United States District Court, D. Hawaii
AMBROSE S. FERNANDEZ, JR. Plaintiff,
MAURICE RICE and HENRY KIM, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
THE STATE OF HAWAII'S MOTION FOR JUDGMENT ON THE
PLEADINGS, OR IN THE ALTERNATIVE, TO DISMISS FOR FAILURE TO
E. Kobayashi United States District Judge
the Court is Defendant State of Hawaii's (“the
State”) Motion for Judgment on the Pleadings, or in the
Alternative, to Dismiss for Failure to Prosecute
(“Motion”), filed on September 28, 2016. [Dkt.
no. 22.] Pro se Plaintiff Ambrose S. Fernandez, Jr.
(“Plaintiff”) did not file a response to the
Motion. 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 and the relevant legal
authority, the State's Motion is HEREBY GRANTED IN PART
AND DENIED IN PART. The State's Motion is GRANTED insofar
as: 1) Plaintiff's tort claims are DISMISSED WITH
PREJUDICE; and 2) this Court ORDERS Plaintiff to appear at a
hearing on May 1, 2017, at 2:00 p.m. to show cause why his
case should not be dismissed for failure to prosecute.
State's Motion is DENIED in all other respects.
November 19, 2015, Plaintiff filed a document that has been
construed as his Complaint. [Dkt. no. 1.] The Complaint named
the following defendants: the State; the Department of Public
Safety, Sheriff Division (“Sheriff's
Division”); Maurice Rice, in his official capacity as
Deputy Sheriff (“Rice”); the Department of the
Attorney General, State of Hawai`i (“AG's
Department”); Matthew Dvonch, in his official capacity
as Deputy Attorney General (“Dvonch”); and Henry
Kim, in his official capacity as Deputy Attorney General
(“Kim, ” all collectively
“Defendants”). The crux of Plaintiff's
Complaint is that, on March 25, 2013 and January 8, 2014, he
attempted to attend a hearing in the State of Hawai`i, First
Circuit Court courthouse, but the Sheriff's Division
denied him entry. He alleges that the denial of entry -
including the failure to remove barriers that prevented him
from entering because of his disabilities and/or limitations
- was a violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12182, et seq.
[Complaint at pgs. 11-12.] Plaintiff states that, because of
his heart implant, he cannot go through metal detectors or
scanning devises because doing so “would cause his
implant batteries to explode, and/or fail and would be
life-threatening.” [Id. at pg. 19.]
also appears to allege a violation of Section 504 of the
Rehabilitation Act (“Section 504”), 29 U.S.C.
§ 794, unspecified state civil rights laws, and the
Hawai`i State Constitution. [Id. at pg. 16, 18.]
Further, Plaintiff alleges that the Sheriff's Division
negligently failed to properly train its deputies in the
applicable laws. [Id. at pgs. 11, 19.] He alleges
that he forever lost the advantages of attending the hearings
and, as a result of the incidents, he suffered
“personal loss, mental anguish as well as emotional
distress, includ[ing] pain, suffering and damages.”
[Id. at pg. 12.]
Complaint prays for the following relief: general,
non-economic, special, and economic damages; any other type
of damages available by statute or under common law; punitive
and exemplary damages; prejudgment interest; attorneys'
fees and costs; and any other appropriate relief.
[Id. at pg. 20.]
State is the only defendant that has appeared in this case.
It filed its answer on December 10, 2015. [Dkt. no. 12.] On
December 1, 2015, Plaintiff filed a Proof of Service stating
that Rice and Kim were served on November 18, 2015 and
asserting that they were designated by law to accept service
of process on behalf of the Sheriff's Division and the
AG's Department. [Dkt. no. 9.] There is no indication in
the record that Plaintiff completed service on Dvonch.
January 15, 2016, Plaintiff filed a motion for default
judgment against the Sheriff's Division, Rice, and Kim.
[Dkt. no. 15.] On January 28, 2016, the magistrate judge
filed his findings and recommendation to deny the motion
(“F&R”), and this Court adopted the F&R
on February 16, 2016. [Dkt. nos. 16, 17.] The motion for
default judgment was premature because Plaintiff failed to
obtain entry of default first. However, since this Court
adopted the F&R, Plaintiff has not attempted to obtain
any entries of default.
magistrate judge held a Rule 16 Scheduling Conference on
February 29, 2016, but Plaintiff did not appear. [Minutes,
filed 2/29/16 (dkt. no. 19).] On January 17, 2017, the
magistrate judge held a trial re-setting conference, but
Plaintiff did not appear. [Minutes, filed 1/17/17 (dkt. no.
29).] Plaintiff has not filed anything in this case since his
motion for default judgment and, as previously stated, he did
not respond to the instant Motion.
instant Motion, the State argues that: all of Plaintiff's
claims against it, as well as against State agencies and
State officials in their official capacity, are barred by the
State's Eleventh Amendment sovereign immunity. In the
alternative, the State argues that this Court should dismiss
the case pursuant to Fed.R.Civ.P. 41(b) because Plaintiff has
failed to prosecute his claims.
Judgment on the Pleadings
Rule of Civil Procedure 12(c) provides: “After the
pleadings are closed - but early enough not to delay trial -
a party may move for judgment on the pleadings.”
“Although [Ashcroft v.] Iqbal[, 556 U.S. 662,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), ] establishes the
standard for deciding a Rule 12(b)(6) motion, we have said
that Rule 12(c) is ‘functionally identical' to Rule
12(b)(6) and that ‘the same standard of review'
applies to motions brought under either rule.”
Cafasso ex rel U.S. v. Gen. Dynamics C4 Sys., Inc.,
637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (citations omitted
and internal quotation marks omitted). On a motion for
judgment on the pleadings, the court must “accept as
true all allegations in [the plaintiff's] complaint and
treat as false those allegations in the answer that
contradict [the plaintiff's] allegations.” Cell
Therapeutics, Inc. v. Lash Grp., Inc., 586 F.3d 1204,
1206 n.2 (9th Cir. 2009) (citation omitted).