Butler v. County of Maui
Filing
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ORDER DISMISSING FIRST AMENDED COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 6 , 8 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/24/13. "The court grants Butler leave to file a Second Amende d Complaint that cures the deficiencies noted in this order and in the court's earlier order. Any such Second Amended Complaint must be filed no later than June 14, 2013." "If Butler files a Second Amended Complaint, hemust either pa y 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 a Second Amended Complaint and 2) submit the appropriate filing fee or a new applicati on to proceed in forma pauperis." (Motion terminated: 8 MOTION for Leave to Proceed in forma pauperis filed by Kurt Butler.) (emt, )CERTIFICATE OF SERVICEParticipants registe red 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 May 24, 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,
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)
)
Defendant.
_____________________________ )
CIVIL NO. 13-00163 SOM/KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT; ORDER
DENYING AS MOOT APPLICATION
TO PROCEED IN FORMA PAUPERIS
ORDER DISMISSING FIRST AMENDED COMPLAINT;
ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS
On May 15, 2013, Plaintiff Kurt Butler filed a First
Amended Complaint.
Concurrent with the filing of the First
Amended Complaint, Butler filed an Application to Proceed in
District Court Without Prepaying Fees or Costs (“Application”).
Because the First Amended Complaint fails to allege a viable
claim over which this court has jurisdiction, the First Amended
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 that it 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).
The factual allegations of the First Amended Complaint
are similar to those of the original Complaint.
Basically,
Butler claims that the County of Maui 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 First Amended Complaint ¶ 8.
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.
Butler says that, by mid 2008, he had been arrested for
protesting without a permit and had had his complaints of crimes
disregarded by the Maui Police Department.
See id. ¶ 12.
He
alleges that, even when officers witnessed him being assaulted,
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.
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The civil suit went to trial
in state court on August 29 through September 1, 2011.
Complaint ¶ 50.
See
Butler’s First Amended Complaint alleges that
the “County set about doing what it could to ensure Butler’s
lawsuit would fail.”
First Amended Complaint ¶ 17.
Butler
subpoenaed Officers Gasmen and Sagawinit to testify, asking them
to bring their reports to court.
Id. ¶ 19.
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
in a hostile tone only that Sagawinit was “in the building.”
Id.
Butler says he asked her 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. ¶ 22.
Butler alleges that his “complaints about this
systematic misconduct--to the Chief of Police, the Mayor, the
Prosecutor and Corporation Counsel--have gone unanswered, making
it clear that County of Maui condones and approves the (written
or unwritten) policy.”
Id. ¶ 25
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As noted in this court’s previous order dismissing the
original Complaint, 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 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
actions.”).
The only allegations of the First Ameded Complaint
pertaining to events within the applicable two-year limitations
period involve the trial occurring August 29 through September 1,
2011.
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 provide security for him to
demonstrate outside the Alive and Wellness store, among other
things.
Butler’s allegations are not sufficiently clear for
this court to discern the claims being asserted.
The First
Amended Complaint mentions 42 U.S.C. §§ 1985 and 1986, but
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provides no factual support for those claims or further detail
about which subsection of § 1985 is being asserted.
To the extent Butler is asserting a § 1983 claim, it is
not clear what it is based on.
Even assuming that a County of
Maui employee 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
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).
Butler’s single
sentence regarding complaints about systematic misconduct that
have gone unanswered, see First Amended Complaint ¶ 25, is
insufficient to place the County of Maui on notice of what it did
that might form the basis or bases of § 1983 liability.
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Accordingly, the court dismisses the First Amended
Complaint and denies the Application as moot.
The court grants
Butler leave to file a Second Amended Complaint that cures the
deficiencies noted in this order and in the court’s earlier
order.
Any such Second Amended Complaint must be filed no later
than June 14, 2013.
The Amended Complaint should be a complete
document in itself; it should not state that the original
Complaint or the First Amended Complaint is incorporated by mere
reference to it.
If Butler files a Second 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 a
Second 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 24, 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 FIRST AMENDED
COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS
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