation of
meals and contaminated food were sufficient to withstand dismissal of inmate’s
Eighth Amendment claim). Liberally construing his allegations, Grindling states a
Section 1983 claim for violation of his Eighth Amendment rights against
individual defendants Shibao, Sam Fong, Shook, Gazman, and Faleafine.
2.

First Amendment

Grindling also complains that he suffered a First Amendment violation as a
result of defendants “denying him access to [the] grievance process.” FAC at 1.
He alleges that:
9 

1.

Sgt. Tajon and Sgt. Andre are grievance officers. It’s
their duty to process grievances or assist those who are
unable to file on their own. After hundreds of rejections
both defendants refused to assist me in filing.
****

5.

Hundreds of grievances all rejected for process by the
grievances officers, no one else has that authority.

FAC at 1-2.
Grindling also avers:
9.

Defendants Andre and Tajon are grievance officer[s].
They denied access to the grievance process by not
processing submitted grievances to starve and abuse.

10.

Rejected for process hundreds of grievances without
explanation or assistance in filing. This violates policy.
In the end years went by without exhausting any of my
issues.

11.

Plaintiff then mailed the rejected grievances to Public
Safety in flat rate envelopes. These were tracked and
insured but they disappeared.

12.

Other grievances vanished. I was not allowed to appeal
misconducts or classification. I had no access to Public
Safety Department to bring attention to the corruption,
torture and abuse I was subjected to at MCCC, denial of
food, clothes, hygiene, recreation, mail.

FAC at 4.
These allegations demonstrate that Grindling was afforded the right to file
grievances. Whether certain defendants refused to process grievances, lost them,
denied them, or required a specific procedure to exhaust them, is an insufficient
10 

basis on which to state a claim. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 860
(9th Cir. 2003) (holding that a prisoner has no constitutional right to an effective
grievance or appeal procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
1988); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (holding a prison
grievance procedure is a right of expression only and “does not guarantee a
response . . . or the right to compel government officials to act on” it); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (same). Accordingly, Grindling fails to
state a First Amendment claim based upon the grievance process or the denial of
his grievances, and this cause of action is DISMISSED.
3.

Conspiracy Claim 

As was the case in his original Complaint, Grindling again makes vague
allegations of a conspiracy among defendants to starve him or deny him access to
the grievance process. As noted previously, to properly assert a conspiracy claim
pursuant to Section 1983, Grindling must “allege specific facts to support the
existence of a conspiracy among the defendants.” Buckey v. Cnty. of Los Angeles,
968, 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Dep’t, 839
F.2d 621, 626 (9th Cir. 1988). He must allege that defendants conspired or acted
jointly in concert and that some overt act was done in furtherance of the
conspiracy. Sykes v. State of Calif., 497 F.2d 197, 200 (9th Cir. 1974). To state a
claim for conspiracy in this context, a plaintiff must plead that “two or more
11 

persons conspire[d] for the purpose of impeding, hindering, obstructing, or
defeating . . . the due course of justice in any State or Territory, with intent to deny
to any citizen the equal protection of the laws . . . .” 42 U.S.C. § 1985(2). Section
1985 therefore requires “an allegation of class-based animus for the statement of a
claim” under its second clause. Portman v. Cnty. of Santa Clara, 995 F.2d 898,
908-09 (9th Cir. 1993) (internal quotations omitted). Grindling fails to include
such an allegation in the First Amended Complaint. Consequently, he fails to state
a claim for conspiracy under Section 1985, and this cause of action is
DISMISSED.
III.

Limited Leave to Amend
The dismissal of portions of Grindling’s First Amended Complaint is

without prejudice. Grindling is granted leave to amend to cure the deficiencies
identified above. If Grindling chooses to file an amended complaint, he must write
short, plain statements telling the Court: (1) the specific basis of this Court’s
jurisdiction; (2) the constitutional or statutory right Grindling believes was
violated; (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 Grindling’s rights; and (6) what specific injury
Grindling suffered because of that defendant’s conduct. Grindling must repeat this
process for each person or entity that he names as a defendant. If Grindling fails to
12 

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. See Nichols v. Logan, 355 F. Supp. 2d 1155, 1165 (S.D. Cal. 2004) (“A
person deprives another ‘of a constitutional right, within the meaning of section
1983, if he does an affirmative act, participates in another’s affirmative acts, or
omits to perform an act which he is legally required to do that causes the
deprivation of which the plaintiff complains.’”) (quoting Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978)).
An amended complaint generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded 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 re-alleged 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 realleged in an amended complaint to preserve them for
appeal, but claims that are voluntarily dismissed are considered waived if they are
not re-pled).
The amended complaint must designate that it is the “Second Amended
Complaint” and may not incorporate any part of the First Amended Complaint.
Rather, any specific allegations must be retyped or rewritten in their entirety.
13 

Plaintiff may include only one claim per count. To be clear, if Grindling elects to
file a Second Amended Complaint, he must also re-allege his Eighth Amendment
claim set forth in the First Amended Complaint, in addition to attempting to cure
the deficiencies identified with respect to his First Amendment and conspiracy
claims that are dismissed by this order.
IV.

Service of First Amended Complaint
Based upon the granting of the IFP Application and the preceding discussion

of Grindling’s Section 1983 claims, the Court hereby GRANTS the Motion for
Service. Service of the summons and First Amended Complaint is appropriate for
Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong, Reef Shook, and Paulo
Faleafine. The U.S. Marshal is ORDERED to serve the First Amended Complaint
and summons on Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong, Reef
Shook, and Paulo Faleafine as directed by Plaintiff. See Fed. R. Civ. P. 4(c)(3). If
Defendants accept waivers of service of the summons, they SHALL return the
completed waiver of service documents to the U.S. Marshal within thirty days of
the date these documents were sent. The U.S. Marshal shall then file the waiver
with the court. After service is perfected, Defendants are ORDERED to file an
Answer or other responsive pleading to the Complaint within the time allowed
under Fed. R. Civ. P. 4(d)(3) and 12(a)(1)(A).
IT IS HEREBY ORDERED that:
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(1)

Service is appropriate for Defendants Gilbert Shibao, Isaac Gazmen,

Bert Sam Fong, Reef Shook, and Paulo Faleafine. The Clerk’s Office is directed to
send to Plaintiff for each Defendant to be served: one copy of the endorsed First
Amended Complaint, one summons, one USM-285 form, one Notice of Lawsuit
and Request for Waiver of Service for Summons form (AO 398), two (2) Waiver
of Service of Summons forms (AO 399), and an instruction sheet. The Clerk shall
send a copy of this order to the U.S. Marshal.
Plaintiff shall complete the forms as directed and submit these documents to
the U.S. Marshal in Honolulu, Hawaii. See Fed. R. Civ. P. 4(i).
(2) Upon receipt of these documents, the U.S. Marshal shall mail a copy of
the First Amended Complaint, a completed Notice of Lawsuit and Request for
Waiver of Service forms (AO 398), and two completed Waiver of Service of
Summons forms (AO 399) (two for each defendant), as directed by Plaintiff
pursuant to Fed. R. Civ. P. 4 without payment of costs.
(3)

The U.S. Marshal shall retain the summons and a copy of the First

Amended Complaint. Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong,
Reef Shook, and Paulo Faleafine shall return the Waiver of Service forms to the
U.S. Marshal within a reasonable time, not more than thirty days from the date
requests for waiver are mailed. If the Waiver of Service of Summons forms and

15 

requests for waiver are returned as undeliverable, the U.S. Marshal shall
immediately file them with the court.
(4)

If Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong, Reef

Shook, Paulo Faleafine do not timely return the Waiver of Service of Summons
forms within thirty days of mailing, the U.S. Marshal shall:
a. Personally serve Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam
Fong, Reef Shook, and Paulo Faleafine pursuant to Fed. R. Civ. P. 4 and 28 U.S.C.
§ 566(c).
b. Within ten days after personal service is effected, file the return of service
for each Defendant, along with evidence of any attempts to secure a waiver of
service of summons and of the costs subsequently incurred in effecting service on
said defendant. Said costs shall be enumerated on the USM-285 form and shall
include the costs incurred by the U.S. Marshal’s office for photocopying additional
copies of the summons and First Amended Complaint and for preparing new
USM-285 forms, if required. Costs of service will be taxed against the personally
served Defendant in accordance with the provisions of Fed. R. Civ. P. 4(d)(2).
(5)

Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong, Reef

Shook, and Paulo Faleafine shall file an answer or other responsive pleading to
Plaintiff’s Complaint within sixty (60) days after the request for waiver of service

16 

was sent (if formal service is waived), or twenty (20) days after personal service.
Failure to do so may result in the entry of default judgment.
(6)

Plaintiff shall inform the court of any change of address by filing a

“NOTICE OF CHANGE OF ADDRESS.” The notice shall contain only
information about the change of address and its effective date and shall not include
requests for other relief. Failure to file such notice may result in the dismissal of
the action for failure to prosecute under Fed. R. Civ. P. 41(b).
(7)

Plaintiff is cautioned that if he fails to comply with this Order and his

non-compliance prevents timely and proper personal service upon Defendants as
set forth in Fed. R. Civ. P. 4(m), this action is subject to dismissal for failure to
serve.
(8)

After the First Amended Complaint is served, Plaintiff must serve a

copy of all further documents submitted to the court on Defendants Gilbert Shibao,
Isaac Gazmen, Bert Sam Fong, Reef Shook, and Paulo Faleafine or their attorneys.
The U.S. Marshal is not responsible for serving these documents on Plaintiff’s
behalf. Plaintiff shall include, with any original paper filed with the Clerk of
Court, a certificate stating the date that an exact copy of the document was mailed
to Defendant or his counsel. Any paper received by a District or Magistrate Judge
that has not been filed with the Clerk of Court or that does not include a certificate
of service will be disregarded.
17 

(9) Until the First Amended Complaint is served and Defendants or their
attorneys file a notice of appearance, Plaintiff SHALL NOT FILE, and the court
will take no action, on motions or requests to the court.
CONCLUSION
Based on the foregoing, the Court GRANTS the IFP Application and
DISMISSES in part the First Amendment and conspiracy claims with leave to
amend. Grindling is GRANTED leave to file a Second Amended Complaint by no
later than October 28, 2016 in order to cure the deficiencies noted in this order.
Grindling’s Motion for Service is GRANTED. Service is appropriate for
Defendants Gilbert Shibao, Isaac Gazmen, Bert Sam Fong, Reef Shook, and Paulo
Faleafine. The Clerk’s Office is directed to send to Plaintiff for each Defendant to
be served: one copy of the endorsed First Amended Complaint (if he has not
already received a copy), one summons, one USM-285 form, one Notice of
Lawsuit and Request for Waiver of Service for Summons form (AO 398), two (2)
Waiver of Service of Summons forms (AO 399), and an instruction sheet.
Grindling shall complete the forms as directed and submit these documents to the
U.S. Marshal in Honolulu, Hawaii.

18 

The Clerk shall send a copy of this order to the U.S. Marshal.
IT IS SO ORDERED.
Dated: September 29, 2016 at Honolulu, Hawai‘i.

Grindling v. Shibao et al.; CV 16-00426 DKW-RLP; ORDER (1) GRANTING
APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING
IN PART FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND;
AND (3) GRANTING MOTION FOR SERVICE

19