Chavez v. Hagel et al

Filing 11

ORDER DIRECTING SERVICE re 10 - Signed by JUDGE HELEN GILLMOR on 4/20/2017. "(1) The Second Amended Complaint states a claim and shall be served on the United States. (2) The Clerk is DIRECTED to issue a summons as to Chavez� 39;s Second Amended Complaint (ECF No. 10) and forward it to Chavez along with a blank U.S. Marshal Form 285 for the United States. The Clerk SHALL provide Chavez with a certified copy of this Order, a certified copy of his Second Amended Complaint and the summons so that he may serve the United States." (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LEONARDO R. CHAVEZ,
#A6068476,

) CIV. NO. 16 00685 HG/KJM
)
)
Plaintiff,
) ORDER DIRECTING SERVICE
)
vs.
)
)
UNITED STATES, USSOCOM,
)
SOCCENT, SOCPAC,
)
)
Defendants,
)
__________________________ )
ORDER DIRECTING SERVICE
Before the court is pro se Plaintiff Leonardo R.
Chavez’s Second Amended Complaint (“SAC”).
10.

ECF. No.

Chavez alleges Defendants the United States,

USSOCOM (U.S. Special Operations Command), SOCCENT
(Special Operations Command Central), and SOCPAC
(Special Operations Command Pacific) violated military
regulations and the Constitution during his service in
the United States Army.
military records.

He seeks correction of his

For the following reasons, the Court

directs the SAC be served and orders the United States
to respond after service is perfected.

I.

BACKGROUND

Chavez is incarcerated at the Oahu Community
Correctional Center awaiting trial in the Circuit Court
of the First Circuit, State of Hawaii, for Murder in
the Second Degree and Carrying or Use of a Firearm in
the Commission of a Separate Felony.1

See Compl., ECF

No. 1, PageID #8 (“facing murder in the 2nd”); State v.
Chavez, 1PC141000360 (Haw. 1st Cir. Ct. 2014).
https://jimspss1.courts.state.hi.us/JEFS.
A.

Procedural History
On December 30, 2016, Chavez commenced this action.

ECF No. 1.
On February 17, 2017, Chavez filed an amended
complaint.

Am. Compl., ECF No. 6.

He alleged that the

Secretary of Defense and individual officers in the
United States Army chain of command violated the
Constitution when they denied him adequate rest between
deployments, falsified his military records and
1

See United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
(approving taking judicial notice of proceedings in other courts
“if those proceedings have a direct relation to matters at
issue”); see also Fed. R. Evid. 201(c)(1).
2

military policies, and stripped him of his retirement.
Chavez sought $1 billion in damages and the correction
of his military records.
On March 9, 2017, the Court dismissed Chavez’s
Amended Complaint for failure to state a cognizable
claim for relief.

Order, ECF No. 9 (“March 9, 2017

Dismissal Order”).
B.

The Second Amended Complaint
On April 5, 2017, Chavez filed the SAC.

10.

ECF No.

He now alleges Defendants violated Article I,

Section 8 of the United States Constitution2 and 10
U.S.C. § 991 when they allegedly deployed him overseas
in excess of § 991’s one

and two year “high

deployment” thresholds3 without the explicit approval of
the Secretary of Defense or another delegated official

2

Article I, Section 8 vests in Congress the power to
“provide for the common Defense,” “declare War,” “raise and
support Armies,” “provide and maintain a Navy;” and make rules
for the “Regulation of the land and naval Forces.”
3

Title 10, U.S. Code, Section 991 governs the “[m]anagement
of deployments of members [of the Armed Forces] and measurement
and data collection of unit operating and personnel tempo.” The
“one-year high-deployment threshold” is 220 days deployment
within the preceding 365 days; the “two-year high-deployment
threshold” is 400 days within the preceding 730 days.
3

having been noted in his records.

He alleges this

failure, and his resulting alleged over deployment,
violated the Fifth and Fourteenth Amendments.4

Chavez

was discharged from the Army in “Under Other Than
Honorable Conditions” on May 19, 2016.

See id., ECF

10 4 (Certificate of Release or Discharge from Active
Duty).
Chavez seeks an order directing USSOCOM and the
Pentagon “to produce the waiver request and the
approval by the Armed Services of the Senate and the
Committee on Armed Services of the House of
Representatives” for his “Operational Personnel Tempo.”5
SAC, ECF No. 10, PageID #85.

He has withdrawn his

4

Chavez states this alleged over-deployment “broke apart my
family, and pushed me to the point of suicide.” See SAC, ECF No.
10, PageID #79. He suggests it precipitated his criminal
charges. Id., PageID #85 (“I should not be the only one in jail
or being held accountable); ECF No. 10-8, PageID #97 (“Under what
authority does my local command have to discharge me [from] the
Army? When they clearly did not have the authority to deploy me
as much as I was. I should not be the only one in jail or being
held accountable.”).
5

“‘[O]perating tempo’ means the rate at which units of the
armed forces are involved in all military operations[,]” and
“‘personnel tempo’ means the amount of time members of the armed
forces are engaged in their official duties at a location or
under circumstances that make it infeasible for a member to spend
off-duty time in the housing in which the member resides.” 10
U.S.C. § 991(f)(1)(B).
4

request for money damages.

Chavez states that he has

“initiated” congressional review of his discharge with
the Army Review Board Agency (ARBA), which is also
known as the Army Board for Correction of Military
Records (“ABCMR”).6
II.

Id.
STATUTORY SCREENING

Because Chavez is a prisoner proceeding in forma
pauperis, the Court screens his Complaint pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A(b).

The Court must

dismiss a complaint or claim that is frivolous,
malicious, fails to state a claim, or seeks damages
from defendants who are immune.

See Lopez v. Smith,

203 F.3d 1122, 1126 27 (9th Cir. 2000) (en banc)
(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)).
Screening under §§ 1915(e)(2) and 1915A(b) involves
the same standard of review as that used under Federal

6

The ABCMR is the highest level of administrative review
within the Department of the Army with the mission to correct
errors in or remove injustices from Army military records. See
http://arba.army.pentagon.mil/abcmr-overview.html.
5

Rule of Civil Procedure 12(b)(6).

Watison v. Carter,

668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm
v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)
(discussing screening pursuant to § 1915A).

Under Rule

12(b)(6), a complaint must “contain 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) (internal quotation marks
omitted); Wilhelm, 680 F.3d at 1121.
Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”

Iqbal, 556 U.S. at 678.

The “mere

possibility of misconduct” or an “unadorned, the
defendant unlawfully harmed me accusation” falls short
of meeting this plausibility standard.

Id.; see also

Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009).
Pro se litigants’ pleadings must be liberally
construed and all doubts should be resolved in their
favor.

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
6

2010) (citations omitted).

Leave to amend should be

granted if it appears the plaintiff can correct the
defects in the complaint.

Lopez v. Smith, 203 F.3d

1122, 1130 (9th Cir. 2000) (en banc).

If the complaint

cannot be saved by amendment, dismissal without leave
to amend is appropriate.

Sylvia Landfield Trust v.

City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
III.

DISCUSSION

The Court liberally construes Chavez’s claim as
seeking relief under the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 702, 704, which provides a
limited waiver of sovereign immunity for certain suits
seeking relief other than money damages, for judicial
review of the ABCMR.
“Military discharge decisions are subject to
judicial review.”

Muhammad v. Sec’y of Army, 770 F.2d

1494, 1495 (9th Cir. 1985).

The Court may review

unlawful military decisions if the plaintiff alleges
(a) violation of a constitutional right, federal
statute, or military regulations, and (b) exhaustion of
administrative remedies, unless exhaustion is excused.
7

Wenger v. Monroe, 282 F.3d 1068, 1072 (9th Cir. 2002);
Khalsa v. Weinberger, 779 F.2d 1393, 1398 (9th Cir.
1985)).
Exhaustion of administrative remedies may be
excused “(1) if the intraservice remedies do not
provide an opportunity for adequate relief; (2) if the
petitioner will suffer irreparable harm if compelled to
seek administrative relief; (3) if administrative
appeal would be futile; or (4) if substantial
constitutional questions are raised.”

Wenger, 282 F.3d

at 1073; see also Stein v. Mabus, 2013 WL 12092058, at
*3 (S.D. Cal. Feb. 14, 2013).
Chavez alleges Defendants violated 10 U.S.C. § 991
and the Constitution, satisfying the first part of the
test.

Although Chavez states that he has instituted

administrative procedures with the ABCMR, he neither
states that this review has concluded nor details the
outcome of the proceeding.

Nor does he assert a basis

for finding that exhaustion of administrative remedies
is excused.

Rather, the fact that Chavez has commenced

8

such review suggests that such review is available to
him and that he believes it may be effective.
Nonetheless, when exhaustion of administrative
remedies is not jurisdictional, it is an affirmative
defense that a defendant has the burden of raising and
proving.

Jones v. Bock, 549 U.S. 199, 216 (2007); see

also Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003); (addressing exhaustion requirements that apply
to prisoners under 28 U.S.C. § 1997e(a)); Sung v.
Gallagher, 2011 WL 4952617, at *7 (D. Haw. Oct. 17,
2011) (finding plaintiff’s claims unexhausted by the
ABCMR, and declining to decide whether claims based on
violations of Army regulations are jurisdictional).
Chavez therefore sufficiently states a claim that
the Army deployed him in violation of the parameters
set forth in 10 U.S.C. § 991.

He further alleges that

he has sought review before the ABCMR.

He need not

assert or prove that he has exhausted such review.

The

Court will allow the SAC to be served, subject to
adversary proceedings, and any determination on whether

9

that review has concluded or should be excused will be
subject to adversary proceedings.
IV.
(1)

CONCLUSION

The Second Amended Complaint states a claim

and shall be served on the United States.7
(2) The Clerk is DIRECTED to issue a summons as to
Chavez’s Second Amended Complaint (ECF No. 10) and
forward it to Chavez along with a blank U.S. Marshal
Form 285 for the United States.

The Clerk SHALL

provide Chavez with a certified copy of this Order, a
certified copy of his Second Amended Complaint and the
summons so that he may serve the United States.

Upon

receipt of these documents, Chavez must complete the
Form 285s as completely and accurately as possible,
include an address where Defendant United States may be
found and/or subject to service, and return them to the
United States Marshal according to the instructions
provided by the Clerk.

7

The Court makes no determination of whether Chavez must
also name the ACBMR and the Secretary of the Army, Robert M.
Speer, who is the official with authority to correct a service
member’s military record. See 5 U.S.C. § 703; 10 U.S.C. § 1552.
10

(3) The U.S. Marshal is DIRECTED to serve a copy of
the Second Amended Complaint and summons upon the
United States as directed by Chavez on the USM Form
285s provided to him.

All costs of that service will

be advanced by the United States.

See 28 U.S.C.

§ 1915(d); Fed. R. Civ. P. 4(c)(3);
(4) After service is perfected, the United States
is ORDERED to reply to Chavez’s Second Amended
Complaint within the time provided by the applicable
provisions of Federal Rule of Civil Procedure 12(a).
See 42 U.S.C. § 1997e(g)(2) (while a defendant may
occasionally be permitted to “waive the right to reply
to any action brought by a prisoner confined in any
jail, prison, or other correctional facility under
section 1983,” once the Court has conducted its sua
sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and
§ 1915A(b), and thus, has made a preliminary
determination based on the face on the pleading alone
that Chavez has a “reasonable opportunity to prevail on
the merits,” the defendant is required to respond); and

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(5) Chavez SHALL, after service has been perfected
by the U.S. Marshal, serve upon the United States, or,
if appearance has been entered by counsel, upon
counsel, a copy of every further pleading, motion, or
other document submitted for the Court’s consideration
pursuant to Fed. R. Civ. P. 5(b).

Chavez must include

with every original document he seeks to file, a
certificate stating the manner in which a true and
correct copy of that document has been served on
Defendant or counsel, and the date of that service.
See Dist. Haw. L.R. 5.6.

Any document received by the

Court which has not been properly filed with the Clerk
or which fails to include a Certificate of Service upon
Defendant may be disregarded.
IT IS SO ORDERED.
DATED: April 20, 2017, Honolulu, Hawaii.

Chavez v. Hagel,1:16-cv-00685-HG-KJM; scrn 2017 Chavez 16-685 HG (SAC ftsc)

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