Antoque v. Hawaii Community Correctional Center et al
| Bernard Antoque |
| Hawaii Community Correctional Center and Hawaii Department of Public Safety |
| Litigation Coordinator, State of Hawaii and State of Hawaii Litigation Coordinator |
| 1:2024cv00134 |
| March 21, 2024 |
| US District Court for the District of Hawaii |
| MICAH WJ SMITH |
| ROM TRADER |
| Prisoner: Civil Rights |
| 42 U.S.C. ยง 1983 Prisoner Civil Rights |
| None |
Docket Report
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| Filing 8 EO: Before the Court is Plaintiff's request for (1) court-appointed counsel and (2) an extension of time. ECF No. #7 . Plaintiff's request is DENIED in part and GRANTED in part.Regarding Plaintiff's request for counsel, there is no constitutional right to counsel in a civil case like this one. See Adir Intl, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1038-39 (9th Cir. 2021) ("[T]his court has long held that there is no constitutional right to counsel in a civil case." (internal quotation marks omitted)). A court may request, but cannot compel, counsel to appear pro bono on a plaintiff's behalf. See 28 U.S.C. 1915(e)(1); Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989). Appointment of counsel pursuant to 28 U.S.C. 1915(e)(1), however, is limited to cases presenting "exceptional circumstances." Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Although Plaintiff states that he is incarcerated and has limited access to "phones, courts, and necessary communications," see ECF No. 7, these allegations do not amount to exceptional circumstances. See Pitts v. Espinda, Civ. No. 15-00483, 2016 WL 11696329, at *4 (D. Haw. Apr. 18, 2016) ("Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances." (internal quotation marks omitted)). In addition, the Court notes that the issues raised in Plaintiff's original complaint are not complex and that, at this point, it is too early to decide if Plaintiff's claims are likely to succeed. Plaintiff's request for counsel is therefore DENIED without prejudice to Plaintiff filing another request after the operative pleading is served, if that occurs, and after Defendants have filed an answer or other response.Regarding Plaintiff's request for an extension of time, that request is GRANTED. Plaintiff must file any amended pleading on or before June 14, 2024. Failure to timely file an amended pleading may result in AUTOMATIC DISMISSAL of this suit without further notice, and Plaintiff may incur a strike under 28U.S.C. 1915(g). ALTERNATIVELY, Plaintiff is reminded that he may voluntarily dismiss this action pursuant to Federal Rule of Civil Procedure 41(a)(1) on or before June 14, 2024, and such a dismissal will not count as a strike under 28 U.S.C. 1915(g). IT IS SO ORDERED. (JUDGE MICAH W.J. SMITH)(rls)COURTS CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF) |
| Filing 7 MOTION for Appointment of Free Counsel, MOTION for Extension of Deadline to File - by Plaintiff Bernard Antoque (Attachments: #1 copy of IFP Application filed 4/12/2024, #2 Mailing Documentation)(eta) |
Filing 6
ORDER DISMISSING PRISONER CIVIL RIGHTS COMPLAINT, ECF NO. 1, WITH PARTIAL LEAVE TO AMEND re #1 - Signed by JUDGE MICAH W.J. SMITH on 4/17/2024. (1) The complaint, ECF No. 1, is DISMISSED pursuant to 28 U.S.C. 1915(e)(2) and 1915A(b).(2) All of Antoque's claims against the Hawaii Community Correctional Center and the former Department of Public Safety are DISMISSED with prejudice.(3) Antoque must file any amended pleading on or before May 17, 2024.(4) Failure to timely file an amended pleading may result in AUTOMATIC DISMISSAL of this suit without further notice, and Antoque may incur a strike under 28 U.S.C. 1915(g).(5) ALTERNATIVELY, Antoque may voluntarily dismiss this action pursuant to Federal Rule of Civil Procedure 41(a)(1) on or before May 17, 2024, and such a dismissal will not count as a strike under 28 U.S.C. 1915(g).(6) The Clerk is DIRECTED to send Antoque a blank prisoner civil rights complaint form so that he can comply with this order if he elects to file an amended pleading. COURT'S CERTIFICATE OF SERVICE - Bernard Antoque shall be served by First Class Mail to the address of record listed on the (NEF) on 4/18/2024. Additionally, a blank prisoner civil rights complaint form, and instructions, shall be included in the mailing to plaintiff. (jni)
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Filing 5
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER, ECF NO. 4 re #4 - Signed by JUDGE MICAH W.J. SMITH on 4/12/2024.(1) The Hawaii Department of Public Safety or its designee the Warden of the Halawa Correctional Facility shall calculate, collect, and remit to the Clerk of Court an initial partial payment equaling 20% of Plaintiff's average monthly balance or average monthly deposits to his account, whichever is greater. Thereafter, the Warden or designee shall collect monthly payments equaling 20% of Plaintiff's preceding month's income when the account exceeds $10.00, until the $350.00 filing fee is paid in full. See 28 U.S.C. 1915(b)(2). These payments must be identified by the name and number assigned to this action.(2) The Clerk SHALL serve a copy of this order on Plaintiff, the Halawa Correctional Facility Warden and Financial Office, Laurie Nadamoto, Esq., Department of Public Safety Litigation Coordinator, and submit a copy of this order to the District of Hawaii's Financial Department. COURT'S CERTIFICATE OF SERVICE - Bernard Antoque shall be served by First Class Mail to the addresses of record listed on the (NEF) on 4/15/2024. A copy of this Order shall also be served upon the Halawa Correctional Facility, Attn: WARDEN, 99-902 Moanalua Rd, Aiea, HI 96701 by First Class Mail and also served upon the Halawa Correctional Facility, Attn: FINANCIAL OFFICE, 99-902 Moanalua Rd, Aiea, HI 96701 by First Class Mail on 4/15/2024. A copy of this Order shall be served by Notice of Electronic Filing (NEF) to the Financial Department, USDC District of Hawaii; and Laurie Nadamoto, Esq., Department of Public Safety Litigation Coordinator. (jni)
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| Filing 4 APPLICATION to Proceed In Forma Pauperis by a Prisoner - by Plaintiff Bernard Antoque. (Attachments: #1 Mailing Documentation)(cgc) |
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Filing 3
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER re #2 - Signed by JUDGE MICAH W.J. SMITH on 03/27/2024. (1) Antoque's Application to Proceed In Forma Pauperis by a Prisoner is DENIED without prejudice as incomplete. (2) Antoque is DIRECTED to pay the filing fee in full, or to submit a complete IFP Application by April 26, 2024. (3) The Clerk is DIRECTED to send Antoque an Application to Proceed In Forma Pauperis by a Prisoner to facilitate compliance with this Order.(cgc)COURTS CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the (NEF) on 3/28/2024. Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF)
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| Filing 2 APPLICATION to Proceed In Forma Pauperis by a Prisoner - by Plaintiff Bernard Antoque. (cgc) |
| Filing 1 PRISONER CIVIL RIGHTS COMPLAINT against All Defendants - filed by Bernard Antoque. (Attachments: #1 Mailing Documentation)(cgc) |
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