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Fernandez v. Rice

United States District Court, D. Hawaii

March 14, 2017

AMBROSE S. FERNANDEZ, JR. Plaintiff,
v.
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 PROSECUTE

          Leslie E. Kobayashi United States District Judge

         Before 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.

         The State's Motion is DENIED in all other respects.

         BACKGROUND

         On 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.]

         Plaintiff 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.]

         The 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.]

         The 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.

         On 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.

         The 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.

         In the 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.

         STANDARD

         I. Judgment on the Pleadings

         Federal 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). ...


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