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Rohr v. Crime Victims Compensation Commission

United States District Court, D. Hawaii

July 22, 2019

CLAUDIA ROHR, Plaintiff,


          Leslie E. Kobayashi, United States District Judge

         On March 6, 2019, Defendant Crime Victims Compensation Commission of the State of Hawaii (“Defendant” and “Commission”) its Second Motion for Summary Judgment (“Defendant's Motion”), and on March 8, 2019, pro se Plaintiff Claudia Rohr (“Plaintiff”) filed her Motion for Summary Judgment (“Plaintiff's Motion”).[1] [Dkt. nos. 134, 137.] On March 25, 2019, Defendant filed its memorandum in opposition to Plaintiff's Motion, and Plaintiff filed her memorandum in opposition to Defendant's Motion. [Dkt. nos. 141, 143.] On April 11, 2019, Plaintiff and Defendant filed their respective replies. [Dkt. nos. 144, 145.] The Court finds Defendant's Motion and Plaintiff's Motion (collectively, “the Motions”) suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). Defendant's Motion is granted, and Plaintiff's Motion is denied for the reasons set forth below.


         The factual and procedural background of this case is set forth in this Order Granting Defendant's Motion for Summary Judgment and Denying Plaintiff's Cross Motion for Summary Judgment, filed September 29, 2017 (“Summary Judgment Order”), and order denying Plaintiff's motion for reconsideration of the Summary Judgment Order, filed on January 16, 2018. [Dkt. nos. 94, 112.] The Court will only discuss the facts relevant to the Motions.

         On June 6, 2016, Plaintiff filed her Amended Complaint as the sole beneficiary on behalf of her deceased husband, Scott Leland Andrews (“Andrews”), [2] alleging a single claim - violation of Title II, Part A of the Americans with Disabilities Act of 1990 (“ADA”), as amended by the Americans with Disabilities Amendments Act of 2008 (“ADAAA”), 42 U.S.C. §§ 12131-34, and its implementing regulations, 28 C.F.R. Part 35 (“Title II Claim”).[3] [Dkt. no. 14 at ¶¶ 61-65.] On January 4, 2017, Defendant filed its motion for summary judgment, and on March 14, 2017, Plaintiff filed her cross motion for summary judgment. [Dkt. nos. 44, 65.] This Court granted Defendant's summary judgment motion after concluding Plaintiff lacked standing to allege a claim on behalf of Andrews, and denied Plaintiff's cross motion for summary judgment. [Summary Judgment Order at 17-18.] Judgment was issued in favor of Defendant on January 16, 2018. [Dkt. no. 113.] On February 14, 2018, Plaintiff filed her Notice of Appeal, and on December 3, 2018, the Ninth Circuit issued its memorandum disposition reversing the Summary Judgment Order, and remanding the case for this Court to “consider in the first instance whether summary judgment is appropriate on an alternate basis.” [Dkt. no. 123 at 2.[4] The Ninth Circuit issued its Mandate on December 26, 2018, and on December 27, 2018, this Court directed the parties to file their respective summary judgment motions. [Dkt. nos. 126 (Mandate), 128 (entering order).] The Court now considers anew whether summary judgment is appropriate.

         In the Amended Complaint, Plaintiff alleges Andrews was assaulted three times from 2007 to 2008, and the assaults aggravated his pre-existing depression and/or bipolar disorder and anxiety. [Amended Complaint at ¶¶ 13-19; Pltf.'s Decl. at ¶¶ 26-30 (discussing the assaults and Andrews's injuries).[5] Andrews submitted an application to the Commission on December 7, 2009, for compensation for his medical and ambulance bills resulting from the April 21, 2008 assault (“4/21/08 Application”), and the December 12, 2008 assault (“12/12/08 Application”). [Amended Complaint at ¶ 21; Pltf.'s Decl., Exh. Q (4/21/08 Application), Exh. R (12/12/08 Application).] The 4/21/08 Application was assigned Case No. 09-0857 (“Case 857”), and the 12/12/08 Application was assigned Case No. 09-0858 (“Case 858”). [Pltf.'s Decl., Exh. Q at 1, Exh. R at 1.]

         The Commission denied Andrews's 4/21/08 Application as untimely in Case 857, but voted to pay Andrews's medical bills submitted with the 12/12/08 Application in Case 858. [Amended Complaint at ¶¶ 36, 39, 43, 46; Pltf.'s Decl., Exh. H (minutes of the Commission's vote on the two applications), Exh. I (Commission Decision and Order in Case 858, dated 6/30/11).] Plaintiff alleges the Commission's separate Decision and Order in Case 857 and 858 were “served upon Andrews” at some point prior to August 5, 2011. [Amended Complaint at ¶¶ 43, 53.] Andrews appealed the Commission's decisions as to both applications to the Third Circuit Court of the State of Hawai`i (“state court”), and the appeals were consolidated in Andrews v. State of Hawaii Crime Victims Compensation Commission, Civil No. 11-1-299 (“State Action”).[6] [Amended Complaint at ¶¶ 43, 53; Pltf.'s Decl., Exh. G (Decision & Order (1) Granting Appellee Crime Victim Compensation Commission's Motion to Dismiss and (2) Dismissing Filings by Appellant Scott Andrews, filed 10/30/12 in State Action).] On October 30, 2012, the state court issued a decision and order dismissing Andrews's appeal of the Commission's decisions due to the state court's limited scope of appeal pursuant to Haw. Rev. Stat. § 351-17(b), and “the concomitant lack of jurisdiction to hear the appeal beyond any claims that the Commission's order or decision was in excess of the Commission's authority or jurisdiction.” [Pltf.'s Decl., Exh. G at 8.] The ICA affirmed the state court's judgment on September 30, 2015 and issued the Judgment on Appeal on December 23, 2015. [Def.'s Concise Statement of Material Facts in Supp. of Motion (“Def.'s CSOF”), filed 3/6/19 (dkt. no. 135), Decl. of Kendall J. Moser (“Moser Decl.”), Exhs. B (Summary Dispo. Order filed in Andrews v. Crime Victim Compensation Commission, No. CAAP-12-0001109), C (Judgment on Appeal, filed in same).] On April 5, 2016, the Hawai`i Supreme Court rejected Plaintiff's application for a writ of certiorari. [Id., Exh. D.]

         Plaintiff wrote a letter dated March 31, 2016 regarding the 4/21/08 Application (“3/31/16 Letter”) in Case 857, and a letter dated April 1, 2016 regarding the 12/12/08 Application (“4/1/16 Letter”) in Case 858, to various Commission personnel and various Department of the Attorney General personnel. [Pltf.'s Decl., Exhs. X (3/31/16 Letter), Y (4/1/16 Letter).] In the 3/31/16 Letter, Plaintiff stated the Commission discriminated against Andrews based on his disability by “refusing to accept Andrews' treating psychiatrist's determination that Andrews was unable to file an application with the Commission within 18 months of the April 21, 2008 assault due to psychological trauma of crime victimization on top of pre-existing diagnosed psychiatric disability, [and] refusing to grant a reasonable accommodation.” [Pltf.'s Decl., Exh. X at 2.] The 3/31/16 Letter also argued the Commission used “too high a standard in their rule allowing for a late application for good cause” and “excessive, intrusive documentation requirement that had the effect of exacerbating psychological trauma from crime victimization. Defeating accomplishment of the objectives of the Commission's program with respect to Scott Andrews.” [Id. at 3.]

         In the 4/1/16 Letter, Plaintiff requested “a reasonable accommodation and/or reasonable modification of the Commission's procedures” by re-opening Case 858 to, inter alia, correct the decision in Case 858 and the improper reduction of the benefits that the Commission had voted to award Andrews, and authorize compensation for certain medical expenses excluded from Andrews's award. [Pltf.'s Decl., Exh. Y at 2-3.[7] Plaintiff alleges she submitted these letters “[b]efore the State court proceedings were closed and while the adverse decisions and orders were inconclusive.” [Amended Complaint at ¶ 55.] Pamela Ferguson-Brey, the Commission's Executive Director, responded in a letter dated April 5, 2016 (“Commission's 4/5/16 Letter”). [Pltf.'s Decl., Exh. Z.] The Commission's 4/5/16 Letter acknowledged receipt of the 3/31/16 Letter, and the 4/1/16 Letter, and stated that the issues raised in Plaintiff's letters “were raised and considered in the Commission hearing, the circuit court, and/or the appellate courts, ” and the cases were closed in light of the denial of Plaintiff's application for a writ of certiorari. [Id.]

         The instant case followed. Plaintiff alleges the Commission's denial of Andrews's application in Case 857 was discriminatory because the Commission

screened out Andrews from participating in and benefitting from the [Commission's] program and services using qualifying criteria that tended to screen out applicants with posttraumatic stress issues from crime victimization that would substantially limit the applicant's ability to think about and communicate about the traumatic incident and take the steps needed to fill out an application and file within 18 months from the traumatic incident. . . .

[Amended Complaint at ¶ 28.] Sonja McCullen, the Commission's investigator, allegedly “utilized rules, policies, practices, and procedures that required too high of standard [sic] of proof of disability” that “subjected Andrews to greater scrutiny than others, public stigmatization, and loss of psychiatric information privacy rights, ” thereby discriminating against Andrews on the basis of his disability. [Id. at ¶¶ 25, 28.] With regard to Case 858, Plaintiff alleges the Commission reduced Andrews's payment award without reason and in a discriminatory manner, and “applied the laws under which the Commission functions differently to Andrews.” [Id. at ¶ 49.] Plaintiff alleges Andrews did not discover the details of the discriminatory acts in both Case 857 and Case 858 until sometime after February 12, 2013, because the Commission's records were under seal in the State Action, and only became available after the records were transmitted to the ICA. [Id. at ¶¶ 37, 54.] Plaintiff seeks various forms of declaratory and injunctive relief for her Title II Claim, an award of compensatory damages, and any other appropriate relief. [Id. at pgs. 28-31.]

         Defendant contends summary judgment is appropriate for the following reasons: Plaintiff's claims are barred by res judicata, collateral estoppel, and/or the Rooker-Feldman doctrine;[8] Plaintiff's claims for monetary damages are barred by the Eleventh Amendment; and Plaintiff's claims are barred by a two-year statute of limitations. Plaintiff argues she is entitled to summary judgment on her sole claim because there are no genuine issues of material fact that Defendant discriminated against Andrews based on his disability.


         I. Preliminary Matters

         First, Plaintiff did not file a separate concise statement of material facts to either support Plaintiff's Motion or dispute the statements of material facts in Defendant's CSOF. However, she relies upon Plaintiff's CSOF, filed on March 14, 2017, in both Plaintiff's Motion and her memorandum in opposition. See, e.g., Pltf.'s Motion at 3-4, 11, 13; Pltf.'s Mem. in Opp. at 3, 8, 11. In deciding not to file a concise statement in support of Plaintiff's Motion, Plaintiff explained she was guided by Local Rule 10.2(d) which discourages “submitting multiple copies of the same exhibit.” [Pltf.'s reply at 4.] The United States Supreme Court has instructed that “[a] document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation marks omitted). Given the Supreme Court's instructions regarding all pro se filings, the Court will consider Plaintiff's CSOF as to both Motions.

         Second, the Moser Declaration, which seeks to authenticate Defendant's Exhibits A through D, is unsigned. [Def.'s CSOF, Moser Decl. at ¶¶ 3-6, pg. 3.] “An unsigned declaration violates both 28 U.S.C. § 1746 and[Local] Rule 7.6.” Quinones v. UnitedHealth Grp. Inc., 250 F.Supp.3d 692, 697 n.7 (D. Hawai`i 2017), reconsideration denied, CIVIL NO. 14-00497 LEK-RLP, 2017 WL 2802721 (D. Hawai`i June 28, 2017).[9] Because the Moser Declaration does not meet the requirements of § 1746, and Local Rule 7.6, it cannot authenticate Defendant's exhibits submitted in support of Defendant's Motion.

         This Court may, however, take judicial notice of facts that are “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” and is not subject to reasonable dispute. See Fed.R.Evid. 201(b). Matters of public record are not subject to reasonable dispute. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through PACER.” (citations omitted)). “A court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.” In re Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011) (citation, brackets, and internal quotation marks omitted)); but see Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“a court cannot take judicial notice of disputed facts contained in such public records” (citation omitted)).

         The Court will consider the exhibits attached to the Moser Declaration because those exhibits are: Plaintiff's Amended Complaint filed in the instant action; [Moser Decl., Exh. A;] the Summary Disposition Order and Judgment on Appeal from the ICA in the State Action; [id., Exhs. B, C;] and the order from the supreme court rejecting Plaintiff's application for writ of certiorari, [id., Exh. D]. This Court will take judicial notice of the existence of these documents, and, where appropriate, judicial notice of adjudicative facts. See Rule 201.

         II. Defendant's Motion

         A. Statute of Limitations

         Defendant argues this Court previously ruled that the two-year statute of limitations applied to Plaintiff's Title II Claim, therefore it is time-barred. [Def.'s Mem. in Supp. of Motion at 13-14 (citing Court's Order Denying Def.'s Motion to Dismiss Amended Complaint Filed on June 6, 2016, filed 11/23/16 (“11/23/16 Order”) (dkt. no. 34) at 13).[10] Defendant also argues the Hawai`i State Tort Liability Act, Haw. Rev. Stat. § 662-4 contains a two-year statute of limitations for actions against the State.[11]

         First, Defendant's reliance upon the 11/23/16 Order is incorrect because this Court issued a subsequent order withdrawing that portion of the 11/23/16 Order. See Order Granting in Part and Denying in Part Pltf.'s Motion for Reconsideration of the Order Denying Def.'s Motion to Dismiss Amended Complaint Filed July 6, 2016, filed 2/28/17 (“Reconsideration Order”) (dkt. no 59).[12] The Reconsideration Order states:

Plaintiff's Amended Complaint states a plausible argument that the four-year statute of limitations period pursuant to [28 U.S.C.] § 1658 may apply to her claim because Andrews may have been a person with disabilities under the ADAAA, but he may not have been under the ADA and the case law interpreting it prior to the ADAAA.
This Court therefore GRANTS Plaintiff's Motion for Reconsideration insofar as this Court WITHDRAWS the portion of the 11/23/16 Order concluding that the two-year statute of limitations period in Haw. Rev. Stat. ยง 657-7 applies to Plaintiff's claim. This Court must make findings of fact regarding Andrews's alleged disabilities to determine which ...

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