United States District Court, D. Hawaii
CURTIS M. ABORDO, Plaintiff,
STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY, Defendant.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND 
Derrick K. Watson, United States District Judge.
April 10, 2019, this Court granted Plaintiff Curtis M. Abordo
leave to proceed in this case in forma pauperis, as
well as partial leave to amend his original complaint. Dkt.
No. 4. On May 3, 2019, Abordo, proceeding pro se, filed a
First Amended Complaint (FAC) against the State of
Hawai‘i Department of Public Safety (DPS), in which he
appears to allege violations of certain constitutional rights
by DPS under 42 U.S.C. § 1983. Dkt. No. 5. Because DPS is
not a “person” for purposes of Section 1983, the
FAC is DISMISSED. Nonetheless, dismissal is with leave to
amend so that Abordo can attempt to name the officers
involved in the alleged constitutional violations, should he
choose to do so.
Screening of the FAC
Court liberally construes a pro se complaint. Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987). However, the
Court cannot act as counsel for a pro se litigant or supply
the essential elements of a claim. Pliler v. Ford,
542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ.
of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
the original complaint, one factual source appears to provide
the basis for all of Abordo's claims in the FAC. More
specifically, Abordo alleges that, in 2014, he completed
serving a period of probation. Despite this, he alleges that,
on March 11, 2017, DPS arrested him for violating the
probation that he had fully served. Abordo alleges that he
was imprisoned for 54 days before being brought to a State
court judge and presumably ordered released. Due to these
alleged occurrences, Abordo appears to allege that various
constitutional rights were violated.
the April 10, 2019 Order, the Court will not address
Abordo's claims in specific detail. The reason is that
one problem exists with respect to all of the claims: the
only named defendant and the only entity toward whom factual
allegations are directed is DPS. For example, Abordo alleges
that “DPS held [him] until he served the full 54 days
in illegal confinement[, ]” “DPS told [him] that
he was wanted on a probation violation warrant[, ]”
“DPS illegally arrested and restrain/detained [him,
]” “DPS still proceeded with the illegal
detention, ” “the action by DPS was done with
willful intent[, ]” and “[t]he action DPS
exhibited is tantamount to kidnapping[.]”
however, is an arm of the State of Hawai‘i, and thus,
is not a “person” for purposes of Section 1983.
See Pauline v. State of Haw. Dep't of Pub.
Safety, 773 F.Supp.2d 914, 922 (D. Haw. 2011) (citing
cases); see also Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989) (“We hold that
neither a State nor its officials acting in their official
capacities are ‘persons' under §
1983.”). As a result, DPS cannot be liable under the
statute, see 42 U.S.C. § 1983 (providing that
“[e]very person…shall be
liable….”), and must be dismissed from this
simply, Abordo cannot name DPS as a defendant in this case
because DPS cannot be held liable for any of the alleged
conduct in the FAC under Section 1983. Instead, Abordo must,
if he wishes, name as defendants the officers who committed
the alleged acts in their individual capacities. The FAC,
though, does not attempt to do so. A reason there may have
been no attempt to allege the officers involved is because
Abordo simply does not know their identities. This, however,
does not stop Abordo from asserting his claims because, to
the extent he is unaware of an officer's or officers'
identities, he may simply refer to them as John or Jane Doe,
followed by a number.
example, as mentioned, Abordo alleges in the FAC that DPS
told him that he was wanted on a probation violation warrant,
and DPS arrested him. In any second amended complaint he may
file, to the extent Abordo knows the names of the officers
who arrested him or who told him about the warrant, he must
state their names. To the extent Abordo wishes to pursue
those officers through this action, but does not know their
names, he may simply state, for example, that John or Jane
Doe 1 arrested him, or that John or Jane Doe 2 told him he
was wanted on a probation violation warrant. If an officer
was female, Abordo should use Jane Doe; if an officer was
male, Abordo should use John Doe. In addition, Abordo should
attempt to give each distinct officer a number, such as
“John Doe 1, ” and, to the extent that same
officer is mentioned again, use the same number designation
to identify him or her. Abordo must do this for
all of the factual allegations he makes that involve
conduct by an officer of the State of Hawai‘i.
as in the April 10, 2019 Order, Abordo is reminded that he
may not incorporate any part of the FAC, Dkt. No. 5, in any
second amended complaint he may file. Rather, all claims and
all allegations must be re-typed or re-written in their
entirety. To the extent any claims are not re-alleged in a
second amended complaint, they may be deemed voluntarily
dismissed. See Lacey v. Maricopa Cty., 693 F.3d 896,
928 (9th Cir. 2012) (en banc) (stating that claims dismissed
with prejudice need not be re-alleged in an amended complaint
to preserve them for appeal, but claims that are voluntarily
dismissed are considered waived if they are not re-pled).
FAC, Dkt. No. 5, is DISMISSED WITH LEAVE TO AMEND, as set
may have until June 28, 2019 to file a
second amended complaint. The Court cautions Abordo
that failure to file a second amended complaint by June 28,
2019 may result in ...