Lauro v. Miyahira et al

Filing 3

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING ACTION re #1 , #2 - Signed by JUDGE DERRICK K. WATSON on 6/23/2020. (1) Plaintiff's Application to Proceed In Forma Pauperis by a Prisoner is DENIED. (2) Plaintiff's Complaint is DISMISSED pursuant to 28 U.S.C. 1915(e)(2) & 1915A(b); 42 U.S.C. 1997e (c)(1). Because amendment is futile, this dismissal is with prejudice. (3) The Clerk of Court is DIRECTED to enter judgment and close the file. (4) Plaintiff is NOTIFIED that this dismissal may count as another strike pursuant to 28 U.S.C. 1915(g). (emt, )COURT'S CERTIFICATE of Service - Thomas Lauro shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on June 24, 2020.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THOMAS LAURO, #A0153221,

)
)
Plaintiff,
)
)
vs.
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)
MARK MIYAHIRA, et al.,
)
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Defendant.
)
_____________________________ )

CIV. NO. 20-00260 DKW-WRP
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING ACTION

Before the court is pro se Plaintiff Thomas Lauro’s prisoner civil rights
Complaint. ECF No. 1. Plaintiff was incarcerated at the Halawa Correctional
Facility (“HCF”) when he commenced this action. Plaintiff again alleges that
Defendants the Honolulu City and County Office of the Prosecuting Attorney,
Deputy Prosecutors Mark Miyahira and Katherine Kealoha, and criminal defense
attorney, Myles S. Breiner, Esq., conspired to conceal a sentencing memorandum
from him in order to obtain a longer imprisonment term than what Plaintiff agreed
to in State v. Russo, Cr. No. 12-1-1460 (Haw. 1st Cir. 2013).1 Plaintiff alleges
Defendants’ actions violated the Fifth, Eighth, and Fourteenth Amendments.

1

State records in Cr. No. 12-1-1460 show that Plaintiff is also known as Thomas Russo.
https://jimspss1.courts.state.hi.us/JIMSExternal. (1PC121001460) (last visited June 17, 2020).
Plaintiff pled guilty in Cr. No. 12-1-1460 and was sentenced to an indeterminate five-year term.

Plaintiff has unsuccessfully raised these same claims against the same
Defendants in at least two previous suits. See, e.g., Lauro v. Breiner, No.
1:15-cv-00272 DKW (D. Haw. 2015) (holding Plaintiff’s claims against Breiner
are not cognizable under 42 U.S.C. § 1983 because Breiner was not acting under
color of state law when he defended Plaintiff, and that such claims were barred
from review under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994)); Lauro
v. Honolulu City and County Prosecutor's Office, State of Hawaii et al., No.
1:19-cv-00632-LEK (D. Haw. 2020) (holding Plaintiff’s claims against the
Honolulu City and County Prosecutors Office, and Deputy Prosecutors Kealoha
and Miyahira, inter alia, were barred on the face of the complaint under Heck, 512
U.S. at 489-90, were time-barred, and otherwise failed to state a claim for relief).
Plaintiff has submitted an Application to Proceed in Forma Pauperis by a
Prisoner, ECF No. 2.
I. 28 U.S.C. § 1915(g)
A prisoner may not bring a civil action or appeal a civil judgment 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 injury.
2

28 U.S.C. § 1915(g). “[Section] 1915(g) should be used to deny a prisoner’s IFP
status only when, after careful evaluation of the order dismissing an action, and
other relevant information, the district court determines that the action was
dismissed because it was frivolous, malicious or failed to state a claim.” Andrews
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (“Andrews I”). “In some instances,
the district court docket records may be sufficient to show that a prior dismissal
satisfies at least one of the criteria under § 1915(g) and therefore counts as a
strike.” Id. at 1120.
The District of Hawaii’s records show that Plaintiff has accrued more than
three “strikes” under § 1915(g).2 Plaintiff has been notified of these strikes, and he
may not proceed in forma pauperis unless he plausibly alleges that he was in
imminent danger of serious physical injury due to the conditions complained of
when he filed this suit.

2

See, e.g., Lauro v. State, No. 1:19-cv-00585 DKW (D. Haw. 2020) (dismissing for
failure to state a claim) (on appeal, App. No. 20-15481) ; Lauro v. City and County of Honolulu,
No. 1:19-cv-00632-LEK (D. Haw. 2020) (dismissing for failure to state a claim) (on appeal,
App. No. 20-15478); Lauro v. State, No. 1:19-cv-00633-JAO (D. Haw. 2020) (dismissed for
failure to state a claim) (on appeal, App. No. 20-15480); Lauro v. State, App. No. 20-15495 (9th
Cir. 2020) (dismissing appeal as frivolous).

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II. THE IMMINENT DANGER EXCEPTION
The imminent danger “exception applies if the complaint makes a plausible
allegation that the prisoner faced ‘imminent danger of serious physical injury’ at
the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)
(“Andrews II”). This “exception turns on the conditions a prisoner faced at the
time the complaint was filed, not some earlier or later time.” Id. at 1053.
Plaintiff complains about actions that Defendants allegedly took before and
during his sentencing hearing in 2013. Nothing within his pleadings indicate that
Plaintiff was in imminent danger of serious physical injury when he filed this
action in 2020, particularly based on Defendants’ alleged conspiracy to doctor his
2013 sentencing memorandum without his consent. Nor does Plaintiff allege facts
that show that Defendants’ alleged actions constitute a continuing practice that
poses an “ongoing danger” to him, beyond his continued incarceration, which has
not been invalidated, reversed, expunged or otherwise overturned. See Andrews II,
493 F.3d at 1056; see also Russo, Cr. No. 12-1-1460.
Plaintiff is NOTIFIED that, although three of the cases in which he incurred
strikes from three different judges are on appeal,3 these cases are still considered

3

See Lauro, No. 1:19-cv-00585 DKW (App. No. 20-15481) ; Lauro, No.
1:19-cv-00632-LEK (D. Haw. 2020) (App. No. 20-15478); Lauro, No. 1:19-cv-00633-JAO (D.
Haw. 2020) (App. No. 20-15480).

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strikes unless they are reversed on appeal. See Coleman v. Tollefson, 135 S. Ct.
1759, 1765 (2015) (holding “a prisoner who has accumulated three prior qualifying
dismissals under § 1915(g) may not file an additional suit in forma pauperis while
his appeal of one such dismissal is pending”).
Accordingly, Plaintiff’s Application to Proceed In Forma Pauperis by a
Prisoner is DENIED.
III. PLAINTIFF FAILS TO STATE A CLAIM
The court must screen all civil actions brought by prisoners proceeding pro
se and in any action relating to prison conditions or seeking redress from a
government entity, officer, or employee. 28 U.S.C. §§ 1915(e)(2) & 1915A(a).
Complaints or claims that are frivolous, malicious, fail to state a claim, or seek
relief from a defendant who is immune from such relief must be dismissed. 28
U.S.C. §§ 1915(e)(2) & 1915A(b); 42 U.S.C. § 1997e (c)(1).
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).
When “it is clear that the complaint could not be saved by any amendment,”
dismissal without leave to amend is appropriate. Sylvia Landfield Trust v. City of
L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

5

Plaintiff cannot state a colorable claim for relief against Defendants based on
their alleged wrongdoing during his sentencing proceedings in 2013. First, as he
has been repeatedly told, because his sentence in Cr. No. 12-1-001460 has not been
reversed, expunged, or declared invalid, his claims for damages or injunctive relief
regarding that sentence are unavailable under § 1983.4 See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003)
(“Absent such a showing, ‘[e]ven a prisoner who has fully exhausted available
state remedies has no cause of action under § 1983”’) (quoting Heck, 512 U.S. at
489).
Second, as Plaintiff was informed in Lauro, 1:19-cv-00632 LEK, because
Plaintiff was not incarcerated between August 2015 and June 2019, and did
nothing to challenge his sentence or Defendants’ actions during those years, the
two-year statute of limitation for personal injury suits applicable to Plaintiff’s 2013
claims has expired without the availability of statutory or equitable tolling. See id.
at #46-#47 (discussing Hawaii Revised Statute § 657-7, and holding that tolling is
unavailable).

4

See, e.g., Lauro, 1:15-cv-00272 DKW, ECF No. 5 at #40.

6

Third, as also previously explained to Plaintiff, Breiner was not acting under
color of state law when he defended Plaintiff in Cr. No. 12-1-1460.5 Nor is the
Honolulu City and County Office of the Prosecutor a “person” within the meaning
of 42 U.S.C. § 1983. And, as he was further informed, Deputy Prosecutors
Miyahira and Kealoha have absolute prosecutorial immunity for decisions they
made relating to Plaintiff’s sentencing. See Lauro, No. 1:19-cv-00632, ECF No. 8
at #44.
Plaintiff fails to state a claim regarding the allegedly doctored sentencing
memorandum submitted to the state court in Cr. No. 12-1-1460 in 2013. These
claims cannot be cured by amendment, and the Complaint is DISMISSED with
prejudice.
IV. CONCLUSION
(1) Plaintiff’s Application to Proceed In Forma Pauperis by a Prisoner is
DENIED.

5

To state a claim under 42 U.S.C. § 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 the color of state law. See West v. Atkins, 487 U.S. 42,
48 (1988) (emphasis added); Lauro, No. 1:15-cv-00272 DKW, ECF No. 5 at #40; Lauro, No.
1:19-cv-00632 LEK, ECF No. 8 at #43-44.

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(2) Plaintiff’s Complaint is DISMISSED pursuant to 28 U.S.C. §§1915(e)(2)
& 1915A(b); 42 U.S.C. § 1997e (c)(1). Because amendment is futile, this
dismissal is with prejudice.
(3) The Clerk of Court is DIRECTED to enter judgment and close the file.
(4) Plaintiff is NOTIFIED that this dismissal may count as another strike
pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: June 23, 2020 at Honolulu, Hawaii.

/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge

Thomas Lauro v. Mark Miyahira, et al; Civil No. 20-00260 DKW-WRP; ORDER
DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING
ACTION
Lauro v. Miyahara, No. 1:20-cv-00260 DKW-WRP; 3 Stks 20

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