United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART DIRECTOR
DOJ'S MOTION TO DISMISS COMPLAINT
E. Kobayashi United States District Judge
6, 2019, the United States of America (“United
States”), on behalf of Defendant “Director DOJ,
” (“the DOJ Director”) filed its Motion to
Dismiss Complaint (“Motion”). [Dkt. no. 12.] Pro
se Plaintiff Alden Pauline, Jr. (“Plaintiff”)
filed his memorandum in opposition on May 24, 2019. [Dkt. no.
15.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”). On June
28, 2019, an entering order was issued informing the parties
of this Court's ruling on the Motion. [Dkt. no. 18.] This
Order supersedes that entering order. The United States's
Motion is hereby granted in part and denied in part, and
Plaintiff's claims against the DOJ Director are hereby
dismissed without prejudice, for the reasons set forth below.
is currently an inmate at Halawa Correctional Facility
(“Halawa”), located in Aiea, Hawai'i. On
February 8, 2019, Plaintiff filed his Complaint in the First
Circuit Court, State of Hawai`i (“state court”)
against the United States and sixteen other defendants,
relating to incidents and prison conditions that appear to
have occurred at Halawa. [Notice of Removal of Civil Action
(“Notice of Removal”), filed 4/3/19 (dkt. no. 1),
Exh. A at 4-9 (Complaint).] That same day, the state court
mailed Plaintiff a copy of: the Notice for Payment of Fees
stating that $315.00 was due by February 19, 2019 unless
Plaintiff claimed either an exemption from fee payments, or
requested a fee waiver by submitting a motion to proceed in
forma pauperis (“IFP”) or a written request for a
waiver of fees; the Fee Exemption Form; the Request to
Proceed Without Paying Filing Fees (Form B); and a filed copy
of Plaintiff's Complaint and “Motion to
Proceed” to Plaintiff at his Halawa address.
[Transmittal of documents to district court, filed 4/5/19
(dkt. no. 6), state court documents (“State Court
Records”) at 9-12. There are no further records concerning
the status of Plaintiff's payment of fees in state court.
On April 3, 2019, The United States removed the action to
this district court pursuant to 28 U.S.C. §
1442(a)(1).[Notice of Removal at ¶ 4.]
the Complaint was filed in state court, Plaintiff has a long
history of filing actions in federal court, many of which
have been unsuccessful. This Court explained to Plaintiff
that he has accumulated three strikes pursuant to 28 U.S.C.
§ 1915(g) for filing actions that are frivolous,
malicious, or fail to state claim:
Pauline has had three or more prisoner actions dismissed as
frivolous, malicious, or failing to state a claim. See,
e.g., Pauline v. Tufono, et al., Civ. No.
08-00389 DAE/LEK (D. Haw. Aug. 29, 2008); Pauline v. Pali
Momi Med. Ctr, et al., Civ. No. 08-00195 HG/KSC (D. Haw.
June 3, 2008); Pauline v. Tufono, et al., Civ. No.
08-00194 JMS/BMK (D. Haw. June 18, 2008); and Pauline v.
H.C.F. Adm'r, et al., Civ. No. 08- 00196 SOM/LEK (D.
Haw. May 7, 2008). The court has notified Pauline of his
strikes many times and has informed him that he may not
proceed [in forma pauperis (“IFP”)]
unless he is in imminent danger of serious physical injury.
See, e.g., Pauline v. Mishra, et al., Civ.
No. 09-00520 SOM/KSC, Doc. No. 30 (Tr. of hearing on Mot. to
Revoke IFP) (D. Haw. Mar. 18, 2010); Pauline v.
Frank, Civ. No. 09-00514 SOM/BMK (D. Haw. 2009).
Pauline v. Seabright, Civ. No. 15-00074 LEK/RLP,
2015 WL 1499661, at *2 (D. Hawai'i Mar. 31, 2015).
Complaint is plead as a class action based on the alleged
health and safety conditions at Halawa. [Complaint at pg.
Plaintiff alleges a litany of issues regarding the prison
facilities, including but not limited to the following: a
lack of fire sprinklers; mold on the ceiling; backed up water
in the showers and toilets; unsanitary food handling
practices; pest infestations in the prison units and
kitchens; and mold on food trays. [Id. at pgs. 2-3.]
Plaintiff alleges he contracted Hepatitis C as a result of
the flooded showers, and suffered food poisoning from
consuming improperly handled food. [Id.] Plaintiff
alleges the DOJ Director and other defendants “know of
these issues that are going on but do nothing to prevent
it.” [Id. at pg. 3.]
addition, Plaintiff alleges inmates have used light fixtures
to create weapons and drug paraphernalia, other inmates have
suffered sexual assault, and prison officials have used
investigations to manipulate gangs within the prison.
[Id. at pgs. 3-4.] He further alleges the mattresses
and pillows contain lice; the lead paint on the walls makes
it difficult for prisoners with asthma to breathe, eat, and
sleep; prisoners are being sexually assaulted; and prisoners
do not have access to medical assistance, or safe housing.
[Id. at pgs. 3-4.] Plaintiff alleges that, if he or
the other plaintiffs were to come forward to report these
issues, the facility administrative staff would retaliate
against them by placing Plaintiff or others into housing
known for violent conditions. [Id. at pg. 5.] He
also reports several unrelated events, including:
“Nurse Kathy” violating the Health Insurance
Portability and Accountability Act (“HIPAA”) by
sharing confidential medical information with case managers
and adult correctional officers (“ACOs”) without
inmate consent; case manager “Chris” transporting
contraband, and both Chris and case manager
“Chad” sending messages to gang members within
the facility; and stabbings related to gang activity.
[Id.] Finally, Plaintiff attached a one-page
document to his Complaint filed in state court, which states:
“This Motion is to wave my right of payment of fee and
to use form B to proceed with this class action suit in the
nature of the issues I state in this Complaint.” [State
Court Records at 7.]
on the foregoing, Plaintiff appears to allege: a violation of
the Eighth Amendment proscription of cruel and unusual
punishment; a First Amendment retaliation claim; a due
process violation; and a violation of HIPAA. Because
Plaintiff has not identified which, if any, of these claims
pertain to the DOJ Director, the Court will address all of
Class Action Allegations
is proceeding in this action pro se, but alleges it is
brought as a “class action suit” and identifies
eighteen other plaintiffs, in addition to himself. [Complaint
at pgs. 1-2.] But “[a] pro se litigant may not bring a
class action on behalf of others.” Williams v.
Kobayashi, CIV. NO. 1:18-cv-00336 DKW-RLP, 2018 WL
5258614, at *8 (D. Hawai'i Oct. 22, 2018) (citing
Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65
(9th Cir. 2008); Robertson v. Republic of Nicaragua,
719 Fed.Appx. 705 (9th Cir. 2018)). Pro se litigants should
be dismissed “at the screening or motion to dismiss
stage because pro se plaintiffs cannot represent and protect
the interests of the class fairly and adequately.”
See Nellis v. Cushfield Maint. W. Corp., No.
18-CV-03946-LHK, 2019 WL 2744835, at *8 (N.D. Cal. July 1,
2019) (collecting cases dismissing class action claims
brought by pro se litigant).
Plaintiff cannot represent the proposed class, this Court
will construe the allegations in the Complaint as
Plaintiff's individual claims, rather than dismiss the
Complaint as a whole. The Court now turns to the merits of
Motion to Dismiss
United States's Motion seeks dismissal of Plaintiff's
claims based on Fed.R.Civ.P. 12(b)(1), (2), (5), and (6),
because: Plaintiff's claims are barred by sovereign
immunity or he has failed to exhaust his administrative
remedies; Plaintiff failed to properly serve the DOJ
Director; and because the Complaint fails to state a claim
against the Director DOJ.
Fed. R. Civ. P. 12(b)(5)
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons
must be satisfied.'” In re Focus Media
Inc., 387 F.3d 1077, 1081 (9th Cir. 2004) (quoting
Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415
(1987)). The method of service upon the DOJ Director depends
on whether Plaintiff is alleging an individual capacity claim
or an official capacity claim. See Fed.R.Civ.P.
4(i)(2)-(3). The United States urges this Court to find that,
because the Complaint lacks any allegations against an
individual “Director DOJ, ” it should be
construed as an official capacity claim.
it is unclear whether defendants are sued in official or
individual capacities, the court must examine ‘[t]he
course of proceedings' to determine the capacity in which
each defendant is sued.” Shaughnessy v.
Hawaii, Civil No. 09-00569 JMS/BMK, 2010 WL 2573355, at
*3 (D. Hawai'i June 24, 2010) (brackets in
Shaughnessy) (quoting Kentucky v. Graham,
473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 87 L.Ed.2d 114
(1985)) (citing Fed.R.Civ.P. 8(e) (requiring that pleadings
“be construed so as to do justice”)). There are
limited proceedings here to examine, and the Complaint is
brief in its factual allegations pertaining to the DOJ
Director. Because little clarity can be found one way or
another, the Court construes Plaintiff's Complaint as
alleging both official capacity and individual capacity
claims, so as “to do justice” to Plaintiff's
Complaint. See Rule 8(e).
serve a United States agency or corporation, or a United
States officer or employee sued only in an
official capacity, a party must
serve the United States and also send a copy of the summons
and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.”
Fed.R.Civ.P. 4(i)(2) (emphasis added). Thus, in order to
complete service of process on the United States, a plaintiff
(A)(i) deliver a copy of the summons and of the complaint to
the United States attorney for the district where the action
is brought - or to an assistant United States attorney or
clerical employee whom the United States attorney designates
in a writing filed with the court clerk - or
(ii) send a copy of each by registered or certified mail to
the civil-process clerk at the United States ...