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Dion'e Kaeo-Tomaselli v. Jennifer Butts; Evalani Souza

November 30, 2012

DION'E KAEO-TOMASELLI,
PLAINTIFF,
v.
JENNIFER BUTTS; EVALANI SOUZA, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER DENYING DEFENDANTS' MOTION TO DISMISS UNDER RULES 12(b) AND 12(f)

Before the Court is pro se Defendants Jennifer Butts ("Butts") and Iwalani Souza's ("Souza," both collectively, "Defendants") Motion to Dismiss Under Rules 12(b) and 12(f) ("Motion"), filed on September 14, 2012. Pro se Plaintiff Dion'e Kaeo-Tomaselli ("Plaintiff") filed her memorandum in opposition on October 5, 2012. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendants' Motion is HEREBY DENIED for the reasons set forth below.

BACKGROUND

Plaintiff, who is presently incarcerated at the Women's Community Correctional Center ("WCCC"), filed a prisoner civil rights complaint on November 1, 2011 against Joe Chavez, Pi'ikoi Recovery House for Woman ("Pi'ikoi House"), and Souza. The Court screened the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), dismissed Mr. Chavez and Pi'ikoi House, and granted leave to amend in a November 16, 2011 Order ("11/16/11 Order"). [Dkt. no. 5.] Plaintiff filed her First Amended Complaint on December 9, 2011, naming Souza and TJ Mahoney and Associates (as the purported operator of Pi'ikoi House) as defendants. In a February 2, 2012 Order, the Court dismissed TJ Mahoney and Associates with prejudice. [Dkt. no. 16.] Plaintiff was granted leave to amend, and filed her Second Amended Complaint against Defendants on August 8, 2012.

The Second Amended Complaint alleges that Butts is the owner and/or operator of Pi'ikoi House, and that Souza is its resident manager. [Second Amended Complaint at 1-2.] Plaintiff alleges that Butts and Souza denied her access to public accommodations because of her gender, in violation of the Fair Housing Act. She claims that, on August 10, 2010, Souza told WCCC Librarian Harry Fujigami that "she would not accept me into the Pi'ikoi Recovery House for Women because former inmates who currently live in the house told her that I was a sex change." [Id. at 6.] Plaintiff also alleges that Souza wrongly identified her "as a 'Sex Change' to my witness Mr. Fujigami after former female offenders informed her of false information due to my gender because for all intent[s] and purposes I am a 'FEMALE'." [Id. at 7.]

Plaintiff alleges the following counts: (I) a 42 U.S.C. § 1983 claim against Butts for violations of equal protection and the Fair Housing Act; (II) a 42 U.S.C. § 1983 claim against Souza for violations of equal protection and the Fair Housing Act; and (III) a state law slander claim against Souza for "defamation of character" and violating her rights of gender identity and expression.

I. Defendants' Motion

Defendants ask the Court to dismiss the claims in Plaintiff's Second Amended Complaint for failure to state a claim and for "lack of standing to enforce the complaint." [Mem. in Supp. of Motion at ¶¶ 7-8.] Defendants state that they could not have denied Plaintiff housing on August 10, 2010 because she was incarcerated at the time, and is still incarcerated two years later. According to Defendants:

Plaintiff would not have been able to reside at the premises due to [P]laintiff's incarceration. We do not provide supervised release, so the Plaintiff would not have been able to be released to our facility. We perform face to face interviews at the residence, which the Plaintiff never requested. Telephone communication is a precursor to schedule said interviews. [Id. at ¶ 1.]

Defendants also ask the Court to dismiss the case with prejudice "due to the fact that the plaintiff has a history of filing nuisance complaints," which have been dismissed. [Id. at ¶ 8.]

II. Memorandum in Opposition

Plaintiff asks the Court not to dismiss her claims and submits additional evidence in support of them. She argues that she was denied acceptance because Defendants incorrectly perceived her to be "a women with a male genitalia". [Mem. in Opp. at 1.] She also states in response that, "[i]f interviews are performed face to face then Defendant should have not had the conversation with my witness in regards to my gender." [Id.]

Plaintiff separately filed a letter verifying the factual allegations in the Second Amended Complaint, which is addressed to the Hawaii Civil Rights Commission and signed by Mr. Fujigami, and which includes a recitation of his conversation with Souza on August 10, ...


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