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Zack Morris, #A6047127 v. Ted Sakai

February 26, 2013

ZACK MORRIS, #A6047127,
PLAINTIFF,
v.
TED SAKAI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DISMISSING COMPLAINT AND DENYING IN FORMA PAUPERIS APPLICATION AND REQUEST FOR COUNSEL

Before the court is pro se Plaintiff Zack Morris's prisoner civil rights complaint, in forma pauperis ("IFP") application, and request for appointment of counsel. ECF #1,3, & #4. Morris is confined at the Maui Community Correctional Center ("MCCC"). Morris did not sign the Complaint, IFP application, or request for counsel. Instead, all documents in this case were written, signed, and submitted by another inmate, Chris Grindling, allegedly on Morris's behalf. For the following reasons, Morris's Complaint is DISMISSED with leave to amend, and his IFP application and request for appointment of counsel are DENIED without prejudice.

I. BACKGROUND

Grindling states, "Plaintiff is blind and can't read and thus can not declare under penalty of perjury this [Complaint] is true[.] I Chris Grindling who wrote this will" [signed Chris Grindling]." Compl., ECF #1 PageID #15. On the unsigned IFP application, Grindling states, "If I sent this to accountant I would get written up and punished."*fn1 IFP Application, ECF #3 PageID #22 (signed by Grindling on February 13, 2013). The documents before the court include no evidence that Morris is aware of this lawsuit. This made the court concerned about the legitimacy of the documents, and the court's concern was promptly corroborated when, to its surprise, it received unsolicited information from the Hawaii Department of Public Safety staff.

Specifically, the court received a copy of a memorandum from a prison chaplain to the MCCC acting warden, stating that Morris had informed the chaplain that Morris had not approved the filing of the present lawsuit under his name!

Count I alleges violations under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12132. Grindling broadly alleges that "all named defendants" have failed to provide Morris appropriate facilities for his blindness, which he alleges excludes Morris from daily activities due to his disability. Grindling states that, because Morris cannot read or write, he cannot contact his family or friends, access the law library, or submit grievances. Grindling further alleges that Morris was assaulted at MCCC because he is helpless, cannot defend himself, and is a sex offender. Grindling complains that:

(1) there are no guard rails or ladders on MCCC's beds (although he does not allege that Morris has fallen); (2) Morris fell in the shower because he has no inmate aide; (3) Morris is diabetic and receives no treatment, periodic check ups, or blood tests;

(4) Morris's eye patch was taken and his eyeglasses were broken in the assault; and (5) Morris has been forced to sleep on the floor at times due to overcrowding. Grindling demands that Morris be provided with an "inmate aide" or assistant to help him in the shower, at recreation, etc.

In Count II, Grindling expands the complaint to assert claims on behalf of all MCCC inmates and seeks class certification. Most of the claims in Count II are not specific to Morris. For example, Grindling complains that MCCC's cells are frequently searched, are cold and overcrowded, are constantly lit, require some inmates to sleep on the floor, and lack guard rails or ladders for the beds. He claims that MCCC does not provide warm clothes, forces inmates to purchase overpriced hygiene supplies, fails to follow an "approved" menu or require the food handlers to wear hairnets, provides inadequate time to clean the cells, and allows only one book and three magazines at a time to be sent to an inmate in a segregation unit. He complains that inmates are unable to enforce rules through the grievance process. Most of what is alleged in Count II fails to rise to the level of a constitutional violation, and, as written, fails to state a claim.

The only claims that specifically relate to Morris in Count II are Grindling's reiteration that MCCC is not monitoring Morris's diabetes or blindness. Grindling states that he alerted Defendants to these overall problems at MCCC through his own grievances and lawsuits. Later, however, Grindling states that many of these issues were "not grieved but defendants should have known." Compl., ECF #1 PageID #9-11.

In Count III, Grindling broadly alleges civil liberties violations on behalf of all MCCC inmates. Grindling complains that MCCC limits inmate correspondence to ten people and requires inmates to provide their correspondents' social security numbers and birth dates. He complains again regarding the one-book, three-magazine rule in segregation. He complains that all grievances are denied, inmate account ledgers are unclear, inmates cannot talk or pass articles to other inmates, inmates lose their possessions during transfers, there is no access to required parole programs, and no kosher diets in Hawaii's prisons. Grindling states again that Morris is blind and unable to grieve these issues affecting all MCCC inmates, arguing that this makes class certification and appointment of counsel appropriate. These vaguely stated claims fail to articulate a violation of the Constitution or laws of the United States, and therefore fail to state a claim under 42 U.S.C. § 1983.

Grindling has accrued three strikes pursuant to 28 U.S.C. § 1915(g), and cannot bring claims on his own behalf without concurrently paying the civil filing fee or alleging imminent danger of serious physical injury.*fn2 The claims that are not specific to Morris clearly do not allege imminent danger of serious physical injury to Grindling or to other MCCC inmates. It therefore appears that Grindling is using Morris's legitimate, albeit unexhausted claims, to bootstrap Grindling's own grievances against MCCC officials into a federal suit that skirts § 1915(g)'s requirements applicable to Grindling.

II. RULE 11

Rule 11 of the Federal Rules of Civil Procedure requires that pleadings be signed by at least one attorney, or, if the party is unrepresented, signed by the party. See Fed. R. Civ. P. 11(a). The court understands that Morris is blind, but this does not mean that Grindling may sign without Morris's approval. First, Grindling's statement that Grindling must sign for Morris is simply not credible. Prison officials are able to designate someone to assist Morris in signing his name to a legal document that carries great responsibilities and may incur serious consequences to him. The court has no reason to think that Grindling is the sole person available to sign for Morris. ...


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