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Hankins v. Hickam Airforce Base - Naval Magazine Pearl Harbor West Loch Branch

United States District Court, D. Hawaii

September 18, 2017





         Rule 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 FTCA.

         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).

         II. BACKGROUND.

         Hankins 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.

         Hankins’s 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.

         Hankins 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).

         On July 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” motion.

         III. STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).

         Rule 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 jurisdiction.” Id.

         When 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 marks omitted).

         HAFB 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. 1984)).

         The 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 ...

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