Horowitz et al v. Sulla et al
Filing
64
ORDER Granting The Motions to Dismiss For Lack of Subject Matter Jurisdiction Filed by Defendants: (1) State of Hawaii 4 ; (2) County of Hawaii and Lincoln S.T. Ashida 11 ; (3) Paul J. Sulla Jr. 15 , Joined by Phillip Carey 16 , Jason Hester and Jason Hester as Overseer for Revitalize, a Gospel of Believers 17 ; and Dismissing as Moot the Following Motions: (1) The Motions to Dismiss Filed by Defendants Ronn Ritke 10 36 37 and Herbert M. Ritke 20 and (2) Plaintiffs' Motion For Partial Summary Judgment 40 and Dismissing the Complaint 1 Without Leave to Amend. Signed by JUDGE HELEN GILLMOR on 3/14/14. (gab, )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). 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
LEONARD G. HOROWITZ; SHERRI
KANE,
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
PAUL J. SULLA, JR.; SKY OF
HAWAII AYAHUASCA CHURCH; JASON )
HESTER; JASON HESTER, OVERSEER )
)
REVITALIZE, A GOSPEL OF
BELIEVERS; HERBERT M. RITKE;
)
RONN RITKE; PHILLIP CAREY;
)
LINCOLN S.T. ASHIDA; COUNTY OF )
HAWAII; JOHN DOES 1-100; STATE )
)
OF HAWAII;
)
)
)
Defendants.
_______________________________ )
Civil NO. 13-00500 HG-BMK
ORDER GRANTING THE MOTIONS TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION FILED BY DEFENDANTS:
(1) STATE OF HAWAII (ECF No. 4);
(2) COUNTY OF HAWAII AND LINCOLN S.T. ASHIDA (ECF No. 11);
and,
(3) PAUL J. SULLA, JR. (ECF No. 15), JOINED BY PHILLIP
CAREY (ECF No. 16), JASON HESTER AND JASON HESTER AS
OVERSEER FOR REVITALIZE, A GOSPEL OF BELIEVERS (ECF No.
17);
and
(1)
(2)
DISMISSING AS MOOT THE FOLLOWING MOTIONS:
THE MOTIONS TO DISMISS FILED BY DEFENDANTS RONN RITKE
(ECF Nos. 10, 36, 37) and HERBERT M. RITKE (ECF No. 20)
and
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF
No. 40);
and
DISMISSING THE COMPLAINT (ECF No. 1) WITHOUT LEAVE TO AMEND
1
On October 1, 2013, Plaintiffs Leonard G. Horowitz and
Sherri Kane, appearing pro se, filed a 158-page document entitled
“VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES” with 545
pages of exhibits attached.
The filing is difficult to decipher.
Plaintiffs appear to be attempting to allege various claims
connected to a transaction for land located on the Big Island of
Hawaii.
Plaintiffs claim they own the Big Island property.
Plaintiffs allege that the Defendants have illegally attempted to
obtain the property on behalf of a competing religious
organization.
Plaintiffs’ filing contains a long list of ongoing
disagreements they have with the various Defendants dating back
to at least 2003.
Review of the Complaint revealed no discernable federal
cause of action and no basis for diversity jurisdiction.
The
Court issued an Order to Show Cause Why the Verified Complaint
for Injunctive Relief and Damages Should Not Be Dismissed For
Lack of Federal Jurisdiction.
Defendants State of Hawaii, County
of Hawaii, Lincoln S.T. Ashida, and Paul J. Sulla, Jr. filed
Motions to Dismiss for lack of subject matter jurisdiction.
The following Motions to Dismiss for lack of subject matter
jurisdiction filed by Defendants ARE GRANTED:
1.
State of Hawaii (ECF No. 4);
2.
County of Hawaii and Lincoln S.T. Ashida (ECF No. 11);
and,
2
3.
Paul J. Sulla, Jr. (ECF No. 15), joined by Defendants
Phillip Carey (ECF No. 16), Jason Hester and Jason
Hester as Overseer for Revitalize, A Gospel of
Believers (ECF No. 17).
The following motions ARE DISMISSED AS MOOT:
1.
The Motions to Dismiss that do not address subject
matter jurisdiction filed by Defendants Ronn Ritke (ECF
Nos. 10, 36, 37) and Herbert M. Ritke (ECF No. 20) and
2.
Plaintiffs’ Motion for Partial Summary Judgment (ECF
No. 40).
The Complaint (ECF No. 1) is DISMISSED WITHOUT LEAVE TO
AMEND for lack of subject matter jurisdiction.
PROCEDURAL HISTORY
On October 1, 2013, Plaintiffs Leonard G. Horowitz and
Sherri Kane filed a document entitled “VERIFIED COMPLAINT FOR
INJUNCTIVE RELIEF AND DAMAGES.”
(ECF No. 1).
Motions to Dismiss for Lack of Subject Matter Jurisdiction
On October 18, 2013, Defendant State of Hawaii filed a
Motion to Dismiss for lack of subject matter jurisdiction. (ECF
No. 4).
On October 23, 2013, Defendants County of Hawaii and Lincoln
3
S.T. Ashida filed a Motion to Dismiss for lack of subject matter
jurisdiction. (ECF No. 11).
On October 24, 2013, Defendant Paul J. Sulla, Jr. filed a
Motion to Dismiss for lack of subject matter jurisdiction.
(ECF
No. 15).
Also on October 24, 2013, Defendants Phillip Carey, Jason
Hester, and Jason Hester as Overseer for Revitalize, a Gospel of
Believers filed Substantive Joinders to Paul J. Sulla, Jr.’s
Motion to Dismiss.
(ECF Nos. 16, 17).
Order to Show Cause
On October 30, 2013, the Court issued an ORDER TO SHOW CAUSE
WHY VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES SHOULD
NOT BE DISMISSED FOR LACK OF FEDERAL JURISDICTION.
(ECF No. 18).
On November 27, 2013, Plaintiffs filed a Reply to the Order
to Show Cause.
(ECF No. 24).
On January 7, 2014, Defendant Paul J. Sulla, Jr. filed a
Response to Plaintiffs’ Reply to the Order to Show Cause.
(ECF
No. 43).
Other Motions Filed
On October 18, 2013, Defendant Ronn Ritke filed a Motion to
Dismiss. (ECF No. 10).
On November 19, 2013, Defendant Herbert M. Ritke filed a
4
Motion to Dismiss.
(ECF No. 20).
On December 11, 2013, Defendant Ronn Ritke filed additional
Motions to Dismiss.
(ECF Nos. 36, 37).
On December 27, 2013, Plaintiffs filed a document entitled
“MOTION FOR PARTIAL SUMMARY JUDGMENT IN OPPOSITION TO DEFENDANT
PAUL J. SULLA, JR.’S MOTION TO DISMISS THAT WAS JOINED BY
DEFENDANTS CAREY, HESTER, AND THE ‘CHURCH’ DEFENDANTS.” (ECF No.
40).
All Motions other than the ones challenging only subject
matter jurisdiction were held in abeyance until the question of
jurisdiction was resolved.
(ECF Nos. 18, 22, 39, 42).
There has been no filing indicating that Sky of Hawaii
Ayahuasca Church has been served, nor has it appeared.
The 120-
day period for service of the Complaint, pursuant to Federal Rule
of Civil Procedure 4(m), has expired.
The Court elected to decide the matter without a hearing
pursuant to Local Rule 7.2(d).
BACKGROUND
The Court has had great difficulty in attempting to discern
Plaintiffs’ Complaint.
The Complaint concerns a longstanding
dispute between religious groups over property located on the Big
Island of Hawaii.
Plaintiff Leonard G. Horowitz claims that he
purchased the property in 2004 on behalf of a religious community
5
named “The Royal Bloodline of David.”
(Complaint at Ex. 7, p.
74, ECF No. 1).
The property has been the subject of various legal
proceedings including a judicial foreclosure, a nonjudicial
foreclosure, and an eviction proceeding.
Plaintiffs assert that they own the Big Island property and
use it for religious purposes.
Plaintiffs claim that Defendants
have engaged in a conspiracy to illegally obtain the property for
a competing religious organization with the name “Revitalize, a
Gospel of Believers.”
Plaintiffs allege that Defendants Paul J.
Sulla, Jr., Jason Hester, and Phillip Carey continue to harass
them.
Plaintiffs claim that Defendants Lincoln S.T. Ashida, County
of Hawaii, and State of Hawaii have failed to enforce the laws
and protect Plaintiffs’ property rights.
In the Complaint, Plaintiffs allege that the Defendants
violated a number of federal and state criminal statutes.
(Complaint at 6-9, ECF No. 1).
The Complaint asserts that the
Defendants committed a number of torts against Plaintiffs in
their attempts to obtain the disputed Big Island property.
(Id.
at 24, 29).
Plaintiffs attached numerous filings from state court
proceedings to the Complaint.
The filings include a judicial
foreclosure action filed on behalf of Revitalize, A Gospel of
6
Believers against Plaintiff Horowitz and The Royal Bloodline of
David.
No. 1).
(See Exhibit 1 at pp. 1-16 attached to the Complaint, ECF
Foreclosure was requested on the basis that The Royal
Bloodline of David failed to provide property insurance.
(Id.)
The action proceeded before Judge Ronald Ibarra in the
Circuit Court of the Third Circuit State of Hawaii, Case Civil
No. 05-1-196.
The most recent appeal from an order of Judge
Ibarra was dismissed by the Intermediate Court of Appeals of the
State of Hawaii.
Jason Hester, et al v. Leonard George Horowitz,
et al, 2014 WL 321964, *1 (Haw. Ct. App. Jan. 29, 2014) (finding
that the third amended judgment fails to satisfy the requirements
for an appealable final judgment).
STANDARD OF REVIEW
Subject matter jurisdiction is conferred on federal courts
either through diversity jurisdiction pursuant to 28 U.S.C. §
1332 or through federal question jurisdiction pursuant to 28
U.S.C. § 1331.
Peralta v. Hispanic Bus., Inc., 419 F.3d 1064,
1068 (9th Cir. 2005).
Diversity Jurisdiction
Diversity jurisdiction exists when there is complete
diversity of citizenship between the parties, and the amount in
7
controversy exceeds $75,000.
28 U.S.C. § 1332(a); Caterpillar
Inc. v. Lewis, 519 U.S. 61, 68 (1996).
The burden of
establishing that diversity jurisdiction exists rests on the
party asserting it.
Hertz Corp. v. Friend, 559 U.S. 77, 96-97
(2010).
Federal Question Jurisdiction
Federal district courts are courts of limited jurisdiction.
They have no jurisdiction without specific constitutional or
statutory authorization.
545 U.S. 546, 552 (2005).
Exxon Mobil Corp. v. Allapattah Servs.,
A party invoking the federal court’s
jurisdiction has the burden of proving the actual existence of
subject matter jurisdiction.
Thompson v. McCombe, 99 F.3d 352,
353 (9th Cir. 1996).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a case
must be dismissed for lack of subject matter jurisdiction when
the Court lacks a constitutional or statutory basis to adjudicate
the controversy.
Fed. R. Civ. P. 12(b)(1); Leeson v.
Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th Cir.
2012).
Where the Court does not have federal subject matter
jurisdiction, claims may be dismissed sua sponte.
Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984); see Fed. R. Civ.
P. 12(h)(3).
8
A challenge to the Court’s subject matter jurisdiction may
be “facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004).
In a facial attack, the party
challenging jurisdiction argues that the allegations contained in
a complaint are insufficient “on their face” to invoke federal
jurisdiction.
Id.
A facial challenge, therefore, mirrors a
traditional motion to dismiss analysis.
The Court must take all
allegations contained in the pleading “to be true and draw all
reasonable inferences in [its] favor.”
Wolfe v. Strankman, 392
F.3d 358, 362 (9th Cir. 2004).
A plaintiff properly invokes federal question jurisdiction
by pleading a “colorable claim arising under the Constitution or
laws of the United States.”
500, 514 (2006).
Arbaugh v. Y & H Corp., 546 U.S.
A claim is not colorable if: (1) the alleged
claim under the Constitution or federal statutes appears to be
immaterial and made solely for the purpose of obtaining
jurisdiction; or (2) such a claim is wholly insubstantial and
frivolous.
Bell v. Hood, 327 U.S. 678, 682 (1946); Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 89 (1998)
(finding that dismissal for lack of subject-matter jurisdiction
is proper when the claim is insubstantial, implausible,
foreclosed by prior decisions, or otherwise completely devoid of
merit so as not to involve a federal controversy).
9
ANALYSIS
As Plaintiffs are proceeding pro se, the Court construes the
Complaint liberally.
I.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
LACK OF DIVERSITY JURISDICTION
The basis of diversity jurisdiction is found at Title 28
U.S.C. § 1332.
Section 1332(a)(1) states that “[t]he district
courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of
$75,000 ... and is between citizens of different States.”
U.S.C. § 1332(a)(1).
diversity.
Id.
28
Section 1332(a) requires complete
“In a case with multiple plaintiffs and multiple
defendants, the presence in the action of a single plaintiff from
the same State as a single defendant deprives the district court
of original diversity jurisdiction over the entire action.”
Exxon Mobil Corp., 545 U.S. at 553.
The Complaint fails to establish that all of the Plaintiffs
are of different state citizenship than all of the Defendants.
Caterpillar, 519 U.S. at 68.
The Complaint indicates that
Plaintiff Horowitz is domiciled in Pahoa, Hawaii.
pp. 10, ECF No. 1).
(Complaint at
Defendants Paul J. Sulla, Jr., Jason Hester,
Herbert M. Ritke, Ronn Ritke, Phillip Carey, Lincoln S.T. Ashida,
and the County of Hawaii are likewise citizens of Hawaii.
10
(Id.
at pp. 10-12).
of Hawaii.
Mr. Ashida is Corporation Counsel for the County
Plaintiff Kane’s residence in California does not
provide a basis for diversity jurisdiction.
(Id. at pp. 10, 13).
The Court lacks subject matter jurisdiction based on
diversity pursuant to 28 U.S.C. § 1332(a).
II.
LACK OF FEDERAL QUESTION JURISDICTION
In their Reply to the Order to Show Cause, Plaintiffs
Horowitz and Kane assert that jurisdiction is proper, pursuant to
federal question jurisdiction, 28 U.S.C. § 1331. (ECF No. 24 at
p. 3-28).
Federal question jurisdiction, pursuant to 28 U.S.C. § 1331,
exists when a plaintiff’s well-pleaded complaint establishes
either (1) that federal law creates the cause of action or (2)
that a state law claim “necessarily raises a stated federal
issue, actually disputed and substantial, which a federal forum
may entertain without disturbing any congressionally-approved
balance of federal and state judicial responsibilities.”
Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d
1083, 1086-87 (9th Cir. 2009) (quoting Grable & Sons Metal Prod.,
Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)).
Plaintiffs’ claims do not involve a federal question of law.
The Complaint lists 18 claims for relief:
11
(1) “tort of conversion in conspiracy to deprive citizens’
rights and properties”;
(2) “slander of title”;
(3) “malicious prosecution and abuse of process tort”;
(4) “tortious interference with economic advantage”;
(5) “tortious interference with consortium”;
(6) “breach of contract”;
(7) “breach of duty to protect/negligence/’duty-public duty
doctrine’ and/or ‘failure to enforce’ laws”;
(8)”breach of standard of care/malpractice”;
(9) “trespass to chattels”;
(10) “tortious interference with prospective humanitarian
(non-profit) commercial social service advantage”;
(11) “defamation”;
(12) “criminal negligence”;
(13) “gross negligence”;
(14) “intentional infliction of emotional distress”;
(15) “negligent infliction of emotional distress”;
(16) “fraud and/or misrepresentation”;
(17) “comparative negligence, secondary liability and/or
vicarious liability”; and
(18) “malicious prosecution (abuse of process).”
Plaintiffs’ Complaint, viewed in a generous light, attempts
12
to allege various common law tort claims.
Plaintiffs’ mere
reference to federal law does not convert their state law claims
into federal causes of action.
Nevada v. Bank of America Corp,
672 F.3d 661, 675 (9th Cir. 2012).
A.
There Is No Subject Matter Jurisdiction Based on
Plaintiffs’ Public Minister Allegation
Plaintiff Horowitz asserts that the Court has jurisdiction
because he is a “public minister.”
Cause, ECF No. 24 at p. 3).
(Reply to the Order to Show
Plaintiffs cite Article III, Section
2, of the United States Constitution, which provides that the
United States Supreme Court has “original jurisdiction”
concerning “Cases affecting Ambassadors, other public Ministers
and Consuls.”
(Id.)
Plaintiff Horowitz confuses his position as a leader of a
religious organization with the meaning of “public Minister” in
Article III of the Constitution.
Plaintiff Horowitz’s position
as a religious leader of The Royal Bloodline of David does not
provide a federal court with jurisdiction over the claims.
See
Sulla v. Horowitz, 12-cv-449SOM-KSC, 2012 WL 4758163, *3 (D. Haw.
Oct. 4, 2012); Living in Jesus Truth Ministry v. Wise, 2012 WL
3222148, *5 (D. Nev. Aug. 3, 2012) (explaining that “public
Ministers” refers to “public ministers of a foreign state”);
Derisme v. Hunt Leibert Jacobson, PC, 2010 WL 3417857, *7 (D.
Conn. Aug. 26, 2010) (finding that the plaintiff’s claim that she
13
was a “public minister” based on her membership in a religious
group did not provide the district court with subject matter
jurisdiction).
B.
There Is No Subject Matter Jurisdiction Based on
Plaintiffs’ Criminal Allegations
1.
Criminal Allegations Against Defendants Paul J.
Sulla, Jr., Jason Hester, Herbert M. Ritke, Ronn
Ritke, and Phillip Carey
In the Complaint, Plaintiffs assert the Defendants Paul J.
Sulla, Jr., Jason Hester, Herbert M. Ritke, Ronn Ritke, and
Phillip Carey violated federal and state criminal statutes in
their attempts to obtain the disputed Big Island property.
(Complaint at pp. 24-47, ECF No. 1).
The majority of the criminal allegations are directed
against Defendant Paul J. Sulla, Jr. (“Defendant Sulla”).
The
Complaint alleges that Defendant Sulla committed numerous crimes
including theft, trespass, harassment, conspiracy to steal land,
mail fraud, and extortion. (Complaint at pp. 24-47, ECF No. 1).
In their Reply to the Order to Show Cause, Plaintiffs allege
that Defendant Sulla has violated 21 U.S.C. § 856 by maintaining
drug-involved premises.
(Plaintiffs’ Reply to the Order to Show
Cause at pp. 20-21, ECF No. 24).
Plaintiffs claim that Defendant
Sulla is involved with a religious organization that utilizes
controlled substances in its religious services.
14
(Id. at pp. 14-
16).
Plaintiffs, as private citizens, lack standing to bring
claims under criminal statutes.
Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (finding that “a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another”); Tia v. Criminal Investigation
Demanded as Set Forth, 441 Fed. Appx. 457, 458 (9th Cir. 2011)
(holding that the district court properly denied Tia’s request
for a criminal investigation into the alleged RICO conspiracy
because she lacked standing to compel an investigation or
prosecution of another); Larry v. Uyehara, 270 Fed. Appx. 557,
558 (9th Cir. 2008) (finding that the district court “properly
dismissed this action because Larry lacks standing to initiate a
criminal prosecution”).
2.
Criminal Allegations Involving Defendants Lincoln
S.T. Ashida, the County of Hawaii, and the State
of Hawaii
Plaintiffs cannot assert claims against Defendants Lincoln
S.T. Ashida, the County of Hawaii, and the State of Hawaii based
on the failure of local officials to enforce the criminal laws
and protect Plaintiffs’ property rights.
The United States Supreme Court has long recognized that the
government’s failure to protect an individual against private
violence does not give rise to a claim against the state or local
15
authorities.
DeShaney v. Winnebago County Dept. Of Social
Services, 489 U.S. 189, 195 (1989) (holding that there is “no
affirmative right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property interests of which
the government itself may not deprive the individual”); see
Elliot-Park v. Manglona, 592 F.3d 1003, 1006-07 (9th Cir. 2010).
C.
Plaintiffs’ Claims Against the Defendant State of
Hawaii Are Barred by Eleventh Amendment Immunity
The doctrine of sovereign immunity applies when civil rights
claims are brought against the State of Hawaii.
The State of
Hawaii has not waived its Eleventh Amendment immunity.
The doctrine of sovereign immunity is set out in the
Eleventh Amendment of the United States Constitution:
The Judicial power of the United States shall not
be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI.
The United States Supreme Court has held
that Eleventh Amendment immunity extends to suits against a State
or its agencies by citizens of that same State.
Hans v.
Louisiana, 134 U.S. 1 (1890).
Sovereign immunity generally bars the federal courts from
entertaining suits brought against a State or its agencies,
unless a State waives immunity or Congress abrogates immunity
16
pursuant to § 5 of the Fourteenth Amendment to the United States
Constitution.
L.A. Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th
Cir. 1992); Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005),
cert. denied 546 U.S. 1173 (2006).
In order to waive sovereign immunity, a State’s consent must
be expressed unequivocally.
Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984).
The State of Hawaii has not
waived its sovereign immunity from suit in federal court for
civil rights actions.
See Linville v. State of Hawaii, 874
F.Supp. 1095, 1103 (D. Haw. 1994).
Here, the Defendant State of
Hawaii has invoked the doctrine of sovereign immunity.
(Defendant State of Hawaii’s Motion to Dismiss, ECF No. 4 at p.
4-5).
Plaintiffs’ claims against the Defendant State of Hawaii are
barred because the Defendant State of Hawaii has not waived its
Eleventh Amendment immunity.
D.
Plaintiffs Fail to State a Colorable Claim Pursuant to
42 U.S.C. § 1985
A federal question is not colorable if it clearly appears to
be immaterial and made solely for the purpose of obtaining
jurisdiction or is wholly insubstantial or frivolous.
v. Babbitt, 230 F.3d 1158, 1163 (9th Cir. 2000).
Anderson
A claim is
“wholly insubstantial and frivolous” if the connection between
the allegedly wrongful conduct and the deprivation of
17
constitutional rights is attenuated.
Franklin v. State of Or.,
State Welfare Div., 662 F.2d 1337, 1343 (9th Cir. 1981).
A claim is frivolous when an essential element of the claim
is not alleged in the complaint.
See id.; Scott v. Kuhlmann, 746
F.2d 1377, 1378 (9th Cir. 1984); Ford v. Rawlinson, 2012 WL
3782455, *7 (D. Idaho Aug. 30, 2012) (finding the plaintiff’s
Section 1985 claim was insufficient to support federal
jurisdiction when the plaintiff did not allege any discriminatory
animus in his complaint).
The Complaint cites 42 U.S.C. § 1985 and alleges that
Defendants conspired to deprive Plaintiffs Horowitz and Kane of
their civil rights.
(Complaint at pp. 24-25, ECF No. 1).
Plaintiffs’ 42 U.S.C. § 1985(3) claim is not colorable.
Franklin, 662 F.2d at 1345 n.8.
To bring a cause of action pursuant to Section 1985(3), a
plaintiff must allege:
(1) a conspiracy;
(2) for the purpose of depriving any person or class of
persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and
(3) an act in furtherance of this conspiracy;
(4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a
citizen of the United States.
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535 (9th Cir.
18
1992).
A plaintiff must show “some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators’ action.”
Id. (quoting Griffin v. Breckenridge, 403
U.S. 88, 101-02 (1971)).
The term class “unquestionably connotes something more than
a group of individuals who share a desire to engage in conduct
that the §1985(3) defendant disfavors.”
Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 269 (1993).
To the extent Plaintiffs attempt to state a Section 1985
conspiracy between the private Defendants and the government
Defendants, the claim fails.
Caldeira v. County of Kauai, 866
F.3d 1175, 1181-82 (9th Cir. 1989).
The facts in the Complaint,
even when construed liberally in Plaintiffs’ favor, do not show
“an agreement or ‘meeting of the minds’ by Defendants to violate
[Plaintiffs’] constitutional rights.”
Id.
Plaintiffs also
cannot state a colorable conspiracy claim pursuant to Section
1985 in the absence of a claim for deprivation of rights pursuant
to Section 1983.
Id. (holding that “the absence of a section
1983 deprivation of rights precludes a section 1985 conspiracy
claim predicated on the same allegations”).
The Complaint does not make clear how the two Plaintiffs can
be seen as members of a protected class for purposes of a Section
1985 claim.
The two Plaintiffs do not specify how they qualify
as a class to which the protections of Section 1985(3) apply.
19
Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001).
Plaintiffs
have presented no case law or other authority extending Section
1985 to situations involving religious discrimination.
See Foley
v. Pont, 2013 WL 1010320, *11 (D. Nev. Mar. 13, 2013) (finding
that any harm caused to plaintiff on the basis of his religion is
not actionable under Section 1985(3)).
Plaintiffs fail to state sufficient facts that Defendants
acted with class-based animus.
Franklin, 662 F.2d at 1345 n.8
(finding that the district court did not have jurisdiction to
consider the section 1985 claim because the plaintiff failed to
allege that the defendants were motivated by some racial, or
perhaps otherwise class-based, invidiously discriminatory
animus).
The Complaint appears to allege the Defendants were
motivated by a desire to gain property and other economic
prospects.
Sever, 978 F.2d at 1536 (concluding that the
plaintiff had not alleged a section 1985(3) claim when the
defendants were motivated to harm the plaintiff because his
conduct damaged their economic prospects); United Brotherhood of
Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828
(1983) (finding that Section 1985(3) does not “reach conspiracies
motivated by economic or commercial animus”).
Plaintiffs fail to state a colorable claim that Defendants
conspired to violate their civil rights.
Anderson, 230 F.3d at
1163 (stating that the plaintiff must allege sufficient facts to
20
state a violation of federal law to provide subject matter
jurisdiction).
E.
Plaintiffs Fail to State a Colorable Claim Pursuant to
42 U.S.C. § 1986
Plaintiffs claim that Defendants Lincoln S.T. Ashida, the
County of Hawaii, and the State of Hawaii neglected their duties
to protect Plaintiffs’ rights from the conspiracy.
pp. 31, 45-46).
(Complaint at
It appears that Plaintiffs attempt to state a
claim pursuant to 42 U.S.C. § 1986 for the purposes of obtaining
federal jurisdiction.
A colorable claim for a violation of 42 U.S.C. § 1986 can be
stated only if the complaint states a valid claim for a violation
of 42 U.S.C. § 1985.
Karim-Panahi v. Los Angeles Police Dep’t,
839 F.2d 621, 626 (9th Cir. 1988).
Plaintiffs failed to state a
valid Section 1985 claim, and as a result the claim pursuant to
Section 1986 fails.
Id.; see Wisdom v. Katz, 308 Fed. Appx. 120,
121 (9th Cir. 2009).
F.
Plaintiffs Fail to State Any Other Colorable Federal
Question Claims
Plaintiffs characterize some additional claims as federal
question claims in their Reply to the Order to Show Cause for the
purposes of obtaining federal jurisdiction.
The Reply contains
references to the “Federal Whistleblowers Protection Program,”
21
“unfair competition and trademark conversions,” “antitrust
violations,” and “national security interests.”
(ECF No. 24 at
pp. 11-28).
Plaintiffs rambling general statements do not allege
sufficient, specific facts to allow the Court to understand their
allegations.
There is no way of understanding the relevant
circumstances surrounding the claims regarding the Central
Intelligence Agency and national security, whistleblowing,
potential trademark filings, and antitrust protection.
These
allegations may actually refer to parties who are not named in
the lawsuit.
The scattered, disjointed writing does not make it
possible to discern what these claims actually are and how they
relate to the named Defendants.
Plaintiffs’ claims are wholly insubstantial and do not
provide the Court with subject matter jurisdiction.
Steel Co.,
523 U.S. at 89.
The Court lacks subject matter jurisdiction pursuant to 28
U.S.C. § 1331.
The following Motions to Dismiss for lack of subject matter
jurisdiction filed by Defendants ARE GRANTED:
1.
State of Hawaii (ECF No. 4);
2.
County of Hawaii and Lincoln S.T. Ashida (ECF No. 11);
and,
3.
Paul J. Sulla, Jr. (ECF No. 15), joined by Phillip
22
Carey (ECF No. 16), Jason Hester and Jason Hester as
Overseer for Revitalize, a Gospel of Believers (ECF No.
17).
III. PLEADING REQUIREMENTS PURSUANT TO FED. R. CIV. P. 20(a)(2)
The Complaint fails to satisfy the pleading requirements for
joining multiple defendants in a single suit, set forth in
Federal Rule of Civil Procedure 20(a)(2).
Rule 20(a)(2) provides
that a plaintiff may join multiple defendants in a single lawsuit
if: (1) a right to relief is asserted against each defendant that
relates to or arises out of the same transaction or occurrence or
series of transactions or occurrences; and (2) some question of
law or fact common to all parties arises in the action.
Civ. P. 20(a)(2).
Fed. R.
Unrelated claims involving different
defendants concerning a variety of different occurrances belong
in different suits.
Bathke v. Brown, No. 13-CV-15406, 2013 WL
6405839 (9th Cir. Dec. 9. 2013); Tomel v. Hawaii, No. 12-CV00047LEK, 2012 WL 3262973, *2 (D. Haw. Aug. 9, 2012).
Many of Plaintiffs’ claims against the nine different
Defendants appear to be unrelated and cannot be alleged in a
single suit.
IV.
LACK OF SUPPLEMENTAL JURISDICTION
Plaintiffs appear to request that the Court take
23
supplemental jurisdiction over their state law claims.
(Reply to
the Order to Show Cause at p. 6, ECF No. 24).
28 U.S.C. § 1367(a) provides:
Except as provided in subsections (b) or c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that
are so related to claims in the action within such
original jurisdiction that they form part of the same
case or controversy under Article III of the United
States Constitution.
There can be no supplemental jurisdiction over state law
claims unless there was an initial basis for federal
jurisdiction.
Herman Family Revocable Trust v. Teddy Bear, 254
F.3d 802, 805 (9th Cir. 2001).
When a federal district court
dismisses a case for lack of subject matter jurisdiction, there
is no valid claim within the court’s original jurisdiction to
trigger 18 U.S.C. § 1367(a)’s grant of supplemental jurisdiction
over state law claims.
Arbaugh, 546 U.S. 500, 514 (2006);.
Plaintiffs’ case is dismissed for lack of subject matter
jurisdiction.
The Court does not have authority to exercise
supplemental jurisdiction because there was no original claim to
which the remaining state law claims may be supplemental.
Arbaugh, 546 U.S. at 514 n.11; Scott v. Pasadena Unified Sch.
Dist., 306 F.3d 646, 664 (9th Cir. 2010) (finding there is no
discretion to retain supplemental jurisdiction over state law
claims when the federal district court lacked subject matter
24
jurisdiction).
V.
PARTIES’ ADDITIONAL FILINGS
A number of other motions were filed in addition to the
motions to dismiss for lack of subject matter jurisdiction.
In response, on October 30, 2013, the Court issued an Order
to Show Cause Why Verified Complaint for Injunctive Relief and
Damages Should Not Be Dismissed for Lack of Federal Jurisdiction.
(ECF No. 18).
The Court ordered that all other motions be held
in abeyance until the issue of federal jurisdiction was resolved.
Id.
1.
Motions to Dismiss Not Addressing Subject Matter
Jurisdiction
Defendant Ronn Ritke filed three Motions to Dismiss that did
not address subject matter jurisdiction.
On October 18, 2013,
Defendant Ronn Ritke filed the first Motion to Dismiss.
10).
(ECF No.
Following the Order to Show Cause, Defendant Ronn Ritke
filed two additional Motions to Dismiss on December 11, 2013.
(ECF Nos. 36, 37).
On December 16, 2013, the Court issued an
Order which held the Motions in abeyance until the question of
jurisdiction was resolved.
(ECF No. 39).
on November 19, 2013, Defendant Herbert M. Ritke filed a
Motion to Dismiss that did not address subject matter
jurisdiction.
(ECF No. 20).
On November 22, 2013, the Court
held the Motion in abeyance until the question of jurisdiction
25
was resolved.
(ECF No. 22).
The granting of the Motions to Dismiss for lack of subject
matter jurisdiction renders the issues raised by Defendant Ronn
Ritke and Herbert M. Ritke’s Motions to Dismiss moot.
The Motions to Dismiss filed by Defendants Ronn Ritke (ECF
Nos. 10, 36, 37) and Herbert M. Ritke (ECF No. 20) are DISMISSED
AS MOOT.
2.
Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs filed a document entitled “MOTION FOR PARTIAL
SUMMARY JUDGMENT IN OPPOSITION TO DEFENDANT PAUL J. SULLA, JR.’S
MOTION TO DISMISS THAT WAS JOINED BY DEFENDANTS CAREY, HESTER,
AND THE ‘CHURCH’ DEFENDANTS.”
(ECF No. 40).
On January 1, 2014, the Court ordered that the motion be
held in abeyance until the issue of federal jurisdiction was
resolved.
(ECF No. 42).
The Court’s finding that there is no subject matter
jurisdiction renders the issues raised by Plaintiffs’ Motion
moot.
Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 40)
is DISMISSED AS MOOT.
3.
Defendant Sulla’s Request to Strike Statements from
Plaintiffs’ Reply to the Order to Show Cause and to
Impose Sanctions Against Defendants
A court may strike from a pleading “any redundant,
immaterial, impertinent, or scandalous matter.”
26
Fed. R. Civ. P.
12(f).
Motions to strike are not favored by courts in the
absence of prejudice.
Wailua Ass’n v. Aetna Casualty & Surety
Co., 183 F.R.D. 550, 553 (D. Haw. 1998).
On January 7, 2014, Defendant Sulla filed a Response to the
Plaintiffs’ Reply to the Order to Show Cause.
(ECF No. 43).
In
his Response, Defendant Sulla claims that Plaintiffs made
unsubstantiated allegations that he committed “criminal
wrongdoing” and “perjury.”
(Id. at 10).
Defendant Sulla
requests that the Court strike the allegedly defamatory
statements from their Reply.
(Id. at pp. 9-11).
The Court declines to strike the statements in Plaintiffs’
Reply from the record.
Defendant Sulla has not demonstrated that
Plaintiffs’ allegations prejudice him given that the case is
dismissed.
See Wailua Ass’n, 183 F.R.D. at 553 (D. Haw. 1998)
(explaining that the rationale behind granting a motion to strike
is to avoid prejudice to a party by preventing a jury from seeing
the offensive matter).
Defendant Sulla also requests that Plaintiffs be sanctioned
“to discourage further misuse of the federal courts and
harassment of Defendants.”
(Id. at p. 9).
Federal Rule of Civil Procedure 11 provides for sanctions
“when a filing is frivolous, legally unreasonably, without
factual foundation, or is brought for an improper purpose.”
Estate of Blue v. County of Los Angeles, 120 F.3d 982, 985 (9th
27
Cir. 1997).
A court may also impose sanctions under its inherent
power for conduct taken in bad faith.
1118, 1134 (9th Cir. 2001).
threshold.”
Gomez v. Vernon, 255 F.3d
The bad faith requirement is a “high
Mendez v. County of San Bernadino, 540 F.3d 1109,
1132 (9th Cir. 2008).
Although Rule 11 permits the imposition of sanctions against
pro se litigants, “due consideration” must be given to the
litigant’s pro se status in assessing whether to impose
sanctions.
Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1037
n.13 (9th Cir. 1985).
The Court declines to impose sanctions against Plaintiffs
considering their pro se status.
The record does not
unambiguously demonstrate that Plaintiffs acted in bad faith or
filed the Complaint for the purpose of harassing Defendants.
See Maxwell v. Deutsche Bank National Trust Co., 2014 WL 296873,
*2 (N.D. Cal. Jan. 27, 2014) (declining to impose sanctions
against a pro se litigant despite the failure to show any
cognizable claim for relief).
VI. DISMISSAL WITHOUT LEAVE TO AMEND
The Court is aware of the importance of notifying a pro se
litigant of the deficiencies in his or her complaint and
affording an opportunity to amend prior to dismissal of an
28
action.
Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th
Cir. 1995).
Leave to amend should be denied, however, where
amendment would be futile.
Saul v. United States, 928 F.2d 829,
843 (9th Cir. 1991); Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1052 (9th Cir. 2003).
Plaintiffs have already submitted more than 1000 pages of
filings.
Plaintiffs’ pleadings are rambling and difficult to
decipher.
Review of all of the filings has not provided any
support for a federal cause of action.
Amendment of the
Complaint would be futile.
The Complaint (ECF No. 1) is DISMISSED WITHOUT LEAVE TO
AMEND for lack of subject matter jurisdiction.
CONCLUSION
The following Motions to Dismiss for lack of subject matter
jurisdiction filed by Defendants ARE GRANTED:
1.
State of Hawaii (ECF No. 4);
2.
County of Hawaii and Lincoln S.T. Ashida (ECF No. 11);
and,
3.
Paul J. Sulla, Jr. (ECF No. 15), joined by Phillip
Carey (ECF No. 16), Jason Hester and Jason Hester as
Overseer for Revitalize, a Gospel of Believers (ECF No.
17).
The following motions ARE DISMISSED AS MOOT:
29
1.
The Motions to Dismiss that do not address subject
matter jurisdiction filed by Defendants Ronn Ritke (ECF
Nos. 10, 36, 37) and Herbert M. Ritke (ECF No. 20) and
2.
Plaintiffs’ Motion for Partial Summary Judgment (ECF
No. 40).
The Complaint (ECF No. 1) is DISMISSED WITHOUT LEAVE TO
AMEND for lack of subject matter jurisdiction.
The Clerk of the Court is ordered to close the case.
Dated:
March 14, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Leonard G. Horowitz; Sherri Kane v. Paul J. Sulla, Jr.; Sky Of
Hawaii Ayahuasca Church; Jason Hester; Jason Hester, Overseer
Revitalize A Gospel Of Believers; Herbert M. Ritke; Ronn Ritke;
Phillip Carey; Lincoln S.T. Ashida; County Of Hawaii; John Does
1-100; State Of Hawaii; Civil No. 13-00500 HG-BMK; ORDER GRANTING
THE MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
FILED BY DEFENDANTS: (1) STATE OF HAWAII (ECF No. 4), (2) COUNTY
OF HAWAII AND LINCOLN S.T. ASHIDA (ECF No. 11); and (3) PAUL J.
SULLA, JR. (ECF No. 15), JOINED BY PHILLIP CAREY (ECF No. 16),
JASON HESTER AND JASON HESTER AS OVERSEER FOR REVITALIZE, A
GOSPEL OF BELIEVERS (ECF No. 17); and
DISMISSING AS MOOT THE FOLLOWING MOTIONS: (1) THE MOTIONS TO
DISMISS FILED BY DEFENDANTS RONN RITKE (ECF Nos. 10, 36, 37) and
HERBERT M. RITKE (ECF No. 20) and (2) PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT (ECF No. 40); and
DISMISSING THE COMPLAINT (ECF No. 1) WITHOUT LEAVE TO AMEND
30
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