United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS
E. Kobayashi, United States District Judge
Plaintiff Frederick Hall (“Plaintiff”) filed his
Complaint and Request for Injunction
(“Complaint”) on November 14, 2017. [Dkt. no. 1.]
On March 9, 2018, Defendant Olympic Moving & Storage,
Inc. (“Olympic”) filed its Motion to Dismiss the
Complaint [ECF No. 1] (“Olympic Motion”). [Dkt.
no. 30.] On March 13, 2018, Defendants United States Army,
Department of Defense, and Department of Veterans Affairs
(collectively, “the Government Defendants” and
all collectively, “Defendants”) filed their
Motion to Dismiss (“Government Defendants'
Motion” and both collectively, “Motions”).
The Court finds these matters 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”).
Defendants' Motions are hereby granted in part and denied
in part for the reasons set forth below.
is a disabled veteran who has lost both of his legs.
[Statement of Pleading, for Relief, filed 12/8/17 (dkt. no.
10) (“12/8/17 Statement”), at 2.] Plaintiff's
Complaint explains his entitlement to relief as arising
because, on March 17, 1972, at 4:00 a.m., his life was
threatened: “[w]hen I was about to go on an Emergency
Leave by the - Red Cross, I was rapidly discharged without my
Rights of Due Process at Fort Jackson South Carolina.”
[Complaint at § III.] Plaintiff asks the Court to issue
him “a letter of credit in the amount of 15 million
dollars, ” which would assist with his “housing
and mobility” needs. [12/8/17 Statement at 2.]
the Complaint does not mention Olympic, Plaintiff's
“Clear Defined Statement, ” filed on December 12,
2017 (“12/12/17 Statement”), alleges Olympic
“is guilty of racialism, and discriminatory practices
against people with Disabilities.” [Dkt. no. 13 at 2.]
According to the 12/12/17 Statement, Plaintiff has rented
storage from Olympic since January 2014, and “problems
started to occur” in July 2016, when he was told the
monthly payments for April through July were missing.
[Id.] Plaintiff contends he made these payments.
[Id.] With the 12/12/17 Statement, Plaintiff
submitted: a receipt from Olympic, dated May 31, 2016, for a
credit card charge of $180.00; three invoices from Olympic
for the periods June 1-30, 2016, July 1-31, 2016, and August
1-31, 2016; and two receipts for cashiers checks payable to
Olympic, each for $90, dated April 4 and July 1, 2016. [Dkt.
no. 13-1.] Plaintiff requests the Court “obligate
[Olympic] to move [Plaintiff's] furniture, from the state
of Washington, to the state of Hawaii.” [12/12/17
Statement at 2.]
Motions argue the Complaint should be dismissed with
prejudice. Plaintiff is appearing pro se; consequently, the
Court liberally construes his pleadings. See Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally
construe the ‘inartful pleading' of pro se
litigants.” (citing Boag v. MacDougall, 454
U.S. 364, 365 (1982) (per curiam))).
April 5, 2018, Plaintiff filed a document stating, “it
is unfortunate, but until I can hire an Attorney I cannot
continue, and must Withdraw, or the Court may consider
appointment of Counsel” (“Request”). [Dkt.
no. 36.] Because Olympic has already filed its answer, [filed
2/15/18 (dkt. no. 21), ] Plaintiff's Request cannot be
construed as a notice of voluntary dismissal under
Fed.R.Civ.P. 41(a)(1)(A)(i). Plaintiff's Request is
liberally construed as a memorandum stating his
non-opposition to dismissal without prejudice, and opposing
dismissal with prejudice on the grounds that, after he
obtains counsel, the deficiencies in the Complaint can be
cured by amendment.
Court notes that Plaintiff has twice before sued the same
Defendants, most recently in this district court, and
previously in the United States District Court for the
Western District of Washington. See Hall v. United States
Army, et al., CV 17-00345 HG-RLP (“Hawai`i
Action”); Hall v. Dep't. of the United States
Army, et al., Case No. C16-1846RSM (“Washington
Action”). In the Washington Action, the district court
entered its Order of Dismissal on April 5, 2017, and stated:
“Plaintiff raises allegations of discrimination arising
out of his discharge from the United States Army in 1972.
There are no specific facts discussed, and no indication as
to how the various named Defendants are allegedly liable to
him.” [Washington Action, dkt. no. 5 at 1 (internal
Hawai`i Action, Plaintiff filed a complaint that was
virtually identical to that filed in the instant matter.
See Hawai`i Action, Complaint and Request for
Injunction, filed 7/19/17 (dkt. no. 1). On August 28, 2017,
the magistrate judge provided Plaintiff with notice of the
deficiencies in the Hawai`i Action complaint. See
Hawai`i Action, Findings and Recommendation that the District
Court Dismiss Plaintiff's Complaint with Leave to Amend
and Deny the Pending Motions as Moot (“Hawai`i Action
F&R”), dkt. no. 17, adopted as modified by
Order Adopting the Magistrate Judge's Findings and
Recommendation (ECF No. 17), as Modified, to Dismiss
Plaintiff's Complaint with Leave to Amend and Deny the
Pending Motions as Moot (“Order Adopting Hawai`i Action
F&R”), filed 9/14/17 (dkt. no. 21). The magistrate
The Court has reviewed Plaintiff's Complaint and
concludes that, even liberally construed, the Complaint fails
to state any discernable basis for judicial relief. In his
Complaint, Plaintiff states that he is asserting a claim for
violation of his due process rights. See ECF No. 1
at 4. To state a claim for violation of due process,
Plaintiff must allege facts showing: “(1) a deprivation
of a constitutionally protected liberty or property interest,
and (2) a denial of adequate procedural protections.”
Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir.
2003). Here, it appears that Plaintiff is asserting a claim
for violation of his due process rights related to his
discharge from the United States Army on March 17, 1972.
See ECF No. 1 at 5-6.
Plaintiff's Complaint does not identify the liberty or
property interest at issue and does not allege any facts
regarding the denial of procedural protections. Although
Plaintiff alleges that he was about to go on emergency leave
by the Red Cross and that he believed his life was being
threatened, these allegations do not show that Plaintiff was
denied procedural protections by Defendants. See ECF
No. 1 at 5. Plaintiff does not allege how these facts relate
to his claim against Defendants for a violation of his due
process rights. See id. at 5-6. Further, Plaintiff
does not allege any facts regarding how each Defendant named
in the Complaint violated his rights. The only act alleged in
the Complaint is Plaintiff's discharge, which would
potentially implicate Defendant United States Army, but there
are no facts regarding any action by Defendant Department of
Veteran Affairs, Defendant Disabled American Veterans, or
Defendant Olympic Moving & Storage, Inc. The Court is
unable to discern a basis in the Complaint for any claim
against Defendant Department of Veteran Affairs, Defendant
Disabled American Veterans, or Defendant Olympic Moving &
In response to Defendant Olympic Moving & Storage,
Inc.'s Motion for a More Definite Statement, Plaintiff
filed a Response in which Plaintiff states that Defendant
Olympic Moving & Storage, Inc. engaged in
“discriminatory practices.” See ECF No.
16. However, there are no factual allegations in the
Complaint regarding any actions of Defendant Olympic Moving
& Storage, Inc. See ECF No. 1. If Plaintiff
wishes to assert a claim against Defendant Olympic Moving
& Storage, Inc., he must include sufficient factual
allegations in his complaint to support that claim.
Finally, to the extent Plaintiff is asserting a claim based
on his discharge that occurred in 1972, such claim appears to
be barred by the applicable statute of limitations. Actions
challenging a discharge from the armed services are subject
to the six-year statute of limitations set forth in 28 U.S.C.
§ 2401(a). See Davenport v. England, 222
Fed.Appx. 551, 552 (9th Cir. 2007) (applying six-year statute
of limitations to a pro se plaintiff's complaint against
the Navy challenging his discharge). Here, Plaintiff's
Complaint was filed forty-five years after his discharge,
well after the six-year statute of limitations expired.
[Hawai`i Action F&R at 3-5. These deficiencies in the
complaint in the Hawai`i Action also apply to the virtually
identical Complaint in this case. Plaintiff's Complaint
fails to state a plausible claim upon which relief can be
granted and must be dismissed. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is ...