Baker v. State of Hawai'i et al.

Filing 66

ORDER GRANTING STATE DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED CIVIL RIGHTS COMPLAINT WITH JURY DEMAND FILED JUNE 12, 2013 27 AND GRANTING DEFENDANT ROBERT KORBEL DAVIS JR.'S MOTION TO DISMISS PLAINTIFFS' FIRST AME NDED CIVIL RIGHTS COMPLAINT WITH JURY DEMAND FILED JUNE 12, 2013 44 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/4/2013. [Order follows hearing held 10/2/2013. Minutes: 63 ] (afc)CERTIFICATE OF SE RVICEParticipants 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 HAWAI`I; STATE OF
)
HAWAI`I 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 GRANTING STATE DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED CIVIL RIGHTS COMPLAINT WITH JURY DEMAND FILED
JUNE 12, 2013 AND GRANTING DEFENDANT ROBERT KORBEL DAVIS JR.’S
MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
CIVIL RIGHTS COMPLAINT WITH JURY DEMAND FILED JUNE 12, 2013
Before the Court are: Defendants the State of Hawai`i
(“the State”), Department of Hawaiian Home Lands (“DHHL”), and
Neil Abercrombie’s (collectively, “the State Defendants”) Motion
to Dismiss Plaintiffs’ First Amended Civil Rights Complaint with
Jury Demand Filed June 12, 2013 (“State Defendants’ Motion”),
filed on July 1, 2013,1 and Defendant Robert Korbel Davis, Jr.’s
(“Defendant Davis”) Motion to Dismiss Plaintiffs’ First Amended

1

The State Defendants also filed an errata to the State
Defendants’ Motion (“Errata”), which consisted of a replacement
Memorandum in Support of the State Defendants’ Motion. [Dkt. no.
28.] All citations to the Memorandum in Support of the State
Defendants’ Motion refer to the version in the Errata.

Civil Rights Complaint with Jury Demand Filed on June 12, 2013
(“Davis Motion”), filed August 7, 2013.

[Dkt. nos. 27, 44.]

Pro

se Plaintiffs Frederick H.K. Baker, Jr. and Haunani Y. Baker
(collectively, “Plaintiffs”) filed their memorandum in opposition
to the State Defendants’ Motion (“State Opposition”) on
August 1, 2013, and their memorandum in opposition to the Davis
Motion (“Davis Opposition”) on September 16, 2013.
42, 53.]

[Dkt. nos.

The State Defendants filed their reply (“State

Defendants’ Reply”) on August 12, 2013, and Defendant Davis filed
his reply (“Davis Reply”) on September 28, 2013.

[Dkt. nos. 47,

57.]
These matters came on for hearing on October 2, 2013.
Appearing on behalf of the State Defendants was Craig Iha, Esq.,
and appearing on behalf of Defendant Davis was
Christopher Bennett, Esq.

Plaintiffs appeared by telephone.

For

the reasons stated infra, however, the parties did not present
oral arguments, and this Court deemed the matters submitted on
the written briefings.

After careful consideration of the

motions, supporting and opposing memoranda, and the relevant
legal authority, the State Defendants’ Motion and the Davis
Motion are HEREBY GRANTED.

Plaintiffs’ claims against the State

Defendants and Plaintiffs’ claims against Defendant Davis are
HEREBY DISMISSED WITH PREJUDICE.

2

BACKGROUND
I.

Background Relevant to the State Defendants’ Motion
Plaintiffs filed this action on April 4, 2013.

Plaintiffs previously filed a Motion for Expedited Temporary
Restraining Order and Permanent Injunction (“First TRO Motion”),
[dkt. no. 9,] which this Court denied as moot when Plaintiffs
filed their First Amended Civil Rights Complaint with Jury Demand
(“First Amended Complaint”).

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

(order denying First TRO Motion); First Amended Complaint, filed
6/12/13 (dkt. no. 21).]

Plaintiffs filed a similar motion on

June 26, 2013 (“Second TRO Motion”), which this Court also denied
on July 24, 2013.

[Dkt. no. 23 (Second TRO Motion); dkt. no. 37

(order denying Second TRO Motion).]
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.
[Mem. in Opp. to Pltfs.’ Suppl. Mem. in Supp. of Second TRO
Motion, filed 7/16/13 (dkt. no. 35), Decl. of Paul Ah Yat (“Ah
Yat Decl.”) at ¶ 3, Exh. A.2]

2

Upon Plaintiffs’ ejection from the

Ah Yat is a DHHL Enforcement Officer.

¶ 1.]
3

[Ah Yat Decl. at

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 Second

TRO Motion, filed 7/8/13 (dkt. No. 32), Exh. A (Property Waiver
Form).]
According to the First Amended Complaint, Plaintiffs
signed a lease for the Property in June 1982 (“the Lease”), and
received a $27,000.00 loan from DHHL to execute their farm plan
on the Property (“the Loan”).
$23,500.00 of the Loan.

As of 2003, Plaintiffs had repaid

According to Plaintiffs, they tried to

continue making payments on the Loan, but in 2005 Defendants
stopped accepting payments.
10.]

[First Amended Complaint at ¶¶ 9-

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.
The Hawaiian Homes Commission (“HHC”) adopted the recommendation
on December 15, 2006 and ordered the cancellation of the Lease.
Plaintiffs allege that the cancellation violated their rights
under the United States Constitution and under the Hawaiian Homes
[Id. at ¶¶ 12-14.]

Commission Act of 1920 (“HCCA”).

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

4

Fourteenth Amendment (“Count I”); and a claim that the defendants
retaliated against Plaintiffs in violation of the Fifth Amendment
and the Fourteenth Amendment (“Count II”).

Plaintiffs seek:

injunctive relief, including, inter alia, the return of the
Property and Plaintiffs’ personal belongings; compensatory and
punitive damages; appointment of counsel and attorneys’ fees; and
any other appropriate relief.
II.

Background Relevant to the Davis Motion
The First Amended Complaint raises the following

allegations relevant to the Davis Motion:
5.
Defendants HUGH E. GORDON,
SCOTT D. PARKER, and ROBERT KORBEL DAVIS, JR., are
individuals who purchased a radio license to
operate a radio station on the Island of Hawai`i,
and who illegally sold and purchased Plaintiffs’
property, specifically radio towers.
. . . .
ILLEGAL TAKING OF RADIO TOWER
15. On November 27, 2002 Defendant Gordon
purchased the radio license from Plaintiffs. The
Property and any control thereof including all
items, specifically the radio Tower were excluded
from the sale of the radio license.
16. On September 13, 2007 Defendant Gordon
sold the radio license to Defendant Parker and
illegal sold the Plaintiffs [sic] radio Tower that
Plaintiffs never agreed or approved the sale of
their property, specifically the radio Tower.
. . . .

5

GROUND TWO
. . . .
19. That Defendants Hugh E. Gordon,
Scott D. Parker, and Robert Korbel Davis Jr. knew
or should have known that their actions of selling
property that is not their property to sell was in
direct violation of the Fifth and Fourteenth
Amendment to the United States Constitution.
[First Amended Complaint at pgs. 3-6.]

Plaintiffs pray for

twenty-five million dollars in compensatory damages and twentyfive million dollars in punitive damages from Defendants Gordon,
Parker, and Davis.3

[Id. at pg. 7.]
STANDARD

The State Defendants and Defendant Davis bring their
respective motions pursuant to Fed. R. Civ. P. 12(b)(1) and
(b)(6).

Rule 12(b)(1) authorizes a district court to dismiss an

action for “lack of subject matter jurisdiction[.]”

“[T]he party

asserting subject matter jurisdiction has the burden of proving
its existence.”

Robinson v. United States, 586 F.3d 683, 685

(9th Cir. 2009).

This district court has stated that a Rule

12(b)(1) motion “may (1) attack the allegations of a pleading as
insufficient to confer subject matter jurisdiction on the court
(‘facial attack’) or (2) ‘attack the existence of subject matter

3

Plaintiffs have not completed service upon Defendants
Gordon and Parker. On September 27, 2013, Plaintiffs filed a
motion for an extension of time to serve Defendants Gordon and
Parker, [dkt. no. 56,] but the magistrate judge denied the motion
on September 30, 2013 [dkt. no. 58].
6

jurisdiction in fact’ (‘factual attack’).”

Krakauer v. Indymac

Mortg. Servs., Civ. No. 09–00518 ACK–BMK, 2013 WL 704861, at *2
(D. Hawai`i Feb. 26, 2013) (some citations omitted) (quoting
Malama Makua v. Rumsfeld, 136 F. Supp. 2d 1155, 1159 (D. Hawai`i
2001)).
Rule 12(b)(6) permits a motion to dismiss a claim for
“failure to state a claim upon which relief can be granted[.]”
Pursuant to Ashcroft v. Iqbal, “[t]o 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
face.’”

555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 554, 570 (2007)); see also Weber v. Dep’t of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).

“[T]he

tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”
Iqbal, 555 U.S. at 678.

Accordingly, “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
555, 127 S. Ct. 1955).

Id. (citing Twombly, 550 U.S. at

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, 127 S. Ct. 1955).

Id. (citing

Factual allegations

that only permit the court to infer “the mere possibility of

7

misconduct” do not constitute a short and plain statement of the
claim showing that the pleader is entitled to relief as required
by Fed. R. Civ. P. 8(a)(2).

Id. at 679.

Further, “[d]ismissal without leave to amend is
improper unless it is clear that the complaint could not be saved
by any amendment.”

Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th

Cir. 2009) (citation and quotation marks omitted).

“But courts

have discretion to deny leave to amend a complaint for
futility[.]”

Johnson v. American Airlines, Inc., 834 F.2d 721,

724 (9th Cir. 1987) (citation and quotation marks omitted).
DISCUSSION
I.

Request for Continuance
On September 30, 2013, Plaintiffs filed their Motion

for Joinder of Mike Yellen as a Plaintiff in the Instant Cause of
Action Pursuant to FRCP, Rules 19, 20, and 21 (“Motion for
Joinder”).

[Dkt. no. 60.]

The Motion for Joinder is set for

hearing before the magistrate judge on November 5, 2013.
At the hearing on the instant motions, Plaintiffs
orally requested a continuance of the hearing until the Motion
for Joinder was ruled upon.

Plaintiffs argued that they could

not adequately defend against the motions to dismiss without
Mr. Yellen’s participation.

This Court denied the oral motion

because: 1) the factual issue whether Mr. Yellen’s participation
in this action is necessary to protect his interests is unrelated
8

to the legal issues raised in the motions to dismiss; and 2) to
the extent that Plaintiffs intended to rely upon to the Motion
for Joinder to respond to the motions to dismiss, Plaintiffs
failed to file the Motion for Joinder in a timely manner.
Plaintiffs’ memorandum in opposition to the Davis Motion was due
on September 11, 2013, but this Court extended the deadline to
September 23, 2013 after Plaintiffs failed to file by
September 11.

[Dkt. no. 52.]

Plaintiffs’ memorandum in

opposition to the State Defendants’ Motion was due on
August 5, 2013, based on the original hearing date for the State
Defendants’ Motion.

Thus, the Motion for Joinder was not a

timely response to either motion to dismiss.
In light of this Court’s denial of the request for a
continuance, Plaintiffs refused to present oral argument at the
hearing.

This Court therefore deemed the matters submitted on

the written briefings.

This Court now turns to the merits of the

motions to dismiss.
II.

Claims Against the State Defendants
A.

Section 1983 Claims
Although not expressly stated in the First Amended

Complaint, both Count I and Count II allege claims pursuant to

9

42 U.S.C. § 1983.4

Count I alleges constitutional violations in

the alleged taking of Plaintiffs’ “property and land[,]” [First
Amended Complaint at ¶ 17,] and Count II alleges constitutional
violations in retaliation for Plaintiffs’ opposition to “matter
[sic] that were wrong[.]”

[Id. at ¶ 21.]

It is well settled that neither a state, a state
agency, nor a state official sued in his official capacity is a
“person” for purposes of a § 1983 action seeking monetary
damages.

See, e.g., Will v. Mich. Dep’t of State Police, 491

U.S. 58, 70-71 (1989).

Further, in enacting § 1983, Congress did

not abrogate the states’ Eleventh Amendment immunity.
65-66.

See id. at

Because the State of Hawai`i has not waived its sovereign

immunity, this Court lacks jurisdiction over all of Plaintiffs’
claims alleging federal constitutional violations against the

4

Section 1983 states, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress, except
that in any action brought against a judicial
officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree
was violated or declaratory relief was
unavailable. . . .
10

State and against DHHL, which is an arm of the State.

See Young

v. Hawai`i, 911 F. Supp. 2d 972, 983 (D. Hawai`i 2012).

All of

Plaintiffs’ § 1983 claims against the State and DHHL and
Plaintiffs’ § 1983 claims for damages against Defendant
Abercrombie, in his official capacity,5 are DISMISSED WITH
PREJUDICE because Plaintiffs cannot cure the defects in those
claims by amendment.

See Harris, 573 F.3d at 737.

Although Defendant Abercrombie, in his official
capacity, cannot be sued for damages, he is a “person” for
purposes of a § 1983 claim for prospective declaratory or
injunctive relief because “official-capacity actions for
prospective relief are not treated as actions against the State.”
See Will, 492 U.S. at 71 n.10.

Similarly, sovereign immunity

does not shield a state officer’s alleged violation of the
federal constitution.

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 102 (1984).

Courts, however, cannot award

retroactive relief for a prior violation under the guise of a
prospective injunction.

See Edelman v. Jordan, 415 U.S. 651, 667

(1974).
Thus, in the instant case, Plaintiffs could bring a
§ 1983 claim for prospective injunctive relief against Defendant

5

Although not expressly stated in the First Amended
Complaint, based on the allegations therein, this Court construes
the First Amended Complaint as alleging claims against Defendant
Abercrombie in his official capacity only.
11

Abercrombie, in his official capacity.

The First Amended

Complaint, however, merely seeks injunctive relief for past
conduct.

Plaintiffs essentially ask this Court to undo the

cancellation of the Lease and their ejection from the Property.
Plaintiffs’ claims therefore do not seek prospective injunctive
relief.

Defendant Abercrombie, in his official capacity, is not

a “person” as defined in § 1983 for purposes of claims for
retrospective injunctive relief.
precludes such claims.

In addition, sovereign immunity

Plaintiffs’ § 1983 claims for injunctive

relief against Defendant Abercrombie, in his official capacity,
are DISMISSED WITH PREJUDICE because Plaintiffs cannot cure the
defects in those claims by amendment.
B.

Other Claims
To the extent that the First Amended Complaint can be

construed as alleging claims other than the § 1983 claims against
the State Defendants, they argue that the claims have already
been litigated, or should have been litigated, in
Frederick H.K. Baker, Jr., & Haunani Y. Baker v. Department of
Hawaiian Home Lands, et al., Civil No. 07-1-0371, Third Circuit
Court, State of Hawai`i (“Baker v. DHHL”).
State Defendants’ Motion at 11.]

[Mem. in Supp. of

This Court agrees.

Baker v. DHHL was an appeal of the cancellation of
Plaintiffs’ Lease.

The circuit court entered judgment in favor

of the defendants, and the Intermediate Court of Appeals (“ICA”)

12

affirmed on appeal, holding that the cancellation of the Lease
was lawful.

Baker v. DHHL, No. 29503, 2010 WL 3373913 (Hawai`i

Ct. App. Aug. 27, 2010).
This Court must look to Hawai`i law to determine
whether the judgment in Baker v. DHHL has preclusive effect.

See

Bumatay v. Fin. Factors, Ltd., Civil No. 10-00375 JMS/LEK, 2010
WL 3724231, at *4 (D. Hawai`i Sept. 16, 2010).
Under Hawaii law, claim preclusion
prevents a party from relitigating “not only
. . . issues which were actually litigated in
[a prior] action, but also . . . all grounds
of claim and defense which might have been
properly litigated in the [prior] action.”
See Aganos v. GMAC Residential Funding Corp.,
2008 WL 4657828, at *4 (D. Haw. Oct. 22,
2008) (quoting Bremer v. Weeks, 104 Haw. 43,
53, 85 P.3d 150, 160 (2004)).
[Bumatay, 2010 WL 3724231,] at *4 (alterations in
original).
As the parties asserting claim preclusion,
the Moving Defendants have the burden of
establishing that: “‘(1) there was a final
judgment on the merits, (2) both parties are the
same or in privity with the parties in the
original suit, and (3) the claim decided in the
original suit is identical with the one presented
in the action in question.’” Id. at *5 (quoting
Bremer, 104 Haw. at 54, 85 P.3d at 161).
Ounyoung v. Fed. Home Loan Mortg. Corp., Civil No. 12–00322
LEK–KSC, 2012 WL 5880673, at *4 (D. Hawai`i Nov. 21, 2012) (some
alterations in Ounyoung) (some citations omitted).
First, there was a final judgment on the merits in
Baker v. DHHL because Plaintiffs did not seek further review

13

after the ICA denied their motion for reconsideration.
No. 29503, 2010 WL 3640199 (Hawai`i Ct. App. Sept. 16, 2010).
Second, the plaintiffs were the same in both Baker v. DHHL and
the instant case, and DHHL was a defendant in both cases.

Third,

Baker v. DHHL decided the same issue that Plaintiffs present in
the instant case, whether the DHHL’s cancellation of Plaintiffs’
Lease was proper.

The instant case also addresses the ejection

from the Property, which occurred after Baker v. DHHL, but
Plaintiffs’ claims based on the ejection also rely upon the
allegation that the that the cancellation of the Lease was
improper.

This Court therefore concludes that the claim

preclusion doctrine applies and that this Court cannot rule upon
any of Plaintiffs’ claims that are premised upon Plaintiffs’
challenge to the cancellation of the Lease.
Plaintiffs argue that the doctrine of preclusion does
not prevent this Court from ruling on the issues in this case
because “Plaintiffs voluntarily dismissed their appeal in the
State Court to enable them to file in this Court.”
Opposition at 6.]

[State

Plaintiffs attached Appellant’s Motion to

Voluntarily Dismiss His Appeal in Frederick H.K. Baker, Jr. v.
State of Hawaii, by its Department of Hawaiian Home Lands (“Baker
v. State”), filed in the ICA on June 3, 2013.
The ICA granted the motion.

[Id., Exh. A.]

Baker v. State, No. CAAP–13–0000951,

2013 WL 3270304 (Hawai`i Ct. App. June 25, 2013).

14

Baker v.

State, however, is not the same case as Baker v. DHHL.

The

subject matter of Baker v. State is not clear from the limited
information available about the case, but the State of Hawai`i,
Department of Hawaiian Home Lands was the Plaintiff-Appellee, and
Frederick H.K. Baker, Jr. was the Defendant-Appellant.

Thus, the

dismissal of the appeal in Baker v. State has no effect on the
preclusive effect of Baker v. DHHL.
In addition, this Court notes that, insofar as there
are overlapping issues between the instant case and Baker v. DHHL
and Baker v. State, Plaintiffs ask this Court to conduct what is
effectively an appellate view of the state courts’ decisions.
The Rooker-Feldman doctrine prevents this Court from ruling on
such a request.
[T]he Rooker–Feldman doctrine . . . generally
prevents this court from exercising appellate
jurisdiction over state-court decisions. D.C.
Court of Appeals v. Feldman, 460 U.S. 462, 482–86
(1983); Rooker v. Fid. Trust Co., 263 U.S. 413,
415–16 (1923). The Rooker–Feldman doctrine states
that:
a losing party in state court is barred from
seeking what in substance would be appellate
review of the state judgment in a United
States District Court, based on the losing
party’s claim that the state judgment itself
violates the loser’s federal rights.
Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir.
1998) (quoting Johnson v. DeGrandy, 512 U.S. 997,
1005–06 (1994)).
Castro v. Melchor, Civil No. 07–00558 LEK–BMK, 2012 WL 4092425,
at *14 (D. Hawai`i Sept. 14, 2012) (quoting Tejada v. Deutsche
15

Bank Nat’l Trust Co., Civil No. 10–00136 SOM/KSC, 2011 WL
3240276, at *5 (D. Hawai`i July 27, 2011)).
This Court therefore concludes that, insofar as the
First Amended Complaint alleges claims against the State
Defendants other than § 1983 claims, the claim preclusion
doctrine and the Rooker-Feldman doctrine prevent this Court from
considering Plaintiffs’ claims.

Further, this Court finds that,

based upon the factual allegations and the procedural history in
this case, Plaintiffs cannot cure the defect in the remaining
claims against the State Defendants by amendment.

Thus, all

remaining claims in the First Amended Complaint against the State
Defendants are DISMISSED WITH PREJUDICE.6
III. Claims Against Defendant Davis
As to Defendant Davis, both Count I and Count II allege
that Defendants Davis, Gordon, and Parker violated Plaintiffs’
constitutional rights when they participated in the illegal
taking of Plaintiffs’ radio tower.
¶¶ 15-16, 18-19.]

[First Amended Complaint at

This Court notes that the First Amended

Complaint does not state what Defendant Davis’s role was in the
radio tower transactions.7

6

In light of this Court’s rulings, it is unnecessary to
address the State Defendants’ other arguments for dismissal.
7

Plaintiffs allege generally that Defendants Gordon,
Parker, and Davis “are individuals who purchased a radio license
to operate a radio station on the Island of Hawai`i, and who
(continued...)
16

The First Amended Complaint recognizes that Defendants
Gordon, Parker, and Davis are individuals.

[Id. at ¶ 5.]

The

First Amended Complaint does not allege that they are employed
by, or have any other connection to, the State.

The Ninth

Circuit has stated:
Although § 1983 makes liable only those who act
“under color of” state law, “even a private entity
can, in certain circumstances, be subject to
liability under section 1983.” Villegas v. Gilroy
Garlic Festival Ass’n, 541 F.3d 950, 954 (9th Cir.
2008) (en banc). Specifically, a plaintiff must
show that “the conduct allegedly causing the
deprivation of a federal right [was] fairly
attributable to the State.” Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L.
Ed. 2d 482 (1982). “The Supreme Court has
articulated four tests for determining whether a
private [party’s] actions amount to state action:
(1) the public function test; (2) the joint action
test; (3) the state compulsion test; and (4) the
governmental nexus test.” Franklin v. Fox, 312
F.3d 423, 444–45 (9th Cir. 2002). . . .
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139-40 (9th Cir.
2012) (some alterations in Tsao).
This Court has stated:
1. [] Public Function
Under the public function test, a private
actor’s conduct qualifies as state action where
the private actor is endowed with state powers or
functions that are traditionally and exclusively

7

(...continued)
illegally sold and purchased Plaintiffs’ property, specifically
radio towers.” [First Amended Complaint at ¶ 5.] Plaintiffs
allege that Defendant Gordon purchased a radio license from
Plaintiffs, and Defendant Gordon subsequently sold the license,
along with Plaintiffs’ radio tower, to Defendant Parker. [Id. at
¶¶ 15-16.]
17

governmental in nature. Kirtley [v. Rainey], 326
F.3d [1088,] 1092 [(9th Cir. 2003)]. . . .
2. [] State Compulsion
The compulsion or coercion test considers
whether the state has coercively influenced or
significantly encouraged the private conduct.
Kirtley, 326 F.3d at 1094. . . .
3. [] Joint Action
A private individual may also “be liable
under § 1983 if she conspired or entered joint
action with a state actor.” Crowe v. County of
San Diego, 608 F.3d 406, 440 (9th Cir. 2010)
(quoting Franklin v. Fox, 312 F.3d 423, 441 (9th
Cir. 2002)). The court must determine whether
“the state has so far insinuated itself into a
position of interdependence with the private
entity that it must be recognized as a joint
participant in the challenged activity. This
occurs when the state knowingly accepts the
benefits derived from the unconstitutional
behavior.” Kirtley, 326 F.3d at 1093 (citation
omitted).
To state a viable conspiracy claim under
§ 1983, however, “the plaintiff must [allege]
specific facts to support the existence of the
claimed conspiracy.” Burns v. Co. of King, 883
F.3d 819, 821 (9th Cir. 1989) (citation omitted).
To do so, “a plaintiff must demonstrate the
existence of an agreement or meeting of the minds”
to violate constitutional rights.” Crowe, 593
F.3d 841, 875 (citation and quotation marks
omitted).”
. . . .
4. General Nexus
Finally, the more general nexus test “asks
whether ‘there is such a close nexus between the
State and the challenged action that the seemingly
private behavior may be fairly treated as that of
the State itself.’” Kirtley, 326 F.3d at 1094–95
(quoting Brentwood, 531 U.S. at 295). . . .
Kaeo-Tomaselli v. Patterson, Civ. No. 11–00764 LEK–BMK, 2011 WL
18

6934760, at *5-6 (D. Hawai`i Dec. 30, 2011) (some alterations in
Kaeo-Tomaselli).
Plaintiffs assert that the radio tower was on the
Property and that Defendant Davis could not have “act[ed] in the
buying of Plaintiffs’ property without the consent of the State
of Hawai`i, making his actions under color of state law.”
in Opp. at 3.]

[Mem.

For purposes of the Davis Motion, this Court

accepts Plaintiffs’ assertion that the State had notice of, and
consented to, Defendant Davis’s purchase of a radio tower on
Hawaiian Home Lands.

That alone, however, is not sufficient to

render Defendant Davis a state actor.

Even viewing the First

Amended Complaint in the light most favorable to Plaintiffs,
there are no allegations that, if proven, would support a finding
that Defendant Davis’s involvement in the radio tower
transactions: constituted a public function; was the result of
state compulsion; was a joint action with the State; or had such
a close nexus with the State that it should be deemed an action
by the State itself.

This Court therefore concludes that

Plaintiffs failed to plead plausible § 1983 claims against
Defendant Davis.
Although it may be possible to imagine some set of
hypothetical facts which might render Defendant Davis a state
actor in the radio tower transactions, nothing in the First
Amended Complaint or Plaintiffs’ Davis Opposition suggests that

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plausible facts exist in this case.

This Court therefore finds

that allowing Plaintiffs to amend their claims against Defendant
Davis would be futile.

See Johnson, 834 F.2d at 724.

This Court

GRANTS the Davis Motion and DISMISSES all claims in the First
Amended Complaint against Defendant Davis WITH PREJUDICE.
IV.

Remaining Claims in This Case
This Court has dismissed all of Plaintiffs’ claims

against the State Defendants and Defendant Davis with prejudice.
The only claims remaining in this case are Plaintiffs’ claims
against Defendants Gordon and Parker.

Plaintiffs apparently have

not yet served the First Amended Complaint on Defendants Gordon
and Parker and, as previously noted, the magistrate judge
recently denied Plaintiffs’ motion for an extension of time to
complete service.
Pursuant to Fed. R. Civ. P. 4(m), Plaintiffs have 120
days from the filing of the First Amended Complaint on
June 12, 2013 to effect service on Defendants Gordon and Parker.
In other words, Plaintiffs must effect service by no later than
October 10, 2013.

If Plaintiffs are unable to effect service on

Defendants Gordon and Parker by October 10, 2013, Plaintiffs must
file a motion for an extension of time to complete service and
the motion must show good cause for the failure to complete
service.

See Fed. R. Civ. P. 4(m).

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Plaintiffs must file their

motion for an extension of time by no later than
October 17, 2013.
This Court CAUTIONS Plaintiffs that, if they fail to
complete service on Defendants Gordon and Parker by
October 10, 2013, and they fail to establish good cause for their
failure, this Court will dismiss Plaintiffs’ claims against
Defendants Gordon and Parker without prejudice.

See id.

CONCLUSION
On the basis of the foregoing, the State Defendants’
Motion to Dismiss Plaintiffs’ First Amended Civil Rights
Complaint with Jury Demand Filed June 12, 2013, which the State
Defendants filed on July 1, 2013, and Defendant Davis’s Motion to
Dismiss Plaintiffs’ First Amended Civil Rights Complaint with
Jury Demand Filed on June 12, 2013, which Defendant Davis filed
on August 7, 2013, are HEREBY GRANTED.

All of Plaintiffs’ claims

against the State Defendants and all of Plaintiffs’ claims
against Defendant Davis are HEREBY DISMISSED WITH PREJUDICE.
This Court directs the Clerk’s Office to terminate the State
Defendants and Defendant Davis as parties.
Only Plaintiffs’ claims against Defendant Gordon and
Defendant Parker remain.

This Court CAUTIONS Plaintiffs that, if

they fail to comply with the terms of this Order regarding
service of the First Amended Complaint upon Defendant Gordon and
Defendant Parker, this Court may dismiss Plaintiffs’ claims
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against Defendant Gordon and Defendant Parker without prejudice
for failure to serve.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 4, 2013.

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

FREDERICK H.K. BAKER, JR., ET AL. V. STATE OF HAWAI`I, ET AL;
CIVIL 13-00159 LEK-KSC; ORDER GRANTING STATE DEFENDANTS’ MOTION
TO DISMISS PLAINTIFFS’ FIRST AMENDED CIVIL RIGHTS COMPLAINT WITH
JURY DEMAND FILED JUNE 12, 2013 AND GRANTING DEFENDANT
ROBERT KORBEL DAVIS JR.’S MOTION TO DISMISS PLAINTIFFS’ FIRST
AMENDED CIVIL RIGHTS COMPLAINT WITH JURY DEMAND FILED JUNE 12,
2013

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