Butler v. County of Maui

Filing 35

ORDER GRANTING COUNTY OF MAUI'S MOTION TO DISMISS SECOND AMENDED COMPLAINT re 16 , 34 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/29/13. "The motion to dismiss is granted. Res judicata applies to bar Butler's S econd Amended Complaint in this court because Butler brought a prior state-court suit that involved the same parties and identical claims, and that terminated in a final judgment on the merits. The Clerk of Court is directed to enter judgment in f avor of the County of Maui and to close this case." (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). Kurt Butler served by first class mail at the address of record on August 29, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 13-00163 SOM/KSC

KURT BUTLER,

)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF MAUI,
)
)
)
Defendant.
_____________________________ )

ORDER GRANTING COUNTY OF
MAUI’S MOTION TO DISMISS
SECOND AMENDED COMPLAINT

ORDER GRANTING COUNTY OF MAUI’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT

I.

INTRODUCTION.
In this action, Plaintiff Kurt Butler seeks damages

from Defendant County of Maui for violating his free speech
rights under the First Amendment of the United States
Constitution.
The County of Maui has brought a motion under Rule
12(b)(6) of the Federal Rules of Civil Procedure, seeking
dismissal of Butler’s Second Amended Complaint on the ground that
res judicata bars Butler’s claims.
II.

The motion is granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY.
On May 3, 2013, Plaintiff Kurt Butler filed his

original Complaint, seeking damages from County of Maui under 42
U.S.C. §§ 1983, 1985, and 1986.

Butler claimed that the County

had violated his free speech rights under the First Amendment of

the United States Constitution.

Because Butler was also seeking

leave to proceed without prepayment of the fee for commencing a
civil action, this court screened the Complaint under 28 U.S.C.
§ 1915(e)(2)(B)(ii), which states that a court “shall dismiss” a
pro se case “if the court determines that the action or appeal
fails to state a claim on which relief may be granted.”

See

Denton v. Hernandez, 504 U.S. 25, 32 (1992); Calhoun v. Stahl,
254 F.3d 845, 845 (9th Cir. 2001) (applying 28 U.S.C.
§ 1915(e)(2)(B) to pro se cases brought by nonprisoners).

This

court, determining that the Complaint failed to allege a viable
claim over which this court had jurisdiction, dismissed the
Complaint and gave Butler leave to file an Amended Complaint.
On May 15, 2013, Butler filed a First Amended
Complaint, which was also dismissed for failure to allege a
viable claim over which this court had jurisdiction.

The court

dismissed the First Amended Complaint and again denied the
request to proceed in forma pauperis.
On May 29, 2013, Butler filed a Second Amended
Complaint, which is the subject of County’s present motion.

The

factual allegations of the Second Amended Complaint are similar
to those of the original Complaint and First Amended Complaint.
Although Butler again applied for in forma pauperis status, the
court, noting that Butler appeared poised to receive a $15,000
settlement, stated that, upon such receipt, Butler had to pay the

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court’s filing fee.

EFC No. 14.

Butler ultimately paid the fee.

EFC No. 29.
Butler claims that the County has infringed on his free
speech rights in violation of the federal constitution.

Butler

says he began demonstrating on the public sidewalk in front of
the Alive and Well Natural Health Emporium in Kahului, Maui, in
2003.

See Second Amended Complaint ¶ 8.

Butler further states

that Alive and Well is owned by MDDR Health Solutions, Inc.,
which, in turn, is owned by Dennis, Darren, and Mona Jones.

Id.

According to Butler, by mid-2008, he had been arrested
for protesting without a permit and had had his complaints of
crimes by Alive and Well against him disregarded by the Maui
Police Department.

See id. ¶ 12.

He alleges that, even when

officers witnessed him being assaulted by employees of Alive and
Well, no charges were brought against his assailants.

Id. ¶ 13.

This appears to be a reference to the alleged assault of March
24, 2007, described in the original Complaint in paragraphs 30 to
35.
In the original Complaint, Butler alleged that he
brought a civil suit for his March 2007 injuries against MDDR,
the company that owned the store.

The civil suit went to trial

in state court from August 29 through September 1, 2011.
Complaint ¶ 50.

See

Butler’s Second Amended Complaint alleges that

the County “ensured that the officers would not testify

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truthfully for Butler.”

Second Amended Complaint ¶ 17.

Butler

says he subpoenaed Officers Gasmen and Sagawinit to testify,
asking them to bring their reports to court.

Id. ¶ 19.

According to Butler, on the first day of trial, when Butler
realized that the officers were not going to testify that day, he
arranged for new subpoenas to compel the officers to testify the
following day.

Butler says that he was unable to serve Officer

Sagawinit because the deputy corporation counsel refused to tell
Butler where Sagawinit was, telling him instead in a hostile tone
only that Sagawinit was “in the building.”

Id.

Butler states

that he asked the deputy corporation counsel why she was being so
hostile and was told, “Because you’re a troublemaker, an asshole
and a nut.

You’re crazy.”

Id. ¶ 20.

Although Butler was able

to subpoena Officer Gasmen, Butler says Gasmen testified that he
could not remember the incident.

Id. ¶ 24.

As noted in this court’s previous order dismissing the
original Complaint, to the extent Butler may be asserting free
speech claims pursuant to § 1983 based on events earlier than May
2011, those claims appear to be barred by the applicable two-year
limitations period.

See Beckstrand v. Read, 2012 WL 4490727 (D.

Haw. Sept. 26, 2012) (applying two-year limitations period to
§ 1983 claim).

Accord Pele Defense Fund v. Paty, 73 Haw. 578,

595, 837 P.2d 1247, 1259 (1992) (“We hold that the two-year
statute of limitations set forth in HRS § 657–7 governs § 1983

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actions.”).
The only allegations of the First Amended Complaint
that fall within the applicable two-year limitations period
involve the trial in August and September of 2011.

Based on

Officer Gasmen’s testimony that he could not remember the 2007
alleged assault of Butler, the absence of a new subpoena for
Officer Sagawinit, and the deputy corporation counsel’s alleged
statement that she thought Butler was a “troublemaker, an asshole
and a nut,” Butler seeks to compel the County to provide security
for him as he demonstrates outside the Alive and Well store,
among other things.
The court previously dismissed Butler’s First Amended
Complaint because the allegations, including those related to the
2011 trial, were not sufficiently clear for this court to discern
the claims being asserted, and Butler provided no factual support
for his 42 U.S.C. §§ 1985 and 1986 claims.

Noting that Butler’s

§ 1983 claim also was not sufficiently clear, the court stated
that, even assuming that a County of Maui employee had retaliated
against Butler during the trial based on Butler’s speech, the
County of Maui can only be held liable under § 1983 in one of
three ways.
First, the plaintiff may prove that a city
employee committed the alleged constitutional
violation pursuant to a formal governmental
policy or a longstanding practice or custom
which constitutes the standard operating

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procedure of the local governmental entity.
Second, the plaintiff may establish that the
individual who committed the constitutional
tort was an official with final policy-making
authority and that the challenged action
itself thus constituted an act of official
governmental policy. Whether a particular
official has final policy-making authority is
a question of state law. Third, the
plaintiff may prove that an official with
final policy-making authority ratified a
subordinate’s unconstitutional decision or
action and the basis for it.
Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1993)
(citations and internal quotations omitted).
In response, Butler’s Second Amended Complaint, filed
on May 29, 2013, attempted to correct the deficiencies of his
First Amended Complaint by including three new paragraphs,
numbers 21, 23, and 27, which allege that the deputy corporation
counsel was a County official with final policy-making authority
whose acts constituted official County policy, and that the
County’s actions during the trial were the culmination of the
County’s long-standing practice of denying Butler his First
Amendment rights.

Second Amended Complaint ¶¶ 21, 23, and 27.

On July 3, 2013, the County of Maui filed a Motion to
Dismiss Second Amended Complaint by Plaintiff Kurt Butler,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

The County argues that the doctrine of res judicata

bars Butler’s Complaint in this court.

See Memorandum in Support

of Motion, ECF No. 16-1, PageID # 96.

According to the County of

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Maui, res judicata applies because (1) Butler raised the same
allegations contained in his Second Amended Complaint in earlier
state-court litigation, (2) the prior state-court action was also
a suit by Butler against the County of Maui, and (3) the statecourt action ended in the dismissal of Butler’s suit with
prejudice.

Id. PageID # 97-8.
On July 11, 2013, Butler filed his Reply to Defendant’s

Motion to Dismiss Second Amended Complaint.

While failing to

address the County of Maui’s res judicata argument, the Reply
does mention the County of Maui’s argument that “Prosecution of
this action would impair the judgment the County received in the
state court action[.]”
PageID # 137.

Reply to Motion to Dismiss, ECF No. 18,

However, Butler treats that argument as a “novel

definition” of the County’s own First Amendment rights rather
than an argument relating to res judicata.
III.

Id.

LEGAL STANDARD.
On a Rule 12(b)(6) motion to dismiss, all allegations

of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

Under Rule 12(b)(6), review is generally limited to the

contents of the complaint.

See Fed. R. Civ. P. 12(b)(6); Lee v.

City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

If a

court does consider extrinsic evidence, the Rule 12(b)(6) motion

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is treated as one for summary judgment.

Lee, 250 F.3d at 688.

There are two exceptions to this rule, however.
First, court consideration of extrinsic evidence does
not convert a 12(b)(6) motion to a summary judgment motion when
the evidence is “material which is properly submitted as part of
the complaint.”

Id. (quoting Branch v. Tunnell, 14 F.3d 449, 453

(9th Cir. 1994)).

If the materials are not included with the

complaint, a court may consider them if their “‘authenticity . .
. is not contested’ and ‘the plaintiff’s complaint necessarily
relies’ on them.’”

Id. (quoting Parrino v. FHP, Inc., 146 F.3d

699, 705–06 (9th Cir. 1998)).
Second, and relevant to this case, a court may also
“take judicial notice of ‘matters of public record’ without
converting a motion to dismiss into a motion for summary
judgment,” as long as the facts noticed are not “subject to
reasonable dispute.”

Intri-Plex Techs., Inc. v. Crest Grp.,

Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (quoting Lee, 250 F.3d
at 689).

According to Rule 201(b) of the Federal Rules of

Evidence, “[t]he court may judicially notice a fact that is not
subject to reasonable dispute because it (1) is generally known
within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
See Fed. R. Evid. 201(b)

cannot reasonably be questioned.
(2011).

“The court (1) may take judicial notice on its own; or

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(2) must take judicial notice if a party requests it and the
court is supplied with the necessary information.”

Id.

“Matters

of public record” include, among other things, records and
reports of administrative bodies, Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994), state statutes or city ordinances, Toney v.
Burris, 829 F.2d 622, 627 (7th Cir. 1987), or “proceedings in
other courts, both within and without the federal judicial
system, if those proceedings have a direct relation to the
matters at issue.”

U.S. ex rel Robinson Rancheria Citizens

Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992); see
also In re Am. Cont’l Corp./Lincoln Sav. & Loan Sec. Litig., 102
F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom.
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26
(1998).
A court may take judicial notice of a “matter of public
record” in order to consider “the truth of the facts recited
therein,” because such facts are “subject to reasonable dispute.”
Lee, 250 F.3d at 690 (quoting Southern Cross Overseas Agencies,
Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426–27 (3rd
Cir. 1999)); Fed. R. Evid. 201(b).

However, a court may take

judicial notice of the existence of a document or judgment, Lee,
250 F.3d at 690, and, by extension, the existence of claims,
arguments, conclusions, opinions, or allegations within the
document or judgment, because the existence of such statements is

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not subject to reasonable dispute.

See Shaw v. Hahn, 56 F.3d

1128, 1129 (9th Cir. 1995) (taking judicial notice, on a 12(b)(6)
motion, of the judge’s statements in an order).
IV.

ANALYSIS.
The County of Maui asserts that res judicata bars

Butler’s claims.

Generally speaking, claim preclusion, or res

judicata, prohibits a party from relitigating a previously
adjudicated cause of action.

The preclusive effect in this court

of a Hawaii state court decision is determined by Hawaii law.
MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1125
(9th Cir. 2013) (quoting Adam Bros. Farming, Inc. v. Cnty. of
Santa Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010) (“When
applying res judicata to a state court decision, we ‘give the
same preclusive effect to [that] judgment as another court of
that State would give,’ meaning that we apply res judicata as
adopted by that state.") (alteration in original)); Pedrina v.
Chun, 97 F.3d 1296, 1301 (9th Cir. 1996) (“In determining whether
a prior state court action bars a subsequent federal action, the
federal court must look to the res judicata principles of the
state court in which the judgment was rendered.”).
Under Hawaii law, the doctrine of res judicata applies
when:

1) the claim asserted in the action in question was or

could have been asserted in the prior action, 2) the parties in
the present action are identical to, or in privity with, the

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parties in the prior action, and 3) a final judgment on the
merits was rendered in the prior action.

Pedrina, 97 F.3d at

1301 (citing Santos v. State of Hawaii, 64 Haw. 648, 646 P.2d
962, 966 (1982)); E. Sav. Bank, FSB v. Esteban, 129 Haw. 154,
159, 296 P.3d 1062, 1067 (2013) (quoting Bremer v. Weeks, 104
Haw. 53, 54, 85 P.3d 150, 161 (2004) (“The party asserting claim
preclusion has 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.”)).
As discussed above, a court does not convert a motion
to dismiss into a motion for summary judgment when it takes
judicial notice of “matters of public record” that are not
subject to reasonable dispute.
1052.

Intri-Plex Techs., 499 F.3d at

The relevant prior action, according to the County of

Maui, is a case that Butler brought in the Circuit Court of the
Second Circuit, State of Hawaii, against the County of Maui, its
deputy corporation counsel, and Officers Gasmen and Sagawinit.
See Exhibit A to County of Maui’s Memorandum in Support of
Motion, ECF No. 16-3.

Because these are “matters of public

record” that are not subject to reasonable dispute, such judicial
notice does convert County of Maui’s Rule 12(b)(6) motion into
one for summary judgment.

Accordingly, in addressing the County

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of Maui’s res judicata argument, this court can, and does, takes
judicial notice of the following: the existence of the prior
Second Circuit Court case, the case docket, and the allegations
and claims Butler presented in the Complaint filed in the state
court.
A.

Same Claims.

First, for res judicata to apply in this case, the
claims Butler asserted in this action either must have been
asserted or must have been capable of being asserted in the prior
action.

See Pedrina, 97 F.3d at 1301 (citing Santos v. State of

Hawaii, 64 Haw. 648, 646 P.2d 962, 966 (1982)).

Under Hawaii

law, to determine whether a litigant is asserting the same claim
in a second action, the court must look to whether the “claim”
asserted in the second action arises out of the same transaction,
or series of connected transactions, as the "claim" asserted in
the first action.

See Kauhane v. Acutron Co., 71 Haw. 458, 464,

795 P.2d 276, 279 (1990); accord Pedrina, 97 F.3d at 1301.
In this case, the claims asserted by Butler not only
arose out of the same transaction, they are identical to those
raised in the state court.

In his state-court Complaint, Butler

alleged that the County of Maui, its deputy corporation counsel,
and Officers Gasmen and Sagawinit violated his free-speech rights
under the First Amendment of the United States Constitution in
connection with his protests in front of MDMR, his conversations

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with the deputy corporation counsel at the 2011 trial, and his
inability to subpoena Officer Sagawinit at the same trial.

See

Second Circuit Complaint in Exhibit A to County of Maui’s
Memorandum in Support of Motion, ECF No. 16-3.

In fact, many of

the paragraphs in the Second Amended Complaint, filed in this
court, use language nearly identical to the Second Circuit
Complaint in raising the same factual allegations and legal
claims.

Compare Second Amended Complaint ¶¶ 1-2, 8, 10, 19, 20,

22, 25, 29-30, with Second Circuit Complaint in Exhibit A, ECF
No. 16-3, ¶¶ 1-2, 9-10, 78-80, 82, 84, 87, 92.

Accordingly, the

first prong of the test for the res judicata doctrine is
satisfied.
B.

Same Parties.

The second prong of the res judicata test is also
satisfied.

The parties in this action–-Butler and the County of

Maui–-were parties in the prior Second Circuit Court action.
C.

Final Judgment On the Merits.

The third prong–-whether there was a final judgment on
the merits–-is also satisfied.

Under Hawaii law, a dismissal

with prejudice is an adjudication on the merits of all issues
that were raised or could have been raised in the pleadings.
Land v. Highway Const. Co., 64 Haw. 545, 551, 645 P.2d 295, 299
(1982) (“Generally, a dismissal ‘with prejudice’, is an
adjudication on the merits of all the issues that were raised or

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could have been raised in the pleadings.

Thus, subsequent

litigation involving the same claims would be barred by res
judicata.”).

However, a dismissal without prejudice is not an

adjudication on the merits for purposes of the doctrine of res
judicata.

Id. (“a dismissal without prejudice does not operate

as an adjudication on the merits wherein the doctrine of res
judicata would have no effect.

Parties are not barred from

bringing a subsequent action on the same cause and are free to
litigate the issue as though no action had been commenced.”).
Under Hawaii law, a “judgment is final where the time
to appeal has expired without appeal being taken.”

Glover, Ltd.

v. Fong, 42 Haw. 560, 574 (1958); E. Sav. Bank, FSB v. Esteban,
129 Haw. 154, 160, 296 P.3d 1062, 1068.

“It follows from Glover

that where an appeal has been taken, a judgment of the trial
court is not final, at least for purposes of res judicata.”
Littleton v. State, 6 Haw. App. 70, 75, 708 P.2d 829, 833, aff’d,
68 Haw. 220, 708 P.2d 824 (1985).
at 1401.

Accord Pedrina, 906 F. Supp.

When an appeal is taken, judgment becomes final under

Hawaii law when the appeal is decided.

See Kauhane, 71 Haw. at

465, 795 P.2d at 279 (“Plaintiff, however, withdrew his appeal
and thereby foreclosed review by this court.

Once that appeal

was withdrawn, the circuit court’s judgment became final for res
judicata purposes.”); Glover, 42 Haw. at 574 (“The adjudication
in the mandamus case is final because the United States Court of

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Appeals of the Ninth Circuit dismissed defendant’s appeal on the
ground of his failure to file the record on appeal and docket the
appeal within the prescribed time.”).

Appeals in civil cases,

according to Rule 4(a) of the Hawaii Rules of Appellate
Procedure, generally must be filed within 30 days after entry of
the judgment, unless there is a showing of good cause to extend
the time for filing a notice of appeal or the time to appeal has
been affected by post-judgment motions.
In the present case, an Order Granting the County of
Maui, Moana Lutey, Samuel Gasmen, and Mary Sagawinit’s Motion to
Dismiss Complaint was filed on March 6, 2012.

See Exhibit B to

County of Maui’s Memorandum in Support of Motion, ECF No. 16-4.
Because the order of dismissal on the County of Maui’s Rule
12(b)(6) motion was with prejudice, id., the order operates as an
adjudication on the merits.

See Caires v. Kualoa Ranch, Inc.,

6 Haw. App. 52, 57, 708 P.2d 848, 851 (1985) (citing Haw. R. Civ.
P. 41(b) in concluding that a Rule 12(b)(6) dismissal is a
judgment on the merits).
The court takes judicial notice of the docket of the
prior Second Circuit Court action, which includes no evidence of
an appeal by Butler of the dismissal.

See Kurt Butler vs County

of Maui et al. Document List, Ho’ohiki,
http://hoohiki1.courts.state.hi.us/jud/Hoohiki/JSAPM51F5.jsp?star
tseq=1 (last visited Aug. 20, 2013).

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Accordingly, the prior

action terminated in a final judgment on the merits, thus
satisfying the third prong of res judicata.
Notably, at the hearing on the present motion, Butler
conceded that the state-court action involved the very claims
before this court.
V.

CONCLUSION.
The motion to dismiss is granted.

Res judicata

applies to bar Butler’s Second Amended Complaint in this court
because Butler brought a prior state-court suit that involved the
same parties and identical claims, and that terminated in a final
judgment on the merits.
The Clerk of Court is directed to enter judgment in
favor of the County of Maui and to close this case.
IT IS SO ORDERED
DATED:

Honolulu, Hawaii, August 29, 2013.

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

Butler v. County of Maui, Civil No. 13-00163 SOM-KSC; ORDER DISMISSING FIRST AMENDED
COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS

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