Zeeman v. United States District Court District of Hawaii Probation Office et al

Filing 49

ORDER re: DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV.P. 12 re 42 Motion to Dismiss. Signed by RONALD SW LEW on 04/18/2016. (eps )CERTIFICATE OF SERVICEParticipants registered to receiv e 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

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF HAWAII

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11 AARON GEORGE ZEEMAN,
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Plaintiff,

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v.

14 UNITED STATES DISTRICT
COURT DISTRICT OF HAWAII
15 PROBATION OFFICE, et al.,
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Defendants.

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CV 14-00328 RSWL
ORDER re: DEFENDANTS’
MOTION TO DISMISS
PURSUANT TO FED. R. CIV.
P. 12 [42]

Currently before the Court is Defendants’ Motion to

18 Dismiss Pursuant to Fed. R. Civ. P. 12(B) (“Motion”)
19 [42].

The present Motion arises from an action brought

20 by Plaintiff Aaron George Zeeman (“Plaintiff”) against
21 Defendant United States District Court District of
22 Hawaii Probation Office (“Probation Office”), and
23 various Probation Office employees, Defendants Felix S.
24 Mata (“Mata”), Johnathan K. Skedelski (“Skedelski”),
25 and Keola Jenkins (“Jenkins”) (collectively,
26 “Defendants”).

Plaintiff alleges violations to his

27 constitutional rights and other violations of federal
28 law stemming from Plaintiff’s probation conditions.
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I.

BACKGROUND

2 A.

Factual Background

3

On June 18, 2014, Plaintiff entered a guilty plea

4 to four counts of Distribution of Marijuana, in
5 violation of 21 U.S.C. §§ 841(a)(1) and 941(b)(1)(D),
6 before the Honorable Leslie E. Kobayashi (“Judge
7 Kobayashi”) of the United States District Court,
8 District of Hawaii.

See Judgment in Criminal Case in

9 the matter of U.S. v. Aaron George Zeeman, dated
10 7/18/2014, Defs.’ Mot. to Dismiss (“Mot.”) Ex. A.
11 (hereinafter “July 18 Judgment”), ECF No. 42-3.
12 Plaintiff was sentenced to two years of probation for
13 each of the four counts, to run concurrently.

Id. at

14 p. 3.
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As a general condition of probation, Judge

16 Kobayashi ordered in pertinent part:
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That the defendant shall not unlawfully possess a

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controlled substance.

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from any unlawful use of a controlled substance.

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The defendant shall submit to one drug test within

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15 days of commencement on supervision and at least

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two periodic drug tests thereafter, but not more

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than 8 valid drug tests per month during the term

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of probation.

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Additionally, as Special Condition No. 3 of

The defendant shall refrain

Id.

26 Plaintiff’s probation, Judge Kobayashi ordered:
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The defendant is prohibited from using marijuana,

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synthetic marijuana, any products containing
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tetrahydrocannabinol (THC), or any other products

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derived from a marijuana plant, including for

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medicinal or business purposes, without the prior

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approval of the Probation Office.

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Plaintiff alleges in his AC that “[a]t all times

Id. at p. 4.

6 relevant herein, Plaintiff was under a Medical Doctor’s
7 care for his debilitating medical condition (Parasitic
8 Meningitis), which includes neuropathy and chronic
9 pain.”

AC ¶ 15, ECF No. 38.

Plaintiff further alleges

10 that, at all relevant times, he held a valid
11 prescription for Cesament, Marinol1, and Medical
12 Cannabis from a “Medical Doctor” to manage his pain, as
13 well as a valid Hawaii Medical Marijuana Certification.
14 Id. at ¶¶ 17-19.
15

Plaintiff alleges that Defendants would not consent

16 to Plaintiff’s use of marijuana or Marinol during his
17 period of probation, as is required by Special
18 Instruction No. 3.

Plaintiff alleges that the

19 Defendants’ decision to withhold consent for Plaintiff
20 to use Marinol or medical marijuana violates his
21 constitutional rights under the Fourth Amendment, Fifth
22 Amendment, Eighth Amendment, and Fourteenth Amendment.
23 Plaintiff further alleges that Defendants’ withholding
24 of consent constituted discrimination in violation of
25 the Americans with Disabilities Act of 1990 (“ADA”),
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Marinol is a synthetic prescription drug which contains
Raich v. Gonzales, 500
F.3d 850, 871 n. 2 (9th Cir. 2007)(dissenting opinion).
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28 THC, the active ingredient in marijuana.

1 breach of privacy under the Health Insurance
2 Portability and Accountability Act (“HIPPA”), fraud,
3 unlawful detention, and a breach of Defendants’ oath of
4 office.

Plaintiff seeks compensatory and punitive

5 damages, as well as injunctive relief ordering the
6 Defendants to authorize the use of Marinol and medical
7 marijuana wherever prescribed, and requiring the
8 Department of Justice and Probation to “cease and
9 desist arrests and/or prosecutions of probations or
10 defendants on ‘pre-trial’ use, possession, growing or
11 sales of state legally sanctioned medical marijuana
12 when such law exists and is current.”

AC ¶¶ 8, 11,

13 142.
14

On October 20, 2014, in Plaintiff’s criminal case,

15 Judge Kobayashi conducted a hearing to adjudicate
16 certain violations of Plaintiff’s probation conditions,
17 in particular, Plaintiff’s use of marijuana and Marinol
18 in June, July, and August 2014.

See Judgment in

19 Criminal Case in the matter of U.S. v. Aaron George
20 Zeeman, dated 10/20/2014, Declaration of Michael F.
21 Albanese (“Albanese Decl.”) Ex. A. (hereinafter
22 “October 20 Judgment”), ECF No. 42-3.

At this hearing,

23 Plaintiff admitted guilt to nine violations of his
24 probation conditions, seven of which included
25 violations of Special Condition No. 3, the specific
26 prohibition against the use of marijuana and other
27 products containing THC.

Id. at p. 2.

As a result of

28 Plaintiff’s admission of guilt, Judge Kobayashi re4

1 sentenced Plaintiff to three months of incarceration
2 for each of the four original felony counts, to be
3 served consecutively, for a total of twelve (12) months
4 incarceration.

Id. at p. 3.

5 B.

Procedural Background

6

Plaintiff filed his Complaint on July 22, 2014.

7 See Compl., ECF No. 1.

Defendants filed an Answer to

8 the original Complaint on January 22, 2015, and filed a
9 motion for judgment on the pleadings pursuant to
10 Federal Rules of Civil Procedure Rule 12(c).

Before

11 that motion could be decided, Plaintiff requested an
12 extension of time to file an amended complaint until
13 September 24, 2015.

The Court granted Plaintiff’s

14 request on May 13, 2015, and the pending motion for
15 judgment on the pleadings was rendered moot [34].
16 September 24, 2015, Plaintiff filed his AC.

On

Defendants

17 now file the instant Motion, seeking dismissal of
18 Plaintiff’s AC with prejudice.
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II.

20 A.

Legal Standards

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1.

DISCUSSION

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Motion to Dismiss Pursuant to FRCP 12(b)(1) Lack of Subject Matter Jurisdiction

Article III of the United States Constitution

24 requires a case or controversy in order for federal
25 courts to have subject matter jurisdiction.
26 Const. Art. 3, § 2.

U.S.

Federal Rule of Civil Procedure

27 12(b)(1) authorizes a court to dismiss claims over
28 which it lacks proper subject matter jurisdiction.
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A

1 court is free to determine jurisdiction on a motion to
2 dismiss for lack of jurisdiction under Rule 12(b)(1)
3 “unless the jurisdictional issue is inextricable from
4 the merits of a case.”

Kingman Reef Atoll Invs.,

5 L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir.
6 2008) (citing Roberts v. Corrothers, 812 F.2d 1173,
7 1177 (9th Cir. 1987)).

A defendant may challenge a

8 plaintiff’s standing in a motion to dismiss under
9 F.R.C.P. 12(b)(1) for “lack of subject-matter
10 jurisdiction.”

White v. Lee, 227 F.3d 1214, 1242 (9th

11 Cir. 2000).
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The standing doctrine eliminates claims that fail

13 to create a case or controversy.

Summers v. Earth

14 Island Inst., 555 U.S. 488, 493 (2009); Cetacean Cmty.
15 v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).

Standing

16 is a jurisdictional requirement that precedes analysis
17 of the merits.

Krottner v. Starbucks Corp., 628 F.3d

18 1139, 1141 (9th Cir. 2010).

The party seeking to

19 invoke the jurisdiction of the federal courts has the
20 burden of alleging specific facts to satisfy the three
21 elements of constitutional standing.

Schmier v. U.S.

22 Court of Appeals for the Ninth Cir., 279 F.3d 817, 821
23 (9th Cir. 2002).

The plaintiff must establish (1) a

24 legally recognized injury, (2) caused by the named
25 defendant that is (3) capable of legal or equitable
26 redress.

Id.

“Injury in fact,” as required for

27 federal standing, is an invasion of a legally protected
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1 interest which is (a) concrete and particularized, and
2 (b) actual or imminent, not “conjectural” or
3 “hypothetical,” where “particularized” means simply
4 that the injury must affect the plaintiff in a personal
5 and individual way.
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U.S. Const. Art. 3, § 2, cl. 1.

“The party asserting subject matter jurisdiction

7 has the burden of proving its existence.”

Hancock v.

8 Kulana Partners, LLC, 992 F.Supp.2d 1053, 1057 (D. Haw.
9 2014) (quoting Robinson v. United States, 586 F.3d 683,
10 685 (9th Cir. 2009)); see also Kokkenen v. Guardian
11 Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
12 The Court may dismiss a matter for lack of subject
13 matter jurisdiction if, accepting the plaintiff’s
14 allegations as true and drawing all reasonable
15 inferences in the plaintiff’s favor, the court
16 determines that the allegations are insufficient to
17 establish the Court’s jurisdiction.

Bartholomew v.

18 Burger King Corp., 21 F.Supp.3d 1089, 1094 (D. Haw.
19 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th
20 Cir. 2013)).

Dismissal for lack of subject matter

21 jurisdiction is appropriate if the claim (1) does not
22 arise under the Constitution, law, or treaties of the
23 United States; (2) is not a case or controversy within
24 the meaning of the Constitution; or (3) is not one
25 described by any jurisdiction statute.
26 369 U.S. 186, 198 (1962).
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Baker v. Carr,

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2.

Motion to Dismiss Pursuant to FRCP 12(b)(6) -

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Failure to State a Claim on Which Relief May be

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Granted

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Federal Rule of Civil Procedure 12(b)(6) allows a

5 party to move for dismissal of one or more claims if
6 the pleading fails to state a claim upon which relief
7 can be granted.

Fed. R. Civ. P. 12(b)(6).

Dismissal

8 can be based on “the absence of sufficient facts
9 alleged under a cognizable legal theory.”

Balistreri

10 v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
11 1990).

A complaint “should not be dismissed under Rule

12 12(b)(6) ‘unless it appears beyond doubt that the
13 plaintiff can prove no set of facts in support of his
14 claim which would entitle him to relief.’”

Id. (citing

15 Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

In a

16 Rule 12(b)(6) motion to dismiss, a court must presume
17 all factual allegations of the complaint to be true and
18 draw all reasonable inferences in favor of the non19 moving party.

Klarfeld v. United States, 944 F.2d 583,

20 585 (9th Cir. 1991).
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“While a complaint attacked by a Rule 12(b)(6)

22 motion to dismiss does not need detailed factual
23 allegations, a plaintiff’s obligation to provide the
24 ‘grounds’ of his ‘entitle[ment] to relief’ requires
25 more than labels and conclusions, and a formulaic
26 recitation of a cause of action’s elements will not
27 do.”
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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1 (2007) (internal citation omitted).

A complaint must

2 “contain sufficient factual matter, accepted as true,
3 to state a claim to relief that is plausible on its
4 face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

5 (internal quotation marks omitted).
6 B.

Analysis

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Federal courts have no subject matter jurisdiction

8 to hear a claim against the United States, absent a
9 clear waiver of sovereign immunity.

FDIC v. Meyer, 510

10 U.S. 471, 475 (1994)(“Absent a waiver, sovereign
11 immunity shields the Federal Government and its
12 agencies from suit.”).

“A waiver of sovereign immunity

13 cannot be implied but must be unequivocally expressed”
14 in the text of a statute.

United States v. Mitchell,

15 455 U.S. 535, 538 (1980)(citation omitted).
16

This immunity extends to officials acting in their

17 official capacity.

See

Daly-Murphy v. Winston, 837

18 F.2d 348, 355 (9th Cir. 1987).

In fact, the District

19 of Hawaii has held that sovereign immunity extends in
20 particular to civil rights cases brought pursuant to
21 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
22 388 (1971), like the present matter.2

See Jones v.

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The Court discusses the implications of section 1983 suits
and Bivens actions interchangeably. The caselaw applicable to a
section 1983 action against state actors is equally applicable to
a Bivens action against federal actors. The Ninth Circuit has
held that actions under section 1983 and Bivens are identical
except for the exchange of state and federal actors. See Van
Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).
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1 Shinn, No. CV-14-00231-LEK, 2014 WL 3663769 at *2 (D.
2 Haw. July 21, 2014)(“Bivens does not authorize suits
3 against the government or its agencies for monetary
4 relief.”) (citing FDIC v. Meyer, 510 U.S. 471, 486
5 (1994); Ibrahim v. Dept. of Homeland Sec., 538 1250,
6 1257 (9th Cir. 2008)).

Furthermore, many circuit

7 courts have held that Bivens will not support an action
8 against federal officials sued in their official
9 capacity only.

See Daly-Murphy, 837 F.2d at 355;

10 Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991).
11 Rather, Bivens actions are “against federal officials
12 individually.”
13 Cir. 1996).

Randall v. U.S., 95 F.3d 339, 345 (4th

Significantly, a plaintiff cannot have a

14 valid basis for a claim under section 1983 if the
15 plaintiff is suing federal officials “acting under
16 color of federal law.”
17

Daly-Murphy, 837 F.2d at 355.

Finally, circuit courts have held that sovereign

18 immunity applies specifically to the U.S. Probation
19 Office and its agents when those agents are sued in
20 their official capacities for actions taken under color
21 of federal law.

See e.g. Humphrey v. U.S. Prob. Dep’t,

22 221 F.3d 1334 (6th Cir. 2000) (holding that group of
23 federal defendants which included the U.S. Probation
24 Department and probation officials sued in their
25 official capacities are protected by sovereign
26 immunity); Fuller-Avent v. U.S. Prob. Office, 226 F.
27 App’x 1, 4 (D.C. Cir. 2006).
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This Court finds that to the extent Plaintiff has

2 asserted constitutional claims against the Probation
3 Office directly, these claims are foreclosed by FDIC v.
4 Meyer, 510 U.S. 471, 484-86 (1994) (rejecting extension
5 of Bivens v. Six Unknown Named Agents of Federal Bureau
6 of Narcotics, 403 U.S. 388 (1971) to suits against
7 federal agencies).

There is no indication that the

8 Probation Office expressly waived sovereign immunity,
9 and thus the Court finds Plaintiff did not state a
10 viable cause of action against the Probation Office.
11 Daly-Murphy, 837 F.2d at 355.

The Court thus GRANTS

12 Defendants’ Motion to Dismiss [42] as to Plaintiff’s
13 claims against the Probation Office.
14

This Court further finds Plaintiff does not state

15 viable claims against the individual defendants, U.S.
16 Probation Officers Mata, Skedelski, and Jenkins.
17 On two occasions, June 24, 2014 and July 3, 2014,
18 Plaintiff alleges Jenkins told Plaintiff that she would
19 not give approval for Plaintiff to use marijuana or
20 Marinol.

AC ¶¶ 24-25, ECF No. 38.

Plaintiff’s claims

21 against Jenkins arise from this conduct.

Although

22 Plaintiff claims he is suing each defendant
23 “individually and in [their] official capacity,” AC ¶¶
24 2-5, the Court should find that Jenkins was acting
25 solely in her official capacity as probation officer
26 when she allegedly denied Plaintiff access to marijuana
27 and Marinol.
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Plaintiff has no valid basis for section
11

1 1983 claims against Jenkins as Jenkins is a federal
2 official and was acting under color of federal law when
3 she committed the acts that gave rise to Plaintiff’s
4 claims.

There is no indication that Jenkins waived her

5 immunity to these section 1983 claims.

Accordingly,

6 this Court GRANTS Defendants’ Motion to Dismiss [42] as
7 to Plaintiff’s claims against Jenkins.
8

Finally, Plaintiff’s AC contains no allegations

9 about the conduct of Defendant Skedeleski or Defendant
10 Mata, except that during the relevant time period,
11 Skedeleski and Mata were employed, respectively, as
12 Deputy Chief and Chief U.S. Probation Officers at the
13 Probation Office.

Id. at ¶¶ 3-4.

As such, this Court

14 finds that Plaintiff fails to allege sufficient facts
15 to adequately state a claim for relief against
16 Defendants Skedeleski and Mata, pursuant to Federal
17 Rule of Civil Procedure 12(b)(6).

This Court GRANTS

18 Defendants’ Motion to Dismiss [42] as to Plaintiff’s
19 claims against Skedeleski and Mata.
20

The Court GRANTS Defendants’ Motion in its

21 entirety, with prejudice, as this Court notes Plaintiff
22 cannot amend or modify these claims such as to overcome
23 Defendants’ sovereign immunity.
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III.

CONCLUSION

Based on the foregoing, this Court GRANTS

3 Defendants’ Motion to Dismiss [42] in its entirety,
4 with prejudice.

The clerk shall close this case.

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6 IT IS SO ORDERED.
7 DATED: April 18, 2016
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s/ RONALD S.W. LEW
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge,
sitting by designation

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