Webb v. State of Hawaii Public Housing Authority, The

Filing 24

ORDER Denying 13 Plaintiff's Motion For Summary Judgment and Granting 15 Defendant's MOTION for Summary Judgment. Signed by JUDGE ALAN C KAY on 3/25/14. (gab, )CERTIFICATE OF SERVICEParticipants regist ered 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

FRANK WEBB, JR.,
Plaintiff,
v.
THE STATE OF HAWAII PUBLIC
HOUSING AUTHORITY,
Defendant.

) Civ. No. 13-00168 ACK-KSC
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
For the following reasons, the Court hereby DENIES
Plaintiff’s Motion for Summary Judgment and GRANTS Defendant’s
Motion for Summary Judgment. Because the Court finds that
Plaintiff’s claims are not justiciable because they are not yet
ripe, the Court DISMISSES Plaintiff’s First Amended Complaint
without prejudice.
FACTUAL BACKGROUND1/
This case involves pro se Plaintiff Frank Webb Jr.’s
claims that the State of Hawaii Public Housing Authority’s
(“HPHA”) proposed ban on smoking in all public housing units in
the State of Hawaii violates Plaintiff’s constitutional rights.
1/

The facts as recited in this order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.

HPHA is a state agency that provides federal and state
public housing for low-income persons in the State of Hawaii. See
Haw. Rev. Stat. Chapter 356D. HPHA owns and operates 81 public
housing projects throughout Hawaii, 67 of which are funded
through annual federal subsidies from the United States
Department of Housing and Urban Development (“HUD”), and 14 of
which are entirely funded by the State of Hawaii. (See HPHA’s
Concise Statement in Supp. of Mot. for Judgment on the Pleadings
(“CSS”) ¶¶ 6-7; Ouansafi Decl. ¶¶ 3-4.) Plaintiff has been a
tenant at La’iola, one of HPHA’s state public housing projects on
Oahu, since 2011. (First Amended Complaint (“FAC”) ¶ 1.)
Plaintiff alleges in the First Amended Complaint that, in March
of 2013, HPHA implemented a new policy prohibiting smoking in
Plaintiff’s unit at La’iola. (Id. ¶ 2.)
In March of 2013, HPHA sent a “Monthly News for
Residents” flyer to both state and federal public housing tenants
(including those at La’iola), seeking feedback on HPHA’s proposed
new smoking policy. (FAC Ex. A at 2.) Specifically, the
newsletter informed tenants that HPHA was creating an addendum to
all rental agreements prohibiting smoking in all public housing
projects, including in individual units, except in designated
smoking areas. (Id.) The newsletter further stated that violation
of the new no smoking policy could result in termination of the
tenant’s rental agreement and eviction. (Id.) On March 13, 2013,

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the tenants at La’iola received a memorandum informing them that,
effective April 1, 2013, smoking in the facility would be
prohibited. (FAC Ex. A at 3.) The memorandum allowed tenants to
express their opinion regarding the designation of a smoking area
at the La’iola building. (Id.)
HPHA states that, to date, it has not enforced its no
smoking policy against any tenant living in a state public
housing project, including La’iola. (HPHA’s CSS ¶ 22; Ouansafi
Decl. ¶ 13.) HPHA further states that it has instructed the
property managers for all state and federal public housing
projects that they cannot and should not enforce the policy
against any tenant until the Hawaii Administrative Rules are
amended and adopted to include the prohibition, and tenants sign
the new “no smoking” addendum to their rental agreements. (HPHA’s
CSS ¶ 23; Ouansafi Decl. ¶ 14.) HPHA also notes that no adverse
action has been taken against Plaintiff with respect to his
smoking in his unit; indeed, HPHA states, until the filing of
this lawsuit, the resident manager of La’iola was not even aware
that Plaintiff was a smoker, or that he objected to the new no
smoking policy.2/ (HPHA’s CSS ¶¶ 25-27; Domanguera Decl. ¶¶ 9-

2/

At the hearing on the instant motions, HPHA’s counsel
stated that she had notified Plaintiff in February of 2014 that
the proposed no smoking policy will not be enforced against him
until the policy is finalized by the Hawaii state legislature or
via the Hawaii Administrative Rules, and an addendum to his
rental agreement is signed. At the hearing Plaintiff did not deny
(continued...)
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10.)
Plaintiff nevertheless claims that the no smoking
policy violates his Fourth and Fifth Amendment rights to privacy,
and his Fourteenth Amendment right to due process. (FAC ¶¶ 7-8.)
Further, Plaintiff alleges that the smoking ban constitutes a
“breach of legal duty,” and “reckless negligence.” (Id. ¶¶ 9-10.)
At the hearing on the instant motions, Plaintiff stated that his
claim is not a constitutional one, but is based on the “sanctity
of [his] home.”
PROCEDURAL BACKGROUND
On April 9, 2013, Plaintiff filed his original
complaint against HPHA, along with an Application to Proceed in
District Court Without Prepaying Fees or Costs. (Doc. Nos. 1 &
2.) On April 10, 2013, Magistrate Judge Chang recommended
dismissal of the original complaint with leave to amend, finding
that, even construed liberally, the complaint failed to state a
claim upon which relief could be granted. (Doc. No. 5.) On April
30, 2013, this Court adopted the Magistrate Judge’s Findings and
Recommendation to Dismiss the Complaint with Leave to Amend and
to Deny Application to Proceed In Forma Pauperis. (Doc. No. 6.)
On May 6, 2013, Plaintiff filed his First Amended Complaint, in
which he appears to be asserting three claims against HPHA: a

2/

(...continued)
that he had been so notified.
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claim for violation of his right to privacy under the Fourth and
Fifth Amendments, a claim for violation of his Fourteenth
Amendment due process rights, and a state law claim for “reckless
negligence.” (Doc. No. 7.) HPHA filed its Answer on June 27,
2013. (Doc. No. 10.)
On January 10, 2014, Plaintiff filed his Motion for
Summary Judgment, supported by a concise statement of facts and a
number of exhibits. (Doc. No. 13 (“MSJ”).) On February 5, 2014,
HPHA filed its Motion for Judgment on the Pleadings or in the
Alternative for Summary Judgment, supported by a concise
statement of facts and a number of exhibits.3/ (Doc. Nos. 15,
16.) Plaintiff filed his memorandum in opposition to HPHA’s
motion on February 26, 2014, (Doc. No. 18), and HPHA filed its
reply on March 10, 2014. (Doc. No. 21.) HPHA filed its memorandum
in opposition to Plaintiff’s Motion for Summary Judgment,
supported by a concise statement of facts on March 3, 2014. (Doc.
Nos. 19, 20.) A hearing on the two motions was held on March 24,
2014.
STANDARD
I.

Summary Judgment
Summary judgment is appropriate when a “movant shows

3/

Because the Court elects to consider HPHA’s concise
statement of facts and the attached exhibits, the Court will
treat HPHA’s motion as one for summary judgment. See Fed. R. Civ.
P. 12(d).
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that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986).
The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that
burden has been met, the nonmoving party must then come forward
and establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986). The Court must draw all
reasonable inferences in favor of the nonmoving party. Id. at
587.
II.

Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) permits a party

to move for judgment on the pleadings after the pleadings are
closed, but early enough not to delay trial. Fed. R. Civ. P.
12(c). “Under Federal Rule of Civil Procedure 12(c), judgment on
the pleadings is proper ‘when, taking all the allegations in the
non-moving party’s pleadings as true, the moving party is
entitled to judgment as a matter of law.’” Ventress v. Japan

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Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007); see also Alexander
v. City and Cnty. of Honolulu, 545 F. Supp. 2d 1122, 1130 (D.
Haw. 2008).
The standard governing a Rule 12(c) motion for judgment
on the pleadings is “functionally identical” to that governing a
Rule 12(b)(6) motion. United States ex rel. Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011).
Accordingly, “[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.’” Ashcroft v.
Iqbal, 556 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). “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.” Id.
III. Pro Se Litigants
The Court notes that, because Plaintiff is appearing
pro se, the Court must liberally construe his pleadings. Eldridge
v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982)) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.”); Florer v. Congregation Pidyon
Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (citing

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Erickson v. Pardus, 551 U.S. 89, 94 (2007)).4/ When a pro se
litigant technically violates a rule of civil procedure, the
court should treat him with “great leniency.” Ferdik v. Bonzelet,
963 F.2d 1258, 1261 (9th Cir. 1992) (citation omitted). However,
“a pro se litigant is not excused from knowing the most basic
pleading requirements.” Am. Ass’n of Naturopathic Physicians v.
Hayhurst, 227 F.3d 1104, 1107–08 (9th Cir. 2000).
Before a district court may dismiss a pro se complaint
the court must provide the pro se litigant “with notice of the
deficiencies in his complaint in order to ensure that the
litigant uses the opportunity to amend effectively.” Akhtar v.
Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (citation omitted).
However, the court may deny a pro se litigant leave to amend
where amendment would be futile. Flowers v. First Hawaiian Bank,
295 F.3d 966, 976 (9th Cir. 2002) (citation omitted).
DISCUSSION
HPHA argues that this Court lacks subject matter
jurisdiction because Plaintiff’s case is not yet ripe. (See Opp’n
to MSJ at 4.) The Court agrees. Under Article III, section 2 of
the United States Constitution, this Court’s subject matter
jurisdiction is limited to deciding “cases” or “controversies.”

4/

The Ninth Circuit has held that pro se complaints should
continue to be liberally construed after the Supreme Court’s
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Hebber v.
Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (noting that the
Ninth Circuit joins five other circuits in so holding).
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See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984). No case or
controversy exists if a case is not yet ripe for adjudication,
see, e.g., Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d
1134, 1139 (9th Cir. 2000) (en banc), and consequently a federal
court lacks subject matter jurisdiction in such a case. See,
e.g., St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.
1989) (“Whether a claim is ripe for adjudication goes to a
court’s subject matter jurisdiction under the case or controversy
clause of article III of the federal Constitution.”).
The Supreme Court instructs that ripeness is
“peculiarly a question of timing,” Regional Rail Reorg. Act
Cases, 419 U.S. 102, 140 (1974), designed to “prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements.” Abbott Laboratories v.
Gardner, 387 U.S. 136, 148 (1967). Where, as here, there is a
pre-enforcement challenge, “the claim is only ripe if a plaintiff
is presented with ‘the immediate dilemma to choose between
complying with newly imposed, disadvantageous restrictions and
risking serious penalties for violation.’” Temple v. Abercrombie,
903 F. Supp. 2d 1024, 1032 (D. Haw. 2012) (quoting San Luis &
DeltaMendota Water Auth. v. Salazar, 638 F.3d 1163, 1173 (9th
Cir. 2011) (internal quotations omitted)). In such cases, the
Court considers “(1) whether the plaintiffs have articulated a
‘concrete plan’ to violate the law in question; (2) whether the

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prosecuting authorities have communicated a specific warning or
threat to initiate proceedings; and (3) the history of past
prosecution or enforcement under the challenged statute.” Temple,
903 F. Supp. 2d at 1032 (quoting Thomas, 220 F.3d at 1139
(internal quotations omitted)); see also McCormack v. Hiedeman,
694 F.3d 1004, 1021–22 (9th Cir. 2012). Importantly, the Ninth
Circuit has stated that “neither the mere existence of a
proscriptive statute nor a generalized threat of prosecution
satisfies the ‘case or controversy’ requirement.” Thomas, 220
F.3d at 1139. Rather, “there must be a genuine threat of imminent
prosecution.” Id.
In the instant case, Plaintiff has failed to establish
the existence of a case or controversy under Article III because
it appears that the no smoking policy has not yet been enforced
against Plaintiff. HPHA has stated, and Plaintiff does not appear
to dispute, that it has not yet implemented the no smoking policy
in state public housing projects, including in La’iola. (HPHA’s
Counter Concise Statement of Facts (“CCSF”) ¶ 8; Ouansafi Decl.
¶ 14.) Further, HPHA states that it will not implement or enforce
such a policy against any tenant in state public housing until
the Hawaii Administrative Rules are amended and adopted to
include the new prohibition, and the tenant signs an addendum to
his or her rental agreement that incorporates the policy. (Id.)
While the March 13, 2013 memorandum sent to La’iola tenants

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states that the smoking ban will be effective April 1, 2013, its
purpose appears to be to notify tenants of the no smoking policy
and assess their interest in establishing a designated smoking
area, rather than to initiate enforcement of the ban. (See FAC
Ex. A at 3.) While at the hearing on the instant motions counsel
for HPHA admitted that HPHA’s notices regarding the no smoking
policy were needlessly confusing to tenants, these notices alone
do not appear to be sufficient to demonstrate an imminent threat
of enforcement against Plaintiff.5/ Importantly, Plaintiff has
not stated that any enforcement action has been taken against him
specifically, nor has he put forth any evidence indicating such
enforcement is occurring. As the Ninth Circuit has stated,
“neither the mere existence of a proscriptive statute nor a
generalized threat of prosecution satisfies the ‘case or
controversy’ requirement.” Thomas, 220 F.3d at 1139.
Even construing Plaintiff’s pleadings liberally and
assuming Plaintiff has articulated a “concrete plan to violate”
the no smoking policy, he has nevertheless failed to demonstrate
that there has been any threat by HPHA to initiate proceedings

5/

During the hearing on the instant motions, the Court
requested that counsel for HPHA have her client provide residents
in state public housing facilities with notice clarifying that
the no smoking policy will not be implemented or enforced until
the Hawaii Administrative Rules are amended and adopted to
include the prohibition, and the tenants sign a no smoking
addendum to their rental agreements. The Court further requested
that HPHA notify the Court when such notice has been provided.
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specifically against him for violation of the no smoking policy,
or that there is a history of prosecution or enforcement of such
a policy at La’iola or state facilities generally.6/ See Thomas,
220 F.3d at 1139. (“In evaluating the genuineness of a claimed
threat of prosecution, we look to whether the plaintiffs have
articulated a ‘concrete plan’ to violate the law in question,
whether the prosecuting authorities have communicated a specific
warning or threat to initiate proceedings, and the history of
past prosecution or enforcement under the challenged statute.”).
The Court therefore concludes that Plaintiff’s claims are not yet
ripe and, as such, the Court lacks subject matter jurisdiction
over Plaintiff’s First Amended Complaint.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s
Motion for Summary Judgment and GRANTS Defendant’s Motion for
Summary Judgment. The Court DISMISSES Plaintiff’s First Amended
Complaint because the Court finds that no controversy exists and
the Court therefore lacks subject matter jurisdiction. Granting
leave to amend would be futile because the action is not
presently justiciable. The action is dismissed without prejudice.

6/

Indeed, HPHA’s counsel stated at the hearing on the
instant motions that in February of 2014 she notified Plaintiff
that enforcement of the no smoking policy would not occur until
the policy is actually enacted and Plaintiff’s rental agreement
is amended to reflect the new policy. Plaintiff did not deny that
he received such notice.
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See Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 785
(9th Cir. 2000) (modifying a dismissal of an unripe claim to a
dismissal without prejudice because events may later progress “to
a point where plaintiffs’ claims are ripe”). The Clerk of Court
shall close the case and enter Judgment in favor of Defendant.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, March 25, 2014

________________________________
Alan C. Kay
Senior United States District Judge

Webb v. The State of Hawaii Public Housing Authority, Civ. No. 13-00168 ACKKSC, Order Denying Plaintiff’s Motion for Summary Judgment and Granting
Defendant’s Motion for Summary Judgment.

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