United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO: (1) DISMISS COMPLAINT
WITH LIMITED LEAVE TO AMEND; (2) DENY PLAINTIFF'S
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING
FEES OR COSTS
Kenneth J. Mansfield United States Magistrate Judge
August 21, 2019, Plaintiff Josephine Grace Lapina
(“Plaintiff”), proceeding pro se, filed a
Complaint for Violation of Civil Rights
(“Complaint”) against Defendants State of Hawaii
(the “State”), Hawaii Child Support Enforcement
Agency (“HCSEA”), Judge David Gierlach
(“Judge Gierlach”),  Barbara Shintani, Jan
Watanabe, Edward Smith, Scot Brower, and Michael J. Sutton
(collectively, “Defendants”), alleging that
Defendants violated her federal civil rights. ECF No. 1. That
same day, Plaintiff filed an Application to Proceed in
District Court Without Prepaying Fees or Costs (“IFP
Application”). ECF No. 2.
Court elects to decide this matter without a hearing pursuant
to Rule 7.1(c) of the Local Rules of Practice for the United
States District Court for the District of Hawaii
(“Local Rules”). For the reasons set forth below,
the Court FINDS AND RECOMMENDS that the district court
DISMISS Plaintiff's Complaint WITH LIMITED LEAVE TO
AMEND. The Court also RECOMMENDS that the district court DENY
WITHOUT PREJUDICE Plaintiff's IFP Application.
Screening Pursuant to 28 U.S.C. § 1915(e)(2)
Court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to a mandatory screening and order the
dismissal of any claims it finds “frivolous, malicious,
failing to state a claim upon which relief can be granted, or
seeking monetary relief from a defendant immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915(e) “not only
permits but requires” the court to dismiss sua sponte
an in forma pauperis complaint that fails to state a claim);
Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per
curiam) (holding that “the provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners”).
avoid dismissal for failure to a state a claim, “a
complaint must contain 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. 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). Rather, “[a] claim
has facial plausibility when the plaintiff pleads sufficient
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). Factual allegations that permit the court to
infer only “the mere possibility of misconduct”
do not show that the pleader is entitled to relief as
required by Federal Rule of Civil Procedure 8. Id.
complaint must also meet Rule 8's requirements that a
complaint include a “short and plain statement of the
claim, ” and that “each allegation must be
simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2),
(d)(1). A district court may dismiss a complaint for failure
to comply with Rule 8 where the Complaint fails to provide
the defendant fair notice of the wrongs allegedly committed.
See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th
Cir. 1996) (affirming dismissal of complaint where “one
cannot determine from the complaint who is being sued, for
what relief, and on what theory, with enough detail to guide
discovery”); cf. Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1105 n.4 (9th Cir. 2008) (finding
dismissal under Rule 8 was in error where “the
complaint provide[d] fair notice of the wrongs allegedly
committed by defendants and [did] not qualify as overly
verbose, confusing, or rambling”).
propriety of dismissal for failure to comply with Rule 8 does
not depend on whether the complaint is wholly without
merit.” McHenry, 84 F.3d at 1179. Rule 8 does,
however, require more than
accusation[s]” and “[a] pleading that offers
labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.”
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). “Nor does a complaint suffice
if it tenders naked assertions devoid of further factual
enhancement.” Id. (quotation marks omitted).
because Plaintiff is appearing pro se, the Court liberally
construes the Complaint. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); see also Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiuam)) (“The Supreme Court has instructed the
federal courts to liberally construe the ‘inartful
pleading' of pro se litigants.”). 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).
Court notes that the factual averments in the Complaint are
difficult to follow, as Plaintiff's “statement of
claim” consists of vague, unorganized text. From what
the Court can glean from the allegations, Plaintiff's
claims arise out of a custody and child support dispute with
her daughters' father, Defendant Michael J. Sutton
Complaint's allegations appear to focus on two
proceedings in the Family Court for the Circuit Court of the
First Circuit, State of Hawaii (“Family Court”).
First, the Complaint refers to an August 21, 2017 proceeding
(“08/21/2017 Proceeding”) before Judge Gierlach.
See ECF No. 1 at 11. The Complaint alleges that
Defendant Edward Smith (“Defendant Smith”)
represented Plaintiff at the 08/21/2017 Proceeding. The
Complaint alleges that Barbara Shintani (“Defendant
Shintani”), a court officer/social worker, testified at
the 08/21/2017 Proceeding regarding a report she had prepared
based on a meeting with Plaintiff and Defendant Sutton
concerning visitation for their children. See Id. at
4, 8, 11. The Complaint alleges that Defendant Shintani
“has change [sic] the wording of her entire
report.” See Id. at 11.
Complaint alleges that, at the end of the 08/21/2017
Proceeding, Judge Gierlach ordered Plaintiff to bring her
daughters to Family Court within one hour. See Id.
The Complaint alleges that the courthouse was closed by the
time Plaintiff returned with her daughters. See Id.
at 13. The Complaint alleges that, when they entered the
courthouse, two sheriffs forcibly separated Plaintiff from
her daughters. See Id. The sheriffs allegedly pulled
the girls away from Plaintiff and pushed them into Defendant
Sutton's car. See Id. Defendant Sutton then sped
off, and Plaintiff claims she has not seen her daughters
since. See id.
the Complaint refers to a subsequent proceeding where
Plaintiff was represented by Defendant Scot Brower
(“Brower”). See Id. at 13. Although
unclear, this proceeding appears to have been a trial
regarding custody on January 8, 2018 (“01/08/2018
Trial”). The Complaint alleges that Defendant Jan
Watanabe (“Defendant Watanabe”), a “CIU
officer, ” testified at the 01/08/2018 Trial that
Defendant Sutton does not have a criminal record and
Plaintiff does. See Id. Defendant Watanabe also
testified that Child Protective Services had found Plaintiff
unable to care for her daughters. See Id. Plaintiff
alleges that the foregoing testimony from Defendant Watanabe
was false. See id.
Complaint alleges that, at the end of the 01/08/2018 Trial,
the presiding judge (whom Plaintiff does not identify by
name) ordered Plaintiff to surrender custody of her daughters
within one hour. See Id. The Complaint alleges that
the judge did so “without notice of the reason for this
immediate action of their taking my daughters by physical
force and detaining me against my will . . . .”
Id. The Complaint alleges that, based on the final
custody order she subsequently received, the Family Court had
awarded sole legal custody of their daughters to Defendant
Sutton. See Id. at 14.
Complaint also refers to family court proceedings in
Kentucky. It is unclear from the allegations, however, what
happened in the Kentucky proceedings and whether and to what
extent the Kentucky proceedings are related to the Hawaii
Family Court proceedings.
Complaint states: “Under the 1st and 14th const. amend.
[sic] The due process clause requires that a state support
it's [sic] allegations by at least clear and convincing
evidence before it may involuntarily divest a parent of her
parental rights.” See Id. Based on this
statement, the Complaint appears to assert claims pursuant to
42 U.S.C. §§ 1983 and 1985 based on alleged due
Complaint's request for relief states: “Criminal
arrest, I want the public to know. Jury decision of the