Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Darlene Louise Tomel, #A4017655 v. State of Hawaii

January 31, 2012

DARLENE LOUISE TOMEL, #A4017655, PLAINTIFF,
v.
STATE OF HAWAII, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

DISMISSAL ORDER PURSUANT TO 28 U.S.C. § 1915

Before the court is Plaintiff Darlene Louise Tomel's prisoner civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is incarcerated at the Women's Community Correctional Center ("WCCC") and is proceeding pro se and in forma pauperis. Plaintff names eighteen defendants, alleging that they violated various constitutional rights over the past several years. Plaintiff's Complaint is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff is granted leave to amend, as discussed and limited below.

I. BACKGROUND

The Complaint is disjointed, rambling, and difficult to comprehend. Tomel names numerous public and private individuals and entities in her caption and within the complaint as defendants, including: (1) the State of Hawaii; (2) Hawaii Community Correctional Center ("HCCC"); (3) HCCC adult correctional officer ("ACO") John Waikiki; (4) the HCCC Business office, (5) HCCC physician Glen Morrison, M.D.; (6) WCCC; (7) WCCC ACO Taka, (8) WCCC bookkeeper Tracie Iwamoto Dias; (9) Maui County probation officer Katherine Patricio; (10) Maui County Deputy Prosecutor Timothy Tate; (11) Maui County Deputy Prosecutor Kevin Jenkins; (12) the Honorable Shackley Raffetto, Chief Judge of the Second Circuit Court, State of Hawaii; (13) Hawaiian Hotels and Resorts CEO Glen Hogan; (14) Royal Lahaina Resort employee Yvette Wirngartaer; (15) Royal Lahaina Resort employee Frank Arnise Jr.; (16) Andres Alcain (Arnise's uncle); (17) the Kona Police Department; (18) the Bank of Hawaii and/or an unnamed teller (collectively "Defendants").

Plaintiff generally alleges that, over an unspecified period, Defendants violated largely unspecified rights under the First, Fourth, Fifth, and Eighth Amendments to the United States Constitution. Plaintiff alleges seventeen causes of action, many of which she has brought in earlier suits against many of these same defendants, as discussed below. Plaintiff says that Defendants' actions have caused her humiliation, mental abuse, loss of reputation, and financial loss, and seeks $50 million in damages.

II. LEGAL STANDARD

The court must screen all civil actions brought by prisoners that relate to prison conditions and/or seek redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if its claims are legally frivolous or 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. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1).

A complaint may be dismissed for failure to state a claim if it (1) lacks a cognizable legal theory; or (2) contains insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading 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). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Leave to amend should be granted unless it appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

III. DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

A. The Complaint Fails to Comply With The Federal Rules Of Civil Procedure

1. Rule 8

Rule 8 of the Federal Rules of Civil Procedure requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency of City of L.A., 733 F.2d 646, 649 (9th Cir. 1984). "All that is required [by Fed. R. Civ. P. 8(a)] is that the complaint gives 'the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.'" Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996) (quoting Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 870 (9th Cir. 1991)).

In addition, a complaint with the factual elements of a cause of action scattered throughout the complaint and not organized into a "short and plain statement of the claim" may be dismissed for failure to satisfy Rule 8(a). See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry, 84 F.3d 1172.

Plaintiff's claims are rambling, difficult to decipher, repetitive, and fail to plainly and succinctly show that Defendants have violated her constitutional rights, and that she is entitled to relief. Plaintiff fails to specify the dates when any her claims allegedly took place, where these violations allegedly occurred, how those defendants who are not state employees were acting under color of state law, or how any Defendant violated the Constitution, law or treaties of the United States. Further, Plaintiff repeats her claims against each Defendant over and over, providing the same details and conclusions in numerous counts. In short, Plaintiff's Complaint fails to allege sufficient factual detail to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 570 (2007). As written, it is impossible to determine who did what to Plaintiff, when her claims accrued, what her specific claims against each individual Defendant entails, how certain defendants were acting under color of state law, and how her constitutional rights were violated. Plaintiff's Complaint fails to state a claim for relief and is DISMISSED with leave granted to amend.

2. Rules 18 and 20

More importantly, the Complaint includes numerous unrelated claims against wholly-unrelated defendants, based upon various separate factual scenarios, that apparently occurred at different times and places. The Federal Rules of Civil Procedure set forth the rules regarding joinder of parties or claims. "A party asserting a claim, counterclaim, cross-claim, or third-party claim may join, as independent or alternate claims, as many claims as it has against an opposing party." Fed. R. Civ. P. 18(a); see also, Aul v. Allstate Life Ins. Co., 993 F.2d 881, 884 (9th Cir. 1993) ("A claim based on different rights and established by different transactional facts will be a different cause of action."). "Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

Additionally, a claim may be brought against multiple defendants so long as (1) the claim arises out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there are commons questions of law or fact.

Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d 1371, 1375 (9th Cir. 1980).

Plaintiff's claims do not conform with Rules 18 and 20, and cannot proceed in a single action. The court carefully informed Plaintiff of the pleading requirements of Rule 18 in her earlier action, Tomel v. State, Civ. No. 09-00195 HG.*fn1 See id., ECF #21 at 6-7. Plaintiff understood the court's directions, because she amended her complaint in that action, and brought her unrelated claims against unrelated defendants in three separate suits.*fn2

Plaintiff's Complaint is DISMISSED for failure to state a claim under Rule 8 and for failure to comply with Rules 18 and 20 of the Federal Rules of Civil Procedure. This dismissal is without prejudice and with leave granted to amend so that Plaintiff may decide which of her claims she wishes to proceed on in this action, and which she will raise in other actions, as discussed below. That is, if Plaintiff chooses to file an amended complaint, she must allege related facts against related Defendants. Separate unrelated allegations against wholly-unrelated Defendants must be submitted in separate complaints. For example, Plaintiff's claims challenging the conditions of confinement when she was confined at HCCC are unrelated to her claims challenging her conditions of confinement now at WCCC. Similarly, Plaintiff's allegations concerning alleged violations that occurred on Maui are unrelated to her claims involving incidents at WCCC or HCCC. These claims belong in separate complaints, each subject to separate filing fees and screening requirements.

B. Statute of Limitation

As noted above, Plaintiff has brought three previous actions in this court: 1:09-cv-00195 HG, filed May 1, 2009, 1:09-cv-00489 SOM, filed November 16, 2009, and 1:09-cv-00490 JMS, filed October 9, 2009. In Civ. No. 1:09-cv-00195, the court screened Plaintiff's complaint and instructed her to separate the numerous unrelated claims raised therein, into at least three separate actions. See id., ECF #21, "Dismissal Order." Plaintiff was told she may amend the complaint in 1:09-cv-00195, and commence at least two other actions, if she intended to proceed with all of her claims that were not otherwise dismissed. Id. Plaintiff did so.

In these three actions, Plaintiff raised many of the same claims against many of the same Defendants that she asserts here. For example, in 1:09-cv-00195, Plaintiff alleged that the Hawaii County Police Department, including the Kona Police Department, failed to assist her when she was allegedly robbed and raped, that HCCC Business Office clerk "Jackie" mishandled her prisoner account, and that ACO John Waikiki destroyed her religious materials and harassed her, all claims that she raises in the present Complaint. See 1:09-cv-00195, ECF #1, Compl., and ECF #24, First Amended Compl.

In Civ. No. 1:09-cv-00490, Plaintiff's claims centered on her 2004 criminal charges in Maui,*fn3 alleging that Defendant Kevin Jenkins maliciously prosecuted her, and Royal Lahaina Resorts Defendants Glenn Hogan and Yvonne Kitagawa refused to help with her defense, and stole her property at the Royal Lahaina Hawaii Resort. See id., ECF #1, Compl. She asserts these same claims in the present action. Finally, Plaintiff's claims in Civ. No. 1:09-cv-00489, generally revolved around her 2005 criminal prosecution on the Big Island of Hawaii.*fn4

Plaintiff also alludes to her Hawaii prosecution herein.

The statute of limitation applicable to § 1983 actions in Hawaii is Haw. Rev. Stat. § 657-7, the two-year "general personal injury" provision. See Pele Defense Fund v. Paty, 73 Haw 578, 597-98, 837 P.2d 1247, 1260 (1992); see also Wilson v. Garcia, 471 U.S. 261, 276 (1985) (holding that § 1983 plaintiffs must satisfy the forum state's statute of limitation for personal-injury torts). Federal law determines when a cause of action under § 1983 accrues and the statute of limitations begins to run. Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). Under federal law, a cause of action generally accrues when the plaintiff knows or has reason to know of the injury that forms the basis of his or her action. Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). The district court may sua sponte raise the issue of statute of limitation and dismiss the complaint as long as the defendant has not waived the issue. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686-87 (9th Cir. 1993).

Because Plaintiff alleged remarkably similar claims against most of the Defendants named in this case in her three earlier, and long-dismissed cases, it appears that most, if not all, of Plaintiff's claims in this action accrued no later than May 1, 2009, the date that she filed 1:09-cv-00195. If true, these claims are likely time-barred. The court cannot ascertain whether any of her claims are time-barred, however, because Plaintiff provides no dates alleging when any of her present claims occurred. Plaintiff is NOTIFIED that the court is considering dismissing many of her claims as time-barred. If Plaintiff files an amended complaint, she must specifically allege the dates on which each of her separate causes of action ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.