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Pauline v. Director DOJ

United States District Court, D. Hawaii

August 12, 2019

ALDEN PAULINE, ET AL., Plaintiffs,
v.
DIRECTOR DOJ, ET AL., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DIRECTOR DOJ'S MOTION TO DISMISS COMPLAINT

          Leslie E. Kobayashi United States District Judge

         On May 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.

         BACKGROUND

         I. Procedural Background

         Plaintiff 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.[1] [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.[2] 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).[3][Notice of Removal at ¶ 4.]

         Although 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).

         II. Plaintiff's Complaint

         The Complaint is plead as a class action based on the alleged health and safety conditions at Halawa.[4] [Complaint at pg. 2.[5] 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.]

         In 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.]

         Based 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 the claims.

         DISCUSSION

         I. Class Action Allegations

         Plaintiff 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).

         Because 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 the Motion.

         II. Motion to Dismiss

         The 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.

         A. Fed. R. Civ. P. 12(b)(5)

         “‘Before 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.

         “When 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).

         “To 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 must:

(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 ...

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