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Vidmar v. Honolulu Police Department

United States District Court, D. Hawaii

August 26, 2016

SHERRY VIDMAR, Plaintiff,
v.
HONOLULU POLICE DEPARTMENT, et al., Defendants.

          ORDER DISMISSING SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND, DOC. NO. 23 ORDER DISMISSING SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND, DOC. NO. 23

          J. Michael Seabright, Chief United States District Judge

         I. INTRODUCTION

         Before the court is pro se Plaintiff Sherry Vidmar's (“Plaintiff”) Second Amended Complaint. Doc. No. 23. This is Plaintiff's third attempt to state a cognizable claim for a violation of federal law. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing. For the reasons discussed below, the court finds that the Second Amended Complaint is frivolous, fails to state a federal claim, and that granting leave to amend would be futile. The court therefore DISMISSES the Second Amended Complaint without leave to amend and directs the Clerk of Court to close the case.

         II. BACKGROUND

         A. The Complaint

         On February 19, 2016, Plaintiff filed a Complaint[1] against the Honolulu Police Department (“HPD”), which the court construed as asserting state law tort and criminal claims, and possibly a claim under 42 U.S.C. § 1983 for violation of a constitutional right. Doc. No. 1, Compl. Plaintiff alleged in part that (1) her neighbors and/or workers/contractors in her residential condominium building are “CRIMINALS” who conduct “24/7” camera surveillance on Plaintiff at her home, steal items, and spray poison throughout her home[2] while she is out; (2) HPD escorts these criminals and therefore is involved with them and/or protects them; (3) the HPD “CHIEF'S OFICE (sic) [did] NOT FALOU PROTOCAL” (sic); and (4) Plaintiff's cat and bird died in her home from the poisoning. Id. at 1-2.

         Plaintiff attached HPD incident reports in which she complains of murder, burglary, an unspecified non-criminal incident, and missing items, and that include typed notations that Plaintiff “appeared mentally unstable, had filed numerous police reports about the same issue but insisted on making a report, ” and “suffers from mental instability and paranoia.” Doc. No. 1-1, Pl.'s Ex.

         Handwritten on some of the reports are the words “SLANDER AND LIBEL to RUIN MY REPUTATION, ” and “ASOLT & BATERY” (sic). Id.

         On March 1, 2016, the court dismissed the Complaint as frivolous and for failure to state a claim, and granted Plaintiff leave to amend. Doc. No. 4. The court instructed Plaintiff that an amended complaint must include short, plain statements telling the court:

(1) the treaty, constitutional right, or statutory right Plaintiff believes was violated; (2) the specific basis of this court's jurisdiction; (3) the name of the defendant who violated that right; (4) exactly what that defendant did or failed to do; (5) how the action or inaction of that defendant is connected to the violation of Plaintiff's rights; and (6) what specific injury Plaintiff suffered because of that defendant's conduct.

Id. at 13. The court further advised Plaintiff that she “must repeat this process for each person or entity that she names as a defendant, ” and warned her that “[i]f Plaintiff fails to affirmatively link the conduct of each named defendant with the specific injury she suffered, the allegation against that defendant will be dismissed for failure to state a claim.” Id.

         B. The Amended Complaint

         Between May 16 and 26, 2016, Plaintiff filed six separate documents that the court construed together as an Amended Complaint. Doc. Nos. 11-16. The Amended Complaint exceeded two hundred pages, including exhibits, and consisted of a hodgepodge of injustices stretching back thirty years that Plaintiff has allegedly suffered at the hands of the HPD, the City and County of Honolulu (the “City”), Honolulu Mayor Kirk Caldwell (“Mayor Caldwell”), and others including the Honolulu Police Commission (“HPC”), the Honolulu Department of the Prosecuting Attorney (“DPA”), individual HPD officers, Oceanic Time Warner Cable (“OTWC”), and the Honolulu Fire Department's (“HFD”) HAZMAT response team. Doc. Nos. 11-16. However, only HPD, the City, and Mayor Caldwell were named as Defendants. Doc. Nos. 11-13. And the Amended Complaint alleged that all parties are citizens of Hawaii. Doc. No. 12 at 2.

         The Amended Complaint asserted state law tort and criminal claims, and claims for violation of constitutional rights including equal protection based on race under 42 U.S.C. § 1983. See id.

         Throughout the Amended Complaint, Plaintiff alleged that Defendants and others “FAILED TO HELP ME.” Doc. No. 13 at 2. For example, (1) the HPC allegedly failed to help Plaintiff in response to her complaints against HPD, (2) the DPA declined to prosecute five cases on behalf of Plaintiff based on alleged crimes and injustices over the years, and failed to provide her access to their computer files on those cases, (3) Mayor Caldwell put “‘THINGS BIFOR (sic) PEOPLE;' REFUSE TO HELP ME/US, HUMAN RACE, MAKE U.S. SUFFER, TORCHERING (sic) HOMLES (sic) TO DEATH, DISCRIMINATION; COLOR RACE. CORAPTION (sic).” Id. In addition, the Amended Complaint alleged that (1) Defendants favor Japanese and Polynesians over white United States citizens, as evidenced by the sweeps of homeless camps, taking white people's possessions, but allowing Polynesians to keep their tents and other possessions; (2) Mayor Caldwell denies United States citizens dignity and equal protection against discrimination -- “EVERYONE HAS THE RIGHT TO OWN PROPERTY!”; (3) Mayor Caldwell instructs “THEM” to sweep away homeless people's possessions and “CHASE THEM [around] UNTIL . . . DEATH.” Doc. No. 12 at 2.

         Further, OTWC, allegedly with HPD's assistance, installed an alarm system in Plaintiff's condominium building with a 24/7 surveillance camera, stole Plaintiff's cable box, and disabled her internet connection. Doc. No. 13 at 9. Plaintiff alleged that through this system, others are spying on her and poisoning her home. Id. Despite her numerous reports to HPD over the years documenting property damage, theft, entry into a motor vehicle, forgery, and murder through poison, HPD and her condominium property manager discriminated against her by spreading false rumors that Plaintiff is mentally unstable and paranoid. Id. at 19.

         On January 6, 2016, Plaintiff attended an HPC meeting, but HPC allegedly did not want to help her because she is not Japanese. See Doc. No. 12 at 3; see also Doc. No. 12-3, HPC Minutes of January 6, 2016 meeting. On February 4, 2016, Plaintiff called 911 allegedly requesting a HAZMAT response to test the poison in her home. Doc. No. 14-11. As alleged, HPD officer Pahia Lewis responded in addition to the HAZMAT team, demanded Plaintiff's keys to her condo, threatened to arrest her if she did not provide them, “threw [her] down on the bench and grabbed [her] keys and told the fireman to come with him.” Id. On May 6, 2016, Plaintiff went to the DPA seeking copies of computer files on several cases she says the DPA denied to prosecute, but instead was issued a trespass warning and escorted off the property by HPD. See Doc. No. 12 at 3; see also Doc. No. 12-2.

         Among the documents attached to the Amended Complaint are numerous HPD Incident Reports, see, e, g., Doc. Nos. 14-2 to 14-6, 14-8, 14-9, 14-12; photos of Plaintiff, her business cards, and unidentified individuals, Doc. No. 15; quotations from the Bible with photos of bright lights in a night sky, id.; and photos of Plaintiff's high blood pressure readings, items from her condo that are allegedly poisoned, the air conditioning system through which the poison allegedly is sprayed, the HAZMAT incident, and her missing cable/internet items, Doc. No. 13-1.

         On June 20, 2016, the court dismissed the Amended Complaint as frivolous and failing to state a claim. Doc. No. 20 (“the June 20 Order”). The June 20 Order explained that “to the extent Plaintiff bases a constitutional claim on the theory that HPD is torturing Plaintiff through its involvement with unnamed others' surveillance of her and spraying of deadly poison throughout her residence, such claim is frivolous.” Id. at 12. The June 20 Order further found that the Amended Complaint “in its entirety -- as to both federal and state law claims -- fail[ed] to comply with [Federal Rule of Civil Procedure] 8.” Id. at 12-13. And the June 20 Order found that the Amended Complaint failed to allege sufficient facts to plausibly suggest a claim against the City or Mayor Caldwell. Id. at 14-17.

         In granting Plaintiff leave to amend, the court explained that to state a § 1983 claim, she must allege “(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law.” Id. at 14 (citation omitted). The June 20 Order further explained that to state a § 1983 claim against the City, Plaintiff must allege that a particular constitutional violation was “caused by ‘a policy, practice, or custom of the entity, ' or be the result of an order by a policy-making officer.” Id. at 15 (citation omitted). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id. (citation omitted).

         In addition, the court again explained that Plaintiff must comply with Federal Rule of Civil Procedure 8's requirements as to each defendant. If not, allegations against that “defendant will be dismissed for failure to state a claim.” Id. at 18-19. The June 20 Order further explained that “Plaintiff should not attach voluminous documents and photos to the Second Amended Complaint and expect the court and Defendants to guess what claims those documents and photos support. Nor should Plaintiff submit evidence at this stage of the litigation.” Id. at 18-19. And finally, the court directed the Clerk of Court to mail a copy of the court's approved civil rights complaint form and instructions to Plaintiff. Id. at 19.

         C. The Second Amended Complaint

         On July 22, 2016, Plaintiff filed her Second Amended Complaint (“SAC”). Doc. No. 23. The SAC asserts the same state law tort and criminal claims asserted in prior complaints, as well as new claims for violation of constitutional rights to (1) privacy, (2) equal protection based on race, and (3) protection, under a creation of danger theory.[3] These claims are asserted against some or all of the following Defendants: (1) HPD “from the Deputy Chief down”; (2) HPD Waikiki Substation sergeants and officers on duty; (3) HPD 911 Emergency Response; (4) unnamed HPD officers; (5) Inn on the Park Resident Manager Kevin Kisaw; (6) Louise Alina, landlord to the condo unit next to Plaintiff's unit; (7) OTWC; (8) HPD Officer Lewis; (9) 911 Emergency HFD HAZMAT response team; (10) HPD Detective Carreira Marino; (11) the HPC, and HPC Chair Ronald I. Takea; (12) the DPA; (13) T. Santiago #3470; (14) S. Siu #711; (15) HPD Sergeant Ono; and (16) Mayor Caldwell. Id. at PageID ## 316-331; id. at Pl.'s Exs. 4, 7, 9-13, 15, 17-18.

         These claims appear to be loosely connected by allegations that each of these Defendants is part of one or more related conspiracies against Plaintiff causing her harm. Although Plaintiff separated allegations against particular Defendants and in connection with separate groupings of claims, there is significant overlap.

         The constitutional claims appear to be asserted against HPD and its employees, Kisaw, Alina, OTWC and its employees, HFD, HPC, Taketa, DPA, and/or Mayor Caldwell, and are based on the same general allegations of wrongdoing in connection with (1) dismantling Plaintiff's security system, internet, and TV service; (2) reprogramming Plaintiff's systems through her neighbor's unit -- thereby providing others in the first floor control area of her condominium building 24/7 surveillance of Plaintiff's home, and enabling criminals to commit burglary and vandalism, including the spraying of poison throughout Plaintiff's home; (3) HPD's failure to prevent, stop, or investigate these and many other crimes over many years; (4) DPA's failure to prosecute cases based on some of these crimes over the years; (5) HPC's and Mayor Caldwell's failure to address Plaintiff's complaints against the HPD and DPA; (6) the City's 911 emergency response systems and HFD HAZMAT team's failure to respond to Plaintiff's complaints and calls for help; and (7) Mayor Caldwell's sweeps of the homeless in Honolulu. The SAC alleges that most of these wrongs were done through a series of discriminatory conspiracies -- based on Plaintiff not being Japanese -- involving various Defendants. Attached to the SAC are photos, copies of jury instructions outlining a constitutional right to protection claim based on a creation of danger theory, HPD incident reports, HPC Minutes, trespass warnings, and copies of the Declaration of Independence, Amendments to the United States Constitution, and a publication from the ACLU of Hawaii Foundation titled “Homelessness in the City and County of Honolulu: Know your Rights!” Id., Pl.'s Exs. 1, 5-6, 8, 14, 16, 19-24.

         Plaintiff seeks general, special, and punitive damages, as well as injunctive relief -- sealing her home, investigating the specific type of poison, the return of her property, provision of medical treatment and a safe place to live, ending the harassment, a review of the criminal complaints the DPA failed to prosecute, various investigations, provision of homes for the homeless, and an end to the Mayor's sweeps of the homeless.

         Additionally, the SAC asserts a new claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), [4] against the Social Security Administration (“SSA”) and an unnamed SSA supervisor/manager in both an official and individual capacity. Ex. 2 at PageID ## 334-35. This claim is based on allegations that on August 31, 2012, and for the past 20 years, SSA caseworker “Ms. Watanabe, ” discriminated against Plaintiff by fraudulently altering her bank statements and/or falsely representing to Plaintiff that if she took out a bank loan to cover dental work it would not affect her SSI benefits, and these actions led to a denial of Plaintiff's SSI benefits. See id., Pl.'s Ex. 2. Although Plaintiff allegedly appealed and won her case against the SSA, getting her benefits restored, she did not win punitive damages. For this claim, Plaintiff seeks an award of punitive damages. Id.[5]

         III. STAND ...


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