United States District Court, D. Hawaii
ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION
TO GET CLARIFICATION FOR JUDGMENT
OKI MOLLWAY UNITED STATES DISTRICT JUDGE
8(a)(2) of the Federal Rules of Civil Procedure requires
complaints to present “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Plaintiff Jason Hankins, proceeding pro se,
filed a Complaint that is neither short nor plain. The court
has attempted to discern what claim is being asserted. The
Complaint appears to invoke the Federal Torts Claim Act
(“FTCA”), insofar as it alleges that equipment at
Defendant Hickam Air Force Base (“HAFB”) injured
Hankins and others. However, the Complaint does not say
whether Hankins presented his damages claim to HAFB before
filing suit, which is a jurisdictional requirement under the
United States moves to dismiss the Complaint for lack of
subject matter jurisdiction or, alternatively, for failure to
state a claim upon which relief can be granted. The court
grants the motion on jurisdictional grounds. Because the
court lacks jurisdiction, the court also denies
Plaintiff’s Motion to Get Clarification of Judgment.
The court decides the motions without a hearing pursuant to
Local Rule 7.2(d).
filed a “Proposed Judgment; Affidavit” in the
First Circuit of Hawaii on May 26, 2017, which this court
construes as Hankins’s Complaint. See ECF No.
1-1, PageID # 6. The United States removed the case to this
court on June 12, 2017. ECF 1, PageID # 3.
Complaint is not easily deciphered. It seeks unspecified
damages following HAFB’s alleged operation of
“Equipment” that caused “Severe Harm”
to several individuals, including Hankins, residing at
Kapalina Beach Homes in Ewa Beach, Hawaii. ECF 1-1, PageID #
7, 33-34. The Complaint variously refers to this
“Equipment” as “Nas Daq Equipment,”
“Tamp Equipment,” “Prodigy
Equipment,” a “Containment Unit,” and
“Sysco Technology Software.” Id., PageID
# 9-11, 31. Hankins claims that this equipment is
“Harassing [and] Terrorizing the People,”
“Waking a Person from Sleeping,” “Keeping
the People in the Area,” “Controlling the People
[by] . . . Changing The Way that They Live,” and
“Hit[ting]” people “with the Conversion of
Energy” and making them “Pass Out.”
Id., PageID # 10, 11, 21, 24, 27. Hankins is the
only specifically identified person among those allegedly
harmed by the equipment. See, e.g., id.
PageID # 14.
appears to be trying to state a claim under the FTCA. The
Complaint does not cite the FTCA, but the allegations concern
allegedly disruptive Air Force equipment, and the FTCA is
“the exclusive remedy for tortious conduct by the
United States” or federal agencies. F.D.I.C. v.
Craft, 157 F.3d 697, 706 (9th Cir. 1998). The Complaint
does discuss State of Hawaii criminal laws and other
“penal code” provisions, but it references no
federal law. See ECF 1-1, PageID # 9, 16, 26
(mentioning portions of the Michigan Freedom of Information
Act, Mich. Comp. Laws §§ 15.233, 15.235 (West
2017); a Michigan anti-stalking provision, id.
§ 750.411h (West 2017); a Michigan evidentiary
provision, id. § 750.157 (West 2017); and a
Hawaii provision incorporating the common law, Haw. Rev.
Stat. § 1-1 (West 2017)); see also ECF 5-4
(appending most of these statutes as exhibits).
20, the United States moved to dismiss the Complaint under
Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in
the alternative, Rule 12(b)(6). ECF 13-1. On August 1,
Hankins filed a “Motion to Get Clarification for
Judgment.” ECF 17. The court dismisses the Complaint
and denies Hankins’s “clarification”
STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).
12(b)(1) authorizes a court to dismiss claims over which it
lacks subject matter jurisdiction. An attack on subject
matter jurisdiction “may be facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). A facial attack asserts that “the
allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”
Id. A factual attack, on the other hand,
“disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
the moving party makes a facial challenge, the court’s
inquiry is “confin[ed] . . . to allegations in the
complaint.” Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1040 (9th Cir. 2003). Those
allegations are taken by the court as true. Courthouse
News Serv. v. Planet, 750 F.3d 776, 780 (9th Cir. 2014).
On the other hand, if the moving party makes a factual
challenge, the court may consider evidence beyond the
complaint and “need not presume the truthfulness of the
plaintiff’s allegations.” Id.
“Once the moving party has converted the motion to
dismiss into a factual motion by presenting affidavits or
other evidence properly brought before the court, the party
opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Id. (quoting
Savage v. Glendale Union High Sch., 343
F.3d 1036, 1039 n.2 (9th Cir. 2003)) (internal quotation
alternatively moves under Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Dismissal under Rule 12(b)(6) may be
based on either: (1) lack of a cognizable legal theory, or
(2) insufficient facts under a cognizable legal theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1988) (citing Robertson v. Dean Witter
Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir.
court addresses the jurisdictional challenges first,
reserving Rule 12(b)(6) matters for later consideration if,
with an Amended Complaint, the court ultimately determines
that it has subject matter jurisdiction. The ...