Fuller et al v. State of Hawai'i Department of Land and Natural Resources et al

Filing 15

ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND re: 12 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/6/2014. ~ "[T]he court DISMISSES the Second Amended Complaint, with leave to amend the § 1983 claims. Plaintiffs are allowed until June 27, 2014 to file a Third Amended Complaint. Otherwise, this action will be dismissed, and the case file will be closed." ~ (afc) 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

HARRIS M. FULLER, JR.; DARIUS ) CIV. NO. 14-00097 JMS-BMK
M.K. FULLER; LANDON K.
)
FULLER; and MICHAEL W.K. ELI, ) ORDER DISMISSING SECOND
) AMENDED COMPLAINT WITH
Plaintiffs,
) LEAVE TO AMEND
)
vs.
)
)
STATE OF HAWAII DEPARTMENT )
OF LAND AND NATURAL
)
RESOURCES WILLIAM J. AILA,
)
JR., Chairperson; and BARRY
)
CHEUNG, Land Agent,
)
)
Defendants.
)
_______________________________ )
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH
LEAVE TO AMEND
I. INTRODUCTION
The court has reviewed the “Amended Complaint” filed on May 7,
2014 by pro se Plaintiffs Harris M. Fuller, Jr., Darius M.K. Fuller, Landon K.
Fuller, and Michael W.K. Eli (collectively, “Plaintiffs”). The court refers to it as
the “Second Amended Complaint” because Plaintiffs filed a prior Amended
Complaint on April 3, 2014. The court DISMISSES the Second Amended
Complaint, but gives Plaintiffs another chance to file a proper Complaint.

Plaintiffs might have misunderstood the court’s Order of April 15,
2014. That Order dismissed the April 3, 2014 Amended Complaint, and allowed
Plaintiffs to file a Second Amended Complaint. Because of Plaintiffs’ possible
confusion, the present Order notifies Plaintiffs of the deficiencies in the Second
Amended Complaint, and again explains to Plaintiffs what they must do if they
want this case to continue. If Plaintiffs do not file a proper Third Amended
Complaint by June 27, 2014, the court will dismiss the action and close the case
file.
The Second Amended Complaint is missing the details of the
previously-alleged October 2013 incidents in which Defendant Department of
Land and Natural Resources (“DLNR”) Chairperson, William J. Aila, Jr. (“Aila”);
DLNR Land Agent, Barry Cheung (“Cheung”) (collectively, “Defendants”); and/or
others were claimed to have removed Plaintiffs’ property, detained them without
permission or a warrant, and then arrested and evicted them. These kinds of details
were alleged in the April 3, 2014 Amended Complaint (and in the original
Complaint of February 27, 2014), but Plaintiffs did not re-allege them in the
Second Amended Complaint. Instead, the Second Amended Complaint appears to
have responded to the court’s April 15, 2014 Order by focusing solely on
providing evidence that Aila and/or Cheung had personal involvement.
2

A single Complaint that combines some of the factual allegations
made in all versions of the Complaint (dated February 27, 2014, April 3, 2014, and
May 7, 2014) might properly allege a violation of the Fourth Amendment -- made
applicable to the states by the Fourteenth Amendment -- of the U.S. Constitution
under 42 U.S.C. § 1983 against Aila and/or Cheung. The court, however, is not
authorized on its own to combine different versions of a Complaint into a single
Complaint. Thus, the court cannot properly analyze whether the action should be
allowed to proceed further. Plaintiffs must file a single Complaint that includes all
of their factual allegations.
The court explains its ruling in detail below.
II. BACKGROUND
A.

The Original Complaint
On February 27, 2014, Plaintiffs filed their original Complaint1

against the DLNR itself, and Aila and Cheung (in both their individual and official
capacities), which the court construed as asserting claims pursuant to (1) 42 U.S.C.
§ 1983 for violation of Plaintiffs’ Fourth Amendment rights, based on allegations
of illegal search, seizure, and detention; (2) 42 U.S.C. § 1986, for failure to prevent

1

Along with the Complaint, each Plaintiff filed an Application to Proceed Without
Prepaying Fees or Costs (“Application”). Doc. Nos. 3 to 6. On March 13, 2014, the court
granted each Application. Doc. No. 7, at 3.
3

a conspiracy under 42 U.S.C. § 1985 to deprive Plaintiffs of equal protection of the
laws; and (3) state law for negligence and emotional distress. Doc. No. 1, Compl.
Among other contentions, the Complaint alleged that DLNR officers went to
Plaintiffs’ “family land,” and, “without permission and or warrant illegally
searched, seized and detained [Plaintiffs] at Kapolei Police booking Station
parking lot,” only to give them a citation, and “sa[y] they were sorry and let
[Plaintiffs] go.” Id. ¶¶ 5, 6. The Complaint further alleged that while Plaintiffs
were detained, “DLNR officers and Land agents confiscated most of [Plaintiffs’]
belongings, work tools, livestock, personal things and sentimental property.” Id. ¶
6. Two days later, “DLNR officers and Land agents” returned “to evict or arrest”
Plaintiffs and “confiscated whatever was left still of value.” Id. ¶ 7.
On March 13, 2014, the court dismissed the original Complaint
(1) with prejudice as to the claims for money damages against the DLNR as a state
agency (and against Aila and Cheung in their official capacities), based on
Eleventh Amendment immunity; but (2) without prejudice, and with leave to
amend the § 1986 and/or § 1985(3) claims. Doc. No. 7. The court did not
otherwise dismiss a claim under § 1983 for a violation of the Fourth Amendment,
but the court explained that an amended complaint “supersedes all previously-filed
complaints,” and therefore, “if Plaintiffs choose to file an Amended Complaint,
4

they must also re-allege their § 1983 and state law claims against Defendants in
their individual capacities . . . along with the amended § 1986 claim.” Id. at 12-13.
B.

The Amended Complaint
Plaintiffs filed an Amended Complaint on April 3, 2014. Doc. No. 9.

Among other assertions (similar to the original Complaint), the Amended
Complaint alleged that “[o]n October 22, 2013, [Cheung] and [DLNR] officers
went to our family land . . . [and] posted up notices to vacate property by October
28, 2013.” Id. at 3. It alleged that Aila “left a message stating that he couldn’t and
didn’t recognize [Plaintiff Harris M. Fuller’s] documents.” Id. It claimed that
“[o]n October 29, 2013 [DLNR] officers and land agents went to the land without
permissions[,] and or issue of a warrant[,] illegally searched and seized and
detained [Plaintiffs].” Id. It continued:
While we were detained [DLNR] officers and
Land agents confiscated most of our belongings, work
tools, livestock, personal things and sentimental
properties. There was/is no inventory or receipt of
belongings given by defendants for property taken. . . .
Two days later . . . officers and land agents
returned to evict or arrest, gave us fifteen minutes to
vacate property and confiscated anything of value that
remained on the property.
Id. at 4.

5

On April 15, 2014, the court dismissed the Amended Complaint,
without prejudice to Plaintiffs filing a new Complaint that clarified the alleged
personal involvement of Aila and/or Cheung. See Doc. No. 10, Order Dismissing
Amended Complaint. As to a § 1983 claim, the April 15, 2014 Order told
Plaintiffs, among other things, that “[a]lthough the Amended Complaint alleges
that DLNR land agents and officers illegally detained Plaintiffs and searched and
seized Plaintiffs’ property, Plaintiffs do not allege any personal involvement in
those specific activities by either Aila or Cheung.” Id. at 8. The Order concluded
“[t]hus, the Amended Complaint fails to state a cognizable § 1983 claim that Aila
and Cheung violated Plaintiffs’ rights under the Fourth Amendment.” Id.
The April 15, 2014 Order also dismissed claims under §§ 1985 &
1986, concluding that “the Amended Complaint does not allege facts showing a
conspiracy between Cheung and Aila, or specific acts done by Cheung and Aila in
furtherance of such conspiracy.” Id. at 11. The court allowed leave to amend,
explaining that
[a] Second Amended Complaint will supercede the prior
pleadings and must be complete in itself without
reference to prior . . . superceded pleadings. Thus, if
Plaintiffs choose to file a Second Amended Complaint,
they must also re-allege their state law claims against
Defendants in their individual capacities (sufficient to
comply with Rules 8 and 12(b)(6)) along with the
amended federal law claims.
6

Id. (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by
Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) (en banc)). The court also
indicated it would decline supplemental jurisdiction over state law claims for
negligence or emotional distress if Plaintiffs failed to file a Second Amended
Complaint. Id. at 12.
C.

The Second Amended Complaint
Plaintiffs filed their “[Second] Amended Complaint for Personal

Injury and Property Damages” on May 7, 2014, Doc. No. 12-4, which the court is
reviewing in the present Order. In responding to the April 15, 2014 Order,
Plaintiffs appear to be attempting to provide proof that Aila and/or Cheung had
some personal involvement in the events described in the Amended Complaint
(they filed a picture and two affidavits of witnesses as exhibits, and referenced
some of the witness statements in their allegations). See Doc. Nos. 12-1, 12-2, 123. Plaintiffs did not, however, re-allege or describe the October 2013 events as
they did in their prior Complaints.
Specifically, the Second Amended Complaint alleges that, on the
morning of October 29, 2013, “DLNR officers and land agents and Barry Cheung
. . . went to [Plaintiffs’] families [sic] land/residence allegedly to evict and arrest.”
Doc. No. 12-4, Second Am. Compl. at 3. It attaches an affidavit from witness Dale
7

DeTroye, who states that “DLNR Enforcement officers handcuff[ed] and remove[d
Plaintiffs] from Waianae Valley Ranch.” Doc. No. 12-3, Pls.’ Ex. 9, DeTroye Aff.
It further alleges that a DLNR officer told Kaipo Kamanu-Kauanui, a witness who
was video-recording this event, “to turn off the camera and leave because this is a
government operation or he would be arrested too.” Doc. No. 12-4, Second Am.
Compl. at 3. Kamanu-Kauanui “watched [Aila and Cheung] walking and looking
around on the plaintiffs [sic] land and giving orders to the DLNR officers and land
agents to remove belongings and properties of plaintiffs.” Id. at 3-4. KamanuKauanui states that “I seen the officers arrest [Plaintiffs], after they was gone the
land agents along with [Aila and Cheung] confescate [sic] alot [sic] of there [sic]
belongings and tools.” Doc. No. 12-2, Pls.’ Ex. 8, Kamanu-Kauanui Aff.
Similarly, DeTroye states that “[s]tate workers . . . removed . . . a generator, welder
and other small tools. State workers returned the following week . . . and cleared
the area of all other belongings and demolished 2 old ranch houses.” Doc. No. 123, Pls.’ Ex. 9, DeTroye Aff.
The Second Amended Complaint invokes “provisions of title 42
U.S.C.S. 1983, Title 42 U.S.C.S. 1986, Title 42 USCS 1985 [and] Title 28 U.S.C.S
452.” Doc. No. 12-4, Second Am. Compl. at 2. It further alleges that Plaintiffs are
“pursuing to sue the defendants in their individual capacity[.]” Id. Finally, it
8

alleges that because of Defendants’ negligence, Plaintiffs sustained serious
emotional distress. Id. at 4. They seek compensatory damages. Id.
III. STANDARD OF REVIEW
The court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it
finds “frivolous, malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the
court to sua sponte dismiss an in forma pauperis complaint that fails to state a
claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).
Plaintiffs are apprearing pro se; consequently, the court liberally
construes the Complaint. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the federal courts to liberally construe
the ‘inartful pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam)). The court also recognizes that “[u]nless it is
absolutely clear that no amendment can cure the defect . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies and an opportunity to amend prior
9

to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir.
1995); see also Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). The court
should not, however, advise a litigant how to cure defects. This type of advice
“would undermine district judges’ role as impartial decisionmakers.” Pliler v.
Ford, 542 U.S. 225, 231 (2004).
The court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if it fails to “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. 544, 570
(2007)); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (construing
pro se litigant’s complaint liberally does not relieve court of duty to determine
whether the litigant presented factual allegations sufficient to state a plausible
claim for relief); Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.
2008). This tenet -- that the court must accept as true all of the allegations
contained in the complaint -- “is inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
10

inference that the defendant is liable for the misconduct alleged.” Id. at 1949
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to
infer “the mere possibility of misconduct” do not show that the pleader is entitled
to relief as required by Rule 8. Id. at 679.
A complaint must also meet the requirements of Federal Rule of Civil
Procedure 8, mandating that a complaint include a “short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1). Rule 8 requires more than “the-defendantunlawfully-harmed-me accusation[s]” and “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not
do.” Iqbal, 556 U.S. at 678 (citations and quotations omitted). “Nor does a
complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (quotation signals omitted).
IV. DISCUSSION
Construed liberally in favor of Plaintiffs, the Second Amended
Complaint seeks relief against Aila and Cheung in their individual capacities
pursuant to 42 U.S.C. §§ 1983, 1985 & 1986, along with state law claims for

11

negligence and emotional distress.2 Doc. No. 12-4, Second Am. Compl. at 2-4.
The court, however, finds that (standing alone) the Second Amended Complaint
fails to allege facts setting forth plausible claims for relief.
A.

42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983 against state officials in their

individual capacities, “a plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United States was violated; and
(2) that the alleged deprivation was committed by a person acting under color of
state law.” Kehano v. Pioneer Mill Co., 2012 WL 6094801, at *2 (D. Haw. Dec. 6,
2012) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); see also OSU Student
Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012) (“To state a claim under
§ 1983 against state officials in their individual capacities, a plaintiff must plead
that the officials, acting under color of state law, caused the deprivation of a federal
right.”) (citation and quotation marks omitted).

2

The Second Amended Complaint also appears to assert jurisdiction and/or claims
pursuant to 28 U.S.C. § 452 and 18 U.S.C. § 242. Doc. No. 12-4, Second Am. Compl. at 2-3.
Neither provision, however, provides jurisdiction or a private cause of action. Rather, § 452
merely provides that the federal courts “shall be deemed always open for the purpose of filing
proper papers,” and other housekeeping matters. 28 U.S.C. § 452. And 18 U.S.C. § 242 is a
federal criminal statute that does not confer a private right of action. See Allen v. Gold Country
Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming dismissal of claim because 18 U.S.C.
§ 242 is a “criminal statute[] that do[es] not give rise to civil liability”).
12

Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior. Iqbal, 566
U.S. at 676. Rather, “each government official, his or her title notwithstanding, is
only liable for his or her own misconduct.” OSU Student Alliance, 699 F.3d at
1069 (quoting Iqbal, 556 U.S. at 677). Thus, to state a valid § 1983 constitutional
claim, “a plaintiff must [allege] that each government-official defendant, through
the official’s own individual actions [has] violated the Constitution.” Id.
The Second Amended Complaint (standing alone) fails to identify a
specific “right secured by the Constitution or laws of the United States” that
Defendants allegedly violated. Rather, it appears that, in filing their Second
Amended Complaint, Plaintiffs focused on Aila’s and/or Cheung’s individual
actions and whether they were “under color of law.”
The court recognizes that, as set forth above, the April 3, 2014
Amended Complaint alleged that DLNR agents and officers “without
permissions[,] and or issue of a warrant,” illegally detained Plaintiffs and searched
and seized Plaintiffs “belongings, work tools, livestock, personal things and
sentimental properties” without an “inventory or receipt of belongings.” Doc. No.
9, Am. Compl. at 4. And similar allegations were made in the original Complaint.
Such types of allegations, assumed as true and construed in the light most
13

favorable to the Plaintiffs, see Manzarek v. St. Paul Fire & Ins. Co., 519 F.3d
1025, 1031 (9th Cir. 2008), appear to state a violation of the Fourth Amendment.
The Fourth Amendment, made applicable to the states by the
Fourteenth Amendment, protects “persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. Thus, unless an
exception applies, the Fourth Amendment proscribes warrantless “entr[y] onto
private land to search for and abate suspected nuisances.” Conner v. City of Santa
Ana, 897 F.2d 1487, 1490 (9th Cir. 1990) (citations omitted) (addressing a tenant’s
improper commercial use of property). That is, subject to a few specific
exceptions, “[a] seizure conducted without a warrant is per se unreasonable under
the Fourth Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th
Cir. 2005). “A seizure of property occurs when there is some meaningful
interference with an individual’s possessory interests in . . . property.” Soldal v.
Cook Cnty., 506 U.S. 56, 63 (1992) (citation omitted). “Deciding whether officers’
actions were reasonable requires . . . balanc[ing] ‘the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.’” United States v. Ankeny, 502
F.3d 829, 836 (9th Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)).
14

Applying those principles, the prior Complaints alleged specific
circumstances describing a warrantless entry onto private land, a seizure of
personal property without permission (and without “inventory or receipt”), and an
illegal eviction -- that is, they indicate a plausible Fourth Amendment violation.3
But Plaintiffs failed to re-allege these types of facts in the Second Amended
Complaint.
As it stands, the Second Amended Complaint’s allegations that
“DLNR officers and land agents and . . . Cheung” went to Plaintiffs’ family’s
“land/residence . . . to evict and arrest,” “removed Plaintiffs’ belongings from the
property,” and Aila and Cheung “confescate [sic] a lot of there [sic] belongings,”
are insufficient by themselves to state a Fourth Amendment claim. Doc. Nos. 12-4,
Second Am. Compl. at 3-4;12-2, Pls.’ Ex. 8; & 12-3, Pls.’ Ex 9. See Iqbal, 556
U.S. at 678 (explaining that “elements of a cause of action, supported by mere
conclusory statements,” and “naked assertions devoid of further factual
enhancement” “do not suffice” to state a plausible claim for relief). And without

3

Whether there are “countervailing governmental interests” justifying “the nature and
quality of the intrusion on the [Plaintiffs’] Fourth Amendment interests,” Ankeny, 502 F.3d at
836, would be another matter, not proper for resolution at a screening stage of this particular pro
se action. See, e.g., Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007) (“It is impossible to
make such a fact-specific determination [as to reasonableness] when the precise circumstances of
the searches or seizures are not before the court and when the Defendants have not yet had a
chance to justify the alleged searches or seizures.”), judgment vacated on other grounds, 556
U.S. 1256 (2009).
15

specific factual allegations regarding the circumstances of a Fourth Amendment
claim, the court cannot determine whether Plaintiffs have sufficiently alleged
personal involvement of Aila and/or Cheung.
In short, the Second Amended Complaint fails to state a cognizable
§ 1983 claim.
B.

42 U.S.C. §§ 1985 and 1986 Claims Against Defendants in Their
Individual Capacities
The Second Amended Complaint also fails to state plausible claims

for violations of §§ 1985 and 1986. To state a plausible § 1986 claim for failure to
prevent a § 1985 conspiracy, a plaintiff must first assert a valid § 1985 claim. See
Huling v. City of Los Banos, 869 F. Supp. 2d 1139, 1144 (E.D. Cal. 2012) (citing
Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 626 (9th Cir. 1988)). As
explained previously, in order to state a valid claim under § 1985(3),4 “Plaintiffs
must allege (1) a conspiracy; (2) to deprive the plaintiff of the equal protection of
the laws; (3) an act in furtherance of the conspiracy; and a (4) resulting injury.”
Doc. No. 7, Mar. 13, 2014 Order at 10 (citing Sever v. Alaska Pulp Corp., 978 F.2d
1529, 1536 (9th Cir. 1992)); Doc. No. 10, Apr. 15, 2014 Order at 9.

4

Subsections (1) and (2) of § 1983 are not applicable to any facts alleged in this case.
16

To establish a conspiracy, Plaintiffs must allege facts that show “an
agreement or meeting of the minds to violate Constitutional rights . . . and each
party must at least share the common objective of the conspiracy.” Bechdolt v.
Loveland, 2011 WL 6020666, at *5 (D. Or. Nov. 30, 2011) (citing United
Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en
banc) (internal quotation and citation omitted)). However, “[a] conspiracy can be
inferred from conduct and need not be proven by evidence of an express
agreement.” Ward v. Equal Emp’t Opportunity Comm’n, 719 F.2d 311, 314 (9th
Cir. 1983). “And the second element of a § 1985(3) claim requires an allegation
that Defendants’ actions were ‘motivated by some racial, or perhaps otherwise
class-based, invidiously discriminatory animus.’” Doc. No. 7, Mar. 13, 2014 Order
at 10 (citing RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir.
2002)).
The Second Amended Complaint fails to allege any facts that could
possibly support claims against Cheung and Aila under §§ 1985 or 1986. At best,
it alleges that Plaintiffs consider themselves to be “Kanaka Mauoli [sic]
National[s],” Doc. No. 12, Second Am. Compl. at 2, and that police officers “came
to assist DLNR wit [sic] transporting the plaintiffs.” Id. at 3. But it alleges no
facts showing a conspiracy between Cheung and Aila, either through any
17

“agreement or meeting of the minds,” Bechdolt, 2011 WL 6020666, at *5, or based
on Cheung’s and Aila’s conduct. See Ward, 719 F.2d at 314 (“A conspiracy can be
inferred from conduct.”). Nor do Plaintiffs allege specific acts done by Cheung
and Aila in furtherance of such conspiracy. Furthermore, the Second Amended
Complaint fails to allege that Cheung and Aila deprived Plaintiffs of equal
protection of the laws, or that if they had, such deprivation was based on Plaintiffs’
identification as “Kanaka Maoli” nationals. See RK Ventures, Inc., 307 F.3d at
1056 (explaining that a § 1985(3) claim requires an allegation that Defendants’
actions were “motivated by some racial, or perhaps otherwise class-based,
invidiously discriminatory animus”). It thus fails to state plausible claims pursuant
to §§ 1985 and/or 1986.
Moreover -- unlike possible claims for violations of the Fourth
Amendment under § 1983 -- neither of the prior versions of the Complaint alleged
any facts that could be construed to state claims for violations of §§ 1985 and/or
1986. Plaintiffs have had three chances to state such conspiracy claims, but have
failed to do so. Accordingly, the claims for violations of §§ 1985 and/or 1986 are
DISMISSED with prejudice.

18

C.

Leave to Amend
Plaintiffs have been granted two prior opportunities to revise their

initial claims in compliance with Rules 8 and 12(b)(6), and to cure the deficiencies
of their prior pleadings. Nevertheless, because Plaintiffs are proceeding pro se and
because (as described in detail above) some of the current deficiencies might be
cured by inclusion of allegations from prior Complaints, the court will afford them
one final opportunity to file an amended Complaint. See Lucas, 66 F.3d at 248
(“Unless it is absolutely clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.”).
Accordingly, Plaintiffs are granted leave to file a Third Amended
Complaint that attempts to state a cognizable claim under § 1983 for a violation or
violations of the Fourth Amendment against Aila and/or Cheung. They may not,
however, attempt to re-plead violation of §§ 1985 or 1986.
An amended complaint will supersede the prior pleadings and -- as the
court has stated in prior Orders -- must be complete in itself without reference to
prior superseded pleadings.5 E.g., King, 814 F.2d at 567. Should Plaintiffs choose
5

It is conceivable that Plaintiffs misunderstood the requirement that they not make
“reference to prior superceded pleadings” as meaning they could not repeat prior allegations. To
be clear, what this means is that they may not simply point to other documents in the record -(continued...)
19

to file a Third Amended Complaint, they must write short, plain statements telling
the court: (1) the treaty, constitutional right, or statutory right they believe was
violated; (2) the specific basis of this court’s jurisdiction; (3) the name of the
defendant who violated that right; (4) exactly what that defendant did or failed to
do; (5) how the action or inaction of that defendant is connected to the violation of
Plaintiffs’ rights; and (6) what specific injury Plaintiffs suffered because of that
defendant’s conduct. If Plaintiffs fail to affirmatively link the conduct of each
named defendant with the specific injury they suffered, the allegation against that
defendant will be dismissed for failure to state a claim.
Plaintiffs must clearly designate on the face of the document that it is
the “Third Amended Complaint.” Again, the Third Amended Complaint may not
incorporate any part of the original Complaint, Amended Complaint, or Second
Amended Complaint by reference, but rather, any specific allegations must be
retyped or rewritten in their entirety. Plaintiffs may include only one claim per
count. Any cause of action not already dismissed with prejudice that is not raised
in the amended complaint is waived.6 King, 814 F.2d at 567. Failure to file a

5

(...continued)
they must put all their allegations in a single Complaint.
6

Claims that were dismissed without leave to amend need not be pleaded again in an
amended complaint to preserve them for appeal. See Lacey, 693 F.3d at 928. However, “claims
(continued...)
20

Third Amended Complaint by June 27, 2014 will result in automatic dismissal of
this action.
D.

Supplemental Jurisdiction over Negligence and Emotional Distress
Claims
A federal court has subject matter jurisdiction under diversity of

citizenship (28 U.S.C. § 1332) or through “federal question jurisdiction” (28
U.S.C. § 1331). Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir.
2005). If it has federal jurisdiction, the court may exercise supplemental
jurisdiction over state law claims such as a claim for negligence or infliction of
emotional distress. But, under 28 U.S.C. § 1367(c)(3), “district courts may decline
to exercise supplemental jurisdiction . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction[.]” Here, there is no basis in the
Second Amended Complaint for diversity jurisdiction. Thus, because the
dismissed §§ 1983, 1985 and 1986 claims provide the only other basis for federal
jurisdiction, the court does not address Plaintiffs’ state law claims.
If Plaintiffs do not file a Third Amended Complaint, the court will
decline jurisdiction over the state law claims pursuant to § 1367(c) and dismiss
them without prejudice. See City of Chicago v. Int’l Coll. of Surgeons, 522 U.S.
6

(...continued)
that have been dismissed with leave to amend and are not repled in the amended complaint will
be considered waived.” Id.
21

156, 173 (1997) (“[W]hen deciding whether to exercise supplemental jurisdiction,
‘a federal court should consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience, fairness, and comity.’”
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988))). “[I]n the
usual case in which all federal-law claims are eliminated before trial, the balance of
factors will point towards declining to exercise jurisdiction over the remaining
state-law claims.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997)
(en banc).
If Plaintiffs choose to file a Third Amended Complaint that states a
cognizable federal claim against Defendants, however, the court will retain
jurisdiction over related state law claims included in the Third Amended
Complaint and address them if challenged at that time.
///
///
///
///
///
///

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V. CONCLUSION
For the reasons discussed above, the court DISMISSES the Second
Amended Complaint, with leave to amend the § 1983 claims. Plaintiffs are
allowed until June 27, 2014 to file a Third Amended Complaint. Otherwise, this
action will be dismissed, and the case file will be closed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 6, 2014.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Fuller, et al. v. Haw. Dep’t of Land & Natural Res. William J. Aila, Jr., Chairperson, et al., Civ.
No. 14-00097 JMS-BMK, Order Dismissing Second Amended Complaint With Leave to Amend

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