Kaeo-Tomaselli v. Pi'ikoi Recovery House for Women et al
ORDER DENYING DEFENDANTS' MOTION TO DISMISS UNDER RULES 12(b) AND 12(f) re: 40 . Signed by JUDGE LESLIE E. KOBAYASHI on 11/30/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electroni c 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
JENNIFER BUTTS; EVALANI
CIVIL NO. 11-00670 LEK-BMK
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS UNDER RULES 12(b) AND 12(f)
Before the Court is pro se Defendants Jennifer Butts
(“Butts”) and Iwalani Souza’s (“Souza,” both collectively,
“Defendants”) Motion to Dismiss Under Rules 12(b) and 12(f)
(“Motion”), filed on September 14, 2012.
Pro se Plaintiff Dion’e
Kaeo-Tomaselli (“Plaintiff”) filed her memorandum in opposition
on October 5, 2012.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, Defendants’ Motion is HEREBY
DENIED for the reasons set forth below.
Plaintiff, who is presently incarcerated at the Women’s
Community Correctional Center (“WCCC”), filed a prisoner civil
rights complaint on November 1, 2011 against Joe Chavez, Pi‘ikoi
Recovery House for Woman (“Pi‘ikoi House”), and Souza.
screened the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1), dismissed Mr. Chavez and Pi‘ikoi House, and
granted leave to amend in a November 16, 2011 Order (“11/16/11
[Dkt. no. 5.]
Plaintiff filed her First Amended
Complaint on December 9, 2011, naming Souza and TJ Mahoney and
Associates (as the purported operator of Pi‘ikoi House) as
In a February 2, 2012 Order, the Court dismissed TJ
Mahoney and Associates with prejudice.
[Dkt. no. 16.]
was granted leave to amend, and filed her Second Amended
Complaint against Defendants on August 8, 2012.
The Second Amended Complaint alleges that Butts is the
owner and/or operator of Pi‘ikoi House, and that Souza is its
[Second Amended Complaint at 1-2.]
alleges that Butts and Souza denied her access to public
accommodations because of her gender, in violation of the Fair
She claims that, on August 10, 2010, Souza told
WCCC Librarian Harry Fujigami that “she would not accept me into
the Pi‘ikoi Recovery House for Women because former inmates who
currently live in the house told her that I was a sex change.”
[Id. at 6.]
Plaintiff also alleges that Souza wrongly identified
her “as a ‘Sex Change’ to my witness Mr. Fujigami after former
female offenders informed her of false information due to my
gender because for all intent[s] and purposes I am a ‘FEMALE’.”
[Id. at 7.]
Plaintiff alleges the following counts: (I) a 42 U.S.C.
§ 1983 claim against Butts for violations of equal protection and
the Fair Housing Act; (II) a 42 U.S.C. § 1983 claim against Souza
for violations of equal protection and the Fair Housing Act; and
(III) a state law slander claim against Souza for “defamation of
character” and violating her rights of gender identity and
Defendants ask the Court to dismiss the claims in
Plaintiff’s Second Amended Complaint for failure to state a claim
and for “lack of standing to enforce the complaint.”
Supp. of Motion at ¶¶ 7-8.]
Defendants state that they could not
have denied Plaintiff housing on August 10, 2010 because she was
incarcerated at the time, and is still incarcerated two years
According to Defendants:
Plaintiff would not have been able to reside at
the premises due to [P]laintiff’s incarceration.
We do not provide supervised release, so the
Plaintiff would not have been able to be released
to our facility. We perform face to face
interviews at the residence, which the Plaintiff
never requested. Telephone communication is a
precursor to schedule said interviews.
[Id. at ¶ 1.]
Defendants also ask the Court to dismiss the case with
prejudice “due to the fact that the plaintiff has a history of
filing nuisance complaints,” which have been dismissed.
Memorandum in Opposition
Plaintiff asks the Court not to dismiss her claims and
submits additional evidence in support of them.
She argues that
she was denied acceptance because Defendants incorrectly
perceived her to be “a women with a male genitalia”.
Opp. at 1.]
She also states in response that, “[i]f interviews
are performed face to face then Defendant should have not had the
conversation with my witness in regards to my gender.”
Plaintiff separately filed a letter verifying the
factual allegations in the Second Amended Complaint, which is
addressed to the Hawaii Civil Rights Commission and signed by
Mr. Fujigami, and which includes a recitation of his conversation
with Souza on August 10, 2010.
[Pltf.’s Exh. A (“11/10/11
Letter”), filed 10/5/12 (dkt. no 46).]
In ruling on a motion to dismiss 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).
Federal Rule of Civil Procedure 12(b)(6) permits a
motion to dismiss a claim for failure to state a claim upon which
relief can be granted.
“To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th
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.
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citing Twombly, 550 U.S. at 555).
Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 556).
The Court previously held that, liberally construed,
Plaintiff’s allegations were sufficient to maintain claims for
violation of 42 U.S.C. § 1983 and slander.
The 11/16/11 Order
states, in pertinent part:
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.” U.S. Const. amend. XIV,
§ 1. 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). An Equal Protection
claim can be stated in one of two ways. 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
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. Plaintiff 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.
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.
. . . .
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).
Plaintiff has stated a
claim for slander against Souza.
[11/16/11 Order at 5-7, 10 (some alterations in 11/16/11 Order)
Defendants’ Motion does not address the Court’s
previous ruling that Plaintiff properly stated both § 1983 and
Rather, Defendants provide additional facts and
argument regarding matters that are not set forth in the Second
In response, Plaintiff sought to bolster her
allegations by submitting the 11/10/11 Letter, which also sets
forth additional content not found in the Second Amended
The Court is not permitted to look beyond the Second
Amended Complaint in deciding a motion to dismiss.
v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998)
(“In determining the propriety of a Rule 12(b)(6) dismissal, a
court may not look beyond the complaint to a plaintiff’s moving
papers, such as a memorandum in opposition to a defendant’s
motion to dismiss.” (emphasis in original) (citations omitted)).
Pursuant to Federal Rule of Civil Procedure 12(d), if
“matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary
judgment under Rule 56.
All parties must be given a reasonable
opportunity to present all the material that is pertinent to the
Where the non-movant is proceeding pro se, the Court,
if it sua sponte converts a motion to dismiss, must advise the
non-movant of its intention to convert and ensure that he or she
is “provided with proper notice regarding the complex procedural
issues involved in summary judgment proceedings.”
Pulley, 739 F.2d 437, 439-40 (9th Cir. 1984).
For example, in
Stratton v. Buck, the Ninth Circuit held that “when a district
court will consider materials beyond the pleadings in ruling upon
a defendant’s motion to dismiss for failure to exhaust
administrative remedies, the pro se prisoner plaintiff must
receive a notice, similar to the notice described in Rand [v.
Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc)].”
1004, (9th Cir. 2012) (footnote omitted).
The Ninth Circuit
noted, however, that the model notice appended to Rand must be
tailored to specifically address a Rule 12(b) motion to dismiss
for failure to exhaust.
Id. at 1004 n.3.
In the instant case, the Court would have to provide
Plaintiff with a similar notice specifically addressing the
conversion of a motion to dismiss to a motion for summary
The Court finds that it would be fundamentally unfair
to Plaintiff for the Court to convert Defendants’ Motion into one
for summary judgment at this time.
Plaintiff, proceeding pro se,
was not given notice that the Motion could be viewed as one for
Moreover, the Court cannot convert the instant Motion
to a motion for summary judgment because the additional
submissions do not satisfy the requirements of Rule 56, and are
not supported by declarations, affidavits, or other sworn
A proper motion for summary judgment would include a
concise statement of material facts, which would clearly identify
for Plaintiff (and the Court) the facts Plaintiff must rebut.
The Court therefore DENIES the Motion without prejudice
to Defendants later raising these arguments in a motion for
On the basis of the foregoing, Defendants’ Motion to
Dismiss Under Rules 12(b) and 12(f), filed on September 14, 2012,
is HEREBY DENIED without prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 30, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
DION’E KAEO-TOMASELLI V. JENNIFER BUTTS, ET AL; CIVIL NO. 1100670 LEK-BMK; ORDER DENYING DEFENDANTS’ MOTION TO DISMISS UNDER
RULES 12(b) AND 12(f)
To the extent Defendants ask the Court to strike the
Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(f) in the title of the Motion, the Court DENIES the
request. Grounds for a motion to strike must be readily apparent
from the face of the pleadings or from materials that may be
judicially noticed. Wailua Assocs. v. Aetna Cas. & Sur. Co., 183
F.R.D. 550, 554 (D. Hawai‘i 1998). A matter will not be stricken
from a pleading unless it is clear that it can have no possible
bearing on the subject matter of the litigation. Id. “Thus,
courts will generally grant a motion to strike only when the
moving party has proved that the matter to be stricken could have
no possible bearing on the subject matter of the litigation.”
Ill. Nat’l Ins. Co. v. Nordic PCL Const., Inc., Civil No.
11–00515 SOM/KSC, 2012 WL 1492399, at *19 (D. Hawai‘i Apr. 26,
2012). Defendants do not meet that standard here.
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