Hasegawa et al v. State of Hawaii et al

Filing 38

ORDER: (1) GRANTING DEFENDANTS' MOTION TO DISMISS 9 ; AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT 28 . Signed by JUDGE DAVID ALAN EZRA on 5/24/2011. [Order follow s hearing held 5/12/2011 re: Motions to Dismiss 9 , 28 . Minutes of Hearing - docket entry no. 34 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

CLIFTON MASAYOSHI
HASEGAWA, in personam, and
President and CEO, CLIFTON M.
HASEGAWA & ASSOCIATES,
LLC, a duly registered Hawaii
Limited Liability Company

)
)
)
)
)
)
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Plaintiffs,
)
)
vs.
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STATE OF HAWAII, LINDA
)
LINGLE, former Governor in then )
official capacity and in personam,
)
MARK BENNETT, former Attorney )
General, in his official capacity and )
in personam,
)
)
Defendants.
)
_____________________________ )

CV NO 10-00745 DAE-BMK

ORDER: (1) GRANTING DEFENDANTS’ MOTION TO DISMISS; AND (2)
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
DISMISS AND MOTION FOR SUMMARY JUDGMENT
On May 12, 2011, the Court heard Defendants’ Motion to Dismiss
Complaint filed December 14, 2010, First Amended Complaint filed December 15,
2010, and Second Amended Complaint filed December 20, 2010 (Doc. # 9), and
Plaintiff’s Motion to Dismiss; Motion for Summary Judgment (Doc. # 28).
Plaintiff Clifton Masayoshi Hasegawa, pro se, appeared at the hearing on behalf of

himself; Deputy Attorney General John F. Molay appeared at the hearing on behalf
of the Defendants. After reviewing the motions and the supporting and opposing
memoranda, the Court GRANTS Defendants’ Motion to Dismiss (Doc. # 9) and
GRANTS IN PART and DENIES IN PART Plaintiff’s Motion to Dismiss and
Motion for Summary Judgment (Doc. # 28).
BACKGROUND
On December 14, 2010, Plaintiff Clifton Masayoshi Hasegawa, both
in his individual capacity and on behalf of Clifton M. Hasegawa & Associates,
LLC (“Plaintiff”), filed a Complaint against Defendants the State of Hawaii,
former Governor Linda Lingle (“Lingle”) in both her official and individual
capacities, and former Attorney General Mark Bennett (“Bennett”), in his official
and individual capacities (collectively, “Defendants”). (“Compl.,” Doc. # 1.) On
December 15, 2010, Plaintiff filed a First Amended Complaint (“FAC”) against
Defendants. (FAC, Doc. # 6.) On December 20, 2010, Plaintiff filed a Second
Amended Complaint (“SAC”) against Defendants. (SAC, Doc. # 8.)
Plaintiff’s Complaint, FAC and SAC, collectively set forth a variety
of allegations against Defendants.1 First, Plaintiff claims that he was retaliated

1

Plaintiff is advised that pursuant to Local Rule 10.3 “an amended pleading
shall reproduce the entire pleading as amended and may not incorporate any part of
a prior pleading by reference, except with leave of the court.” Additionally, as a
2

against and subjected to criminal prosecution as a result of filing a Title VII and
Equal Pay Act complaint with the Equal Employment Opportunity Commission
(“EEOC”) and Hawaii Civil Rights Commission (“HCRC”) against the State of
Hawaii. (Compl. at 2.) He then states claims involving other rights implicated in
his criminal prosecution in the Circuit Court, First Circuit, State of Hawaii (Id. at
2–4.) Plaintiff next alleges various misuses and misappropriation of government
funds relating to the Hawaii Superferry, ceded land, the Ala Wai Canal, community
health centers, the proposed rail project, Turtle Bay Resort, and furlough Fridays.
(Id. at 4; FAC at 2–7.) Additionally, Plaintiff contends that probation violators are
being detained without due process. (FAC at 7–8.) Plaintiff also sets forth
allegations against Lingle claiming improper favoritism within her administration.

general rule, an amended complaint supercedes the original complaint. Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,
567 (9th Cir. 1987); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an
amended complaint is filed, the original pleading no longer serves any function in
the case. Although “[p]ro se litigants must follow the same rules of procedure that
govern other litigants,” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), the
Court also recognizes that when a plaintiff appears pro se, the Court has an
obligation to construe the plaintiff’s complaint liberally, See Bernhardt v. Los
Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). Thus, the Court considers all
allegations made in Plaintiff’s Complaint, FAC, and SAC for purposes of the
instant motions. However, the Court cautions Plaintiff that if he chooses to file a
third amended complaint, he must state the claims he wishes to bring before the
Court in their entirety, as the Court will not consider any prior complaint filed by
Plaintiff.
3

(Id. at 8–9.) Plaintiff’s remaining claims stem from incidents occurring during his
imprisonment. First, he expresses discontent about the practices and procedures
regarding kosher diets in prisons (Compl. at 5), and second, in an attachment to his
Complaint, Plaintiff seeks the return of items allegedly taken from him when he
was imprisoned, and damages for other monetary losses he allegedly suffered
while imprisoned (Id. at Ex. 4).
On December 23, 2010, Defendants filed a Motion to Dismiss
Complaint filed December 14, 2010, First Amended Complaint filed December 15,
2010, and Second Amended Complaint filed on December 20, 2010 (“Motion to
Dismiss”). (“Mot 1,” Doc. # 9.) On January 5, 2011, Plaintiff filed a Response to
Defendants’ Motion to Dismiss (“Plaintiff’s Opposition”). (“Opp’n 1,” Doc. # 14.)
On April 1, 2011, Plaintiff filed a Motion to Dismiss; Motion for Summary
Judgment. (“Mot 2,” Doc. # 28.) On April 11, 2011, Defendants filed a Response
regarding Plaintiff’s Motion to Dismiss; Motion for Summary Judgment
(“Defendants’ Opposition”). (“Opp’n 2,” Doc. # 31.)

STANDARD OF REVIEW
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“Rule”), a motion to dismiss will be granted where the plaintiff fails to state a

4

claim upon which relief can be granted. Review is limited to the contents of the
complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.
1994). A complaint may be dismissed as a matter of law for one of two reasons:
“(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable
legal claim.” Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.
1984) (citation omitted). Allegations of fact in the complaint must be taken as true
and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd.
v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
In providing grounds for relief, however, a plaintiff must do more than recite the
formulaic elements of a cause of action. See id. at 556–57; see also McGlinchy v.
Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (“[C]onclusory allegations
without more are insufficient to defeat a motion to dismiss for failure to state a
claim.”) (citation omitted). “The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions,” and
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations
and citations omitted). Thus, “bare assertions amounting to nothing more than a
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formulaic recitation of the elements” of a claim “are not entitled to an assumption
of truth.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[T]he
non-conclusory ‘factual content,’ and reasonable inferences from that content,
must be plausibly suggestive of a claim entitling the plaintiff to relief.”) (internal
quotations and citations omitted).
A court looks at whether the facts in the complaint sufficiently state a
“plausible” ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must
include enough facts to raise a reasonable expectation that discovery will reveal
evidence and may not just provide a speculation of a right to relief. Id. at 586.
When a complaint fails to adequately state a claim, such deficiency should be
“exposed at the point of minimum expenditure of time and money by the parties
and the court.” Id. at 558 (citation omitted). If a court dismisses the complaint or
portions thereof, it must consider whether to grant leave to amend. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be
granted “if it appears at all possible that the plaintiff can correct the defect”)
(internal quotations and citations omitted).

6

DISCUSSION
I.

Plaintiff Clifton M. Hasegawa & Associates, LLC
Plaintiff filed this action on behalf of himself and on behalf of his

company, Clifton M. Hasegawa & Associates, LLC. In Defendants’ Motion to
Dismiss, they argue that pursuant to Local Rule (“LR”) 83.11, “[a] corporation
may not be represented before the Court by itself or its officers and it must have
the representation of an attorney.” (Mot. 1 at 5.) Indeed, LR 83.11 states that
“[b]usiness entities, including but not limited to corporations, partnerships, limited
liability partnerships, limited liability corporations, and community associations,
cannot appear before this court pro se and must be represented by an attorney.” LR
83.11.
Although Plaintiff appears to indicate that he has had some legal
training, he is not a member of the bar of the State of Hawaii, has not been
admitted to the bar of this Court, and pursuant to LR 83.2, may not practice before
this Court.2 Thus, as a pro se Plaintiff, he may not represent Clifton M. Hasegawa
& Associates, LLC in the instant matter. Accordingly, Clifton M. Hasegawa &
Associates, LLC is DISMISSED WITHOUT PREJUDICE from this action.

2

The Court notes that members of other State bars or the bar of the District
of Columbia may apply to appear before this Court pro hac vice, however there is
no indication that Plaintiff has done so in this case.
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II.

Plaintiff’s Motion to Dismiss
On April 1, 2011, Plaintiff filed a Motion to Dismiss; Motion for

Summary Judgment, seeking in part dismissal with prejudice of three out of the
four counts stated in his pleadings. The Court notes that Plaintiff’s Complaint,
FAC, and SAC do not state independent counts, thus it is unclear as to what counts
Plaintiff is referring to. In any event, Plaintiff seeks to dismiss his “counts” for:
“[r]ecovery of damages that may accrue to Plaintiff based on the Complaint of
discrimination”; “[r]ecovery of damages that may accrue to Plaintiff by reason of
the acts of negligence, omission and/or intended by Defendants”3; and “[r]ecovery

3

The Court construes this “count” as referring to Plaintiff’s general
grievances in the Complaint, FAC, and SAC about Defendants’ misuse and
misappropriation of government funds, probation violators being held without due
process, Lingle’s alleged favoritism, and various other accusations lobbied against
the government not relating to Plaintiff personally. This belief is further supported
by Plaintiff’s statement in his Motion to Dismiss; Motion for Summary Judgment
that “some issues have over time resolved themselves and others are better
addressed by Governor Abercrombie and the Legislature.” (Mot. 2 at 3.)
However, to the extent Plaintiff did not intend to dismiss all such general
grievances in his Motion to Dismiss; Motion for Summary Judgment, such causes
of action must be dismissed regardless because Plaintiff lacks the requisite
standing. Plaintiff’s general grievances regarding misuse and misappropriation of
government funds, probation violators, and Lingle’s favoritism, are, as a matter of
law, not sufficient to establish standing. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 64 (1997) (“An interest shared generally with the public at
large in the proper application of the Constitution and laws will not do.”); Lance v.
Coffman, 549 U.S. 437, 439 (2007) (“We have consistently held that a plaintiff
raising only a generally available grievance about government - claiming only
harm to his and every citizen’s interest in proper application of the Constitution
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and award that may accrue to Plaintiff as a whistle blower for breach of fiduciary
duties.”4 (Mot. 2 at 2–3.) Thus, it appears Plaintiff only intends to move forward
with his count seeking “[r]ecovery of the replacement value of cash and personal
property bailed on the State of Hawaii, Office of the Attorney General when
Plaintiff was taken into custody and extradited for the Maui Police Department jail,
Wailuku, Hawaii.” (Id. at 2.)
Federal Rule of Civil Procedure (“Rule”) 41(a)(2) allows a plaintiff,
pursuant to court order, and subject to any terms and conditions the court deems
proper, to dismiss an action at any time. Westlands Water Dist. v. United States,
100 F.3d 94, 96 (9th Cir. 1996) (citing Fed. R. Civ. P. 41(a)(2); Stevedoring Servs.
of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989)). Rule 41(a)(2)
motions for voluntary dismissal should be liberally granted, provided that no party
will suffer legal prejudice. Stevedoring, 889 F.2d at 921; see also Smith v.
Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citations omitted) (“A district court
should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a

and laws, and seeking relief that no more directly and tangibly benefits him than it
does the public at large - does not state an Article III case or controversy.”).
4

Plaintiff also includes a footnote in his Motion to Dismiss; Motion for
Summary Judgment regarding his case in the Circuit Court of the First Circuit,
State of Hawaii. The Court here refrains from addressing any arguments made or
issues raised by Plaintiff regarding that entirely separate proceeding.
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defendant can show that it will suffer some plain legal prejudice as a result of the
dismissal.”). In the Ninth Circuit, the decision to grant a voluntary dismissal under
Rule 41(a)(2) is addressed to the district court’s sound discretion and “will not be
disturbed unless the court has abused its discretion.” Westlands Water Dist., 100
F.3d at 96 (citations omitted). Thus, when ruling upon a Rule 41(a)(2) motion to
dismiss without prejudice, the district court must first determine whether the
defendant will suffer resultant legal prejudice. Hyde & Drath v. Baker, 24 F.3d
1162, 1169 (9th Cir. 1994); Hamilton v. Firestone Tire & Rubber Co., 679 F.2d
143, 145 (9th Cir. 1982).
Neither Plaintiff nor Defendants will suffer legal prejudice from the
voluntary dismissal of Plaintiff’s requested counts. At the time that Plaintiff filed
his Motion to Dismiss; Motion for Summary Judgment, which includes Plaintiff’s
request for voluntary dismissal, the parties had not yet devoted substantial time and
effort to litigating the merits of Plaintiff’s claims. Indeed, the first substantive
motion filed in this case, Defendants’ Motion to Dismiss, was heard at the same
time as Plaintiff’s Motion to Dismiss; Motion for Summary Judgment.
Additionally, this case has not yet been prepared for trial and has not even gone
past motions practice. No pretrial statement has been filed and trial preparation has
not commenced. Moreover, Defendants agree with and support Plaintiff’s request
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to dismiss the aforementioned counts. Accordingly, the Court GRANTS Plaintiff’s
Motion to Dismiss and per Plaintiff’s request, DISMISSES WITH PREJUDICE
Plaintiff’s causes of action seeking damages based on Plaintiff’s EEOC complaint,
Plaintiff’s actions as a “whistle blower,” and Defendants’ acts of “negligence” and
“omission,” leaving only Plaintiff’s claim for the replacement of property allegedly
taken from him at the time of his imprisonment.
III.

Plaintiff’s Remaining Cause of Action
First, Plaintiff’s remaining cause of action must be dismissed against

Defendants in their official capacity pursuant to the Eleventh Amendment.
Plaintiff’s remaining claim against Defendants in their official capacities fails
because “[t]he Eleventh Amendment bars suits against a state or its agencies,
regardless of the relief sought, unless the state unequivocally consents to a waiver
of its immunity.” Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005) (quoting
Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245
(9th Cir. 1999)); See Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839
(9th Cir. 1997). Indeed, state officials acting in their official capacities are
immune from suit for monetary damages under the Eleventh Amendment since the

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suit is no different from a suit against the State itself.5 Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (“a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s
office.”); see also Hafer v. Melo, 502 U.S. 21, 24-25 (1991) (holding that a
defendant acting in his official capacity receives the same immunity as the
government agency to which he belongs). Thus, the Eleventh Amendment bars
Plaintiff’s claims for damages against the State of Hawaii and against the
remaining defendants as state officials in their official capacities.
Plaintiff’s remaining cause of action, which seeks “[r]ecovery of the
replacement value of cash and personal property bailed to the State of
Hawaii . . . when Plaintiff was taken into custody ,”6 is not contained anywhere in

5

The only exception for a suit to go forward against Defendants in their
official capacity is a suit “for prospective declaratory and injunctive relief . . . to
enjoin an alleged ongoing violation of federal law.” Wilbur, 423 F.3d at 1111
(quoting Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045
(9th Cir. 2000); see Ex parte Young, 209 U.S. 123 (1908); see also Will, 491 U.S.
at 71 n.10 (“official-capacity actions for prospective relief are not treated as actions
against the State.”). However, Plaintiff’s Motion to Dismiss; Motion for Summary
Judgment indicates that Plaintiff seeks “[r]ecovery of the replacement value of
cash,” as to the remaining cause of action, and does not state any pleadings seeking
injunctive relief. (Mot. 2 at 2.)
6

In Plaintiff’s Complaint, he also sets forth allegations regarding the
offering of a kosher diet in prison. (Compl. at 5.) However, Plaintiff’s Motion to
Dismiss; Motion for Summary Judgment appears to indicate that Plaintiff no
longer wishes to pursue this claim. First, it is not listed as one of the “counts” in
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the body of Plaintiff’s Complaint, FAC, or SAC. (Mot. 2 at 2.) It is, however,
found in Exhibit 3 of Plaintiff’s Complaint, where Plaintiff attaches the grievance
he filed with Lynn Wong, a Senior Probation Officer with the First Circuit Court of
the State of Hawaii. (Compl., Ex. 3) Exhibits intended to support a complaint
must be attached to the complaint and must be incorporated by reference. Fed. R.
Civ. Pro. 10(c). Additionally, it is not the duty of the Court to wade through
exhibits to determine whether or not such exhibits support Plaintiff’s claims.
Rather, the Court looks to the factual allegations contained in Plaintiff’s Complaint
to determine whether or not Plaintiff has stated a cognizable claim for relief, and to
the extent Plaintiff wishes to attach exhibits in support of such claims, he may
explicitly refer to each exhibit. Plaintiff may not merely attach exhibits and expect
the Court to discern causes of action that are contained in the exhibits, and more
importantly, not contained anywhere in the Complaint. For this reason alone,
Plaintiff’s remaining cause of action is dismissed.

Plaintiff’s Motion to Dismiss; Motion for Summary Judgment. Second, Plaintiff
makes it clear that he wishes to proceed to summary judgment with only his claim
regarding the property allegedly taken from him while he was imprisoned. For this
reason, the Court hereinafter addresses only that remaining count. However, to the
extent Plaintiff intended for his claim about kosher diets to remain, the analyses
found in this section regarding the Eleventh Amendment and Rule 8 apply to that
claim, and thus the claim would be dismissed as well.
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Additionally, pursuant to Rule 8 of the Federal Rules of Civil
Procedure, a pleading that states a claim for relief must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P
8(a)(2). “Each allegation must be simple, concise, and direct.” Id. 8(d)(1).
Plaintiff’s remaining cause of action as well as all others found in the Complaint,
FAC, and SAC, are difficult to decipher and do little to guide the Court and
Defendants as to exactly what laws have allegedly been violated by Defendants.
Defendants, nor the Court, are required to speculate as to what law Plaintiff is
suing under or how Defendants violated such law. Vague allegations containing
mere labels and conclusions are insufficient to survive a motion to dismiss. See
Twombly, 550 U.S. at 555. Thus, Plaintiff’s remaining cause of action is
dismissed for this reason as well.
Accordingly, Defendants’ Motion to Dismiss is GRANTED and
Plaintiff’s remaining cause of action is DISMISSED WITHOUT PREJUDICE.
Additionally, because the Court has dismissed Plaintiff’s Complaint, FAC, and
SAC, the Court also DENIES AS MOOT Plaintiff’s Motion for Summary
Judgment.

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CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’ Motion
to Dismiss (Doc. # 9) and GRANTS IN PART and DENIES IN PART Plaintiff’s
Motion to Dismiss and Motion for Summary Judgment (Doc. # 28).
The Complaint, FAC and SAC are DISMISSED WITH PREJUDICE as to
Plaintiff’s causes of action seeking damages based on Plaintiff’s EEOC complaint,
Plaintiff’s actions as a “whistle blower,” and Defendants acts of “negligence” and
“omission,” and DISMISSED WITHOUT PREJUDICE as to Plaintiff’s claim for
the replacement of property allegedly taken from him at the time of his
imprisonment.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 24, 2011.

_____________________________
David Alan Ezra
United States District Judge

Hasegawa v. State of Hawaii et al., Cv. No. 10-00745 DAE-BMK; ORDER: (1)
GRANTING DEFENDANTS’ MOTION TO DISMISS WITHOUT PREJUDICE;
AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS
MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
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