Butler v. County of Maui

Filing 5

ORDER DISMISSING COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 1 , 3 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/8/13. "Because the court dismisses the Complaint, the Application is denied as moot. Butler is given leave to file an Amended Complaint no later than June 7, 2013." " If Butler files an Amended Complaint, he must either pay the applicable filing fee or file another application to proceed in forma pauperis. This action will automatically be dismissed if Butler fails to timely 1) file an Amended Complaint and 2) submit the appropriate filing fee or a new application to proceed in forma pauperis." (Motion terminated: 3 APPLICATION t o Proceed in District Court Without Prepaying Fees or Costs filed by Kurt Butler.) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronicall y at the e-mail address listed on the Notice of Electronic Filing (NEF). Kurt Butler shall be served by first class mail at the address of record on May 9, 2013. A copy of the court's application to proceed in forma pauperis shall be included in the mailing to Mr. Butler.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KURT BUTLER,

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

CIVIL NO. 13-00163 SOM/KSC
ORDER DISMISSING COMPLAINT;
ORDER DENYING AS MOOT
APPLICATION TO PROCEED IN
FORMA PAUPERIS

ORDER DISMISSING COMPLAINT;
ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS
On May 3, 2013, Plaintiff Kurt Butler filed the present
Complaint.

Concurrent with the filing of the Complaint, Butler

filed an Application to Proceed in District Court Without
Prepaying Fees or Costs (“Application”).

Because the Complaint

fails to allege a viable claim over which this court has
jurisdiction, the Complaint is dismissed, rendering the
Application moot.
Any court of the United States may authorize the
commencement of a suit, without payment of fees or security
therefor, by a person who submits an affidavit demonstrating he
or she is unable to pay such costs or give such security.
28 U.S.C. § 1915(a).

Although the Application demonstrates that

Butler cannot afford to prepay the costs of initiating this
action, this court may deny leave to proceed in forma pauperis at
the outset if it appears from the facts of the Complaint that the

action is frivolous, that the action fails to state a claim upon
which relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief.

28 U.S.C.

§ 1915(e)(2); see also Tripati v. First Nat. Bank & Trust, 821
F.2d 1368, 1370 (9th Cir. 1987).
Butler claims that the County of Maui has infringed on
his free speech rights in violation of the state and federal
constitutions.

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 Complaint ¶ 6.

Butler says that

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

Id. ¶ 8.

Butler alleges that the County of Maui has “allowed and supported
MDDR’s unlawful attempts to suppress Butler’s lawful
demonstrations and punish him for them.”

Id.

Butler says that, on July 26, 2003, he was
demonstrating outside the Alive and Wellness store when Darren
Jones came out of the store and threatened and assaulted him.

He

alleges that a scuffle ensued and that the Maui Police Department
was called.

Butler says that Officer Kihata spoke to Darren

Jones and other store employees and then arrested Butler.
Complaint ¶ 14.

See

On May 7, 2004, Butler was convicted of Criminal

Property Damage in the Fourth Degree arising out of this arrest.
Id. ¶ 23.

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Butler alleges that when he returned to demonstrate in
front of the store on August 2, 2003, the store owners again
summoned the police, claiming that Butler was blocking its
driveway and harassing customers.

Officer Samuel Gasmen

allegedly went to the store, talked with its owners, and then
demanded that Butler show him his permit to protest or leave the
area.

When Butler allegedly did not comply, Butler was again

arrested.

Id. ¶ 15.

The charges were not pursued, and Butler

sued Gasmen for false arrest.

Id. ¶ 16.

Butler alleges that, from January 2004 to March 2007,
he occasionally demonstrated outside the Alive and Wellness
store.

He says that the police were called on several occasions.

Although he was not arrested, he says that he was verbally
harassed and admonished not to block the store’s driveway or
harass its customers.

Id. ¶ 25.

On March 24, 2007, Butler again demonstrated in front
of the Alive and Wellness store.

Id. ¶ 30.

He alleges that the

store hired Clinton Myers and Jason Keefner to provide security
for a promotional party that day.

Id. ¶ 29.

Butler says that,

shortly after he arrived, Keefner snatched Butler’s flyers and
tossed them in a dumpster.

Id. ¶ 30.

Butler says that Myers,

who allegedly weighed more than 300 pounds, then violently
pressed him to the sidewalk, breaking four of his ribs and
tearing his rotator cuff.

Id. ¶¶ 31, 34.

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Butler says that

Officers Gasmen and Sagawinit saw part of what happened but did
not arrest Myers.

Id. ¶ 35.

Butler says he then attempted to get the prosecuting
attorneys to prosecute Myers for the assault.

Id. ¶¶ 39-40.

Butler says that the same person who had prosecuted him was
assigned to his case.

Id. ¶ 40.

Butler says that the

prosecutor, after displaying animosity, promised to prosecute
Myers but not the store owners.

Id.

About a year after the

alleged assault, Butler followed up with another prosecutor
regarding the status of the case against Myers.

Id. ¶ 41.

He

says that this prosecutor knew almost nothing about the case and
ultimately threw him out of the office.

Id. ¶¶ 41-42.

Butler

alleges that he then received a letter telling him that there
would be no prosecution of Myers.

Id. ¶ 43.

Butler says 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 on August 29 through September 1,
2011.

Id. ¶ 50.

Butler subpoenaed Officers Gasmen and Sagawinit

to testify, asking them to bring their reports to court.
¶ 51.

Id.

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

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Sagawinit was, telling him only in a hostile tone that Sagawinit
was “in the building.”

Id. ¶ 53.

Butler says he asked the

person why she was being so hostile and was told, “Because you’re
a troublemaker, an asshole and a nut.”

Id.

Although Butler was

able to subpoena Officer Gasman, Butler says he only testified
that he could not remember the incident.

id. ¶ 56.

Butler complains that the County of Maui is refusing to
protect and defend his free speech rights and says that he will
not return to demonstrate at the Alive and Wellness store without
reasonable assurance that he will be safe.

Id. ¶¶ 58, 63.

To the extent Butler may be asserting free speech
claims in violation of § 1983 based on events earlier than May
2011, those claims are barred by the applicable two-year
limitations period.

See Beckstram 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
actions.”).

To the extent Butler asserts similar claims under

the Hawaii constitution, they are also barred by the two-year
limitation period.

See Turner v. City & County of Honolulu, 2008

WL 1847915, *4 (D. Haw. Apr. 24, 2008).
The only allegations of the Complaint pertaining to
events within two years of its filing involve the trial occurring

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August 29 through September 1, 2011.

Butler does not allege the

result of the trial, but it appears he did not prevail, as he
alleges that he has been ordered to pay $22,000.
¶ 67.

See Complaint

Based on Officer Gasmen’s testimony that he could not

remember the 2007 alleged assault of Butler by Myers, 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 of Maui to pay for up to 100 hours per month of
private security for him to demonstrate outside the Alive and
Wellness store.

Butler claims he need security because he has no

reasonable assurance that he can safely demonstrate outside the
store without that security, given the county’s “wink-and-nod,
look-the-other-way tacit approval” of the store owner’s alleged
conduct.

See Complaint, ¶ 63 and Remedies.

Butler is

essentially arguing that the County of Maui has infringed on his
First Amendment right to demonstrate on the public sidewalk by
failing to ensure his safety and by allowing the Alive and
Wellness store to assault him and use the courts to prevent
Butler from so demonstrating.
To state a freedom of speech claim under the First
Amendment of the United States Constitution or article 1, section

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4 of the Hawaii constitution,1 Butler must allege facts
establishing that: (1) he engaged in speech or conduct protected
under the First Amendment; (2) the County of Maui took action
against him; and (3) Butler’s protected speech or conduct or the
chilling of the his speech or conduct was a substantial or
motivating factor for the defendant’s actions.

See Menotti v.

City of Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005); Awabdy v.
City of Adelanto, 368 F.3d 1062, 1071 (9th Cir. 2004).

Butler’s

Complaint fails to sufficiently allege that his speech was a
substantial or motivating factor for the County of Maui’s
actions.

In other words, there are no facts alleged that, if

true, would amount to infringement by the County of Maui on his
speech during the applicable limitations period.

In fact, there

are no facts alleged demonstrating that Butler even attempted to
engage in speech or conduct protected by the First Amendment
during the limitations period.

Accordingly, the court dismisses

the free speech claims under the Hawaii and United States
constitutions.

1

In State v. Viglielmo, 105 Haw. 197, 210, 95 P.3d 952, 965
(2004), and In Interest of Doe, 76 Haw. 85, 94 n.16, 869 P.2d
1304, 1313 n.16 (1994), the Hawaii Supreme Court cited with
approval a statement indicating that the “First Amendment Rights”
are identical under the state and federal constitutions. The
Viglielmo court held that the Hawaii constitution provides no
greater free speech protection than the United States
Constitution. Accordingly, this court applies the same elements
to claims under either constitution.

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Because the court dismisses the Complaint, the
Application is denied as moot.

Butler is given leave to file an

Amended Complaint no later than June 7, 2013.

Any such Amended

Complaint should clearly identify the factual and legal basis or
bases of the claim(s) asserted.

The Amended Complaint should be

a complete document in itself; it should not state that the
original Complaint is incorporated by mere reference to it.

If

Butler files an Amended Complaint, he must either pay the
applicable filing fee or file another application to proceed in
forma pauperis.

This action will automatically be dismissed if

Butler fails to timely 1) file an Amended Complaint and 2) submit
the appropriate filing fee or a new application to proceed in
forma pauperis.

IT IS SO ORDERED
DATED:

Honolulu, Hawaii, May 8, 2013.

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

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

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