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Darlene Louise Tomel, #A4017655 v. State of Hawaii

March 12, 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

On January 31, 2012, the court dismissed Plaintiff's original complaint in this prisoner civil rights action brought pursuant to 42 U.S.C. § 1983.*fn1 ECF #8, "January 31, 2012 Dismissal Order." The court notified Plaintiff that her Complaint failed to state a claim and she was given leave to amend to cure its deficiencies. Before the court is Plaintiff's first amended complaint ("FAC").*fn2 Plaintiff has voluntarily dismissed six of the original eighteen defendants and added further details, such as the dates on which her claims alleged occurred. Plaintiff, however, has still failed to heed the court's directions in the January 31, 2012 Dismissal Order. For the following reasons, Plaintiff's FAC is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff is once again granted leave to amend, as discussed and limited below.

I. BACKGROUND

Plaintiff names twelve individuals as defendants, including: (1) Hawaii Community Correctional Center ("HCCC") physician Glen Morrison, M.D.; (2) WCCC bookkeeper Tracie Iwamoto Dias; (3) Hawaiian Hotels and Resorts CEO Glen Hogan; (4) Royal Lahaina Resort employee Yvette Wirngerter; (5) Royal Lahaina Resort employee Frank Arnise Jr.; (6) Andres Alcain (Arnise's uncle); (7) the Bank of Hawaii; (8) WCCC ACO Taka; (9) Deputy Prosecutor Timothy Tate; (10) probation officer Katherine Patricio; (11) Deputy Prosecutor Kevin Jenkins; and (12) HCCC ACO John Waikiki (collectively "Defendants").

Plaintiff generally alleges that, since approximately 2002, Defendants violated largely unspecified rights under the First, Fourth, Fifth, and Eighth Amendments to the United States Constitution. Plaintiff alleges seventeen causes of action, most that were brought in earlier suits against these same defendants. Plaintiff seeks $50,000 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. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

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 FAC Fails to Comply With Rule 8 of the Federal Rules Of Civil Procedure

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.

The FAC fails to plainly and succinctly show that Defendants violated Plaintiff's constitutional rights, or that she is entitled to relief. Although Plaintiff now takes pains to specify many of the dates that her claims allegedly took place and where these violations allegedly occurred, it is clear that most of her claims relate to events that occurred years ago. Plaintiff still fails to explain how Defendants Hogan, Wirngerter, Arnise, Alcain, and Bank of Hawaii acted under color of state law, or how any Defendant violated the Constitution, law or treaties of the United States.

As in the original Complaint, the FAC repeats Plaintiff's claims against Defendants several times, relating the same details and conclusions, but fails to explain how Defendants allegedly violated the Constitution or laws of the United States.

In short, Plaintiff's Complaint fails 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 how Defendants violated Plaintiff's rights, when her claims accrued and why the statute of limitation should be told for most of her claims, what her specific constitutional claims against each individual Defendant entails, how certain defendants were acting under color of state law, and why many of her claims are not time-barred or alleged against defendants who are entitled to immunity. Plaintiff's Complaint fails to state a claim for relief and is DISMISSED with leave granted to amend.

B. The FAC Fails to Comply With Rules 18 and 20

The FAC again asserts unrelated claims against wholly-unrelated defendants, based on separate factual scenarios, that clearly occurred at vastly different times and places. The court notified Plaintiff that, although she may join as many claims as she has against an opposing party, see Fed. R. Civ. P. 18(a), she may not join unrelated claims against unrelated defendants. See Aul v. Allstate Life Ins. Co., 993 F.2d 881, 884 (9th Cir. 1993); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff was told that she may assert claims against multiple defendants only if her claims arise out of the same transaction or occurrence, or series of transactions and occurrences, and there are common 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 in the FAC do not conform with Rules 18 and 20, and cannot proceed in a single action. The FAC still alleges claims against private individuals for actions that apparently occurred in or about 2002, against the deputy prosecutor at her criminal proceeding in 2004, an HCCC ACO who allegedly violated her rights when she in 2006-2009, the deputy prosecutor at her revocation hearing in 2011, her probation officer, and against WCCC prison officials who are allegedly violating various rights concerning the conditions of confinement. Most of these claims and defendants are completely unrelated. Plaintiff's FAC 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, with leave granted to amend.

C. Claims Against Hogan, Wirngerter, Arnise, Alcain, Bank of Hawaii, Waikiki, and ...


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