Annan-Yartey v. State of Hawaii Department of Transportation Airport et al

Filing 28

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO: (1) DISMISS FIRST AMENDED COMPLAINT WITH LIMITED LEAVE TO AMEND; AND (2) DENY PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (ECF NO. 23 ) AS MODIFIED - Signed by JUDGE HELEN GILLMOR on 7/12/2018. The filings entitled "Second Amended Complaint" (ECF No. 25 ) and "Amended Copy Second Amended Complaint" (ECF No. [2 6]) ARE STRICKEN. Plaintiff is given leave to amend his First Amended Complaint. In order to be clear as to the sequence of his complaints, the new complaint shall be entitled Third Amended Complaint. The Third Amended Complai nt must cure the deficiencies of his claims as specified in the Findings and Recommendation, as modified, adopted by this Order. The Third Amended Complaint must be filed on or before Monday, August 27, 2018. Failure to timely amend an d cure the pleading deficiencies noted herein will result in dismissal of this action with prejudice for failure to state a claim. (emt, )COURT'S CERTIFICATE of Service - Napoleon T. Annan-Yartey, Sr. served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on July 12, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NAPOLEON T. ANNAN-YARTEY,
SR.,
Plaintiff,
v.
SECURITAS SECURITY SERVICE
USA, INC.; HAWAII DEPARTMENT
OF TRANSPORTATION (AIRPORT
DIVISION); DEPARTMENT OF
STATE OF HAWAII, SHERIFF
DIVISION (DIS), STATE OF
HAWAII DEPARTMENT OF PUBLIC
SAFETY; and DOES 1-10,
Defendants.

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CIVIL NO. 18-00107 HG-KJM

ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
TO: (1) DISMISS FIRST AMENDED COMPLAINT WITH LIMITED LEAVE TO
AMEND; AND (2) DENY PLAINTIFF’S APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (ECF NO. 23) AS
MODIFIED
Findings and Recommendation having been filed and served on
all parties on June 19, 2018, and no objections having been filed
by any party,
IT IS HEREBY ORDERED AND ADJUDGED that, pursuant to Title
28, United States Code, Section 636(b)(1)(C) and Local Rule 74.2,
the “Findings and Recommendation To: (1) Dismiss First Amended
Complaint with Limited Leave to Amend; and (2) Deny Plaintiff’s
Application to Proceed in District Court without Prepaying Fees
or Costs” (ECF No. 23) are adopted as the opinion and order of
this Court with the following modifications:

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On Page 4, lines 10 and 12, remove the quotation marks
On page 10, line 6, replace "ECF No. 1 at 2" with "ECF
No. 9 at 2, 3"
On Page 11, the quote starting at line 11 shall read
“hired, contracted, and paid by [DOT] to provide
[airport] security services at Honolulu International
Airport.”
On Page 12, line 13, insert "F.3d" after "698"
On Page 15, on the last line, replace "763" with "762"
On Page 16, line 17, replace "120" with "121"
On Page 17, line 9, replace "1194" with "1186"
On Page 20, line 10 of footnote 5, replace "104, 107"
with "104-107"
On page 20, line 13 of footnote 5, replace “*5" with
“*4"
On Page 21, the quote starting at line 8 shall read
“[T]he Fourth Amendment sets the applicable
constitutional limitations on the treatment of an
arrestee detained without a warrant up until the time
such arrestee is released or found to be legally in
custody based upon probable cause for arrest.”
On Page 21, line 12, replace "Cty." with "Cnty."
On Page 21, line 16-17, remove "and convicted
prisoners"
On Page 21, line 18, replace "Cty." with "Cnty."
On Page 25, line 14, replace "Co." with “Co.,”
Plaintiff also filed two new pleadings.

On June 29, 2018,

he filed a complaint entitled “Second Amended Complaint.”
No. 25).

(ECF

On July 2, 2018 he filed another complaint entitled

“Amended Copy Second Amended Complaint.”

(ECF No. 26).

Under

the Federal Rules of Civil Procedure, after the time period to
amend a complaint as of right has passed, a complaint may only be
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amended by either the written consent of the opposing party or
leave from the court.

Fed. R. Civ. P. 15(a)(2).

amend as of right in this case has passed.

The time to

Plaintiff has not

received written consent of the opposing parties or given leave
by the Court to file the two subsequent Complaints.
The filings entitled “Second Amended Complaint” (ECF No. 25)
and “Amended Copy Second Amended Complaint” (ECF No. 26) ARE
STRICKEN.
Plaintiff is given leave to amend his First Amended
Complaint.

In order to be clear as to the sequence of his

complaints, the new complaint shall be entitled Third Amended
Complaint.

The Third Amended Complaint must cure the

deficiencies of his claims as specified in the Findings and
Recommendation, as modified, adopted by this Order.

The Third

Amended Complaint must be filed on or before Monday, August 27,
2018.
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Failure to timely amend and cure the pleading deficiencies
noted herein will result in dismissal of this action with
prejudice for failure to state a claim.

IT IS SO ORDERED.

DATED HONOLULU, HAWAII, July 12, 2018

Napoleon Annan-Yartey, Sr. v. Securitas Security Service USA,
Inc.; Hawaii Department of Transportation (Airport Division);
Department of State of Hawaii, Sheriff Division (DIS), State of
Hawaii Department of Public Safety; and Does 1-10, CIVIL NO. 1800107 HG-KJM; ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO: (1) DISMISS FIRST AMENDED COMPLAINT WITH
LIMITED LEAVE TO AMEND; AND (2) DENY PLAINTIFF’S APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (ECF
NO. 23) AS MODIFIED
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