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Chavez v. United States

United States District Court, D. Hawaii

April 20, 2017

LEONARDO R. CHAVEZ, #A6068476, Plaintiff,
v.
UNITED STATES, USSOCOM, SOCCENT, SOCPAC, Defendants,

          ORDER DIRECTING SERVICE

          HELEN GILLMOR, UNITED STATES DISTRICT JUDGE

         Before the court is pro se Plaintiff Leonardo R. Chavez's Second Amended Complaint (“SAC”). ECF. No. 10. Chavez alleges Defendants the United States, USSOCOM (U.S. Special Operations Command), SOCCENT (Special Operations Command Central), and SOCPAC (Special Operations Command Pacific) violated military regulations and the Constitution during his service in the United States Army. He seeks correction of his military records. For the following reasons, the Court directs the SAC be served and orders the United States to respond after service is perfected.

         I. BACKGROUND

         Chavez is incarcerated at the Oahu Community Correctional Center awaiting trial in the Circuit Court of the First Circuit, State of Hawaii, for Murder in the Second Degree and Carrying or Use of a Firearm in the Commission of a Separate Felony.[1] See Compl., ECF No. 1, PageID #8 (“facing murder in the 2nd”); State v. Chavez, 1PC141000360 (Haw. 1st Cir. Ct. 2014). https://jimspss1.courts.state.hi.us/JEFS.

         A. Procedural History

         On December 30, 2016, Chavez commenced this action. ECF No. 1.

         On February 17, 2017, Chavez filed an amended complaint. Am. Compl., ECF No. 6. He alleged that the Secretary of Defense and individual officers in the United States Army chain of command violated the Constitution when they denied him adequate rest between deployments, falsified his military records and military policies, and stripped him of his retirement. Chavez sought $1 billion in damages and the correction of his military records.

         On March 9, 2017, the Court dismissed Chavez's Amended Complaint for failure to state a cognizable claim for relief. Order, ECF No. 9 (“March 9, 2017 Dismissal Order”).

         B. The Second Amended Complaint

         On April 5, 2017, Chavez filed the SAC. ECF No. 10. He now alleges Defendants violated Article I, Section 8 of the United States Constitution[2] and 10 U.S.C. § 991 when they allegedly deployed him overseas in excess of § 991's one and two year “high deployment” thresholds[3] without the explicit approval of the Secretary of Defense or another delegated official having been noted in his records. He alleges this failure, and his resulting alleged over deployment, violated the Fifth and Fourteenth Amendments.[4] Chavez was discharged from the Army in “Under Other Than Honorable Conditions” on May 19, 2016. See id., ECF 10 4 (Certificate of Release or Discharge from Active Duty).

         Chavez seeks an order directing USSOCOM and the Pentagon “to produce the waiver request and the approval by the Armed Services of the Senate and the Committee on Armed Services of the House of Representatives” for his “Operational Personnel Tempo.”[5]SAC, ECF No. 10, PageID #85. He has withdrawn his request for money damages. Chavez states that he has “initiated” congressional review of his discharge with the Army Review Board Agency (ARBA), which is also known as the Army Board for Correction of Military Records (“ABCMR”).[6] Id.

         II. STATUTORY SCREENING

         Because Chavez is a prisoner proceeding in forma pauperis, the Court screens his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must dismiss a complaint or claim that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126 27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

         Screening under §§ 1915(e)(2) and 1915A(b) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (discussing screening pursuant to § 1915A). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is ...


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