Lagmay vs. Nakakuni; et. al.
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e) & 1915A(a) WITH LEAVE GRANTED TO AMEND re: 1 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 7/12/2017. (afc) Excerpt of conclusion:"The Complaint is DISMISSED as legally frivolous and for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).""Lagmay may file an amended complaint curing the deficiencies noted above on or before August 11, 2017. Failure to cure these deficiencies will result in dismissal of this action, and Lagmay shall incur a strike pursuant to 28 U.S.C. § 1915(g)." CERTIFICATE OF SERVICEP articipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). A copy of the instant order and the prisoner civil rights complaint form with its instructions will be served on July 13, 2017 by first class mail addressed to: HENRY LAGMAY A0191119SAGUARO CORRECTIONAL CENTER 1250 EAST ARICA ROADELOY, AZ 85131
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HENRY LAGMAY, #AO191119,
MRS. F. NAKAKUNI; MRS. JAN;
MR. D.K. WATSON; MRS. L.E.
KOBAYASHI; MRS. S. BEITIA; MR. )
O’SCANNLAIN; MR. WATFORD;
MR. PETER L. SHAW; MR.
WALLACE; MR. LEAVY; MR.
FISHER; MRS. M.C. DWYER; JEAN )
CIV. NO. 17-00308 JMS-RLP
ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e)
& 1915A(a) WITH LEAVE
GRANTED TO AMEND
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(e)
& 1915A(a) WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Henry Lagmay’s prisoner civil rights
Complaint. ECF No. 1. Lagmay claims that Defendants1 violated his
constitutional rights pursuant to decisions they made and actions they allegedly
Lagmay names the following as Defendants in their individual and official capacities:
U.S. District Court Judges for the District of Hawaii Derrick K. Watson and Leslie E. Kobayashi;
U.S. Ninth Circuit Court of Appeals Judges J. Clifford Wallace, Paul J. Watford, Diarmuid F.
O’Scannlain, Raymond C. Fisher, and Edward Leavy; District of Hawaii Clerk of Court Sue
Beitia and secretary “Mrs. Jan”; Ninth Circuit Court of Appeals Clerk of Court Molly C. Dwyer
and Appellate Commissioner Peter L. Shaw; former U.S. Attorney for the District of Hawaii
Florence Nakakuni; and Thomson Reuters Opinions Publicist Coordinator Jean Green.
took during his civil proceedings in the District of Hawaii, and on appeal of those
proceedings in the United States Court of Appeals for the Ninth Circuit. For the
following reasons, Lagmay’s Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e) and 1915A(a) for failure to state a claim, with leave granted to amend.
Federal courts must screen all cases in which prisoners seek redress from a
governmental entity, officer, or employee, or seek to proceed without prepayment
of the civil filing fees. See 28 U.S.C. §§ 1915(b)(2), 1915A(a). The court must
identify cognizable claims and dismiss those claims that are frivolous, malicious,
fail to state a claim on which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. Id. §§ 1915(b)(2), 1915A(b).
A complaint 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). 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). Moreover, a plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights. Jones v. Williams, 297
F.3d 930, 934 (9th Cir. 2002).
Pro se prisoners’ pleadings must be liberally construed and given the benefit
of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Hebbe
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading
standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams,
490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights
complaint may not supply essential elements of the claim that were not initially
pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)
(quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). A plaintiff
must identify specific facts supporting the existence of substantively plausible
claims for relief. Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (per
curiam) (citation omitted). Leave to amend should be granted if it appears
possible that the plaintiff can correct the complaint’s defects. Lopez v. Smith, 203
F.3d 1122, 1130 (9th Cir. 2000).
Lagmay alleges violations of the Fourth, Fifth, Thirteenth, and Fourteenth
Amendments, and 42 U.S.C. § 1985(3) by federal employees and one private
individual. The claims against federal actors potentially arise under Bivens v. Six
Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971).
Lagmay’s fifty-one page Complaint is difficult to comprehend, as it is
replete with pronouncements of law and conclusory allegations, but very sparse on
facts. Lagmay claims that Defendants violated his constitutional rights to equal
protection, substantive and procedural due process, and freedom from involuntary
servitude and illegal search and seizure when they allegedly colluded and
conspired to obstruct justice between December 14 and 22, 2016, during his civil
proceedings in the District of Hawaii and on appeal in the Ninth Circuit Court of
Appeals. These proceedings are briefly summarized below.
Civil No. 1:15-cv-00166 DKW-RLP
On May 6, 2015, Lagmay filed Lagmay v. Nobriga, et al., Civ. No. 1:15-cv00166 DKW-RLP (D. Haw. 2015), alleging various constitutional violations
against state prison employees. On May 15, 2015, U.S. District Judge Derrick K.
Watson dismissed the Complaint for failure to state a claim, with leave granted to
amend. See Order, ECF No. 4. Judge Watson granted Lagmay three extensions of
time to file an amended Complaint. ECF Nos. 19, 35, 40. Between May and
September 2015, although Lagmay filed numerous motions, notices, memoranda,
letters, and requests, he failed to file an amended pleading. See generally ECF
Nos. 5-7, 9-12, 14-18, 20, 21, 23-33, 36-39, 41, 42, 44, 45. On September 21,
2015, Judge Watson dismissed the action with prejudice for Lagmay’s failure to
state a claim and failure to comply with court orders. Dismissal Order, ECF No.
On October 7, 2015, Lagmay filed a notice of appeal, ECF No. 52, that was
docketed in the Ninth Circuit on October 19, 2015, as No. 15-17068. ECF No. 55.
Lagmay continued to object and file memoranda and requests in the District of
Hawaii after noticing his appeal. See, e.g., ECF Nos. 57, 58, 61, 65, 66, 68, 69.
On June 9, 2016, Ninth Circuit Court of Appeals Judges Diarmuid F.
O’Scannlain and Paul J. Watford denied Lagmay’s request for an injunction and to
telephone the court, and referred his remaining motions to the three-judge panel
assigned to consider the merits of his appeal. ECF No. 70. On December 22,
2016, Defendants Judges J. Clifford Wallace, Edward Leavy, and Raymond C.
Fisher affirmed the dismissal of Lagmay’s action with prejudice, finding that he
failed to present arguments “suggesting that the district court abused its discretion.
Thus, Lagmay abandoned the appeal of the district court’s judgments.” Lagmay v.
Nobriga, 671 F. App’x 1001, 1002 (9th Cir. 2016) (Mem.); ECF No. 72 (Order);
ECF No. 73 (Mandate). There is no indication in the record that Lagmay sought a
writ of certiorari with the United States Supreme Court.
Civil No. 1:15-cv-00463 LEK-KJM
On November 3, 2015, Lagmay filed Lagmay v. Nobriga, et al., Civ. No.
1:15-cv-00463 LEK-KJM (D. Haw. 2015), in which he alleged state defendants
and Judge Watson conspired to deny him access to the courts in Civ. No. 1:1500166 DKW-RLP. On January 12, 2016, U.S. District Judge Leslie E. Kobayashi
dismissed the complaint for failure to state a claim with leave granted to amend.
See Lagmay v. Nobriga, 2016 WL 164296 (D. Haw. Jan. 12, 2016); Civ. No. 1:15cv-00463 LEK-KJM, ECF No. 21. On March 28, 2016, Lagmay filed an amended
pleading. Id., ECF No. 26. Because the amended pleading failed to cure the
deficiencies in Lagmay’s claims, Judge Kobayashi dismissed the action on April 5,
2016. Lagmay v. Nobriga, 2016 WL 1367736 (D. Haw. Apr. 5, 2016); ECF No.
On May 5, 2016, Lagmay filed a notice of appeal, ECF No. 32, that was
docketed in the Ninth Circuit as No. 16-15856 on May 11, 2016, ECF No. 34.
Again, although this action was on appeal, Lagmay continued to file documents,
objections, and letters in the case in the District of Hawaii. ECF Nos. 37, 40, 42,
On December 22, 2016, Judges Wallace, Leavy, and Fisher affirmed Judge
Kobayashi’s decision dismissing Lagmay’s action. Lagmay v. Nobriga, 672 F.
App’x 680 (9th Cir. 2016) (Mem.); ECF No. 46 (Mem.); ECF No. 48 (Mandate).
Although the record does not show that Lagmay sought certiorari in the United
States Supreme Court, Lagmay states in the present Complaint that he is
“Awaiting U.S. Supreme Court Decisions.” Compl., ECF No. 1, PageID #22.
Lagmay commenced the present action on June 30, 2017. Although
Lagmay at times addresses the United States Supreme Court and Justice Samuel
Alito directly within the Complaint, the court construes this as a newly filed
prisoner civil rights action, rather than a misfiled petition for writ of certiorari in
the above cases. That is, Lagmay raises new constitutional claims against new
Defendants, seeks compensation for the alleged violations, and states that he has
already sought certiorari in Civ. No. 1:15-cv-00463 LEK-KJM. Moreover, the
record shows that Lagmay is capable of raising his claims in the appropriate court
when that is his intent.
Lagmay claims that Defendants conspired, agreed, and colluded to
“defraud” him of his constitutional rights in Civ. Nos. 1:15-cv-00166 DKW-RLP
Lagmay has a pending action, Lagmay v. Nobriga, et al., Civ. No. 1:16-cv-00408
DKW-KJM (D. Haw. 2016). Judge Watson dismissed the pleadings in part and directed Lagmay
to serve two defendants. See ECF Nos. 20, 21. Lagmay appealed this decision, ECF No. 34, and
the appeal was dismissed on June 15, 2017. ECF No. 40. Lagmay does not challenge these
and 1:15-cv-00463 LEK-KJM, and in their appeals, between December 14 and 22,
2016, “for the purpose of obtaining an erroneous judicial memorandum rather than
deciding an actual controversy.” Compl., ECF No. 1, PageID #5. Lagmay seeks
$15 million in compensatory damages for Defendants’ alleged violation of his
“Judges are absolutely immune from damages action for judicial acts taken
within the jurisdiction of their courts. . . . A judge loses absolute immunity only
when [the judge] acts in the clear absence of all jurisdiction or performs an act that
is not judicial in nature.” Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.
1988) (per curiam); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en
banc) (“Judges and those performing judge-like functions are absolutely immune
from damage liability for acts performed in their official capacities.”); Patel v.
DeCarolis, 2017 WL 2869993, at *1 (9th Cir. July 3, 2017). Even when a judge is
accused of acting maliciously or corruptly, he or she retains immunity from suit
for judicial actions. Mireles v. Waco, 502 U.S. 9, 11 (1991).
Moreover, clerks who “perform tasks that are an integral part of the judicial
process,” such as filing cases or answering correspondence, are also accorded
“absolute immunity.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1142 (9th Cir.
2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1390 (9th Cir. 1987)).
Lagmay fails to state a claim against Judges Watson, Kobayashi, Wallace,
Fisher, O’Scannlain, Watford, and Leavy, Clerks Dwyer and Beitia, and
Commissioner Shaw. Based on Lagmay’s allegations challenging their decisions
related to his civil cases, these Defendants are immune from suit, and the claims
against them are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). Because
granting leave to amend these claims would be futile, this dismissal is without
leave to amend.3
Defendants Nakakuni, Green, and Mrs. Jan
Former U.S. Attorney Nakakuni
Although Lagmay referred to Nakakuni in Civ. Nos. 1:15-cv-00166 DKWRLP and 1:15-cv-00463 LEK-KJM, and labeled certain certificates of service as
having been served on the Office of the United States Attorney for the District of
Because the court concludes that the claims against Judges Watson and Kobayashi are
patently frivolous and judicial immunity is clearly applicable, the undersigned need not recuse
from this matter. See Guide to Judiciary Policy, Vol. 2, Pt. B., Ch. 3 Compendium of Selected
Opinions § 3.6-6(b) (“When a judge . . . is named as a defendant and his credibility or
personal or financial interests are at issue, all judges of the same district should recuse, unless the
litigation is patently frivolous or judicial immunity is clearly applicable.”) (emphasis added); see
also McMurray v. Smith, 2008 WL 8836074, at *1 n.1 (D.N.M. Sept. 29, 2008) (“[T]he Court
. . . need not recuse itself, even though the Defendants in this case are fellow judges from [the
same district].”); Guide to Judiciary Policy, Vol. 2, Pt. B., Ch. 3 Compendium of Selected
Opinions § 3.6-7(a)(a-1) (“[A] judge need not recuse from a case involving a party that filed suit
against the judge, where judicial immunity will be a complete defense to the action against the
Hawaii, Nakakuni was not a party to Lagmay’s civil actions, and she neither
prosecuted Lagmay in federal court nor defended any Defendant against Lagmay’s
claims. In short, because Lagmay failed to allege any facts against former U.S.
Attorney Nakakuni, and therefore failed to demonstrate that she personally
participated in the deprivation of his rights, his claims against her are DISMISSED
with leave to amend.
Thomson Reuters Opinions Publicist Coordinator Jean Green
Lagmay apparently wrote to Green during his appeal in Civ. No. 1:15-cv00463 LEK-KJM. See ECF Nos. 49, 50, appellate No. 16-15856. He fails to
explain her connection to his claims or how she, as an alleged Thomson Reuters
employee, acted under color of federal law. Claims against Defendant Green are
DISMISSED with leave to amend.
Lagmay’s reference to a federal secretary identified as “Mrs. Jan,” who
allegedly works at the federal building in Honolulu, Hawaii, is completely
unexplained. He fails to allege any facts showing her involvement in the alleged
violation of his rights and claims against her are DISMISSED with leave to
42 U.S.C. § 1985(3)
Lagmay explicitly alleges each of his claims arises under 42 U.S.C.
§ 1985(3). “To state a claim under under § 1985(3), a plaintiff must first show
that the defendants conspired -- that is, reached an agreement -- with one another.”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1868 (2017) (discussing qualified immunity as
applied to § 1985(3) claims alleged against federal officials). This conspiracy
claim must allege: (1) an intention to deprive a person or class of persons of equal
protection, privileges, and immunities under the laws; (2) an act by one
conspirator in furtherance of the conspiracy; and (3) a personal injury, property
damage or a deprivation of a constitutional right. Gillespie v. Civiletti, 629 F.2d
637, 641 (9th Cir. 1980). A § 1985 claim “must allege facts to support the
allegation that defendants conspired together. A mere allegation of conspiracy
without factual specificity is insufficient.” Karim Panahi v. L.A. Police Dep’t,
839 F.2d 621, 626 (9th Cir. 1988); see also Sanchez v. City of Santa Ana, 936 F.2d
1027, 1039 (9th Cir. 1991). Finally, because § 1985(3) derives from the
Thirteenth Amendment, to state a claim a plaintiff must allege “invidiously
discriminatory, racial or class-based animus.” Caldeira v. Cty. of Kauai, 866 F.2d
1175, 1182 (9th Cir. 1989); Gillespie, 629 F.2d at 641.
Lagmay fails to allege any specific, articulable, plausible facts showing that
he is a member of a protected class or that one or more Defendant conspired
against him, that is, had a meeting of minds to violate his rights, based on his
membership in such class. Lagmay’s § 1985(3) claims are DISMISSED with
leave to amend.
Official Capacity Claims
Without deciding whether a Bivens claim can be maintained here in light of
Ziglar’s recent clarification of Bivens’ reach, it is nonetheless clear that a plaintiff
cannot maintain a Bivens action against the United States, its agencies, or its
federal employees acting in their official capacities. See FDIC v. Meyer, 510 U.S.
471, 486 (1994); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). Lagmay’s
claims against federal Defendants in their official capacities are barred by the
United States’ sovereign immunity and are DISMISSED without leave to amend.
See Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482
F.3d 1157, 1173 (9th Cir. 2007).
III. LEAVE TO AMEND
The Complaint is DISMISSED with leave granted to amend as to
Defendants Nakakuni, Mrs. Jan, and Green. Lagmay may file an amended
complaint on or before August 11, 2017, that cures the deficiencies noted above, if
possible. Lagmay is notified that he must submit any amended complaint on court
forms. An amended complaint generally supersedes the previous complaint. See
Lacey v. Maricopa Cty., 693 F.3d 896, 907, n.1 (9th Cir. 2012) (en banc). An
amended complaint should stand on its own without incorporation or reference to
a previous pleading. Defendants not named and claims dismissed without
prejudice that are not realleged in an amended complaint may later be deemed
voluntarily dismissed. Id. at 928 (stating claims dismissed with prejudice need not
be repled in an amended complaint to preserve them for appeal, but claims that are
“voluntarily dismissed” are considered “waived if not repled”).
IV. 28 U.S.C. § 1915(g)
If Lagmay fails to file an amended complaint, or is unable to amend his
claims to cure their deficiencies, this dismissal shall count as a “strike” under the
“3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a
prisoner may not bring a civil action or appeal a civil judgment in forma pauperis
under 28 U.S.C. § 1915
if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
(1) The Complaint is DISMISSED as legally frivolous and for failure to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
(2) Lagmay may file an amended complaint curing the deficiencies noted
above on or before August 11, 2017. Failure to cure these deficiencies will result
in dismissal of this action, and Lagmay shall incur a strike pursuant to 28 U.S.C.
(3) The Clerk is directed to mail Lagmay a prisoner civil rights complaint
form so that he can comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 12, 2017.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Lagmay v. Nakakuni, et al., Civ. No. 1:17 cv 00308 JMS RLP; Scrng 2017 Draft 2 Lagmay 17 308 jms (dsm abs. imm)
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