United States District Court, D. Hawaii
ORDER DENYING DEFENDANTS HUNT, WAKITA, TINGLE,
TAVARES, AND ISHII'S MOTION TO DISMISS, ECF NO.
Michael Seabright Chief United States District Judge.
the court is Defendants Hawaii County Police
(“HCP”) Officer Brian Hunt (“Hunt”),
HCP Sergeant Wakita (“Wakita”), HCP Sergeant
Tingle (“Tingle”), HCP Officer Shaine
Tavares (“Tavares”), and HCP Officer
Kenneth Ishii's (“Ishii”) (collectively, the
“HCP Defendants”) Motion to Dismiss pro se
Plaintiff Ruth-Ann Springer's (“Plaintiff”)
Complaint. For the reasons set forth below, the
Motion is DENIED.
8, 2017, Plaintiff filed a “Complaint for Violation of
Civil Rights” (“Complaint”) against the HCP
Defendants and realtor Lori Henbest (“Henbest”)
(collectively, the “Eviction Defendants”), and
State of Hawaii Judge Harry P. Freitas (“Judge
Freitas”), ECF No. 1, and an Application to proceed in
forma pauperis (“IFP Application”), ECF No. 4. On
June 23, 2017, Plaintiff filed a Motion for Temporary
Injunction. ECF No. 9. On July 11, 2017, this court granted
the IFP Application, dismissed the Complaint in part for
failure to state a claim, and denied the Motion for Temporary
Injunction (the “July 11 Order”). ECF No. 11. The
July 11 Order dismissed claims against Judge Freitas without
leave to amend, dismissed Plaintiff's conspiracy claim
with leave to amend, and determined that the remaining claims
against the Eviction Defendants could proceed. Id.
August 1, 2017, Plaintiff filed a document titled
“Complaint: Write of Error is of the District of the
Hawaii Federal: Title 42, ” which the court construed
as a First Amended Complaint (“FAC”). ECF No. 14.
On August 4, 2017, the court dismissed the FAC without leave
to amend for failure to state a claim and directed service of
the original Complaint against the Eviction Defendants. ECF
November 8, 2017, the HCP Defendants filed the instant Motion
to Dismiss. ECF No. 37. The court set Plaintiff's
response deadline for December 29, 2017. ECF No. 38. On
January 3, 2018, the court ordered Plaintiff to state whether
she intended to oppose the Motion to Dismiss and if so, why
she failed to meet the December 29, 2017 deadline to file her
Opposition. ECF No. 50. On January 5, 2018, Plaintiff filed a
“Notice of the Counter Claim of the Stay of the
Defendants Motion, ” ECF No. 49, which the court
construed as both a response to the court's January 3
Order and an Opposition to the Motion to Dismiss, ECF No. 50.
On January 16, 2018, the HCP Defendants filed a Reply. ECF
No. 51. On January 22, 2018, Plaintiff filed a
“Statement and Proof for Not Dismissing the
Defendant's (sic) Hunt, et al. Claims: Case# 17-00269
JMS-KSC.” ECF No. 52. A hearing was held on January 22,
action arises from a State of Hawaii foreclosure and
eviction, and subsequent criminal proceedings. As alleged in
the Complaint, on January 15, 2016, the Eviction Defendants
removed Plaintiff from her home on the Big Island of Hawaii
pursuant to an expired writ of possession. Compl. at 6
(“3 Officers, 2 Sargent's, [(sic)] and a
Real-estate agent, using an old writ of possession that the
statute of limitation had run out . . . took possession of my
property.”). Hunt allegedly “took down the KAPU
sign that was . . . protecting [Plaintiff] on her
land.” Id. at 9. The Complaint further alleges
that Plaintiff “was home, ” and when Hunt went to
move her from her seated position, she “raised both
arms and hands in the air and told [O]fficer Hunt, ‘I
know you are arresting me. I am cooperating with you. I am
not resisting so what do you want me to do.'”
Id. at 11; see also id. at 9. Hunt arrested
Plaintiff. Id. at 9, 10; see also Id. at 11
(“Officer Hunt made a personal decision to make it a
criminal matter.”). Plaintiff was then detained,
subject to bail. See Id. at 7 (“I was detained
without my consent for violating a statute, I have just been
kidnapped.”); see also Id. at 11 (“[T]he
prosecutors and Sargent Wakita set the ransom for my liberty
. . . [and state court] Judge Freitas confirmed the charges
and the ransom[.]”).
Complaint alleges that during the course of Plaintiff's
Officer Hunt assaulted me . . . tearing my rotator cuff when
he grabbed my right arm and jerked me up from where I was
sitting. After hand-cuffing me, he picked me up by my hands
that were cuffed behind my back, forcing me to bend my body
in half to ease the pain in my shoulder joints. I begged him
to stop hurting me and that I was not resisting arrest. . . .
My arm has limits of motion that cannot be fixed. . . . Also,
when Officer Hunt was finger-printing me, he grabbed at my
fingers and squeezed hard. I complained because my fingers
are very sore and hurt when touched because of my
Id. at 9-10.
at some point during the eviction, Henbest “assaulted
me by shoving [me] into the hall wall hard enough to knock
the wind from me.” Id. at 10. The Complaint
alleges that Henbest had the locks replaced on the home and
removed Plaintiff's possessions. Id.
“[B]anks and the real estate agent allegedly sold
[Plaintiff's] home.” Id. at 9.
Subsequently, “people were moved into my home and after
the case was dismissed, my property was never
returned.” Id. at 11.
remainder of the Complaint is filled with nonsensical
opinions, assumptions, conclusory allegations, and
pronouncements. As a result of the foregoing, Plaintiff
allegedly suffered severe mental anguish and depression,
physical injuries, had a nervous breakdown, lost everything,
and became homeless. Id. at 11, 12.
Complaint asserts 42 U.S.C. § 1983 claims against the
Eviction Defendants in their individual capacities only,
violation of, and conspiracy to violate, Plaintiff's
statutory and/or constitutional rights, particularly those
protected by the Fourth Amendment. Id. at 4-7,
The Complaint further asserts state-law claims for assault
and battery, and intentional and negligent infliction of
emotional distress. The Complaint seeks (1) compensatory
damages for permanent injuries to Plaintiff's shoulder;
(2) $2, 785, 750.00 in compensatory damages for the lost
property and the toll on Plaintiff's physical and mental
health; (3) $6, 913, 002.00 in “actual material
losses”; (4) $25, 000, 000.00 per violation (12
violations) of Plaintiff's rights protected by the United
States and Hawaii constitutions; and (6) the incarceration of
all Defendants for five years, and forfeiture of all they
evidenced by documents publicly filed with the State of
Hawaii District Court of the Third Circuit, Puna Division,
and attached to the Motion,  a non-judicial foreclosure was
conducted against real property at 15-1784 13th Avenue,
Keaau, Hawaii 96749 (the “subject property”),
resulting in (1) a February 28, 2012 Judgment for
Possession in favor of the Federal National Mortgage
Association and against Plaintiff (and two others), and (2) a
Writ of Possession, effective February 27,
2012. See Exs. A, B, ECF Nos. 37-3,
37-4. The Writ commanded the removal of Plaintiff (and her
two co-defendants), and their personal belongings, from the
subject property. ECF No. 37-4.
not provided by the parties, the court also takes judicial
notice of the state-court docket in the underlying
foreclosure action which shows that also filed on February
28, 2012 was an “Order Granting Plaintiff's Motion
for Summary Judgment and Writ of Possession” (the
“February 28, 2012 Order”). See Hawaii
State Judiciary's Public Access to Court Information
gov/#/case?caseId=3RC111000287 (last visited Feb. 7, 2018).
On March 9, 2012, Plaintiff filed a Motion for
Reconsideration of the February 28, 2012 Order, which was
granted on July 13, 2012. Id. The July 13
Order states that “[t]he February 28, 2012 Order
Granting Plaintiff's Motion for Summary Judgment and Writ
of Possession is hereby stricken.” Defs.' Notice,
Ex. 1 at 2, ECF No. 55-1. Somewhat confusingly, on December
19, 2012, a “Satisfaction of Judgment for Possession
Filed February 28, 2012” was filed that references the
February 28, 2012 Order and a March 25, 2012 lockout on the
subject property, but not the July 13, 2012 Order.
See Ho'ohiki, http://hoohiki.
courts.hawaii. gov/#/case?caseId=3RC111000287; see
also Defs.' Notice, Ex. 2 at 2, ECF No. 55-2. In
short, although the court takes judicial notice of these
state-court filings, they are confusing and provide this
court with no clear understanding as to the validity of
either the Judgment for Possession or Writ of Possession.
finally, the court takes judicial notice that on February 3,
2016, the County of Hawaii filed a criminal complaint in the
State of Hawaii District Court of the Third Circuit, Puna
Division against Plaintiff for “Criminal Trespass in
the First Degree, in violation of [Hawaii Revised Statutes
(“HRS”)] Section 708-813(1)(a)(1), ” and
alleging that “[o]n or about the 15th day of January,
2016 . . . RUTH ANN SPRINGER knowingly entered and/or
remained unlawfully in a dwelling[.]” ECF No. 37-5.
STANDARDS OF REVIEW
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be
granted.” A Rule 12(b)(6) dismissal is proper when
there is either a “‘lack of a cognizable legal
theory or the absence of sufficient facts
alleged.'” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th
Cir. 2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
a plaintiff need not identify the legal theories that are the
basis of a pleading, see Johnson v. City of Shelby,
Mississippi, 135 S.Ct. 346, 346 (2014) (per curiam), a
plaintiff must nonetheless allege “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Weber v. Dep't of Veterans Affairs, 521 F.3d
1061, 1065 (9th Cir. 2008). This tenet - that the court must
accept as true all of the allegations contained in the
complaint - “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Twombly,
550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a
complaint or counterclaim may not simply recite the elements
of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.”). And the
court need not accept as true allegations contradicted by
judicially noticeable facts. Shwarz v. United
States, 234 F.3d 428, 435 (9th Cir. 2000); Heineke
v. Santa Clara Univ., 2017 WL 6026248, at *4 (N.D. Cal.
Dec. 5, 2017) (citing Shwarz).
“[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556). Factual
allegations that only permit the court to infer “the
mere possibility of misconduct” do not show that the
pleader is entitled to relief as required by Rule 8.
Iqbal, 556 U.S. at 679.
Pro Se Pleadings
Plaintiff is proceeding pro se, the court liberally construes
her Complaint. See Erickson v. Pardus, 551 U.S. 89,
94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 1987) (per curiam). The court also recognizes that
“[u]nless it is absolutely clear that no amendment can
cure the defect . . . a pro se litigant is entitled to notice
of the complaint's deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995);
see also Crowley v. Bannister, 734 F.3d 967, 977-78
(9th Cir. 2013). A court may, however, deny leave to amend
where further amendment would be futile. See, e.g.,
Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522,
532 (9th Cir. 2008) (reiterating that a district court may
deny leave to amend for, among other reasons “repeated
failure to cure deficiencies by amendments previously allowed
. . . [and] futility of amendment”).