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Lapina v. State

United States District Court, D. Hawaii

September 24, 2019

JOSEPHINE GRACE LAPINA, Plaintiff,
v.
STATE OF HAWAII; HAWAII CHILD SUPPORT ENFORCEMENT AGENCY; DAVID GIERLACH; BARBARA SHINTANI; JAN WATANABE; EDWARD SMITH; SCOT BROWER; and MICHAEL J. SUTTON, Defendants.

          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

         On 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”), [1] 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.

         The 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.

         DISCUSSION

         I. The Complaint

         A. Screening Pursuant to 28 U.S.C. § 1915(e)(2)

         The 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”).

         To 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. at 679.

         A 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”).

         “The 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 “the-defendant-unlawfully-harmed-me 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).

         Moreover, 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).

         B. The Complaint's Allegations

         The 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 (“Defendant Sutton”).

         The 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.

         The 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.

         Second, 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.

         The 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.

         The 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.

         The 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 process violations.

         The Complaint's request for relief states: “Criminal arrest, I want the public to know. Jury decision of the ...


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