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

Filing 89

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 79 - Signed by JUDGE LESLIE E. KOBAYASHI on 9/17/13. "Defendants' Motion for Summary judgment is GRANTED as to Plaintiff's federal claims. The court decl ines to exercise supplemental jurisdiction over the Plaintiff's remaining state law claim. The Clerk is DIRECTED to enter judgment and terminate this action." (emt, )CERTIFICATE OF SERVICEParticipa nts registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Iwalani Souza, Jennifer Butts and Dion'e Kaeo-Tomaselli shall be served by first class mail at the addresses of record on September 18, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIV. NO. 11-00670 LEK/BMK
)
Plaintiff,
) ORDER GRANTING DEFENDANTS’
) MOTION FOR SUMMARY JUDGMENT
vs.
)
)
JENNIFER BUTTS, IWALANI SOUZA, )
)
Defendants.
)
______________________________ )
DION`E KAEO-TOMASELLI,

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the court is Defendants Jennifer Butts’ and
Iwalani Souza’s Motion for Summary Judgment on All Counts (Counts
I, II, and III) of Plaintiff Dion`e Kaeo-Tomaselli’s Second
Amended Complaint.

ECF No. 79.

Plaintiff has filed an

Opposition, ECF No. 82, and Defendants have filed a Reply, ECF
No. 88.

For the following reasons, Defendants’ Motion for

Summary Judgment is GRANTED.1
I.

BACKGROUND

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

See ECF No. 27.

Plaintiff

alleges that Butts and Souza, respectively the owner and exmanager of the Pi`ikoi Clean and Sober House for Women (“Pi`ikoi
House”), violated the Fair Housing Act (“FHA”) of 1968,2 the

1

The court exercises its discretion to decide this matter
without a hearing. See Local Rule LR7.2(d).
2

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

Equal Protection Clause of the Fourteenth Amendment, and state
law when they allegedly refused her request for residence at
Pi`ikoi House on August 10, 2010.
Plaintiff was born a hermaphrodite, carries a Hawaii
identification certificate that identifies her as female, is
considered a female by the Hawaii Department of Public Safety,
and states that, although she has never had a sex change
operation, she has had “corrective surgery.”
Nos. 60-1 through 60-4.

See Pl. Exs., ECF

Plaintiff alleges that, on August 10,

2010, the Women’s Community Correctional Center (“WCCC”)
Librarian, Harry Fuchigami, telephoned Souza to inquire whether
Plaintiff could reside at Pi‘ikoi House upon her release from
prison.

Plaintiff says 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 or protect Plaintiff from Souza’s
alleged discrimination and slander.

Plaintiff seeks damages,

continuing psychological treatment, and reformation of policies
and procedures at Pi`ikoi House.
On January 31, 2013, the court denied Plaintiff’s
motion for summary judgment and dismissed her claims against
Defendant Butts for Plaintiff’s failure to state a cognizable
claim.

See Order, ECF No. 68.

Plaintiff was given an

2

opportunity to amend her claims against Butts to allege
“sufficient, plausible facts showing that Butts participated in,
knew of, or directed Souza’s allegedly discriminatory actions.”
Id., PageID #331.

Plaintiff failed to amend and claims against

Butts remain dismissed.
II. LEGAL STANDARD
Summary judgment is proper when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Rule 56(a)

mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at
Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).

“When the moving party has carried its burden

under Rule 56[(a)] its opponent must do more than simply show
3

that there is some metaphysical doubt as to the material facts
[and] come forward with specific facts showing that there is a
genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586–87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (stating that a party cannot
“rest upon the mere allegations or denials of his pleading” in
opposing summary judgment).
To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor.

It is sufficient that “the claimed

factual dispute be shown to require a jury or judge to resolve
the parties’ differing versions of the truth at trial.”

T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 631 (9th Cir. 1987).

“A scintilla of evidence or evidence

that is merely colorable or not significantly probative does not
present a genuine issue of material fact.”

Addisu v. Fred Meyer,

Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

“[I]f the factual

context makes the non-moving party’s claim implausible, that
party must come forward with more persuasive evidence than would
otherwise be necessary to show that there is a genuine issue for
trial.”

Cal. Arch’l Bldg. Prods., Inc. v. Franciscan Ceramics,

Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita
Elec. Indus. Co., 475 U.S. at 587); accord Addisu, 198 F.3d at
4

1134 (“There must be enough doubt for a ‘reasonable trier of
fact’ to find for plaintiffs in order to defeat the summary
judgment motion.”).

Thus, the “purpose of summary judgment is to

‘pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.’”

Matsushita Elec.

Indus. Co., 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)
advisory committee’s note on 1963 amendments).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).

When considering the evidence on a

motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.

Matsushita Elec.

Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor” (citations
omitted)).
III.

DISCUSSION

Defendants argue that Plaintiff (1) never formally
applied for residence at Pi`ikoi House, therefore, they never
denied an application for residence from her; (2) lacks standing
5

to sue because she was ineligible to reside at Pi`ikoi House when
Fuchigami inquired, based on her incarceration; (3) cannot state
a claim under the FHA because Pi`ikoi House is subject to the
“roommate exception”; and(4) cannot state a discrimination claim
against them under § 1983 because they are not state actors and
she is not a member of a suspect class.

Based on these same

arguments, Defendants ask the court to retain jurisdiction and
summarily dismiss Plaintiff’s state law slander claim.
Plaintiff does not rebut Defendants’ arguments except
to say that she was eligible for a reduction in her minimum term
when she inquired about residence at Pi`ikoi House.

See Opp’n,

ECF No. 82.
A.

Plaintiff’s FHA Claims
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,” who 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).

6

1.

Plaintiff Lacked 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).

To establish that

she is an “aggrieved person” with standing to sue under the FHA,
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 does not deny that she was incarcerated when
Mr. Fuchigami inquired about Plaintiff’s possible future housing
at Pi`ikoi House.

Rather, she asserts only that she was eligible

for consideration of a reduction of her minimum term of sentence.
While this may be true, the record shows that Plaintiff was
incarcerated when Fuchigami sought information from Pi`ikoi House
on Plaintiff’s behalf in 2010, incarcerated when she filed this
suit, and remained incarcerated for nearly two years thereafter,
until she was released in June 2013.
7

Plaintiff was not,

therefore, subjected to an actual or imminent discriminatory
housing practice, because she was ineligible to reside at Pi`ikoi
House when Fuchigami inquired.

Plaintiff cannot show any actual

injury based on an illegal housing decision that occurred or was
“about to occur,” and there is no genuine issue of material fact
that she lacked standing to sue.
2.

See 42 U.S.C. § 3602(i).

The Roommate Exception to Liability Under the FHA
Moreover, 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).
“[C]hoosing a roommate implicates significant privacy and safety
considerations,” and 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).

Because the FHA does not apply to shared living units,

it is not unlawful to discriminate when selecting a roommate.
Id. at 1222.
It is undisputed that Pi’ikoi House is a privately
owned group home where residents share rooms and/or living
quarters and vote on accepting new residents.

The FHA’s roommate

exception therefore applies to Pi`ikoi House and Plaintiff fails
8

to state a claim under the FHA regarding any putative decision to
deny her residence at Pi`ikoi House based on her transgender
status.

Defendants’ Motion for Summary Judgment is GRANTED as to

Plaintiff’s FHA claims.
B.

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

that Defendants violated the Equal Protection Clause of the
Fourteenth Amendment.

To succeed on this claim, Plaintiff must

show that 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).
1.

Defendants Are Not State Actors
The court begins with the presumption that private

conduct does not constitute state action.

Sutton v. Providence

St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999); Reiner
v. Mental Health Kokua, No. 10-00340 DAE; 2011 WL 322535, *5 (D.
Haw. Jan. 31, 2011).
under state law.”
Cir. 1991).

“Private parties are not generally acting

Price v. Hawaii, 939 F.2d 702, 707–08 (9th

A person only acts under color of state law if he or

she “exercise[s] power ‘possessed by virtue of state law and made
9

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)).
The burden is on the individual alleging that a private
party infringed his or her constitutional rights to plead and
show that the private party’s conduct constitutes state action.
George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir.
1996).

“Constitutional standards should be invoked only ‘when it

can be said that the State is responsible for the specific
conduct of which the plaintiff complains.’”

Franklin v. Fox, 312

F.3d 423, 444 (9th Cir. 2002) (citing Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n., 531 U.S. 288, 295 (2001)
(quotations omitted)).
A private party may act under color of state law when:
(1) performing a traditionally and exclusive public function; (2)
acting jointly with the state government; (3) acting under
governmental compulsion or coercion; and (4) there is a
governmental nexus.
Cir. 2003).

Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th

Additionally, a “private person acts ‘under color

of’ state law when engaged in a conspiracy with state officials
to deprive another of federal rights.”
914, 920 (1984) (citation omitted).

Tower v. Glover, 467 U.S.

These factors are not

exclusive, but “[s]atisfaction of any one test is sufficient to
find state action, so long as no countervailing factor exists.”

10

Kirtley, 326 F.3d at 1092.

The central question is whether the

alleged violation of constitutional rights is fairly attributable
to state government.

Id. at 1096.

Courts are undecided on whether employees of a private
halfway house may be considered state actors.

Compare Kelly v.

N.J. Dep’t. of Corr., 2012 WL 6203691, at *6 (D.N.J. Dec. 11,
2012) (finding plaintiff failed to allege any facts showing
defendants functioned as state actors); Allen v. Dawson, 2012 WL
2878031, at *1 (D. Colo. Jul. 12, 2012) (same); McWhirt v.
Putnam, 2008 WL 695384, at *6 (W.D. Mo. Mar. 12, 2008)(finding
employees of a private halfway house were not state actors);
Phillips v. Goord, 2009 WL 909593, at *3 (W.D.N.Y. Apr. 1, 2009)
(finding no allegations against non-profit halfway house
supporting state action); with Corr. Serv. Corp. v. Malesko, 534
U.S. 61, (2001) (suggesting that, although federal prisoner
housed in private halfway house had no implied right of action
under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), a state prisoner may); Aladimi v. Alvis
House/Cope Center, 2012 WL 726852 (S.D. Ohio Mar. 6, 2012)
(finding that the operation of a halfway house that houses
prisoners for pre-release programming is “somewhat analogous” to
the operation of a prison, a “historically governmental
function”).

11

Here, Plaintiff pleads no facts and submits no evidence
that Butts and Souza were acting under color of state law.

She

does not show that Pi`ikoi House performed a traditional and
exclusively governmental function by providing transitional
housing for released prisoners.

She details no contractual

relationship between the State and Pi`ikoi House.

She does not

describe the nature of the services provided at Pi`ikoi House or
rebut Defendants’ statement that it housed released inmates only
-- a category she concedes did not apply to her.

Plaintiff does

not allege Butts or Souza willfully participated, conspired with,
or were coerced by state officials, or demonstrate that there is
a close nexus between them and the State and that this nexus
forms the basis of her claims.

Plaintiff therefore fails to pass

the threshold question of whether Defendants are state actors
subject to suit under § 1983.
2.

Failure to State An Equal Protection Claim
Assuming, arguendo, that Defendants were state actors,

Plaintiff fails to state a cognizable claim against them under
the Equal Protection Clause.

Souza’s single comment that she

would not be able to accommodate Plaintiff at Pi`ikoi House
because she is “a sex change,” simply does not give rise to an
equal protection violation.

See Merrick v. Farmers Ins. Group,

892 F.2d 1434, 1438 (9th Cir. 1990) (holding that “stray remarks
are insufficient to establish discrimination”); Williams v.
12

Bramer, 180 F.3d. 699, 706 (5th Cir. 1999) (stating the “use of a
racial epithet, without harassment or some other conduct that
deprives the victim of established rights, does not amount to an
equal protection violation”).

It is well-established that verbal

harassment, abuse, and threats (including those sexual in
nature), without more, are insufficient to state an equal
protection violation.

See Oltarzewski v. Ruggiero, 830 F.2d 136,

139 (9th Cir. 1987); Freeman v. Arpaio, 125 F.3d 732 (9th Cir.
1997) (abusive language directed at prisoner’s religious
background and ethnic background not actionable), abrogated on
other grounds by Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008).
See also Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987)
(holding that derogatory racial epithets alone do not violate the
Fourteenth Amendment).

Defendants’ Motion for Summary Judgment

is Granted as to Plaintiff’s equal protection claim.
IV. SUPPLEMENTAL JURISDICTION
Defendants urge the court to retain jurisdiction over
Plaintiff’s state law slander claim, but provide no argument
supporting their contention that this claim should be dismissed.
When all federal claims are dismissed in an action containing
both federal and state law claims, a federal court may decline to
exercise supplemental jurisdiction over the remaining state law

13

claims.

28 U.S.C. § 1367.3

“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 court’s decision whether

to exercise that jurisdiction after dismissing every claim over
which it had original jurisdiction is purely discretionary.”

See

Carlsbad Tech., Inc. v. HIF BIO, Inc., 556 U.S. 635, 639-540
(2009) (citations omitted).
Plaintiff’s federal claims are being dismissed well
before trial and this court declines to exercise supplemental
jurisdiction over Plaintiff’s state law slander claim.

See Ove

v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (holding that no
explanation is required when declining jurisdiction under
§ 1367(c)(3)).

3

Section § 1367(c) provides:

The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of state
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
14

V. CONCLUSION
Defendants’ Motion for Summary judgment is GRANTED as
to Plaintiff’s federal claims.

The court declines to exercise

supplemental jurisdiction over the Plaintiff’s remaining state
law claim.

The Clerk is DIRECTED to enter judgment and terminate

this action.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 17, 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;G:\docs\prose
attys\Ords\DMP\2013\Tomaselli 11-670 lek (Grant MSJ).wpd

15