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Springer v. Hunt

United States District Court, D. Hawaii

February 13, 2018

RUTH-ANN SPRINGER, Plaintiff,
v.
FFICER BRIAN HUNT, ET AL., Defendants.

          ORDER DENYING DEFENDANTS HUNT, WAKITA, TINGLE, TAVARES, AND ISHII'S MOTION TO DISMISS, ECF NO. 37

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         Before the court is Defendants Hawaii County Police (“HCP”) Officer Brian Hunt (“Hunt”), HCP Sergeant Wakita (“Wakita”), HCP Sergeant Tingle (“Tingle”), HCP Officer Shaine Tavares[1] (“Tavares”), and HCP Officer Kenneth Ishii's (“Ishii”) (collectively, the “HCP Defendants”) Motion to Dismiss pro se Plaintiff Ruth-Ann Springer's (“Plaintiff”) Complaint.[2] For the reasons set forth below, the Motion is DENIED.

         II. BACKGROUND

         A. Procedural Background

         On June 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. at 15-16.

         On 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 No. 16.

         On 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, 2018.[3]

         B. Factual Background

         This 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[.]”).

         The Complaint alleges that during the course of Plaintiff's arrest:

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 osteoarthritis disfiguration.

Id. at 9-10.

         Further, 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.

         The remainder of the Complaint is filled with nonsensical opinions, assumptions, conclusory allegations, and pronouncements.[4] 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.

         The Complaint asserts 42 U.S.C. § 1983 claims against the Eviction Defendants in their individual capacities only, [5] for violation of, and conspiracy to violate, Plaintiff's statutory and/or constitutional rights, particularly those protected by the Fourth Amendment. Id. at 4-7, 11.[6] 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;[7] and (6) the incarceration of all Defendants for five years, and forfeiture of all they own. Id.

         As evidenced by documents publicly filed with the State of Hawaii District Court of the Third Circuit, Puna Division, and attached to the Motion, [8] 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[9] in favor of the Federal National Mortgage Association and against Plaintiff (and two others), and (2) a Writ of Possession, effective February 27, 2012.[10] 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.[11]

         Although 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 (“Ho'ohiki”), http://hoohiki.courts.hawaii. 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.

         And 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.

         III. STANDARDS OF REVIEW

         A. Rule 12(b)(6)

         Federal 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)).

         Although 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).

         Rather, “[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.

         B. Pro Se Pleadings

         Because 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”).

         IV. ...


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