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Kenneth K. Nakamoto, Fed. Id #84037-022 v. Alan C. Kay

April 27, 2012

KENNETH K. NAKAMOTO, FED. ID #84037-022, PLAINTIFF,
v.
ALAN C. KAY, DEFENDANT.



The opinion of the court was delivered by: Helen Gillmor United States District Judge

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT AND ACTION

Before the court is pro se Plaintiff Kenneth K. Nakamoto's ("Plaintiff") prisoner civil rights complaint brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and in forma pauperis application. Plaintiff names United States District Judge Alan C. Kay as the only Defendant to this suit. Judge Kay presided over Plaintiff's numerous revocation proceedings following his prosecution for bank robbery, including his most recent revocation proceedings held on January 10th, and February 23, 2011.*fn1 See 1:92-cr-00199, ECF #111, #117, #118. Plaintiff alleges that Judge Kay violated unspecified constitutional rights by participating in an "open-ended co-conspiracy" and "fraud upon the court." ECF #1, Compl. at 6.

The Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim. Plaintiff's in forma pauperis request is DENIED.

I. STATUTORY SCREENING

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 for (1) lack of a cognizable legal theory; or (2) 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).

II. BACKGROUND

In 1992, Plaintiff was indicted for allegedly robbing a bank. See 1:92-cr-01199. On October 9, 1992, the Honorable Harold M. Fong found Plaintiff not guilty by reason of insanity and thereafter ordered a mental examination of Plaintiff. In February 1993, Judge Fong committed Plaintiff to the custody of the Attorney General for hospitalization and treatment at a suitable medical facility. In 1994, Plaintiff was released with various conditions. Since then, Plaintiff's release has been revoked several times, most recently on February 23, 2011, when Judge Kay revoked Plaintiff's conditional release and ordered him to the U.S. Medical Center for Federal Prisoners ("MCFP") in Springfield, Missouri for reevaluation and adjustment. 1:92-cr-01199, ECF #118-119.

On July 19, 2011, Plaintiff filed a document titled "Motion to Vacate Judgment of Civil Commitment [Also U.S. Probation and Supervised Release] under Rule 60(b) and 60(d)(3) Fed. R. Civ. P. under the Entire U.S. Constitution and Under the United Nations Treaty and United Nations Participation Act of 1945 [Never Rescinded an [Sic] Ratified into U.S. Law by Pres. Truman & U.S. Senate-U.C.C." See 1:92-cr-01199. This document listed Judge Kay as a Defendant in the caption, argued that Judge Kay committed misconduct in the course of the criminal proceeding, and sought relief pursuant to Rule 60 of the Federal Rules of Civil Procedure.

United States District Judge Susan Oki Mollway ordered Plaintiff to clarify the basis for this filing, to explain why Rule 60 of the Federal Rules of Civil Procedure was available to challenge his order of commitment and revocation proceedings, why his motion was not time-barred, and to determine whether it should be construed as a motion under 28 U.S.C. § 2255. See 1:92-cr-01199, ECF #122, Order Seeking Clarification.

Although Plaintiff responded to the Order Seeking Clarification, Judge Mollway found that his response was insufficient and she again directed him to clarify his intent in filing the motion. 1:92-cr-01199, ECF #124. When Plaintiff failed to do so, Judge Mollway denied the motion and declined to issue a certificate of appealability. Id., ECF #125, #128.

Plaintiff appealed, ECF #126, and that appeal is pending as of the date of this order. See USCA ...


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