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Jim v. State, Department of Hawaiian Home Lands

United States District Court, D. Hawaii

August 7, 2018



          Derrick K. Watson, Judge

         On 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. No. 9).[1]

         For the 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.


         This 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.

         Plaintiffs 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. ¶¶ 28-29).[2]

         From 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. No. 1-2.

         County 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.

         On May 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 disposition follows.


         Motion to Dismiss For Failure to State a Claim

         The 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).

         “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 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 ...

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