Napoleon T. Annan-Yartey. Sr. v. T. Muranaka, et al.

Filing 12

ORDER: (1) GRANTING APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS; (2) DISMISSING SECOND AMENDED COMPLAINT IN PART; AND (3) DIRECTING SERVICE re 4 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 12/5/2016. "Based on the foregoing, pursuant to 28 U.S.C. § 1915(e)(2)(B), Plaintiff's claims against the City, Doe Defendants, and Count 11 against Murphy are DISMISSED without prejudice, and claims against Kealoha in his officia l capacity are DISMISSED with prejudice. All remaining claims asserted against Muranaka, Ohira, and Murphy in their individual capacities are pled sufficiently to proceed beyond the court's initial screening." "Accordingly, the U.S. Marshal is DIRECTED to serve the Second Amended Complaint and summons on Defendants Muranaka, Ohira, and Murphy at Plaintiff's direction." "IT IS HEREBY ORDERED: 1. The Clerk of Court is directed to send Plaintiffs t wo (2) summonses, two (2) USM-285 forms, two (2) Notice of Lawsuit and Request for Waiver of Service of Summons forms (AO 398), two (2) Waiver of Service of Summons forms (AO 399), and a copy of the endorsed Second Amended Complaint." (emt, )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). Napoleon T. Annan-Yartey Sr. shall be served by first class mail at the address of record on December 6, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NAPOLEON T. ANNAN-YARTEY SR.,
Plaintiff,
vs.
OFFICER T. MURANAKA; OFFICER
ROYCE S. OHIRA; OFFICER CHAD K.
MURPHY; HONOLULU CHIEF OF
POLICE LOUIS M. KEALOHA;
HONOLULU POLICE DEPARTMENT;
CITY & COUNTY OF HONOLULU; and
“ALL POLICE OFFICERS INVOLVED
AND OFFICIALS,”

CIV. NO. 16-00590 JMS-KJM
ORDER: (1) GRANTING
APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS;
(2) DISMISSING SECOND
AMENDED COMPLAINT IN
PART; AND (3) DIRECTING
SERVICE

Defendants.

ORDER: (1) GRANTING APPLICATION TO PROCEED IN DISTRICT
COURT WITHOUT PREPAYING FEES OR COSTS;
(2) DISMISSING SECOND AMENDED COMPLAINT IN PART;
AND (3) DIRECTING SERVICE
I. INTRODUCTION
On November 1, 2016, pro se Plaintiff Napoleon T. Annan-Yartey, Sr.
(“Plaintiff”) filed a Complaint for Civil Right Violation against the City and
County of Honolulu (the “City”); Honolulu Police Department (“HPD”); 1 HPD

1

The court considers claims against HPD to be against the City. See, e.g., Dowkin v.
Honolulu Police Dep’t., 2010 WL 4961135, at *3 (D. Haw. Nov. 30, 2010) (concluding that
because “HPD is not an independent legal entity . . . [t]he court will treat Plaintiff’s claims
against the HPD as claims against the City@) (citations omitted).

Officers T. Muranaka (“Muranaka”), Royce S. Ohira (“Ohira”), and Chad K.
Murphy (“Murphy”) in their individual capacities; HPD Chief Louis M. Kealoha
(“Kealoha”) in his official capacity; and “all police officers involved and officials”
(“Doe Defendants”) (collectively, “Defendants”), ECF No. 1, and an Application
to Proceed in District Court Without Prepaying Fees or Costs (“IFP Application”),
ECF No. 4. On November 3, 2016, Plaintiff filed an Amended Complaint, ECF
No. 5, followed by a “Second Amended Complaint” (docketed as a “Supplement”
because Plaintiff did not yet have court leave to file an amended complaint) on
November 15, 2016, ECF No. 6. The next day, Plaintiff filed a Motion for Leave
to File an Amended Complaint, ECF No. 7, which was granted on November 17,
2016, ECF No. 8. On November 21, 2016, Plaintiff filed his “Second Amended
Complaint for Civil Right Violation” (“SAC”), correcting an error on the cover
page of the previously filed Supplement. ECF No. 10.
As set forth below, the court GRANTS Plaintiff’s IFP Application,
DISMISSES the SAC in part, and DIRECTS service of the SAC.
II. DISCUSSION
A.

IFP Application
Plaintiff’s IFP Application indicates that he has no income, assets, or

expenses. IFP Appl. ¶¶ 2-6, 8, ECF No. 4. Because Plaintiff has made the

2

required showing under 28 U.S.C. § 1915 to proceed in forma pauperis (i.e.,
without prepayment of fees), the court GRANTS Plaintiff’s IFP Application.
B.

The SAC
The SAC asserts claims pursuant to 42 U.S.C. §§ 1981, 1983, and

1985(3) for alleged discrimination and violations of Plaintiff’s rights secured by
the First, Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution, as well as state law claims.
1.

Factual Allegations
Plaintiff, an African-American male, alleges that Muranaka, Ohira,

and Murphy arrested him, and searched and seized his belongings without probable
cause after Plaintiff, who was carrying a bag of recently purchased food, crossed a
street along with other pedestrians. SAC ¶¶ 8, 9, 21-23, 25-26. Muranaka and
Ohira allegedly made racially derogatory remarks; 2 Ohira choked Plaintiff; all
three officers “pulled him by his neck and then threw him on the ground,”
restrained him with handcuffs, and took his wallet; Muranaka searched Plaintiff’s
bag and took his federally-issued ID; and all three officers held him on the ground
for a lengthy period of time until Muranaka stated that Plaintiff “came up clean;”
all without telling Plaintiff why he was stopped. Id. ¶¶ 24, 26-29, 31, 33. Plaintiff

2

Muranaka allegedly told Plaintiff “no you niggers do not have rights,” and Ohira
allegedly said “oh shut up you nigger[] if you do not shut up I am going to lock you up and take
you to jail.” SAC ¶ 27.
3

was charged in state court with disobeying traffic signals and littering based on
affidavits of probable cause containing allegedly false statements or omissions by
the three officers. Id. ¶¶ 34, 36. Plaintiff appeared in court several times related to
the allegedly false charges before they were dismissed with prejudice, based on a
motion by the prosecuting attorney. Id. ¶¶ 39-40. Somewhat confusingly, the
SAC later alleges that “criminal proceedings against [Plaintiff] went to trial and the
court came with a (not guilty verdict) thereafter all charges were dismissed in favor
of Plaintiff[],” id. ¶ 52, and that “[a]ll 65 charges were terminated in Plaintiff’s
favor,” id. ¶ 81.
Further, Plaintiff alleges that the officers’ conduct was a direct result
of the “deliberate policies and practices” of the City, including a failure to:
(1) “adequately supervise and train its officers”; (2) “properly and adequately
monitor and discipline its officers”; and (3) “adequately and properly investigate
citizen complaints of police misconduct.” Id. ¶¶ 44, 47. More specifically,
Plaintiff alleges that HPD has a “policy, practice and/or custom of unlawfully
interfering with and/or arresting, without reasonable suspicion or probable cause,
individuals who exercise their rights under the First Amendment by engaging in
monitoring and documenting police activities and/or misconduct.” Id. ¶ 48.
Finally, Plaintiff alleges that HPD Chief Louis M. Kealoha (“Kealoha”) “exercised
and delegated . . . municipal final decision making power to the Internal Affairs
4

Bureau and others[, and] trained and supervised individual Defendants Muranaka,
Murphy and . . . Ohira.” Id. ¶ 17.
The SAC alleges § 1983 claims against all Defendants for violation of
rights protected by the First, Fourth, Fifth, and/or Fourteenth Amendments to the
United States Constitution including due process (Counts 1 and 5); unreasonable
search, seizure, and arrest without probable cause (Count 2); excessive force
(Count 3); and malicious prosecution (Count 4). The SAC alleges claims against
Muranaka, Chad, and Ohira for (1) violation of the Fourteenth Amendment, and
for racial discrimination and conspiracy to discriminate pursuant to 42 U.S.C.
§§ 1981, 1983, and 1985(3) (Count 11); and (2) intentional and negligent infliction
of emotional distress (Count 12). The SAC alleges state law claims against all
Defendants for violation of rights protected by the Hawaii State Constitution
including equal protection (Count 7); unlawful search, seizure, arrest, and
excessive force (Count 8); and malicious prosecution (Count 9). And the SAC
alleges claims against the City pursuant to Monell v. Department of Social
Services, 436 U.S. 658 (1978) (Count 6), and the doctrine of respondeat superior
(Count 10).
As a result of the foregoing, the SAC alleges that Plaintiff suffered
“physical, mental and emotional injury and pain, mental anguish, suffering,
humiliation and embarrassment.” Id. ¶ 55. See also id. ¶¶ 57, 58, 61, 63, 70.
5

Plaintiff seeks declaratory and injunctive relief as well as compensatory and
punitive damages. Id. ¶ VII.
2.

Standards of Review
The court must subject each civil action commenced pursuant to

28 U.S.C. § 1915(a), governing IFP proceedings, to mandatory screening. The
court must order the dismissal of any claim that it finds “(i) is frivolous or
malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks
monetary relief against a defendant who is immune from such relief.” Id.
§ 1915(e)(2)(B); see, e.g., 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”); Lopez v. Smith, 203 F.3d 1122, 1127 (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 IFP complaint that fails to state a claim).
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).
A complaint that lacks a cognizable legal theory or alleges insufficient facts under
a cognizable legal theory fails to state a claim. See UMG Recordings, Inc. v.
Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (citing
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
6

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see 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).
Rather, “[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.” Id. at 678-79 (citing Twombly, 550
U.S. at 556). But factual allegations that only permit the court to infer “the mere
possibility of misconduct” do not show that the plaintiff is entitled to relief as
required by Rule 8. Id. at 679 (citing Fed. R. Civ. P. 8(a)(2)). Thus, a district
court may dismiss a complaint for failure to comply with Rule 8 where it fails to
provide the defendant fair notice of the wrongs allegedly committed. See McHenry
v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996) (affirming dismissal of complaint
where “one cannot determine from the complaint who is being sued, for what
relief, and on what theory, with enough detail to guide discovery”).

7

Plaintiff is appearing pro se; consequently, the court liberally
construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court
also 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 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).
3.

Application
a.

The SAC fails to state a constitutional claim against the City

To state a claim under § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United States
was violated, and (2) that the alleged violation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Although
“Congress did intend municipalities and other local government units to be
included among those persons to whom § 1983 applies,” Monell, 436 U.S. at 690, a
municipality can only be liable “for its own” constitutional violations. City of
Okla. City v. Tuttle, 471 U.S. 808, 818 (1985) (quoting Monell, 436 U.S. at 683).
That is, § 1983 does not impose liability on municipalities for
constitutional violations committed by its employees under the theory of
8

respondeat superior. Rather, “Monell teaches that [a municipality] may only be
held accountable if the deprivation was the result of municipal ‘custom or
policy.’” Id. at 817. “[T]he constitutional violation must be caused by ‘a policy,
practice, or custom of the entity,’ or be the result of an order by a policy-making
officer.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012)
(citations omitted). “Liability for improper custom may not be predicated on
isolated or sporadic incidents; it must be founded upon practices of sufficient
duration, frequency and consistency that the conduct has become a traditional
method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)
(citations omitted). In other words,
Local governing bodies can be held liable . . . where “the
action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that
body’s officers,” or where the action is made “pursuant to
governmental ‘custom’ even though such a custom has
not received formal approval through the body’s official
decisionmaking channels.”
Jackson v. Barnes, 749 F.3d 755, 762-63 (9th Cir. 2014) (quoting Monell, 436 U.S.
at 690-91) (emphasis omitted). “An official municipal policy . . . ‘includes the
decisions of a government’s lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force of law.’”
Tsao, 698 F.3d at 1144 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).

9

Moreover, “a local government body can be held liable under § 1983
for policies of inaction as well as policies of action.” Jackson, 749 F.3d at 763
(citing Gibson v. Cty. of Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002)). “[A]
policy of inaction is based on a government body’s ‘failure to implement
procedural safeguards to prevent constitutional violations.’” Id. (quoting Tsao, 698
F.3d at 1143). To state a claim based the “inaction” theory, a plaintiff must show
that the policy amounts to “deliberate indifference to the plaintiff’s constitutional
right.” Id. (quoting Tsao, 698 F.3d at 1143). “This requires showing that the
defendant ‘was on actual or constructive notice that its omission would likely
result in a constitutional violation.” Id. (quoting Tsao, 698 F.3d at 1145). Under
this theory, a plaintiff must also show that “these policies were the moving force
behind the employee’s violation of [his] constitutional rights, in the sense that the
[municipality] could have prevented the violation with an appropriate policy.”
Gibson, 290 F.3d at 1194 (citation omitted).
Here, the SAC fails to allege sufficient facts to plausibly suggest a
§ 1983 claim against the City. The SAC fails to identify -- much less allege -any applicable “policy statement, ordinance, regulation, or decision officially
adopted and promulgated” by HPD, the City, or any of its policy-making officers.
Jackson, 749 F.3d at 762. Nor does the SAC allege facts demonstrating an
improper custom based on “persistent and widespread” practices. Tsao, 698
10

F.3d at 1144; see also Trevino, 99 F.3d at 918. Rather, the SAC relies on
allegations solely limited to one event involving Plaintiff and Muranaka, Ohira,
and Murphy. Moreover, the SAC fails to allege facts demonstrating a policy of
inaction. To the contrary, it merely alleges, in wholly conclusory fashion, that
because HPD officers allegedly violated Plaintiff’s constitutional rights during
that one event, HPD therefore failed to train, supervise, monitor, and discipline
its officers, and failed to investigate unspecified citizen complaints of police
misconduct. SAC ¶ 67. And even assuming a policy of inaction was
sufficiently alleged, the SAC fails to allege facts showing that the City had
actual or constructive notice that it could have prevented the alleged
constitutional violation(s) against Plaintiff by implementing a particular policy.
See Gibson, 290 F.3d at 1194. Accordingly, Plaintiff’s claims against the City
are dismissed without prejudice. 3
b.

Official capacity claims against Chief Kealoha

The law is well-settled that “[c]laims against government officials in
their official capacities are really suits against the government employer.” De-

3

Plaintiff’s claim for violation of his First Amendment rights appears to be asserted in
his Monell claim only. To the extent he asserts a claim for violation of his First Amendment
rights against other Defendants, absent factual allegations regarding such violation, this claim is
DISMISSED for failure to state a claim.
11

Occupy Honolulu v. City & Cty. of Honolulu, 2013 WL 2284942, at *5 (D. Haw.
May 21, 2013) (quoting Butler v. Elle, 281 F.3d 1014, 1023 (9th Cir. 2002)).
Further, the SAC lacks any factual allegations as to Chief Kealoha specifically. 4
Thus, for the reasons set forth above, the SAC fails to state a claim against Chief
Kealoha in an official capacity. Accordingly, Plaintiff’s claims against Chief
Kealoha in his official capacity are dismissed with prejudice.
c.

Doe defendants

The SAC’s caption indicates that claims are alleged against Doe
Defendants, ECF No. 10, but the SAC fails to include any factual allegations to
put each Doe defendant on notice of each individual’s alleged acts or omissions
that Plaintiff claims violated his federal rights. See Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002) (explaining that under § 1983, a plaintiff must
demonstrate that each defendant personally participated in the deprivation of his
rights) (citing Iqbal, 556 U.S. at 676).
Moreover, because an anonymous defendant cannot be served, the
use of Doe defendants is disfavored in federal court. See Gillespie v. Civiletti,
629 F.2d 637, 642 (9th Cir. 1980). While a plaintiff may refer to unknown
defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, he must
4

And even if Plaintiff intended to assert a § 1983 claim against Chief Kealoha in his
individual capacity, the SAC’s failure to allege specific conduct by Chief Kealoha causing a
violation of Plaintiff’s federal rights is fatal to such a claim.
12

allege facts to support how each individual Doe defendant violated the plaintiff’s
constitutional rights. If a plaintiff provides such details, he may then use the
discovery processes to obtain the names of any Doe defendants he believes
violated his constitutional rights and seek leave to amend to name those
defendants, unless discovery will not uncover the identities, or the complaint
would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 1160,
1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642).
For these reasons, the SAC fails to state a claim against Doe
Defendants and such claims are therefore DISMISSED without prejudice.
d.

The SAC fails to state a claim for racial discrimination against
Murphy

Count 11 of the SAC alleges that Muranaka, Ohira, and Murphy
discriminated and conspired to discriminate against Plaintiff based on his race in
violation of the Equal Protection Clause of the Fourteenth Amendment, and
§§ 1981, 1983, and 1985(3). SAC ¶¶ 1, 85-102.
To sustain an action under section 1983, not only must a plaintiff
show “(1) that the conduct complained of was committed by a person acting
under color of state law; and (2) that the conduct deprived the plaintiff of a federal
constitutional or statutory right,” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir.
2007) (citation and internal quotation marks omitted), vacated and remanded on

13

other grounds, 556 U.S. 1256 (2009), a plaintiff must also allege that (3) he
suffered a specific injury as a result of the conduct of a particular defendant, and
he must allege an affirmative link between the injury and the conduct of that
defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
To state a § 1983 claim for violation of the Equal Protection Clause,
Plaintiff must “show that the defendants acted with an intent or purpose to
discriminate against plaintiff based on membership in a protected class.”
Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005). To state a
claim under § 1981, Plaintiff must allege that he suffered intentional
discrimination based on his race. Martin v. Ampco Sys. Parking, 2013 WL
5781311, at *14 (D. Haw. Oct. 24, 2013) (citing Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1487 (9th Cir. 1995)); Lowe v. City of Monrovia, 775
F.2d 998, 1010 (9th Cir. 1985). And to state a claim under § 1985(3), Plaintiff
must allege a conspiracy motivated by race or class-based discriminatory animus.
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68 (1993); see
Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir. 1985) (explaining that an
allegation of race or class-based discrimination is required to plead a § 1985(3)
claim).

14

Here, the SAC fails to allege any facts demonstrating discriminatory
intent on the basis of race by Murphy or that his conduct was motivated by race.
Accordingly, the Court finds that Plaintiff has failed to state a claim pursuant to
§§ 1981, 1983, or 1985(3) against Murphy. Count 11 is DISMISSED against
Murphy without prejudice.
III. CONCLUSION
Based on the foregoing, pursuant to 28 U.S.C. § 1915(e)(2)(B),
Plaintiff’s claims against the City, Doe Defendants, and Count 11 against Murphy
are DISMISSED without prejudice, and claims against Kealoha in his official
capacity are DISMISSED with prejudice. All remaining claims asserted against
Muranaka, Ohira, and Murphy in their individual capacities are pled sufficiently
to proceed beyond the court’s initial screening.
Accordingly, the U.S. Marshal is DIRECTED to serve the Second
Amended Complaint and summons on Defendants Muranaka, Ohira, and Murphy
at Plaintiff’s direction. Plaintiff is DIRECTED to mail a copy of the Second
Amended Complaint and the fully completed service documents to the U.S.
Marshal, as set forth below. If Defendants accept waiver of service of the
summons, they shall return the completed waiver of service documents to the
U.S. Marshal, who will file the waivers with the court. Defendants Muranaka,
Ohira, and Murphy are thereafter directed to file an Answer or other response to
15

the Second Amended Complaint within the time allowed under the Federal Rules
of Civil Procedure. If, after service of the SAC, Plaintiff believes he can cure the
deficiencies with his dismissed claims, he is free to file a motion for leave to file a
third amended complaint in accordance with Federal Rule of Civil Procedure 15.
IT IS HEREBY ORDERED:
1.

The Clerk of Court is directed to send Plaintiffs two (2) summonses,
two (2) USM-285 forms, two (2) Notice of Lawsuit and Request for
Waiver of Service of Summons forms (AO 398), two (2) Waiver of
Service of Summons forms (AO 399), and a copy of the endorsed
Second Amended Complaint. Plaintiff shall then complete the forms
as directed, and submit the following documents to the United States
Marshals Service in Honolulu, Hawaii, for service on each Defendant:
a completed USM-285 form, a copy of the endorsed Second Amended
Complaint, and a summons as to each Defendant. A set of forms is
needed for each Defendant.

2.

Upon receipt of these documents and a copy of this Order, the United
States Marshal shall serve on Defendant a copy of the Second
Amended Complaint, completed Notice of Lawsuit and Request for
Waiver of Service form (AO 398) and completed Waiver of Service

16

of Summons form (AO 399), as directed by Plaintiff pursuant to Rule
4 of the Federal Rules of Civil Procedure without payment of costs.
3.

The United States Marshal is directed to retain the sealed summons
and a copy of the Second Amended Complaint for future use. The
United States Marshal shall file a returned Waiver of Service of
Summons form as well as any request for waiver that is returned as
undeliverable, as soon as it is received.

4.

If a Waiver of Service of Summons form is not returned by any
Defendant within sixty days from the date the United States Marshal
mailed the request for waiver, the United States Marshal shall:
a.

Personally serve such Defendant with the above-described
documents pursuant to Rule 4 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 566(c).

b.

Within ten days after personal service is effected, the United
States Marshal shall file the return of service for such
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 Defendant. The costs shall be
enumerated on the USM-285 forms and shall include the costs
incurred by the Marshal’s office for photocopying additional
17

copies of the summons and 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 in Federal Rule of Civil
Procedure 4(d)(2).
5.

Plaintiff shall serve a copy of all further pleadings or documents
submitted to the court upon Defendants or their attorneys. Plaintiff
shall include, with any original paper to be filed with the Clerk of
Court, a certificate stating the date that an exact copy of the document
was mailed to Defendants or their counsel. Any paper received by a
District Court Judge or Magistrate Judge that has not been filed with
the Clerk of Court or which does not include a certificate of service
will be disregarded.

6.

Plaintiff is notified that, until service of the Second Amended
Complaint has been effected, Plaintiff should not file motions or other
documents with the court. Plaintiff is further notified that he must

///
///
///

18

comply with the Federal Rules of Civil Procedure and the Local Rules for the
District of Hawaii.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 5, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Annan-Yartey v. Muranaka, et al., Civ. No. 16-00590 JMS-KJM, Order: (1) Granting
Application to Proceed in District Court Without Prepaying Fees or Costs; (2) Dismissing
Second Amended Complaint in Part, and (3) Directing Service

19