Kaeo-Tomaselli v. Pi'ikoi Recovery House for Women et al

Filing 5

ORDER DISMISSING 1 COMPLAINT IN PART: "IT IS HEREBY ORDERED that: (1) The Complaint is DISMISSED in part for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1). Specifically, Defendants Pi'ikoi House and Chavez are DISMISSED. Plaintiff's claims as alleged against Defendant Souza state a claim and shall proceed. (2) Plaintiff is GRANTED until December 15, 2011, to either file a proposed amended complaint that cures the deficiencies as noted above or be deemed to have waived the dismissed claims and defendants and to have chosen to proceed only with her claims Defendant Souza. If Plaintiff does not file an amended complaint by December 15, 2011, the court will direct service of the Complaint on Defendant Souza. (3) The Clerk of Court is directed to mail a form prisoner civil rights complaint to Plaintiff so that she may comply with the directions in this Order." Signed by District JUDGE LESLIE E. KOBAYASHI on November 16, 2011. (bbb, )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 r egistered to receive electronic notifications were served by first class mail on the date of this docket entry. a prisoner civil rights complaint form has been served upon Pltf Kaeo-Tomaselli by first class mail on the date of this docket entry.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DION’E KAEO-TOMASELLI,
#A5004463,
Plaintiff,
vs.
PI’IKOI RECOVERY HOUSE FOR
WOMEN, MR. JOE CHAVEZ, MS.
EVALANI SOUZA,
Defendants.
____________________________

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CIV. NO. 11-00670 LEK-RLP
ORDER DISMISSING COMPLAINT IN
PART

ORDER DISMISSING COMPLAINT IN PART
Before the court is pro se Plaintiff Dion’e KaeoTomaselli’s (“Plaintiff”) prisoner civil rights complaint.1
Plaintiff is incarcerated at the Women’s Community Correctional
Center (“WCCC”).

Plaintiff names the Pi’ikoi Recovery House for

Women (“Pi’ikoi House”), Joe Chavez (“Chavez”), and Evalani Souza
(“Souza”) as defendants (collectively, “Defendants”).

Plaintiff

alleges that Defendants denied her public accommodation in
housing on the basis of her gender in violation of her federal
constitutional and statutory rights.

Plaintiff also alleges that

Souza slandered her.
The court has screened the Complaint pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).

Defendants Pi’ikoi House

and Chavez are DISMISSED for Plaintiff’s failure to state a claim

1

Plaintiff is proceeding in forma pauperis.

See ECF #[9].

against them.

Plaintiff is granted leave to amend the Complaint,

if possible, to cure its deficiencies.
I. PLAINTIFF’S CLAIMS
Plaintiff alleges that, on August 10, 2010, Souza
informed an unidentified “witness” by telephone that she would
not accept Plaintiff into Pi’ikoi House2 as a resident because
former residents had told Souza that Plaintiff “was a sex
change.”

Compl. at 5.

Plaintiff states that this is “false

information . . . and for all intent[s] and purposes I am a
female.”

Id. at 6.

Plaintiff alleges that Souza’s statements

and refusal to accommodate her were discriminatory and
slanderous.

Plaintiff further claims that Chavez is liable for

Souza’s allegedly discriminatory acts because he is the Head
Supervisor at Oxford House, Inc., and he failed to properly train
Souza.3

Plaintiff seeks compensation for her emotional and

psychological trauma and payment for her psychological therapy.

2

Pi’ikoi House is operated by TJ Mahoney & Associates, as
“Ka Hale Ho`ala Hou No Na Wahine, The Home of Reawakening for
Women.” See http://reawakeningforwomen.org. It “is a non-profit
501(c)(3) organization dedicated to helping prison inmates become
responsible, productive members of their communities.” Id. TJ
Mahoney began operations in Hawaii in 1990 through contracts with
the Federal Bureau of Prisons and Pretrial Services and contracts
with the State of Hawaii Department of Public Safety. Id.
3

Oxford House, Inc., is “the 501(c)(3) nonprofit national
umbrella organization of individual Oxford Houses” around the
world. See http://www.oxfordhouse.org. TJ Mahoney’s website
provides three Oxford House recovery homes on Oahu listing Joe
Chavez as a contact. See http://reawakeningforwomen.org. Pi’ikoi
House is not one of these three houses.
2

II. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed as a matter of law for
failure to state a claim for (1) lack of a cognizable legal
theory; or (2) insufficient facts under a cognizable legal
theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1990).

To state a claim, a pleading 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).

While Rule 8

does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct.

1937, 1949 (2009).

“Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not
suffice.”

Id.

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“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Id. (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

A claim is plausible “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, 129 S. Ct. at 1949.

“Determining

whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
1950.

Id. at

Thus, although a plaintiff’s specific factual allegations

may be consistent with a constitutional claim, a court must
assess whether there are other “more likely explanations” for a
defendant’s conduct.

Id. at 1951.

The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the
plaintiff can correct the defects of his or her complaint.

Lopez

v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
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person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
Because Plaintiff does not identify the specific
constitutional or statutory basis for her claims, the court
construes the Complaint as alleging a violation of the Equal
Protection Clause of the Fourteenth Amendment, the Fair Housing
Act, and state common law.
A.

Equal Protection
The Equal Protection Clause of the Fourteenth Amendment

provides that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.”
amend. XIV, § 1.

U.S. Const.

This is “essentially a direction that all

similarly situated persons should be treated alike.”

City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Equal Protection claim can be stated in one of two ways.

An

First,

a plaintiff can allege that “defendants acted with an intent or
purpose to discriminate against the plaintiff based upon
membership in a protected class.”

See Barren v. Harrington, 152

F.3d 1193, 1194-95 (9th Cir. 1998)(citing Washington v. Davis,
426 U.S. 229, 239-40 (1976)).

Alternatively, if the claims do

not involve a suspect classification, a plaintiff can establish
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an equal protection “class of one” claim by alleging that she
“has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference
in treatment.”

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000); Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th
Cir. 2004).
Gender stereotyping is direct evidence of sex
discrimination.

See Price Waterhouse v. Hopkins, 490 U.S. 228,

251 (1989) (discussing discrimination under Title VII).

The

Ninth Circuit has also held that transgender individuals may
state viable sex discrimination claims on the theory that the
perpetrator was motivated by the victim’s real or perceived
failure to conform to socially-constructed gender norms.

See

Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000)
(discussing the Gender Motivated Violence Act, 42 U.S.C.
§ 13981(c)).
Plaintiff is currently incarcerated at WCCC, which is
the Hawaii state prison for women.

It is unclear whether

Plaintiff has undergone a sex change operation, or is a
transsexual or transgender who has not yet done so.4

4

Plaintiff

A transsexual is “a person who strongly identifies with
the opposite sex and may seek to live as a member of this sex
especially by undergoing surgery and hormone therapy to obtain
the necessary physical appearance” and a transgender is a person
“who identifies with or expresses a gender identity that differs
from the one which corresponds to the person’s sex at birth.”
(continued...)
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is nonetheless being accommodated at WCCC, therefore, the court
concludes that Plaintiff states an Equal Protection claim based
on her real or perceived sex or gender.
B.

Fair Housing Act
The Fair Housing Act (“FHA”) of 1968, also known as

Title VIII, “protects against discrimination ‘in the terms,
conditions, or privileges of sale or rental of a dwelling . . .
because of race, color, religion, sex, familial status, or
national origin[.]’”

Edwards v. Marin Park, Inc., 356 F.3d 1058,

1063 (9th Cir. 2004) (discussing pleading requirements pursuant
to the FHA and explaining that the burden-shifting framework set
forth in Price Waterhouse, 490 U.S. 228, applies to FHA claims);
see also 42 U.S.C. § 3604(b).

For the reasons set forth above,

the court concludes that Plaintiff states a claim under the FHA.
C.

Pi’ikoi House is Dismissed
Claims under § 1983 are directed at “persons,” and a

building, such as Pi’ikoi Recovery House for Women is not a
“person” amenable to suit under § 1983.

See e.g., Allison v.

California Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969)
(finding that California Adult Authority and San Quentin Prison
not “person[s]” subject to suit under § 1983); Brooks v. Pembroke
City Jail, 722 F. Supp. 1294, 1301 (E.D. N.C. 1989) (citing
4

(...continued)
See http://www.merriam-webster.com/dictionary.
7

Monroe v. Pape, 365 U.S. 167 (1961)); see also Foster v. Walsh,
864 F.2d 416, 418 (6th Cir. 1988) (holding that a court is not a
“person” within the meaning of § 1983).

Similarly, the FHA

principally forbids owners or sellers of real property from
discriminating against qualified renters or purchasers because of
their membership in a protected class.

See 42 U.S.C. § 3604.

Pi’ikoi House, is simply a building and cannot be held
liable for discrimination under § 1983 or the FHA.

To the extent

that Plaintiff alleges federal constitutional or statutory
violations against Pi’ikoi House, her claims are DISMISSED.
D.

Defendant Chavez is Dismissed
Plaintiff presents no facts showing Chavez’s personal

involvement in the events at issue.

That is, Plaintiff simply

states that Souza told an unnamed witness on the telephone that
she would not accept Plaintiff at Pi’ikoi House because Plaintiff
had a sex change operation.

Chavez is not alleged to have been

present during this exchange, nor are there any allegations that
Chavez had knowledge of the conversation between Souza and the
unnamed witness, or directed Souza to deny residence at Pi’ikoi
House to Plaintiff in particular or transsexuals in general.
Importantly, Plaintiff does not explain how Chavez, who she
alleges is the “Head Supervisor of Oxford House, Inc.,” has any
connection or supervisory authority over Souza, who is the
resident manager at Pi’ikoi House, operated by TJ Mahoney &

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Associates.

Plaintiff’s claim against Chavez is the

quintessential “unadorned, the-defendant-unlawfully-harmed-me
accusation” that the Supreme Court dismissed in Iqbal, for
failure to state a claim.

129 S. Ct. at 1949.

“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Id. (quoting Twombly, 550 U.S. at 570).

A claim

is facially plausible when a plaintiff “pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
S.Ct. at 1949.

Iqbal, 129

This standard does not require probability, but

it does demand “more than a sheer possibility that a defendant
has acted unlawfully.”

Id.

“[N]aked assertion[s]” devoid of

“further factual enhancement[,]” however, are insufficient to
state a claim.

Twombly, 550 U.S. at 557.

Plaintiff’s naked

assertion that Chavez failed to properly train Souza, with no
allegation of supporting facts that show Plaintiff is entitled to
relief, does not state a claim.
Moreover, under § 1983, a supervisor may be held liable
only on a showing of his or her personal involvement in the
constitutional deprivation or a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional
violation.

Redman v. County of San Diego, 942 F.2d 1435, 1446

(9th Cir. 1991) (en banc) (citation omitted).

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In other words, a

plaintiff must allege that the supervisor “participated in or
directed the violations, or knew of the violations and failed to
act to prevent them.”
Cir. 1989).

Taylor v. List, 880 F.2d 1040, 1045 (9th

A supervisor may also be liable for implementing “a

policy so deficient that the policy itself is a repudiation of
constitutional rights and is the moving force of the
constitutional violation.”

Redman, 942 F.2d at 1446; see Jeffers

v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001).

Plaintiff makes no

such assertions and her claims against Chavez are DISMISSED.
E.

Slander
Plaintiff alleges that Souza slandered her when she

told Plaintiff’s unnamed witness that she believed Plaintiff “was
a sex change.”

Compl. at 5.

In Hawaii, a plaintiff must

establish four elements to sustain a claim for defamation
(slander): “(a) a false and defamatory statement concerning
another; b) an unprivileged publication to a third party; c)
fault amounting at least to negligence on the part of the
publisher [actual malice where the plaintiff is a public
figured); and (d) either actionability of the statement
irrespective of special harm or the existence of special harm
caused by the publication.”

Wilson v. Freitas, 214 P.3d 1110,

1118, 121 Haw. 120, 128 (Haw. App. 2009).
claim for slander against Souza.
//
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Plaintiff has stated a

F.

Leave to Amend
The Complaint is DISMISSED in part for failure to state

a claim.

Plaintiff may file a proposed amended complaint on or

before [December 15, 2011].

The proposed amended complaint must

cure the deficiencies noted above regarding her claims against
Pi’ikoi House and Chavez, specifically demonstrating how they, or
another defendant, are amenable to suit and violated her federal
constitutional or statutory rights.
The court will not refer to the original pleading to
make any amended complaint complete.

Local Rule 10.3 requires

that an amended complaint be complete in itself without reference
to any prior pleading.

Defendants not named and claims not

realleged in an amended complaint are deemed waived.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

See King v.

Furthermore, as a

general rule, an amended complaint supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
In the alternative, Plaintiff may opt not to amend the
Complaint, waive the claims against Chavez and Pi’ikoi House as
discussed and dismissed herein, and proceed on her claims against
Souza.

If Plaintiff does not file an amended complaint on or

before December 15, 2011, she will be deemed to have opted to
proceed only with her claims against Souza, and the court will

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order service of the Complaint on Souza, as dismissed in part
herein.
IV.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED in part for failure to

state a claim.

See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).

Specifically, Defendants Pi’ikoi House and Chavez are DISMISSED.
Plaintiff’s claims as alleged against Defendant Souza state a
claim and shall proceed.
(2)

Plaintiff is GRANTED until December 15, 2011, to either

file a proposed amended complaint that cures the deficiencies as
noted above or be deemed to have waived the dismissed claims and
defendants and to have chosen to proceed only with her claims
Defendant Souza.

If Plaintiff does not file an amended complaint

by December 15, 2011, the court will direct service of the
Complaint on Defendant Souza.
(3)

The Clerk of Court is directed to mail a form prisoner

civil rights complaint to Plaintiff so that she may comply with
the directions in this Order.
IT IS SO ORDERED.

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DATED: Honolulu, Hawaii, November 16, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Kaeo-Tomaselli v. Pi’ikoi Recovery House for Women, et. al., Civ. No. 11-00670 LEKRLP, Order Dismissing Complaint in Part; psa/Screening/dmp/ 2011/Tomaselli 11-670 LEK
(dsm in part, ftsc, imp. d’s lv amd)

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