Richard H. Blaisdell v. Hawaii Department of Public Safety

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD H. BLAISDELL,
Plaintiff - Appellant,
v.
HAWAII DEPARTMENT OF PUBLIC
SAFETY,
Defendant - Appellee.
No. 12-17793
D.C. No. 1:12-cv-00554-LEK-
BMK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted October 14, 2015**
Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.
Hawaii state prisoner Richard H. Blaisdell appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations in connection with the treatment of his prison trust account. We have
FILED
OCT 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamilton v. Brown,
630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28
U.S.C. § 1915(e)(2)). We vacate and remand.
The district court properly dismissed Blaisdell’s action against the Hawaii
Department of Public Safety because it is barred by the Eleventh Amendment. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the
absence of consent a suit in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh Amendment.”). However,
the district court prematurely dismissed the action with prejudice. Accordingly, we
vacate the judgment and remand to permit Blaisdell to voluntarily dismiss his
action if he so chooses.
Because this appeal does not concern Blaisdell’s ability to proceed in forma
pauperis, we do not consider Blaisdell’s contentions concerning whether a prior
action counts as a strike under the Prison Litigation Reform Act.
VACATED and REMANDED.
12-17793 2

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