Baker v. State of Hawai'i et al.

Filing 37

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION re: 23 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/24/2013. [Written order follows the Court's minute order issued July 19, 2013 as docket entry no. 36 ] (afc) 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 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
FREDERICK H.K. BAKER, JR.;
and HAUNANI Y. BAKER,

)
)
)
)
Plaintiffs,
)
vs.
)
)
STATE OF HAWAII, STATE OF
)
)
HAWAII BY ITS DEPARTMENT OF
HAWAIIAN HOME LANDS; NEIL
)
ABERCROMBIE; HUGH E. GORDON; )
)
SCOTT D. PARKER; ROBERT
)
KORBEL DAVIS, JR; JOHN DOES
)
1-100; and JANE DOES 1-100,
)
)
Defendants.
_____________________________ )

CIVIL NO. 13-00159 LEK-KSC

ORDER DENYING PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION
Before the Court is pro se Plaintiffs Frederick H.K.
Baker, Jr. and Haunani Y. Baker’s (collectively, “Plaintiffs”)
Motion for Temporary Restraining Order and Permanent Injunction
(“Motion”), filed June 26, 2013.

[Dkt. no. 23.]

Pursuant to

this Court’s June 27, 2013 entering order (“6/27/13 EO”), [dkt.
no. 25,] Plaintiffs filed a supplemental memorandum in support of
the Motion on July 8, 2013, [dkt. no. 32,] and Defendants the
State of Hawai`i (“the State”), Department of Hawaiian Home Lands
(“DHHL”) and Neil Abercrombie (collectively, “Defendants”) filed
their response to Plaintiffs’ supplemental memorandum
(“Response”) on July 16, 2013 [dkt. no. 35].

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”).

After careful consideration of the Motion, supporting

and opposing memoranda, and the relevant legal authority,
Plaintiffs’ Motion is HEREBY DENIED for the reasons set forth
below.
BACKGROUND
Plaintiffs filed this action on April 4, 2013.
Plaintiffs previously filed a Motion for Expedited Temporary
Restraining Order and Permanent Injunction (“5/29/13 Motion”),
[dkt. no. 9,] which this Court denied as moot when Plaintiffs
filed their First Amended Civil Rights Complaint (“First Amended
Complaint”).

[EO, filed 6/14/13 (dkt. no. 18) (order denying

5/29/13 Motion); First Amended Complaint, filed 6/12/13 (dkt. no.
21).]
According to the First Amended Complaint, Plaintiffs
resided on “a tract of Agricultural Hawaiian home land” in Hilo,
Hawai`i (“the Property”) from October 1981 until May 9, 2013,
when the State and DHHL “illegally took possession of such
Property . . . .”

[First Amended Complaint at ¶¶ 6-7.]

On

May 9, 2013, DHHL executed a Writ of Possession on the Property.
[Response, Decl. of Paul Ah Yat (“Ah Yat Decl.”) at ¶ 3, Exh.

2

A.1]

Upon Plaintiffs’ ejectment from the Property, DHHL placed

Plaintiffs’ belongings that remained on the Property in a storage
facility.

DHHL requires that Plaintiffs pay all outstanding

debts with DHHL to obtain the release of Plaintiffs’ belongings.
[Pltfs.’ Suppl. Mem. in Supp. of Motion, Exh. A (Property Waiver
Form).]
Plaintiffs signed a Lease for the Property in June
1982, and received a $27,000.00 loan from DHHL to execute their
farm plan.
loan.

As of 2003, Plaintiffs had repaid $23,500.00 of the

According to Plaintiffs, they tried to continue making

payments on the loan, but in 2005 Defendants stopped accepting
payments.

[First Amended Complaint at ¶¶ 9-10.]

On October 13,

2006, a hearings officer recommended the cancellation of
Plaintiffs’ lease because Plaintiffs had failed to make payments
on the loan, which was secured by the lease on the Property.

The

Hawaiian Homes Commission (“HHC”) adopted the recommendation on
December 15, 2006 and ordered the cancellation of Plaintiffs’
lease.

Plaintiffs allege that the cancellation violated their

rights under the United States Constitution and under the
Hawaiian Homes Commission Act of 1920.2

1

[Id. at ¶¶ 12-14.]

Ah Yat is a DHHL Enforcement Officer.

[Ah Yat Decl. at

¶ 1.]
2

The First Amended Complaint also alleges the illegal
taking of a radio tower, [First Amended Complaint at ¶¶ 15-16,]
but the claims related to the radio tower are not at issue in the
(continued...)
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The First Amended Complaint alleges the following
claims: a claim for the taking of property in violation of the
due process clause and the equal protection clause of the
Fourteenth Amendment (“Count I”); and a retaliation claim (“Count
II”).

Plaintiffs seek: injunctive relief, including, inter alia,

the return of their property and land; compensatory and punitive
damages; appointment of counsel and attorneys’ fees; and any
other appropriate relief.
In the instant Motion, Plaintiffs argue that the
cancellation of the lease and their ejectment from the Property
were illegal because Plaintiffs made, or attempted to make, all
required payments on the loan and because their “land, home, or
personal property was not used as collateral to obtain the
loan[.]”

[Motion at 4.]

Plaintiffs seek a temporary restraining

order precluding Defendants from selling, transferring, or giving
Plaintiffs’ belongings to any other party.

[Id. at 10.]

DISCUSSION
In general, a plaintiff seeking a temporary restraining
order or a preliminary injunction “must establish that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is

2

(...continued)
instant Motion.
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in the public interest.”

Hunger v. Univ. of Hawai`i, Civil No.

12–00549 LEK–RLP, 2013 WL 752871, at *7 (D. Hawai`i Feb. 26,
2013) (some citations omitted) (citing Am. Trucking Ass’ns v.
City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)).
In the instant case, the critical issue is whether
Plaintiffs can establish that they are facing imminent
irreparable harm.

See Summers v. Earth Island Inst., 555 U.S.

488, 493 (2009) (“To seek injunctive relief, a plaintiff must
show that he is under threat of suffering injury in fact that is
concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly
traceable to the challenged action of the defendant; and it must
be likely that a favorable judicial decision will prevent or
redress the injury.” (citation and internal quotation marks
omitted)).
Plaintiffs argue that they are facing the imminent
irreparable harm of losing their belongings that DHHL is holding
in storage because, on May 9, 2013, DHHL informed Plaintiffs they
had until June 10, 2013 to reclaim their belongings before DHHL
disposed of them.

During proceedings related to the 5/29/13

Motion, however, Defendants’ counsel stated that Defendants would
comply with state law regarding the disposal of Plaintiffs’
belongings and would not dispose of their belongings for at least
sixty days from May 9, 2013.

[Pltfs.’ Suppl. Mem. in Supp. of

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Motion at 1-2; id., Exh. A; id., Exh. B (letter dated 6/4/13 to
Plaintiffs from DHHL).]

Plaintiffs argue that Defendants’

positions regarding the disposal of Plaintiffs’ belongings have
been inconsistent and that the May 9, 2013 Property Waiver Form
violated the law regarding the disposal of Plaintiffs’
belongings.

Plaintiffs also argue that they are facing imminent

irreparable harm because Defendants’ counsel refused Plaintiffs’
request for the return of their medical items in storage.
[Pltfs.’ Suppl. Mem. in Supp. of Motion at 2-3.]
Haw. Rev. Stat. § 171-31.5 governs the disposition of
property seized on State land.

It requires, inter alia: “notice

by certified mail, at least thirty days prior to disposition of
the abandoned or seized property, to the address of the owner of
the property abandoned or seized[;]” and, if the property has an
estimated value of $1,000 or more, a public auction with prior
notice to the public.

Haw. Rev. Stat. § 171-31.5(b)-(d).

Further,
Any person entitled to the abandoned or seized
property may repossess the property prior to its
disposition upon proof of entitlement and payment
of all unpaid rent, debts, charges, and fines
owing and all handling, storage, appraisal,
advertising, and any other expenses incurred in
connection with the proposed disposition of the
abandoned or seized property.
§ 171-31.5(e).
DHHL has not taken any steps to dispose of Plaintiffs’
belongings pursuant to § 171-31.5.
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[Ah Yat Decl. at ¶ 6.]

Defendants have affirmed that, when they do decide to dispose of
Plaintiffs’ belongings, they will comply with § 171-31.5.
[Response at 2.]

Insofar as Plaintiffs have not presented any

evidence of the imminent disposal of their belongings, this Court
FINDS that Plaintiffs have not established that they are facing
imminent irreparable harm.
Plaintiffs also argue that they are facing imminent
irreparable harm because Defendants have refused Plaintiffs’
request for the return of certain medical items.

Plaintiffs sent

Defendants a letter dated June 7, 2013 requesting the return of a
list of items which Plaintiffs argued were “necessities of
life[.]”

[Response, Decl. of Matthew S. Dvonch (“Dvonch Decl.”),

Exh. C at 1 (emphasis omitted).]

The list includes “Chinese

herbs and medicine” and various medical files and records.

[Id.]

The list, however, also includes two VCR/DVD players, tools,
clothing and shoes, bedding, towels, photo albums, appliances,
pots and pans, food, and various religious items.

[Id. at 2.]

Defendants denied the request, stating that Plaintiffs would only
be allowed to retrieve the list of items if Plaintiffs made the
payments required by § 171-31.5.

[Dvonch Decl., Exh. D (letter

dated 6/14/13 to Plaintiffs from Matthew S. Dvonch).]

Defendants

note that, on May 9, 2013, DHHL allowed Plaintiffs one hour and
fifteen minutes to gather any items they wanted to take with them
from the Property.

Plaintiff removed, inter alia, blood pressure

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medicine, oral supplements, clothing, and files.

In addition, at

Plaintiffs’ request, DHHL had a contractor pack and deliver
approximately twenty paintings.

Defendants emphasize that

Plaintiffs chose not to remove the items listed in Plaintiffs’
June 7, 2013 letter.

[Id. at 1.]

Defendants therefore argue

that, because Plaintiffs had ample time to remove the items in
the June 7, 2013 letter and the items constitute almost
everything currently in storage, Plaintiffs cannot show that the
items are necessities and therefore Plaintiffs cannot establish
that the lack of access to the items constitutes imminent
irreparable harm.

[Response at 4-5 & n.2.]

This Court agrees

and FINDS that, because Plaintiffs failed to take reasonable
steps that would have allowed them to retain the medical items
referred to in their Supplemental Memorandum, Plaintiffs cannot
establish that their lack of access to those items constitutes an
imminent threat of irreparable harm.
Insofar as Plaintiffs have not established that they
are likely to suffer irreparable harm unless this Court grants a
temporary restraining order, this Court CONCLUDES that Plaintiffs
are not entitled to either a temporary restraining order or an
injunction at this time.

This Court need not address whether

Plaintiffs can establish the other requirements for a temporary
restraining order or an injunction.
therefore DENIED.

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Plaintiffs’ Motion is

This Court, however, recognizes that, as this case
proceeds, the parties will continue to wrestle with issues
regarding the storage of Plaintiffs’ belongings and Plaintiffs’
access, if any, to the items.

Alternative dispute resolution is

the preferable means to resolve these issues instead of further
motions seeking temporary restraining orders.

This Court will

therefore issue an order directing the parties to mediation.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Temporary Restraining Order and Permanent Injunction, filed
June 26, 2013, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 24, 2013.

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

FREDERICK H.K. BAKER, ET AL. V. STATE OF HAWAII, ET AL.; CIVIL
NO. 13-00159 LEK-KSC; ORDER DENYING PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION

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