Hunt v. State of Florida Correctional Facility et al

Filing 20

ORDER (1) DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING AS MOOT ALL PENDING MOTIONS re 14 , 15 , 17 - Signed by JUDGE DERRICK K. WATSON on 3/27/2018. "Hunt is granted one final opportunity to file an amended complaint in accordance with the terms of this Order by April 30, 2018. To be clear, claims dismissed with prejudice may not be re-alleged in an amended complaint. The Court CAUTIONS Hunt that failure to file an amended com plaint by April 30, 2018 will result in the automatic dismissal of this action without prejudice." (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). Patricia Hunt served by first class mail to the address of record on March 27, 2018.

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

CIVIL NO. 18-00003 DKW-KJM

PATRICIA HUNT,
Plaintiff,
vs.
STATE OF FLORIDA
CORRECTIONAL FACILITY, et al.,

ORDER (1) DISMISSING SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND; AND
(2) DENYING AS MOOT ALL
PENDING MOTIONS

Defendants.

INTRODUCTION
On March 19, 2018, Plaintiff Patricia Hunt, proceeding pro se, filed a Second
Amended Complaint, which again attempts to assert federal civil rights claims
against several Florida state government employees and private individuals. Dkt.
No. 14. In a January 9, 2018 Order, the Court granted Hunt’s Application to
proceed in forma pauperis (“IFP Application”) and dismissed her First Amended
Complaint with limited leave to amend. Dkt. No. 9 (1/9/18 Order). The Second
Amended Complaint, like its predecessor, fails to include factual allegations
demonstrating that Hunt is plausibly entitled to relief from any Defendant or that
venue lies in this judicial district. Because Hunt once more fails to state a claim for
relief, the Second Amended Complaint is DISMISSED with limited leave to amend

pursuant to 28 U.S.C. § 1915(e).1 The Court also DENIES as moot all pending
motions, as discussed more fully below.2
DISCUSSION
Because Hunt is appearing pro se, the Court liberally construes her filings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 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). Although she is proceeding pro se, Hunt is more than familiar with her
federal court filing and pleading responsibilities, given her numerous prior actions.3

1

Although the Court granted Hunt’s IFP Application and permitted her to file an amended
complaint, the Court must screen the Second Amended Complaint (“SAC”) before it may be
served. 28 U.S.C. § 1915(e)(2); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (Section
1915(e) “not only permits but requires a district court to dismiss an in forma pauperis complaint
that fails to state a claim.”).
2
Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.
3
The Court takes judicial notice of Hunt’s record of federal filings in districts nationwide,
including in this district. See, e.g., Hunt v. Ross Dress For Less, LLC, et al., No. 14-00081
LEK-RLP (D. Haw.); Hunt v. Ross Dress For Less, LLC, et al., No. 15-00081 LEK-KSC (D.
Haw.); Hunt v. Key Bank, USA, No. 2:09-CV-14093 (S.D. Fla.); Hunt v. Metz, No. 2:12-CV-14461
2

I.

The Second Amended Complaint Fails To State A Claim
Upon review of the Second Amended Complaint (“SAC”), the Court finds

that Hunt again fails to state a claim upon which relief may be granted. Although
not entirely clear, she once more alleges violations of her due process rights and
several criminal violations, yet fails to cure the very same deficiencies noted in the
Court’s 1/9/18 Order dismissing her First Amended Complaint with limited leave to
amend.4
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

(S.D. Fla.); Hunt v. ACCSCT in Virginia, et al., No. 2:12-CV-14460 (S.D. Fla.); Hunt v. Key Bank
Int’l, et al., No. 2:10-CV-14111 (S.D. Fla.).
4
In its earlier Order, the Court took notice of the similar actions filed by Hunt against many of the
same parties, which have been summarily dismissed pursuant to the district courts’ Section 1915
screening. See 1/9/18 Order at 6 (citing Hunt v. Cox, et al., 2:15-cv-14118-RLR (S.D. Fla. June 9,
2017), Dkt. No. 18 (dismissing Hunt’s 42 U.S.C. § 1983 claims against Cynthia L. Cox, the judge
who presided over a civil case initiated by Hunt in state court in 2007, and Elizabeth Curra, judicial
assistant to Judge Cox for the alleged deprivation of Plaintiff’s rights); Hunt v. Key Bank Nat’l, et
al., 2:15-cv-14230-JEM (S.D. Fla. June 23, 2017), Dkt. No. 5 (discussing Hunt’s allegations that
several of the same named defendants “violated her rights in various ways, which appear to
include interference with prosecution of a civil case in violation of 18 U.S.C. § 1503; denial of
access to public records in violation of 5 U.S.C. § 522 and various Florida laws; fraud and ‘unfair
deceptive trade practices’ in violation of her ‘Fair Credit Rights’; wire fraud; harassment; and
other claims”); and Hunt v. Conroy, Simberg, Gannon, Krevans, Abel, Lurvey, Morrow & Schefer,
P.A., et al., 13-cv-01493-TJM-ATB (N.D.N.Y. Apr. 16, 2014), Dkt. No. 8 (describing frivolous
allegations against Florida court clerk and dismissing Plaintiff’s Complaint without leave to
amend, and denying Motion for an Emergency Protective Order and Motion for a Writ of
Mandamus)).
3

seeking monetary relief from a defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B).
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 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.”).

4

“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. For the reasons that follow, Hunt fails to meet this standard.
B.

The SAC Fails To State A Claim For Relief

As a preliminary matter, the Court observes that Hunt failed to cure the
deficiencies noted in the Court’s 1/9/18 Order, particularly the lack of cognizable
legal theories or coherent facts regarding her claims.5 She again complains that she

5

Although the factual averments in the SAC are difficult to discern, Hunt lists the following
“violations of law,” with no reference to the party involved or specific conduct supporting the
alleged violation:
18 USC 241 Conspiracy against Rights of “Law abiding American Citizens”
18 USC 3 Accessory after the fact
18 USC 241 Conspiracy against Rights of Citizens
18 USC 242 Deprivation of Rights color of law rights protected under the
Constitution of the United States of America
18 USC 512: Tampering with a witness
18 USC 1341 Mail Fraud
18 USC Wire Fraud
18 USC 1503 Obstruction of Justice
18 USC 1510 Obstruction of a criminal investigation
18 USC 1513 Retaliating Against a witness, victim or informant
18 USC 1951 Interference with Interstate commerce
18 USC 1621 Perjury
18 USC 1001 Fraud
5

suffered violations of her due process rights in various Florida court proceedings
involving both a personal injury action against Ross Dress For Less Stores, and
obstruction of justice by unnamed court employees and State of Florida public safety
and/or correctional facility employees. The SAC additionally appears to add new
criminal conspiracy claims relating to the failure to receive her mail sent from a “US
Federal Court” in Miami, Florida via the United States Postal Service. Hunt claims
her mail was instead sent to a Florida state inmate with a case in the same federal
district court. See SAC at 3–7. When Hunt attempted to contact the inmate who
allegedly received her mail in a Florida state correctional facility, she was “jerked
around by specific State of Florida Correctional employees.” SAC at 6. Hunt
alleges she told one such defendant that under “18 USC 241 tampering with United
States Federal mail is a felony and she will be subpoenaed before a US Federal
Judge and she can see how sassy and sarcastic rude [sic] she wants to explain to a US
Federal Court Judge why her title as the Warden’s Secretary apparently she feels the
authority to think she is above the law.” SAC at 6. Hunt requests “a jury trial and
[that] subpoenas will be authorized for specific State of Florida Correctional
18 USC 1708 Theft or receipt of stolen mail
1513 Retaliating against a witness
1512 Tampering with a witness
1519
15 USC 1681 Fair Credit Reporting Act
SAC at 8–9.
6

employees who should be held accountable for obstruction of justice 18 USC 1503,
[and] continuously tampering with United States mail 18 USC 241.” SAC at 7.
These allegations, and others of similar tenor made throughout the SAC, fail to state
cognizable claims for relief.
The SAC, like Hunt’s previous complaint, suffers from several deficiencies.
First, the SAC fails to comply with Rule 8, which mandates that a complaint include
a “short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each
allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A
complaint that is so confusing that its “‘true substance, if any, is well disguised’”
may be dismissed sua sponte for failure to satisfy Rule 8. Hearns v. San
Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v.
City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also 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”). That is the case here. Hunt does
not clearly identify in any coherent or organized manner the separate causes of
action that she is asserting against each defendant, nor does she provide specific
factual allegations to support her legal conclusions. Even applying the most liberal

7

pleading standard, the Court cannot discern from the pleadings the conduct on which
any claim is based.
Second, to the extent Hunt again attempts to assert violations of federal
criminal law, including under 18 U.S.C. §§ 241–242, 1341–1343, and 1503–1519,
no private right of action exists to enforce these criminal statutes. That is, a civil
action for damages is not the proper mechanism to allege criminal conduct in the
manner asserted by Hunt. See Kumar v. Naiman, 2016 WL 397596, at *2 (E.D.
Cal. Feb. 2, 2016) (“[P]laintiffs, as private citizens, have no standing to prosecute
criminal claims.”). Federal criminal claims may not be brought by anyone other
than the United States. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974)
(noting that the executive branch has exclusive authority to decide whether to
prosecute a case). On this point, the Court notes that Hunt neither adhered to the
specific guidance nor heeded the prior warnings provided in the Court’s 1/9/18
Order. That Order permitted Hunt leave to amend to attempt to cure the
deficiencies noted in the Order, and specifically explained that her claims for
violation of the federal criminal code were dismissed with prejudice and cautioned
that those claims were not to be re-alleged in any amended complaint. See 1/9/18
Order at 10–11. The SAC, however, alleges nearly identical claims against several
of the same defendants. Insofar as the SAC simply repeats the same allegations

8

against the same parties, it is axiomatic that they fail to state a claim—they were all
previously dismissed for that reason. Even viewing the SAC in the light most
favorable to Plaintiff, the re-asserted claims previously dismissed with prejudice
exceed the leave to amend granted in the Court’s prior Order. Hunt’s reconfigured
claims for obstruction of justice, conspiracy, mail and wire fraud, just to name a few,
are DISMISSED WITH PREJUDICE. Insofar as she asserts that these crimes
constitute the basis for a civil RICO claim, she likewise falls short of stating a
plausible claim for relief.6
Third, insofar as she seeks damages for violations of her federal constitutional
rights, Hunt fails to state a Section 1983 claim.7 In order to state a claim under

6

To allege a federal racketeering claim, Hunt must establish: “(1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity and, additionally must establish that (5) the
defendant caused injury to plaintiff’s business or property.” Chaset v. Fleer/Skybox Int’l, LP, 300
F.3d 1083, 1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)); see also 18 U.S.C. § 1961.
The FAC does not sufficiently plead any of these elements. Hunt, for instance, does not identify
the predicate acts that form the basis of the alleged “scheme of racketeering.” See Graf v.
Peoples, 2008 WL 4189657, at *6 (C.D. Cal. Sept. 4, 2008) (“Plaintiff does not expressly identify
any RICO predicate acts, but simply incorporates his previous allegations. Such ‘shotgun’
pleading is insufficient to plead a RICO claim.”) (citing Savage v. Council on American–Islamic
Relations, Inc., 2008 WL 2951281, at *14 (N.D. Cal. July 25, 2008) (finding that a RICO claim
was insufficient where plaintiff set forth a “redundant narrative of allegations and conclusions of
law, but [made] no attempt to allege what facts are material to his claims under the RICO statute,
or what facts are used to support what claims under particular subsections of RICO”); and Federal
Reserve Bank of San Francisco v. HK Systems, 1997 WL 227955, at *3 (N.D. Cal. Apr. 24, 1997)
(finding that a complaint was insufficient for failure to “identify exactly which acts are ‘predicate
acts’ for RICO liability”)).
7
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation,
custom, or usage . . . subjects, or causes to be subjected, any citizen of the
9

Section 1983, a plaintiff must allege: (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 law. West v. Atkins, 487 U.S. 42, 48
(1988). Even though she concludes that her due process rights have been violated,
Hunt’s factual allegations supporting the claim are largely incomprehensible.
Although pro se pleadings are liberally construed, a plaintiff must allege that he or
she suffered a specific injury as a result of specific conduct of a defendant and show
an affirmative link between the injury and the conduct of that defendant, which the
SAC fails to do. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).
Accordingly, Hunt’s Section 1983 claims are dismissed.
Finally, the Court previously dismissed as barred by the Eleventh
Amendment the claims for damages against the State of Florida and all of the named
and unnamed state officials acting in their official capacities. See Will v. Mich.
Dep’t State Police, 491 U.S. 58, 71 (1989); Papasan v. Allain, 478 U.S. 265, 275
(1986); Kentucky v. Graham, 473 U.S. 159, 166–67 (1985); Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99 (1984). All claims for damages against the
immune state agencies and newly named officials in their official capacities are
DISMISSED WITH PREJUDICE.
United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress. . . .
10

In sum, because Hunt fails to state a plausible claim for relief, the SAC is
DISMISSED. Because amendment of some claims may be possible, Hunt is
granted leave to attempt to cure the deficiencies noted in this Order, one final time,
with instructions below.
C.

The SAC Fails to Establish Venue In This District

In addition to the lack of plausible claims, and despite the Court’s statements
in the 1/9/18 Order notifying her of the deficiency, Hunt once more fails to establish
that venue lies in this judicial district.8 None of the events at issue in this case
occurred in Hawai‘i— all of the claims in the SAC involve acts or omissions that
appear to have occurred in Florida and Hunt fails to demonstrate that any named
Defendant has any connection to Hawai‘i in any manner relevant to the misconduct
alleged. Nor does the SAC allege that Hunt suffered any damages in Hawai‘i as a
result of Defendants’ actions and omissions. Moreover, unlike the prior pleading,
the SAC does not even allege that Plaintiff resides in Hawai‘i. Thus, she makes no
showing that this district court is the proper venue for these particular claims.
“Venue in federal courts is governed by statute.” Spagnolo v. Clark Cty.,
2015 WL 7566672, at *2 (D. Haw. Nov. 24, 2015) (citing Leroy v. Great Western
United Corp., 443 U.S. 173, 181 (1979)). “The plaintiff has the burden of showing
8

District courts have the authority to raise sua sponte the issue of defective venue. See Costlow v.
Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
11

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)). The governing statute, 28 U.S.C.
§ 1391(b), states:
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 is
located;
(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 action.
For venue purposes, the numerous defendants are each “deemed to reside . . .
in any judicial district in which such defendant is subject to the court’s personal
jurisdiction with respect to” Plaintiff’s case. See Section 1391(c)(2). Because it
could neither exercise general nor specific jurisdiction over any defendant, based on
the allegations in the SAC, the Court concludes that it lacks personal jurisdiction,
and defendants are not Hawai‘i residents for purposes of the venue analysis.9 See

9

Based upon the allegations in the SAC, the Court could not exercise specific jurisdiction over any
Florida State agency’s individual employees because Plaintiff’s claims in this case do not arise out
of any defendant’s contacts with, or activities in, Hawai‘i. See Roth v. Garcia Marquez, 942 F.2d
617, 620 (9th Cir. 1991). Further, despite Hunt’s burden to establish venue, based on the
12

Section 1391(b)(1). Moreover, based upon the allegations in the SAC, this Court
cannot find that “a substantial part of the events or omissions giving rise to”
Plaintiff’s claims occurred in Hawai‘i, nor can it find that “a substantial part of
property that is the subject of” Plaintiff’s claims is located in Hawai'i. See Section
1391(b)(2). This action appears to have little, if anything, to do with Hawai‘i.
Finally, Section 1392(b)(3) does not apply because Plaintiff could have brought this
action in one or more of the United States District Courts in Florida where the events
at issue in this case occurred.10
Venue in the District of Hawai‘i is therefore improper based on the allegations
in the SAC. Hunt’s failure to establish that this Court is the proper venue for this
civil action serves as an additional basis for dismissal of the SAC.11

allegations in the SAC, this Court cannot conclude that any defendant is a Hawai‘i resident or
domiciliary for jurisdictional purposes or has or had “continuous, systematic, and substantial”
contacts with Hawai‘i. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414–16
(1984).
10
In fact, Hunt appears to have made a conscious choice to not file this action in any district in
Florida, stating that she “would like her fair day in court with the right to a jury trial of her peers
which she would never get in the State of Florida due to the severe conflict of interest due to her
late deceased cousin’s DEA case and due to the severe public corruption in the State of Florida.”
SAC at 3.
11
Under 28 U.S.C. § 1406, if the Court finds that the case has been filed “in the wrong division or
district,” it must “dismiss, or if it be in the interest of justice, transfer the case to any district or
division in which it could have been brought.” Spagnolo, 2015 WL 7566672, at *2 (citing 28
U.S.C. § 1406(a)). In light of the state of the present record, and in view of Plaintiff’s multiple
filings across several jurisdictions, this Court finds that the interests of justice do not require it to
transfer the instant case rather than dismissing it, once more with limited leave to amend.
13

II.

All Pending Motions and/or Discovery Requests Are Denied As Moot
With the SAC, Hunt filed the following motions and discovery requests with

the Court: (1) Motion to Compel for Discovery and Public Records 5 U.S.C. 552,12
Dkt. No. 15; (2) Request for Production of Documents, Dkt. No. 16; and (3) Motion
to Compel for Immediate Numerous Public Records Request, Dkt. No. 17. To the
extent Plaintiff seeks discovery from any defendant in this matter, the motions are
DENIED AS MOOT in light of the dismissal of the SAC.
III.

Limited Leave To Amend Is Granted
The dismissal of portions of the SAC is without prejudice, and Hunt is granted

leave to amend, one final time, to attempt to cure the deficiencies identified above.
Plaintiff’s claims for violation of the federal criminal code and all claims against
immune defendants are DISMISSED WITH PREJUDICE. The Court cautions
Hunt that she may not re-allege these claims in any amended complaint.

12

This motion, for example, seeks to compel:
immediately the State of Florida to release any and all numerous public records per
5 USC 552 request which the State of Florida has not complied with request. Any
and all Department of Justice records regarding the State of Florida two facilities
Appalachee Facility and Northwest State of Florida Correctional facility and
Secretary Julie Jones office and Angel Gordons office and all State staff employees
including but not limited to any and all paper, electronic records including emails,
both in house and outside from 2012 through 2018 from any and all State of Florida
Office of Inspector General’s Office Director and Office of Inspector General’s
Office for the Law Enforcement Inspector OIG Florida Department of Corrections.

Dkt. No. 15 at 1.
14

If Hunt chooses to file an amended complaint, she must write short, plain
statements telling the Court: (1) the specific basis of this Court’s jurisdiction and
venue; (2) the constitutional or statutory right Plaintiff 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 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 she names as a defendant. If Hunt fails to affirmatively link the conduct
of each named defendant with the specific injury she 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 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).

15

The amended complaint must designate that it is the “Third Amended
Complaint” and may not incorporate any part of the prior complaints. Rather, any
specific allegations must be retyped or rewritten in their entirety. Hunt may include
only one claim per count. Failure to file an amended complaint by April 30, 2018
will result in the automatic dismissal of this action without prejudice.
CONCLUSION
Based upon the foregoing, Hunt’s Second Amended Complaint is
DISMISSED with limited leave to amend. Dkt. No. 14. The Court also DENIES
all pending motions and/or requests seeking to compel discovery, as there is no
operative complaint in this case at this time. Dkt. Nos. 15–17.
Hunt is granted one final opportunity to file an amended complaint in
accordance with the terms of this Order by April 30, 2018. To be clear, claims
dismissed with prejudice may not be re-alleged in an amended complaint. The
///

///

///

///

16

Court CAUTIONS Hunt that failure to file an amended complaint by April 30, 2018
will result in the automatic dismissal of this action without prejudice.
IT IS SO ORDERED.
Dated: March 27, 2018 at Honolulu, Hawai‘i.

Hunt v. State of Florida Correctional Facility, et al.; Civil No. 18-00003 DKW-KJM; ORDER
(1) DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND; AND
(2) DENYING AS MOOT ALL PENDING MOTIONS

17