United States District Court, D. Hawaii
ORDER GRANTING MOTIONS TO DISMISS WITH LEAVE TO
Derrick K. Watson, Judge
January 23, 2018, Pro Se Plaintiffs Harold Uhane Jim and
Christopher Young filed a Complaint (Dkt. No. 1-2) initiating
the instant lawsuit in the Circuit Court of the Third
Circuit, State of Hawaii. On February 28, 2018, Defendants
County of Hawai‘i and Harry Kim (“County
Defendants”) removed the matter to this Court. Notice
of Removal, Dkt. No. 1. Before the Court are
separate-but-related motions to dismiss the complaint filed
by the County Defendants (Cty. MTD, Dkt. No. 6) and by
Defendants State of Hawaii Department of Hawaiian Home Lands
(the “Department”) and Jobie Masagatani
(collectively “State Defendants”; State MTD, Dkt.
reasons set forth below, the Motions to Dismiss are GRANTED,
and the Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiffs
are permitted 30 days' leave to amend the Complaint,
consistent with the terms of this Order.
lawsuit arises out of an alleged incident that occurred on
November 6, 2016, when Young and another individual
chauffeured Jim to the “Maku‘u [Farmers Market]
Association establishment, ” which is located
“upon Hawaiian home lands in Puna, Hawai‘i”
(Compl. ¶ 8, Dkt. No. 1-2), to protest a policy of the
Department of Hawaiian Homelands (Compl. ¶ 9). During
the visit, Plaintiffs allege that Kekahuna, executive officer
of the Maku‘u Farmers Market Association (the
“Association”), physically assaulted Jim, causing
injuries to his person. Compl. ¶¶ 5, 11-12, Dkt.
No. 1-2. Plaintiffs further claim that the Association served
Plaintiffs with improper notice of criminal trespass, which
caused them emotional and other harm:
10. . . . Ke[k]ahuna, and member of the . . . Association was
upset by the “notice” was giving and she stated
to . . . JIM to [leave] the premises. . . . Jim, went to next
establishments engaged in selling and he bought pastries in
places of public accommodation.
11. . . . Ke[k]ahuna and member of the Association DBA native
Hawaiian race-based grabbed . . . Jim [from] the back and
pulled him [a]way [from] the establishments to [the] ground,
to be dragged along the ground 20 feet, 85 year old man
handicap person, was beetling and in obvious pain, then [the]
Association served Plaintiffs . . ., notice for trespassing,
before being taken to the Hilo Medical Center to have his
injuries checked by a medical doctor.
12. As a result of the excessive nature of the actions of the
Defendants . . ., Jim have suffered emotional and
psychological trauma, as well as financial loss, thereby and
also . . . Young suffered emotional distress and verbally
threatened, as well as financial loss . . . .
13. Plaintiff alleges that it is the duty of the Defendants
and their employees to carry out their duties reasonably, and
not to use excessive means to affect a simple “notice
of protest.” Defendants MOA race-based, practicing
discrimination or showing prejudice, Plaintiffs further
allege that the governmental function was lost by the
excessive nature in which it was carried out. . . .
Plaintiffs allege the action of the Defendants not only the
use of excessive force to prevent the Plaintiffs from
protesting the action of the Defendants and their employees.
But also intimidation to prevent Plaintiffs from exercising
their Hawaii and United States Constitutional Right of freed
of speech, protest, association and the basic right to pursue
their liberty interest without Defendants action to prevent
the free exercise of their Right.
Compl. ¶¶ 8-13, Dkt. No. 1-2.
filed suit in state court on January 23, 2018, alleging eight
causes of action, including-Assault/Battery (“Count
I”; Compl. ¶¶ 14-15); Intentional and/or
Negligent Infliction of Emotional Distress (“Count
II”; Compl. ¶¶ 16-17); “False
Pretension and/or False Representation” (“Count
III”; Compl. ¶¶ 18-19); “Extent of
Trespasser's Liability for Harm, ” which is based
on the “notice of criminal act” (“Count
IV”; Compl. ¶¶ 20-21); Civil Rights Torts
under 42 U.S.C. § 1983 for their actions described in
Counts I-IV (“Count V”; Compl. ¶¶
22-23); “Fourteenth Amendment Claims (Due
Process)” under 42 U.S.C. § 1983 for
“intimidat[ing] and prevent[ing] the Plaintiffs from
exercising their substantive rights” (“Count
VI”; Compl. ¶¶ 24-25); Fourth Amendment and
Common Law Tort Claims under 42 U.S.C. § 1983 for
“excessive and unreasonable force to deprive Plaintiffs
from the rights as alleged before” (“Count
VII”; Compl. ¶¶ 26- 27); and Punitive Damages
(“Count VIII”; Compl. ¶¶
what the Court can discern, Plaintiffs named Jobie
Masagatani, chairperson of the Department (Compl. ¶ 3),
Hawai‘i Mayor Harry Kim (Compl. ¶ 6), and Paula
Kekahuna, executive officer of the Association (Compl. ¶
5), as defendants for “act[ing] under color of
law” to deprive Plaintiffs of their various
constitutional rights. See Compl. ¶ 13
(explaining that Masagatani and Mayor Kim are “sued in
their capacity as government employees and as individual
persons acting in their individual capacity” and that
Kekahuna and the Association are each sued individually and
“in their official capacity for Association”).
Plaintiffs seek unspecified monetary damages and
“[s]uch other and further relief as the Court deems
just and appropriate.” Compl. ¶¶ A-H, Dkt.
Defendants removed the case to federal court on February 28,
2018 (Dkt. No. 1) and moved to dismiss all claims colorably
alleged in the Complaint on March 6, 2018 (Dkt. No. 6).
See Mem. in Supp. of Cty. MTD at 2, Dkt. No. 6-1.
State Defendants filed their related motion to dismiss all
claims on March 15, 2018. State MTD, Dkt. No. 9; Mem. in
Supp. of State MTD, Dkt. No. 9-1.
2, 2018, Plaintiffs requested an extension of time to respond
to the Motions to Dismiss and to object to the removal.
Verification Pl.'s Request for Extension, Dkt. No. 14.
The Court granted Plaintiffs' request in part, allowing
Plaintiffs until May 29, 2018 to respond to the Motions to
Dismiss, but denying an extension of time to object to
removal. Entering Order, Dkt. No. 15. Notwithstanding the
Court's ruling, Plaintiffs objected to removal anyway on
June 8, 2018 (Dkt. No. 19), objections which this Court
denied as untimely. See Entering Order, Dkt. No. 20
(quoting 28 U.S.C. § 1447(c) (“A motion to remand
the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal.”)). Plaintiffs did
not file any response to the Motions to Dismiss-either by the
May 29, 2018 extended deadline or since (see Dkt.
No. 18)-and the Court opted to decide the Motions to Dismiss
without a hearing, under Local Rule 7.2(d). The instant
to Dismiss For Failure to State a Claim
Court may dismiss a complaint under Federal Rule of Civil
Procedure (“FRCP”) 12(b)(6) for “failure to
state a claim upon which relief can be granted” when
there is 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)). In other words, a plaintiff is required to 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).
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).
allegations that only permit the Court to infer “the
mere possibility of misconduct” do not constitute a
short and plain statement of the claim showing that the
pleader is entitled to relief, as required by FRCP 8(a)(2).
Id. at 677, 679 (explaining that the Federal Rules
“do not require ‘detailed factual