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

Filing 68

ORDER DENYING MOTION FOR SUMMARY JUDGMENT re: 60 . Signed by JUDGE LESLIE E. KOBAYASHI on 1/31/2013. ~ "Claims against [Jennifer] Butts are DISMISSED...." ~ (afc)CERTIFICATE OF SERVICEPart icipants 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
) CIV. NO. 11-00670 LEK/BMK
)
Plaintiff,
)
) ORDER DENYING MOTION FOR
vs.
) SUMMARY JUDGMENT
)
JENNIFER BUTTS, IWALANI SOUZA, )
)
Defendants.
)
______________________________ )
DION`E KAEO-TOMASELLI,

ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Before the court is pro se Plaintiff Dion`e KaeoTomaselli’s Motion for Summary Judgment.1

ECF #60.

Plaintiff

alleges that Defendants Jennifer Butts and Iwalani Souza,
respectively the owner and manager of the Pi’ikoi Clean and Sober
House for Women (“Pi’ikoi House”), violated the Fair Housing Act
(“FHA”) of 1968,2 the Equal Protection Clause of the Fourteenth
Amendment, and state law when they allegedly refused her request
for accommodation at Pi’ikoi House on August 10, 2010.

Plaintiff

seeks summary judgment on the allegations in her pleadings and
documents she has filed showing that she is a hermaphrodite, is
treated as a female by the State, and inquired about residing at
Pi’ikoi House in 2010.

The court elects to decide this matter

1

Plaintiff is incarcerated at the Women’s Community
Correctional Center (“WCCC”), and is proceeding in forma
pauperis.
2

Also known as Title VIII of the Civil Rights Act of 1968,
42 U.S.C. § 3601 et seq.

without a hearing.

See LR7.2(d).

For the following reasons,

Plaintiff’s Motion is DENIED.
I.

BACKGROUND

This action is proceeding on Plaintiff’s claims against
Defendant Butts and Souza in the Second Amended Complaint
(“SAC”).

See ECF #27.

Plaintiff alleges that, on August 10,

2010, the WCCC Librarian, Harry Fuchigami, telephoned Souza to
inquire whether Plaintiff could reside at Pi‘ikoi House upon her
release from prison.

Plaintiff alleges that Souza told Fuchigami

that she would not accept Plaintiff as a resident “because former
inmates who currently live in the house told [Souza] that
[Plaintiff] was a sex change.”

Id. at PageID #148.

Plaintiff

claims that Butts failed to properly train Souza and protect her
from’s Souza’s alleged discrimination.

Plaintiff seeks damages,

continuing psychological treatment, and reformation of policies
and procedures at the Pi’ikoi House.
II. LEGAL STANDARD
“[T]he moving party always bears the initial
responsibility of informing the district court of the basis for
its motion [for summary judgment], and identifying those portions
of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323
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(1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
“When the party moving for summary judgment would bear the burden
of proof at trial, ‘it must come forward with evidence which
would entitle it to a directed verdict if the evidence went
uncontroverted at trial.’”

C.A.R. Transportation Brokerate Co.,

Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir.
2000) (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.
1992)).
Put another way, “[her] showing must be sufficient for
the court to hold that no reasonable trier of fact could find
other than for the moving party.”

Calderone v. United States,

799 F.2d 254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary
Judgment Under the Federal Rules: Defining Issues of Material
Fact, 99 F.R.D. 465, 487 (1984)); cf. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); see also Chanel, Inc. v. Italian
Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th Cir. 1991)
(“But - particularly where, as here, the moving party is also the
party with the burden of proof on the issue - it is important to
remember the non-moving party must produce its significant,
probative evidence only after the movant has satisfied its burden
of demonstrating there is no genuine dispute on any material
fact.”) (emphasis added).
Thus, on a summary judgment motion, the moving party
bearing the ultimate burden of proof at trial must demonstrate

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that there is no triable issue as to the matters alleged in its
own pleadings.

Calderone, 799 F.2d at 259.

This requires the

moving party to establish beyond controversy every essential
element of its claim or defense.

Fontenot v. Upjohn Co., 780

F.2d 1190, 1194 (5th Cir. 1986).

The moving party’s evidence is

judged by the same standard of proof applicable at trial.
Anderson, 477 U.S. at 252.
If the moving party fails to meet this burden, “the
nonmoving party has no obligation to produce anything, even if
the nonmoving party would have the ultimate burden of persuasion
at trial.”

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

“The evidence of

the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.”

Anderson, 477 U.S. at 255; see

also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121,
1126 (9th Cir. 2008).
III.

DISCUSSION

In support of her Motion, Plaintiff provides:
(1) a verified letter from WCCC librarian, Harry Fuchigami,
stating that Souza told him that: (a) Plaintiff must contact
her personally to apply for residency at Pi’ikoi House; (b)
current residents vote on new candidates for residence; (c)
some current residents had informed Souza that they were
uncomfortable accepting Plaintiff because they believed she
had undergone a sex change operation; and (d) Souza believed
that Plaintiff’s request would likely be denied by the other
residents. See Pl.’s Mot., Fuchigami Letter, ECF #60-4;
Fuchigami Aff., ECF #64-1.

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(2) a letter from her attorney, Deputy Public Defender E.
Edward Aquino, Esq., stating that Plaintiff was born a
hermaphrodite and this has caused problems for Plaintiff
during her incarceration. Id., Aquino Letter, ECF #60-5,
ECF #60-6.
(3) a copy of her Hawaii Identification Certificate, listing
her as female. Id. ECF #60-1; ECF #60-2.
(4) psychiatric and medical progress notes from the Hawaii
Department of Public Safety, stating that Plaintiff’s penis
is “so atrophied [it] is more like an enlarged clitoris.”
Based on this, Plaintiff was assigned to the Women’s
Community Correctional Center, as a female inmate. Id. ECF
#60-3.
(5) various documents showing that Plaintiff wrote Souza on
July 18, 2010, detailing her desire to reside at Pi’ikoi
House, filed a complaint with the Hawaii Civil Rights
Commission and contacted the U.S. Department of Justice
regarding her housing discrimination claims. ECF #60-4,
#62-2, #62-3, #62-5.
A.

Genuine Issues of Fact Remain Under the FHA
The FHA “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); 42 U.S.C. § 3604(b).

To have standing to

sue under the FHA, a party must be an “aggrieved person,” which
is defined as one who “(1) claims to have been injured by a
discriminatory housing practice; or (2) believes that [he or she]
will be injured by a discriminatory practice that is about to
occur.”

42 U.S.C. § 3602(i) (emphasis added).

//
//
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1.

Standing to Sue
Although the Supreme Court recognizes a liberal

standing requirement for actions brought under the FHA, a
plaintiff must still show an actual injury traceable to a
defendant’s conduct; only then is she entitled to seek redress
for that harm.

See Gladstone Realtors v. Vill. of Bellwood, 441

U.S. 91, 103 n.9 (1979); San Pedro Hotel Co., Inc. v. City of Los
Angeles, 159 F.3d 470, 475 (9th Cir. 1998).

Thus, to establish

that she is an “aggrieved person,” Plaintiff must demonstrate
that she suffered a concrete injury in fact or one that is actual
and imminent; that such injury is fairly traceable to Defendants’
allegedly illegal actions; and that it is likely that such injury
will be redressed by a favorable decision.

See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Plaintiff fails to demonstrate by a preponderance of
the evidence that she suffered any actual injury traceable to
Souza’s alleged statements to Fuchigami.

That is, Plaintiff

submits no evidence showing that she was eligible to reside at
Pi’ikoi House and was denied residence on the basis of her sex or
perceived gender, and thus, was subjected to an actual injury by
an imminent discriminatory housing practice.
Fuchigami’s conversation with Souza does not prove that
Plaintiff actually applied for residence at Pi’ikoi house, or
personally spoke with Souza as required by Pi’ikoi House’s rules,
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and was refused.

Fuchigami’s letter shows only that Souza

allegedly told him that Plaintiff must contact her personally,
Pi’ikoi House’s residents vote on who is accepted, and Souza
believed the current residents would not accept Plaintiff based
on their belief that she had a sex change operation.

Souza may

deny Fuchigami’s account, or produce evidence that Pi’ikoi House
management can overrule resident votes that are deemed illegal or
against policy.

Either possibility would create a genuine issue

of fact.
More importantly, Plaintiff’s documents show that
Plaintiff was incarcerated in July-August 2010, when she wrote
Souza and when Fuchigami contacted Souza, was incarcerated while
she pursued her claims with the Hawaii Civil Rights Commission
and others, and remains incarcerated now.3

If Plaintiff was

incarcerated when she and Fuchigami contacted Souza, and was not
eligible for imminent release, then even accepting her claims as
true, Plaintiff was not eligible for residence at Pi’ikoi House
during the past three years.

Plaintiff does not show any actual

injury based on an illegal housing decision that occurred or was
“about to occur,” thus, that there is no genuine issue of

3

Publicly available incarceration records show that
Plaintiff’s maximum term does not expire until November 25, 2018.
See Hawaii SAVIN https://www.vinelink.com.
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material fact regarding her standing to sue.4

See 42 U.S.C.

§ 3602(i).
2.

The Roommate Exception to Liability Under the FHA
It appears that Pi’ikoi House is a group home, that is,

a shared living accommodation where residents share rooms and/or
living quarters and vote on accepting new residents.

See Pl.’s

Exh., “Women’s Clean & Sober House Listing,” ECF #62-1 (listing
Pi’ikoi House and advising those seeking “a clean and sober
house,” to inquire about the “the cost [and] meet your possible
room mates (how many live there?, how many in a room?”);
Fuchigami Letter, ECF #64-2 (stating, “[Souza] was very cordial
and explained to me that the residents of her clean and sober
house take a vote to see if a candidate should be accepted into
the house.”).
The Ninth Circuit Court of Appeals has recently held
that, under the FHA, a “‘dwelling’ does not include shared living
units . . . [and] excludes roommate selection from the reach of
the FHA.”

Fair Housing Council of San Fernando Valley v.

Roommate.com, LLC, 666 F.3d 1216, 1222 (9th Cir. 2012).

In so

holding, the Ninth Circuit stated, “choosing a roommate
implicates significant privacy and safety considerations,” and
4

Plaintiff’s other exhibits support her contention that she
is a hermaphrodite and is considered a female by the State. They
do not, however, conclusively show that Plaintiff was actually
eligible to reside at Pi’ikoi House within the past three years,
and was improperly denied such residence.
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should not be subject to government regulation.

Id. at 1221

(stating that a woman may consider modesty or security concerns
when seeking a roommate, just as “[a]n orthodox Jew may want a
roommate with similar beliefs and dietary restrictions,” and
should have the unfettered ability to do so).

The court

explained that, “[b]ecause we find that the FHA doesn’t apply to
the sharing of living units, it follows that it’s not unlawful to
discriminate in selecting a roommate.”

Id. at 1222.

While this court held that Plaintiff states a claim
under the FHA, that determination does not equate to a finding
that Plaintiff has proved her claim.

The record is inadequate

for the court to make a determination on whether Plaintiff has
standing to sue, or whether Pi’ikoi House is a shared living
accommodation, or on the overall merits of Plaintiff’s claims
under the FHA at this time.

Nonetheless, Plaintiff fails to meet

her burden of showing that there is no genuine issue of material
facts regarding her FHA claims.

Consequently, the burden does

not shift to Defendants, the non-moving parties, to produce
contrary evidence.

Plaintiff’s Motion for Summary Judgment is

DENIED on her FHA claims.
B.

Plaintiff’s § 1983 Claims
Plaintiff seeks relief under 42 U.S.C. § 1983, alleging

that Defendants violated her rights to equal protection under the
law.

To succeed on her § 1983 claim, Plaintiff must show that
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the conduct at issue “was committed by a person acting under the
color of state law” and that the “conduct deprived a person of
rights, privileges, or immunities secured by the Constitution or
laws of the United States.”

Parratt v. Taylor, 451 U.S. 527, 535

(1981); Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)
(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009).
“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall deny to any person within
its jurisdiction the equal protection of the laws, which is
essentially a direction that all persons similarly situated
should be treated alike.”

City of Cleburne, Tex. v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985) (internal quotations
omitted).
1.

No Evidence That Defendants Acted Under Color of State
Law
A person acts under color of state law if he or she

“exercise[s] power ‘possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law.’”

West v. Atkins, 487 U.S. 42, 49 (1988) (quoting

United States v. Classic, 313 U.S. 299, 326(1941)).
parties are not generally acting under state law.”

“Private
Price v.

Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991).
Plaintiff submits no evidence that Butts and Souza, the
owner and resident manager of an apparently privately owned and
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operated group home, were acting under color of state law.

Thus,

a genuine issue of material facts exists regarding Defendants’
status as state actors.
2.

No Similarly Situated Individuals Named
An equal protection claim may be established in two

ways; the first requires a plaintiff to “show that the defendants
acted with an intent or purpose to discriminate against the
plaintiff based upon membership in a protected class.”
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

Barren v.

Plaintiff puts

forth no evidence that her status as a hermaphrodite, or
transgender female, qualifies her as a member of a protected
class.

Nor has this court discovered any cases in which

transgendered individuals constitute a “suspect” class.

See,

e.g., Braninburg v. Coalinga State Hosp, 2012 WL 391190, *8 (E.D.
Cal., Sep. 7, 2012); Jamison v. Davue, 2012 WL 996383, *3 (E.D.
Cal. Mar. 21, 2012) (holding that transgender individuals do not
constitute a suspect class).
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).
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To prevail

under this theory, a plaintiff must show that: (1) she is a
member of an identifiable class; (2) she was intentionally
treated differently from others similarly situated; and (3) there
is no rational basis for the difference in treatment.
Willowbrook, 528 U.S. at 564.

Vill. of

Plaintiff sets forth no evidence

supporting a finding that other similarly situated individuals
were treated differently from her and that there is no rational
basis for such differential treatment.

Thus, Plaintiff fails to

show that there is no genuine issue of material fact regarding
her equal protection claims.

Plaintiff’s Motion is DENIED on her

equal protection claims and Defendants need not respond.
3.

Defendant Butts is Dismissed
“Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that . . . the action or
appeal . . . fails to state a claim upon which relief may be
granted.”

28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added).

Thus,

the court retains a continuing duty to screen a prisoner’s
complaint and must dismiss a complaint or portion thereof if it
determines that a claim is frivolous, malicious, or fails to
state a claim.

Id.; c.f., Lopez v. Smith, 203 F.3d 1122, 1126

n.6 (9th Cir.2000) (en banc) (holding that a court is not
relieved of its duty to screen a complaint under the Prison

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Litigation Reform Act of 1996 (“PLRA”), even after a motion to
dismiss is brought).
Plaintiff alleges that Butts “failed to protect [her]
from” Souza’s discriminatory acts by failing to train Souza, but
provides no other facts linking Butts to Souza’s alleged comments
and supposed denial of housing.

See SAC, ECF #27 PageID #147.

That is, Plaintiff makes no allegations that Butts, knew of,
directed, or played any role in Souza’s alleged decision to deny
Plaintiff housing at Pi’ikoi House.

Plaintiff appears to name

Butts solely because of her position as owner of Pi’ikoi House.
There is no respondeat superior liability under § 1983,
i.e., there is no liability under the theory that one is
responsible for the actions or omissions of an employee.
Liability under § 1983 arises only upon a showing of personal
participation by the defendant, Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989), and may be imposed only if a plaintiff can
show that the defendant proximately caused a deprivation of a
federally protected right and links that defendant to the claim,
Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court
explained that purposeful discrimination, as alleged here,
requires a plaintiff to “plead and prove that the defendant acted
with discriminatory purpose.”

Id. at 676; see also Starr v.

Baca, 652 F.3d 1202, 1206 (9th Cir. 2011).

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“Proving purposeful

discrimination requires showing ‘more than intent as volition or
intent as awareness of consequences’; the plaintiff must show
that the decisionmaker acted because of his action’s adverse
effects, not merely in spite of them.”

Starr, 652 F.3d at 1206

(quoting Iqbal, 556 U.S. at 676) (internal quotation marks
omitted).

Holding a supervisor liable for unconstitutional

discrimination if he or she did not have a discriminatory purpose
“would be equivalent to finding them vicariously liable for their
subordinates’ violation,” which is not allowed under § 1983.
Starr, 652 F.3d at 1206.

Even alleging a supervisor’s “awareness

of the discriminatory effects of his or her actions or inaction
does not state a claim of unconstitutional discrimination,” and
Plaintiff does not so allege.

Id.

Nothing within the SAC shows

that Butts was aware of, directed, participated in, or acquiesced
in Souza’s alleged statements or actions.
Plaintiff fails to allege sufficient facts against
Butts to state a claim for purposeful discrimination and claims
against her are DISMISSED.

Plaintiff may seek to amend only if

she can allege sufficient, plausible facts showing that Butts
participated in, knew of, or directed Souza’s allegedly
discriminatory actions.
//
//

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4.

State Law Claims
Because Plaintiff’s state law claims are before the

court on discretionary, supplemental jurisdiction, the court will
not consider them until jurisdiction for Plaintiff’s federal
claims has been conclusively determined.

See Carlsbad Tech.,

Inc. v. HIF BIO, Inc., 556 U.S. 635, 639-540 (2009) (“With
respect to supplemental jurisdiction in particular, a federal
court has subject-matter jurisdiction over specified state-law
claims, which it may (or may not) choose to exercise.

A district

courts decision whether to exercise that jurisdiction after
dismissing every claim over which it had original jurisdiction is
purely discretionary.”) (citations omitted).
IV. CONCLUSION
Plaintiff provides no evidence establishing beyond
doubt the elements of her claim that Defendants discriminated
against her on the basis of her sex and/or gender.

Plaintiff

neither directs the court to evidence entitling her to a directed
verdict if that evidence went uncontroverted at trial, nor
establishes beyond controversy every essential element in her
claims.
Summary judgment is inappropriate, and Defendants are
not required to oppose this Motion or to produce any evidence
controverting Plaintiff’s arguments.

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Plaintiff’s Motion for

Summary Judgment is DENIED.

Claims against Defendant Butts are

DISMISSED, as discussed above.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 31, 2013.

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

Kaeo-Tomaselli v. Butts, et al., No. 1:11-cv-00459 LEK/KSC; ORDER DENYING MOTION FOR
SUMMARY JUDGMENT;G:\docs\prose attys\Ords\DMP\2013\Tomaselli 11-670 lek (dny msj).wpd

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