Hernando v. Hamamoto et al

Filing 39

ORDER DENYING REQUEST FOR RECUSAL OF JUDGES ASSIGNED TO THIS CASE; ORDER DENYING MOTION TO ADD ADDITIONAL DEFENDANTS; ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 25 , 28 , 37 - - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/ 26/13. "The court dismisses Hernando's claims against Hamamoto, Tom, Akau, O'Malley, Kitsu, Nozoe, Kunitake and Matayoshi in her individual capacity for lack of subject matter jurisdiction. This court grants Defendants&# 039; motion for summary judgment with respect to Hernando's claim against Matayoshi in her official capacity. Hernando's motion for judgment on the pleadings for summary judgment is treated as his opposition to Defendant's motion an d is therefore terminated. The Clerk of Court is directed to enter judgment for Defendants. Any remedy Hernando may have will then be found in Rule 59 or Rule 60 of the Federal Rules of Civil Procedure or in an appeal." (emt, )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). Mariano V. Hernando shall be served by first class mail at the address of record on November 27, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARIANO V. HERNANDO,
Plaintiff,
vs.
PATRICIA HAMAMOTO; KATHRYN
MATAYOSHI; in her individual
and official capacity; KERRY
TOM; GLENN KUNITAKE; MARLENE
AKAU; KATHLEEN O’MALLEY;
SUSAN KITSU; and RONN NOZOE,
each in his/her individual
capacity,
Defendants.
____________________________

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CIVIL NO. 13-00140 SOM/BMK
ORDER DENYING REQUEST FOR
RECUSAL OF JUDGES ASSIGNED TO
THIS CASE; ORDER DENYING
MOTION TO ADD ADDITIONAL
DEFENDANTS; ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

ORDER DENYING REQUEST FOR RECUSAL OF JUDGES ASSIGNED TO THIS
CASE; ORDER DENYING MOTION TO ADD ADDITIONAL DEFENDANTS;
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiff Mariano V. Hernando, who is licensed to

practice law in Hawaii, see ECF No. 38-1, is trying to create a
“federal case” out of nothing.

Although he names many

Defendants, he offers nothing with respect to most of them
suggesting that they caused him any injury redressable by this
court.

Lacking an injury, he lacks standing to assert most of

his purported claims.

Even to the extent his Complaint can be

liberally read to assert injuries giving rise to standing,
certain Defendants have sovereign immunity from the claims, and

no triable issue of material fact that would preclude summary
judgment has been raised with respect to any remaining Defendant.
Hernando’s Complaint asserts a litany of constitutional
claims, as well as state-law claims.

The claims for which

Hernando fails to demonstrate standing are dismissed for lack of
subject matter jurisdiction.

Because Hernando fails to raise a

triable material fact as to any remaining claim, summary judgment
is granted in favor of Defendants as to those claims.
The court has earlier indicated that it is treating
Hernano’s motion for judgment on the pleadings or for summary
judgment as his opposition to Defendants’ motion.

That leaves

for consideration Hernando’s request to have the judges assigned
to this case recuse themselves and his request to add additional
Defendants.

Those requests are denied.

The court decides the motions without a hearing
pursuant to Local Rule 7.2(d).
II.

BACKGROUND.
It is undisputed that the DOE temporarily hired

Hernando as a social worker from November 26, 2001, to June 30,
2003.

See Declaration of Kerry Tom ¶ 7, ECF No. 25-4, PageID #

137.
The present dispute arises out of Hernando’s many
applications for behavioral health specialist positions.
¶¶ 8-9.

Id.

Apparently, as a qualified candidate for the position he

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first applied for, Hernando was eligible for consideration for
other positions based on the DOE’s Policies and Procedures No.
301.001, ECF No. 1-3, PageID # 14.

Between September 25, 2009,

and March 18, 2010, Hernando was considered for other DOE
positions on thirty occasions.

See Tom Decl. ¶ 9.

In eight of

the thirty instances, the hiring office elected not to reinterview Hernando based on Policy No. 301.001.

That policy

allowed the DOE to rely on Hernando’s previous interview results
when Hernando reapplied for the same position:
The appointing authority is not required to
contact and interview an eligible who was
interviewed within the past six months for
the same or similar position in the same
class or series even though the employment
conditions are different, provided, the
selection interview would have measured the
same skills, knowledge, and abilities.
Although the eligible need not be reinterviewed, they must still be given
employment consideration.
See ECF No. 1-3, PageID # 16.
permanent position.

Hernando was not hired for any

See Tom Decl. ¶ 9.

On November 12 and 19, 2009, Hernando submitted
separate DOE Internal Complaint Forms, requesting that the Merit
Appeals Board reconsider the DOE’s decisions not to hire him.
See ECF No. 1-4, PageID # 27 (Internal Complaint Form of November
12, 2009) and PageID # 28 (Internal Complaint Form of November
19, 2009).

3

On December 3, 2009, Kerry Tom, a personnel specialist
with the DOE, sent Hernando a letter.
# 24.

See ECF No. 1-4, PageID

The letter acknowledged receipt of the two internal

complaints.

It then stated:

To assist in our review, please clarify, in
writing, information reported in your forms
regarding the exact date of your:
* interview associated with your
November 12, 2009 internal complaint
form and,
* interview and district of the vacant
position location associated with your
November 19, 2009 internal complaint form.
On February 10, 2011, Kathryn S. Matayoshi,
Superintendent of the DOE, wrote to Hernando, explaining that the
investigation was on hold because the DOE had not received the
information requested in Tom’s letter of December 3, 2009.
ECF No. 1-4, PageID # 25.

See

Matayoshi’s letter further stated that

Hernando’s internal complaints would be considered withdrawn if
he did not provide the information by February 18, 2011.

Id.

On March 14, 2011, having not received the requested
information from Hernando by the February deadline, Matayoshi
gave Hernando a “final notice” to provide the information by
March 21, 2011, stating again that the Internal Complaint Forms
would be considered withdrawn if the information was not timely
received.

See ECF No. 1-4, PageID # 26.

This letter

acknowledged that Hernando had sent a letter in February 2011,
asking for his internal complaints to be set before the DOE’s

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Merit Appeals Board, but that letter had not provided the
requested information.
4, PageID # 137.

Id.; see also Tom Decl. ¶ 7, ECF No. 25-

Tom, who apparently handled the investigation,

stated that a valid and reliable determination of Hernando’s
claim was impossible without the requested information.
¶ 20.

Id.

Tom indicated that no decision would be made as to whether

Hernando’s internal complaints warranted being forwarded to the
Merit Appeals Board.
III.

Id.

THE COURT DENIES HERNANDO’S REQUEST TO HAVE THE JUDGES
ASSIGNED TO THIS CASE RECUSE THEMSELVES AND HIS MOTION
TO ADD ADDITIONAL DEFENDANTS.
On November 14, 2013, Hernando filed a motion to add

other parties.

See ECF No. 37.

Hernando’s motion supplies no

justification for adding any party to this action.

Accordingly,

that request is denied.
In support of the motion, Hernando submits his own
declaration.

That declaration states only that he is the

Plaintiff in this matter; that he, at one time, worked for the
DOE; that he is trilinqual; that he has helped build 33 Habitat
for Humanity houses; and that, to the best of his knowledge, his
declaration is not filed for any evil purpose.

See ECF No. 37-1.

The court notes that this declaration is not sufficiently
acknowledged, as required by 28 U.S.C. § 1746.

Even if accepted,

the declaration provides no facts justifying the addition of any

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suggested Defendant in this action, as it does not even discuss
any of the people Hernando proposes to add as Defendants.
The exhibits attached to the motion provide no more
clarity as to why any new Defendant should be added.
exhibits are this court’s minute orders.

Many of the

The exhibits appear to

be attached to show that this judge and Magistrate Judge Barry M.
Kurren allegedly had an ex parte meeting with Defendants.

In so

alleging, Hernando appears to be misreading the court docket.

In

his own motion, which the court also deemed to be his opposition
to Defendants’ motion, Hernando also asked the judges assigned to
this case to recuse themselves.

See ECF No. 28-1, PageID # 181.

Because Hernando is not accusing either judge of having
a personal bias or prejudice, his recusal request appears to be
brought under 28 U.S.C. § 455(a), which states, “Any justice,
judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.”

The salient question in such a motion

is whether a reasonable person with knowledge of all the facts
would conclude that the judge’s impartiality might reasonably be
questioned.
2008).

Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.

The reasonable person, moreover, is not “‘hypersensitive

or unduly suspicious,’ but rather is a ‘well-informed, thoughtful
observer.’”

United States v. Holland, 519 F.3d 909, 913 (9th

Cir. 2008) (quoting In re Mason, 916 F.2d 384, 386 (7th Cir.

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1990)).

This judge decides any motion to disqualify this judge

brought under § 455.

See In re Bernard, 31 F.3d 842, 843 (9th

Cir. 1994).
Hernando attaches Exhibits G and H to his recusal
request, see ECF Nos. 28-8 and 28-9, claiming that both judges
had an ex parte meeting with Defendants.

Exhibit G is a minute

order filed on June 12, 2013, that continues the Rule 16
Scheduling Conference.

No hearing or meeting of any kind was

held relating to that continuance.

See ECF Nos. 28-1 and 5.

Exhibit H is simply Hernando’s letter of September 24, 2013, ECF
Nos. 28-9 and 30, which asks for a transcript of the hearing
resulting in the continuance.

There was no hearing relating to

the continuance, and the request that both judges recuse
themselves is denied.

No reasonable person would question either

judge’s impartiality on the present record.
IV.

THE SUMMARY JUDGMENT MOTION IS GRANTED.
A.

Summary Judgment Standard.

Summary judgment shall be granted when “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.”

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

One of the principal purposes of

summary judgment is to identify and dispose of factually
unsupported claims and defenses.

7

Celotex Corp. v. Catrett, 477

U.S. 317, 323–24 (1986).

Accordingly, “[o]nly admissible

evidence may be considered in deciding a motion for summary
judgment.”

Miller v. Glenn Miller Prods., Inc., 454 F.3d 975,

988 (9th Cir. 2006).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See Celotex, 477 U.S. at 323.

A moving party

has both the initial burden of production and the ultimate burden
of persuasion on a motion for summary judgment.

Nissan Fire &

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.
2000).

The burden initially falls on the moving party to

identify for the court “those portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477
U.S. at 323); accord Miller, 454 F.3d at 987.

“A fact is

material if it could affect the outcome of the suit under the
governing substantive law.”

Miller, 454 F.3d at 987.

When the moving party fails to carry its initial burden
of production, “the nonmoving party has no obligation to produce
anything.”

In such a case, the nonmoving party may defeat the

motion for summary judgment without producing anything.
Fire, 210 F.3d at 1102–03.

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Nissan

On the other hand, when the moving party meets its
initial burden on a summary judgment motion, the “burden then
shifts to the nonmoving party to establish, beyond the pleadings,
that there is a genuine issue for trial.”
987.

Miller, 454 F.3d at

This means that the nonmoving party “must do more than

simply show that there is some metaphysical doubt as to the
material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

The

nonmoving party may not rely on the mere allegations in the
pleadings and instead “must set forth specific facts showing that
there is a genuine issue for trial.”

Porter v. Cal. Dep’t of

Corr., 419 F .3d 885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).

“A genuine

dispute arises if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”

California v.

Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (“There must be
enough doubt for a ‘reasonable trier of fact’ to find for
plaintiffs in order to defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving party's
evidence is to be believed, and all justifiable inferences are to
be drawn in that party's favor.”
(quotations and brackets omitted).

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Miller, 454 F.3d at 988

B.

Because Hernando Fails To Demonstrate Standing to
Assert Many of His Claims, the Court Dismisses
Those Claims.

“[W]hether or not the parties raise the issue, federal
courts are required sua sponte to examine jurisdictional issues
such as standing.”

D’Lil v. Best W. Encina Lodge & Suites, 538

F.3d 1031, 1035 (9th Cir. 2008) (internal quotation omitted).
Therefore, although the government does not question Hernando’s
standing to bring the claims asserted in this action, this court
has “both the power and the duty to raise the adequacy of
[Hernando’s] standing sua sponte.”

Bernhardt v. Cnty. of Los

Angeles, 279 F.3d 862, 868 (9th Cir. 2002).
To have standing to bring a federal suit:
First, the petitioner must show that he has
suffered “an injury in fact,” i.e., “an
invasion of a legally protected interest
which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or
hypothetical.” . . . Second, it must show
that the injury is “fairly traceable to the
challenged action of the defendant,” and is
not “the result of the independent action of
some third party not before the court.”
. . . Finally, “it must be likely, as
opposed to merely speculative, that the
injury will be redressed by a favorable
decision.”
Ass'n of Pub. Agency Customers v. Bonneville Power Admin., 733
F.3d 939, 950 (9th Cir. 2013) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).
As an initial matter, Hernando fails to establish the
existence of a case or controversy with respect to Defendants
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Tom, Akau, O’Malley, Kitsu, and Nozoe.

Although these five

Defendants are named in the caption of the Complaint, Hernando
does not mention them at all in the body of the Complaint.

Nor

does he establish his standing to assert such claims in his
motion for judgment on the pleadings or for summary judgment,
which the court has deemed to be his opposition to Defendants’
motion.

See ECF No. 34.

Hernando simply fails to allege, much

less demonstrate, that any of these five Defendants caused him an
injury-in-fact redressable by this court.

He therefore fails to

establish standing to assert any claim against them, and all
claims against them are dismissed for lack of subject matter
jurisdiction.
Similarly, Hamamoto is mentioned only once in the
Complaint, and the only allegation against her is that she
“informed various echelons of her department [to] use the civil
service rules of the Department of Human Resources Development.”
Hernando raises no triable issue as to whether he was harmed by
the use of these rules and therefore fails to establish any
injury caused by Hamamoto that could give rise to standing to
assert a claim against her.
Even read as liberally as possible, Hernando’s
Complaint and supporting papers are unclear as to what injury any
Defendant may have caused him.

The primary “injury” Hernando

appears to assert is that the DOE “demanded” in its letter of

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December 3, 2009, and its follow-up letters in 2011, that he
provide the dates of the interviews mentioned in his internal
complaint forms.

While Hernando describes the DOE’s requests as

“coercion, discrimination and reprisal” or as violating his right
against self-incrimination, he does not explain how the mere
request for further information that was needed to process a
complaint that Hernando himself had filed could plausibly
constitute “an invasion of [his] legally protected interest[s].”
See Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1180 (9th
Cir. 2006).

To the extent Hernando’s claims arise from this

purported “injury,” he shows no injury and therefore lacks
standing.

Such claims are dismissed because this court lacks

subject matter jurisdiction over matters that Hernando’s lack of
injury precludes him from having standing to bring.
Hernando’s claims against Kunitake and against
Matayoshi in her individual capacity appear to be based solely on
the letter of March 14, 2011.

Hernando fails to raise a triable

issue of fact as to how this letter could have possibly injured
him.

He therefore fails to establish an injury traceable to

Kunitake and to Matayoshi in her individual capacity.

Lacking an

injury, Hernando lacks standing to proceed against Kunitake and
Matayoshi in her individual capacity, and claims against them are
also dismissed for lack of subject matter jurisdiction.

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While the most plausible reading of the Complaint is
that the only alleged “injury” Hernando suffered arose from the
letters asking for more information, the court, construing the
Complaint liberally, wonders whether Hernando may also be trying
to assert a claim based on the denial of Hernando’s job
applications and his internal complaints.

Failing to hire him

and failing to investigate his complaints could be injuries-infact fairly traceable to the agency (and therefore to Matayoshi,
the agency head, in her official capacity), which could
conceivably be redressed by a court’s favorable order.
Therefore, the court turns to potential claims against Matayoshi
in her official capacity as the only ones remaining that Hernando
may have standing to bring.
C.

Summary Judgment is Granted Against Hernando With
Respect to the Remaining Claims against Matayoshi
in Her Official Capacity.

A suit against a state official, acting in his or her
official capacity, is barred by the Eleventh Amendment, to the
extent it requests money damages or relief that is retroactive in
nature.

Will v. Mich. Dep't of State Police, 491 U.S. 58, 71

(1989).

To the extent Matayoshi is being sued in her official

capacity as the superintendent of the DOE, Hernando may not seek
relief other than prospective injunctive relief.

Edelman v.

Jordan, 415 U.S. 651, 677 (1974) (holding that “a federal court’s

13

remedial power, consistent with the Eleventh Amendment, is
necessarily limited to prospective injunctive relief”).
Hernando may, however, consistent with the Eleventh
Amendment, ask this court to enjoin Matayoshi from denying him
his alleged right to have his job application properly considered
and/or his right to appropriate internal administrative review,
if he is able to demonstrate his right to such entitlements.
Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (noting that
procedural due process is implicated when there is “state action
that adjudicates important rights”).
The Fourteenth Amendment protects individuals from
being deprived of liberty or property by the government without
due process.

Read liberally, Hernando’s Complaint can be said to

be asserting an action under 42 U.S.C. § 1983 for the deprivation
of various “liberty” and “property” interests created by Hawaii
law.

In particular, Hernando claims that the denial of his

internal complaints constitutes a deprivation of a “liberty”
interest created by section 76-42(a)(2) of Hawaii Revised
Statutes and of a “property interest” created by section 76-14(b)
of Hawaii Revised Statutes.

Section 76-42(a)(2) of Hawaii

Revised Statutes states, “In presenting a complaint, the
complainant shall be assured freedom from coercion,
discrimination, or reprisal.”

Section 76-14(b) states, “Any

person suffering legal wrong by an action under subsection (a)(1)

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[pertaining to recruitment or examination] or aggrieved by such
action shall be entitled to appeal to the merit appeals board.”
“A section 1983 claim based upon procedural due process
thus has three elements: (1) a liberty or property interest
protected by the Constitution; (2) a deprivation of the interest
by the government; (3) lack of process.

The Due Process Clause

does not create substantive rights in property; the property
rights are defined by reference to state law.”

Portman v. Cnty.

of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)
Constitutionally protected interests can be “defined by
existing rules or understandings that stem from an independent
source such as state law.”

Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972).

However, even when “the

underlying substantive interest is created by . . . state law,
federal constitutional law determines whether that interest rises
to the level of a legitimate claim of entitlement protected by
the Due Process Clause.”

Memphis Light, Gas & Water Div. v.

Craft, 436 U.S. 1, 9 (1978).
Hernando fails to articulate a constitutionally
protected liberty interest.

There is no “constitutionally

protected liberty interest in the freedom to pursue [a particular
job.]”

White v. Office of Pers. Mgmt., 787 F.2d 660, 665 (D.C.

Cir. 1986).

A procedural due process violation does not occur

“every time the government denies an employment application.”

15

Id. at 663.

Instead, “a deprivation greater than the denial of a

particular job application must be involved.”

Id.

To the extent

the “liberty” interest asserted by Hernando was simply the denial
of his job application or the failure to pursue his internal
complaints, summary judgment is granted against him.
To the extent Hernando’s asserted liberty interest is
the state-created right to “freedom from coercion,
discrimination, or reprisal” in the civil service application
procedure, Hernando fails to raise a triable issue from which a
reasonable finder of fact could infer any Defendants’ liability.
In short, he shows no coercion, discrimination or reprisal.
Finally, to the extent Hernando premises his § 1983
claim on the absence of a completed Merits Appeals Board
proceeding, he fails to show how this absence constitutes a lack
of process.

Certainly he fails to show a protected property

interest in any appeal to the Merits Appeal Board, as Hernando
himself blocked the completion of that process.

Hernando

concedes that all that was asked of him was supplemental
information required to process his application.

It is also

undisputed that Hernando’s refusal to provide this information
prevented the internal review process from going forward.
these uncontested facts, no reasonable fact finder could
determine that any Defendant denied Hernando due process.

16

From

Summary judgment is granted for Matayoshi on Hernando’s § 1983
claim against her in her official capacity.
Because Hernando’s Complaint and filings are so
difficult to decipher, there may be some argument that this court
has not divined.

In that case, Hernando should clearly

articulate the argument in a reconsideration motion.

Failure to

do so will result in the court’s conclusion that Hernando has
waived any argument not discussed in this order.
V.

CONCLUSION.
The court denies Hernando’s request to have the judges

assigned to this case recuse themselves.

The court also denies

Hernado’s motion to add additional Defendants to this case.
The court dismisses Hernando’s claims against Hamamoto,
Tom, Akau, O’Malley, Kitsu, Nozoe, Kunitake and Matayoshi in her
individual capacity for lack of subject matter jurisdiction.
This court grants Defendants’ motion for summary
judgment with respect to Hernando’s claim against Matayoshi in
her official capacity.
Hernando’s motion for judgment on the pleadings for
summary judgment is treated as his opposition to Defendant’s
motion and is therefore terminated.

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The Clerk of Court is directed to enter judgment for
Defendants.

Any remedy Hernando may have will then be found in

Rule 59 or Rule 60 of the Federal Rules of Civil Procedure or in
an appeal.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 26, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Hernando v. Hamamoto et al, Civil No. 13-00140 SOM-BMK; ORDER DENYING REQUEST FOR
RECUSAL OF JUDGES ASSIGNED TO THIS CASE; ORDER DENYING MOTION TO ADD ADDITIONAL
DEFENDANTS; ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

18