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Chavez v. United States

United States District Court, D. Hawaii

January 31, 2018

LEONARDO R. CHAVEZ, Plaintiff,
v.
UNITED STATES OF AMERICA; U.S. SPECIAL OPERATIONS COMMAND; SPECIAL OPERATIONS COMMAND CENTRAL; SPECIAL OPERATIONS COMMAND PACIFIC, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 30) AND DENYING PLAINTIFF'S FILING ENTITLED “MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA” (ECF NO. 34)

          HELEN GILLMOR, United States District Judge

         Plaintiff Leonardo R. Chavez appears pro se. He is a former soldier in the United States Army. Plaintiff's Second Amended Complaint claims that Defendants violated Article I, Section 8 of the United States Constitution and 10 U.S.C. § 991 by deploying him without his receiving adequate time between deployments. Plaintiff also claims violations of the Fifth and Fourteenth Amendments of the United States Constitution.

         Defendants move to dismiss Plaintiff's complaint for lack of jurisdiction.

         Plaintiff also filed a motion entitled “MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA”. (ECF No. 34).

         Defendants' Motion to Dismiss (ECF No. 30) is GRANTED. Plaintiff's Second Amended Complaint is DISMISSED.

         PROCEDURAL HISTORY

         On December 30, 2016, Plaintiff Leonardo R. Chavez filed a PRISONER CIVIL RIGHTS COMPLAINT. (ECF No. 1).

         On January 23, 2017, the Court granted Plaintiff's in forma pauperis (“IFP”) application. (ECF No. 5).

         On February 17, 2017, before the Court screened the Complaint, Plaintiff submitted a new pleading labeled as an “ORIGINAL COMPLAINT” and a letter. (ECF Nos. 6, 7). Plaintiff mistakenly believed the Court had terminated his action when it granted his IFP application. (ECF No. 7). He thought he needed to commence a new action alleging the same claims. The Court construed his second pleading as an Amended Complaint. (Amended Complaint, ECF No. 6).

         On March 9, 2017, the Court issued an ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE GRANTED TO AMEND. (ECF No. 9).

         On April 5, 2017, Plaintiff filed a SECOND AMENDED COMPLAINT. (ECF No. 10).

         On April 20, 2017, the Court issued an ORDER DIRECTING SERVICE. (ECF No. 11).

         On September 22, 2017, Defendants filed a Motion to Dismiss. (ECF No. 30).

         On October 10, 2017, Plaintiff filed a pleading entitled “PLAINTIFF'S OBJECTION TO DEFENDANTS MOTION TO DISMISS” which the Court construes as an Opposition. (ECF No. 32).

         On October 23, 2017, Defendants filed a DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO THE MOTION TO DISMISS. (ECF No. 33).

         On October 27, 2017, Plaintiff filed a pleading entitled “MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA” which the Court construes as a request for a subpoena. (ECF No. 34).

         On October 31, 2017, Plaintiff filed a pleading entitled “PLAINTIFF'S OBJECTION AND REPLY TO DEFENDANTS CONTINUED MOTION TO DISMISS.” (ECF No. 35). The Court construes this as a Sur-Reply.

         The Court elected to decide the Motion without a hearing pursuant to Local Rule 7.2(d). (ECF No. 31).

         BACKGROUND

         Plaintiff is incarcerated at the Oahu Community Correctional Center awaiting trial in the Circuit Court of the First Circuit, State of Hawaii.[1] (Complaint at p. 7, ECF No. 1); State of Hawaii v. Chavez, 14-1-000360 (Haw. 1st Cir. Ct. 2014). He is charged with murder in the Second Degree and Carrying or Use of a Firearm in the Commission of a Separate Felony. (Id.)

         Plaintiff alleges Defendants violated Article I, Section 8 of the United States Constitution and 10 U.S.C. § 991 by deploying him overseas in violation of § 991's “high-deployment” thresholds without the explicit approval of the Secretary of Defense or another delegated official. (Second Amended Complaint at pp. 5, 5A, ECF No. 10). Plaintiff alleges Defendants' actions resulted in over-deployment, in violation of the Fifth and Fourteenth Amendments of the United States Constitution. (Id.)

         Plaintiff was discharged from the Army in “Under Other Than Honorable Conditions” on May 19, 2016. (Certificate of Release or Discharge from Active Duty, ECF No. 10-4).

         The gravamen of Plaintiff's Second Amended Complaint is that the Army failed to receive written authority to deploy him without affording him proper “dwell time”[2] between deployments. Plaintiff has withdrawn his request for money damages. (Second Amended Complaint at pp. 5, 5A, ECF No. 10). Plaintiff states that he has initiated review of his discharge with the Army Review Boards Agency. (Id.)

         STANDARD ...


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