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Darlene Louise Tomel, #A4017655 v. State of Hawaii

August 8, 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's second amended complaint ("SAC").*fn1 For the following reasons, Plaintiff's SAC is dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915A(b). Plaintiff is again given leave to amend, as discussed and limited below.

I. BACKGROUND

The SAC is as disjointed and confusing as were the original Complaint and FAC. The SAC now names fifteen Defendants, including: (1) the State of Hawaii; (2) the Women's Community Correctional Center ("WCCC"); (3) the Hawaii Community Correctional Center ("HCCC"); (4) WCCC Captain Evans; (5) WCCC adult correctional officer ("ACO") Taka; (6) WCCC Sergeant Fink;

(7) HCCC ACO John Waikiki; (8) Royal Lahaina Resort employee Frank Arnise Jr.; (9) Andres Alcain (Arnise's uncle); (10) Deputy Prosecutor Kevin Jenkins; (11) Deputy Prosecutor Timothy Tate;

(12) probation officer Katherine Patricio; (13) Glen Morrison, M.D.; (14) WCCC ACO Torres; and (15) WCCC Lieutenant Palgherrin (collectively "Defendants").

Plaintiff generally alleges that, since approximately 2004 until the present,*fn2 Defendants violated her rights under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiff alleges seventeen counts, many asserting claims and defendants that were dismissed in the court's previous orders. Plaintiff seeks $50,000,000 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 and 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, 678 (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 679. 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 681.

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. Federal Rules Of Civil Procedure 8, 18 and 20

The SAC again asserts unrelated claims against unrelated defendants, based on separate and unconnected factual scenarios, allegedly occurring at different times and places. For example, Plaintiff asserts claims against Deputy Prosecutor Jenkins challenging her conviction on Maui in 2004, and against Deputy Prosecutor Tate and her probation officer, Patricio, relating to her 2011 probation revocation proceedings. See ECF #20 at 17-18, 25.*fn3 Plaintiff alleges that an unknown woman stole her identity and that she was raped by Defendants Arnise and Alcain several years ago. Id. at 16, 21. Plaintiff challenges the conditions of her confinement while she was incarcerated at HCCC in 2009-2011, and since her incarceration at WCCC since then, including new claims that apparently occurred after she filed this action. Id. at 12-15, 19-20, 22-24, 26-28. These claims and Defendants are completely unrelated to each other.

The court has notified Plaintiff numerous times in this action and in her previous actions that 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); Fed. R. Civ. P. 18(a). Plaintiff was also told that she may assert claims against multiple defendants only if these 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). The SAC does not conform with Rules 18 and 20, and its claims cannot proceed in a single action.

Additionally, the SAC still fails to provide a "short and plain statement of [Plaintiff's claims] showing that [she] is entitled to relief." Fed. R. Civ. P. 8(a)(2). As with the original Complaint and FAC, the factual elements of Plaintiff's claims are scattered throughout the SAC and are repeated in several counts. This requires the court to piece Plaintiff's claims together and cherry pick her facts to guess at Plaintiff's intent. This type of pleading is unacceptable and subject to dismissal. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988) (dismissing a disorganized complaint with its factual elements haphazardly strewn throughout for failing to comply with Rule 8).

The SAC also fails to plainly show how each Defendant violated Plaintiff's constitutional rights, or that she is entitled to relief. Plaintiff still fails to explain how Defendants Arnise and Alcain acted under color of state law when they allegedly raped her or how this violated her rights under the laws or treaties of the United States. Plaintiff does not explain why many of her claims are not time-barred, although the court notified her of this defect. She does not explain why the State of Hawaii and Defendants Tate and Jenkins are not entitled to immunity. In short, Plaintiff's SAC again fails to "state a claim to relief that is ...


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