Cataluna v. Vanderford et al

Filing 19

ORDER STRIKING PROPOSED COMPLAINT FILED ON JANUARY 28, 2015 re 13 titled "Second Amended Complaint" construed as "1/22/15 Proposed Complaint", filed by Mary gold Cabaluna, 14 titled Third Amend ed Complaint" construed as "1/28/15 Proposed Complaint", filed by Mary gold Cabaluna. Signed by JUDGE LESLIE E. KOBAYASHI on 02/27/2015. (eps)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
MARY GOLD CABALUNA,

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)
Plaintiff,
)
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vs.
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VINCENT VANDERFORD, ET AL.,
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)
)
Defendants.
_____________________________ )

CIVIL 14-00480 LEK-RLP

ORDER STRIKING PROPOSED COMPLAINT FILED ON JANUARY 28, 2015
Plaintiff filed her Amended Complaint on
November 7, 2014.

[Dkt. nos. 5, 5-1.1]

On December 12, 2014,

this Court issued its Order Regarding Plaintiff’s Amended
Complaint (“12/12/14 Order”).

[Dkt. no. 7.2]

In the 12/12/14

Order, this Court ruled that the following claims survived the
screening process: Plaintiff’s claim pursuant to the Fair Housing
Act (“FHA”), 42 U.S.C. § 3601, et seq., against Defendants the
State of Hawai`i (“the State”) and “Federal housing Mayor rights”
(“Mayor Wright”); and Plaintiff’s harassment claim against
Defendant Vincent Vanderford (“Vanderford”).

[Id. at 14.]

This

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Plaintiff’s Amended Complaint has been divided into two
docket numbers because it is almost 200 pages long.
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The 12/12/14 Order is also available at 2014 WL 7148723,
but all citations to it in this Order are to the version that
appears in the district court’s electronic filing system. The
Court notes that the 12/12/14 Order refers to Plaintiff as “Mary
Gold Cataluna.” After the Court issued the order, Plaintiff
clarified that the correct spelling of her name is “Mary gold
Cabaluna.” [Dkt. no. 8.]

Court gave Plaintiff leave to amend the claim she attempted to
allege pursuant to the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1400, et seq., against the State and
Defendant Kaiulani Elementary School (“KES”).

[Id. at 12-13.]

On January 22, 2015, Plaintiff filed a document titled
“Second Amended Complaint,” which the Court construes as her
“1/22/15 Proposed Complaint.”

[Dkt. no. 13.]

On January 28,

2015, Plaintiff filed another document titled “Third Amended
Complaint,” which the Court construes her “1/28/15 Proposed
Complaint.”

[Dkt. no. 14.]

The Court also construes Plaintiff’s

1/28/15 Proposed Complaint as replacing the 1/22/15 Proposed
Complaint.

The Court therefore STRIKES the 1/22/15 Proposed

Complaint and has not considered it in screening the 1/28/15
Proposed Complaint.
As written, the 1/28/15 Proposed Complaint fails to
reassert Plaintiff’s FHA claim and harassment claim and attempts
to reassert a claim that this Court dismissed with prejudice in
the 12/12/14 Order.

Further, the remaining allegations in the

1/28/15 Proposed Complaint fail to state a cognizable basis for
relief.

The Court therefore DENIES Plaintiff leave to file the

1/28/15 Proposed Complaint and HEREBY STRIKES it from the docket.
The Amended Complaint remains the operative pleading.

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BACKGROUND
In addition to the FHA claim against the State and
Mayor Wright, the harassment claim against Vanderford, and the
attempted IDEA claim against the State and KES, the Amended
Complaint attempted to assert a malpractice claim against
Defendant “Queens hospital” (“Queens”).

The Amended Complaint

also attempted to raise various concerns regarding the detention
of her daughter’s father at the Federal Detention Center; his
eventual deportation; her termination from her job; her
unemployment and disability benefits; being taunted by a postal
service worker; denial of her medication; road work near her
residence; and various consumer complaints.

This Court declined

to exercise supplemental jurisdiction over Plaintiff’s
malpractice claim and dismissed it with prejudice because it was
not sufficiently related to either her FHA claim or her attempted
IDEA claim.

[12/12/14 Order at 10.]

The order expressly stated

that “Plaintiff can no longer pursue her malpractice claim
against Queens in this action.”

[Id.]

The 12/12/14 Order also

concluded that the remaining allegations in the Amended Complaint
failed to state a cognizable claim.

[Id. at 11-12.]

Plaintiff’s 1/28/15 Proposed Complaint states that she
voluntarily terminated her “health plans due of unusual medical
problems and suspicion of illegal research done to [her] and

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[Proposed Complaint at 5.3]

[her] daughter using insurance.”

She includes correspondence from the State Med-QUEST Division
regarding the termination of her Medicaid benefits and her
eligibility for re-enrollment.

[Id. at 3-5, 7-8.]

Plaintiff

apparently alleges that she experienced the problematic treatment
at Queens because she has submitted a copy of her discharge
instructions from a January 25, 2015 visit to the Queens
emergency room.

[Id. at 9-10.]

Plaintiff’s 1/28/15 Proposed Complaint also
incorporates various articles which she argues show that the
State and other entities have been conducting illegal medical
research.

[Id. at 11-18.]

In addition, she alleges that: BAE

Systems, an entity which provides engineering and other support
services for military weapons systems, has committed various
crimes in the Philippines; Typhoon Haiyan caused “genocide” in
the Philippines and elsewhere; and there has been “Fraud research
on extraterrestrial.”

[Id. at 19-27.]
DISCUSSION

I.

IDEA Claim
In the 12/12/14 Order, this Court cautioned Plaintiff

that if she failed to cure the defects in her IDEA claim that

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Plaintiff’s 1/28/15 Proposed Complaint is not
consecutively paginated. The Court’s citations to the 1/28/15
Proposed Complaint refer to the page numbers assigned in the
Electronic Case Filing system.
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this Court identified, this Court would dismiss her IDEA claim
with prejudice.

[12/12/14 Order at 13.]

Plaintiff’s 1/28/15

Proposed Complaint does not include her IDEA claim.

This Court

therefore finds that Plaintiff has failed to cure the defects in
her IDEA claim.

Pursuant to the admonition in the 12/12/14

Order, Plaintiff’s IDEA claim in the Amended Complaint against
the State and KES is HEREBY DISMISSED WITH PREJUDICE.
II.

Termination of Plaintiff’s Benefits
The Court does not construe the 1/28/15 Proposed

Complaint as alleging a claim against the State based on the
termination of Plaintiff’s benefits because, as reflected in the
allegations in the 1/28/15 Proposed Complaint and the
correspondence that Plaintiff attached, her benefits were
terminated at her request.

Plaintiff apparently challenges the

problematic care that she received at Queens which prompted her
to terminate her Medicaid benefits.

The Court construes this as

an attempt to assert another malpractice claim against Queens,
similar to the claim that she alleged in the Amended Complaint.
For the reasons stated in the 12/12/14 Order, this Court finds
that Plaintiff’s malpractice claim in the 1/28/15 Proposed
Complaint: is not sufficiently related to her FHA claim to be
part of the same case and controversy; and cannot be saved by any
amendment.

See 12/12/14 Order at 9-10 (discussing requirements

for supplemental jurisdiction); id. at 4-5 (setting forth

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standard for screening of a complaint by a pro se plaintiff).
This Court therefore declines to exercise supplemental
jurisdiction over the malpractice claim against Queens in the
1/28/15 Proposed Complaint.
III. Other Allegations in the Proposed Complaint
The remaining allegations in the 1/28/15 Proposed
Complaint relate to: medical research, crimes by BAE Systems,
Typhoon Haiyan, and extraterrestrial research.

This Court must

liberally construe Plaintiff’s pleadings because she is
proceeding pro se.

See, e.g., Watson v. Carter, 668 F.3d 1108,

1112 (9th Cir. 2012).

Even liberally construing the Proposed

Complaint, these allegations do not state a claim upon which
relief can be granted.

See Fed. R. Civ. P. 12(b)(6); Omar v.

Sea–Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial
court may dismiss a claim sua sponte under Fed. R. Civ. P.
12(b)(6).

Such a dismissal may be made without notice where the

claimant cannot possibly win relief.” (citations omitted)).
CONCLUSION
Plaintiff’s 1/28/15 Proposed Complaint does not include
the claims that this Court ruled survived the screening process.
Further, the 1/28/15 Proposed Complaint asserts a malpractice
claim that is similar to a claim that this Court dismissed with
prejudice in the 12/12/14 Order, and the remaining allegations do
not state a claim upon which relief can be granted.
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The Court

therefore DENIES Plaintiff leave to file the 1/28/15 Proposed
Complaint, and STRIKES it from the record.

The Amended

Complaint, filed November 7, 2014, remains the operative
pleading.
Plaintiff is NOTIFIED that it is her responsibility to
ensure that she takes the appropriate steps to serve the Amended
Complaint on the remaining defendants - Vanderford, the State,
and Mayor Wright.

The Clerk’s Office is directed to send

Plaintiff the standard instructions and forms for service of the
Amended Complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 27, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

MARY GOLD CABALUNA VS. VINCENT VANDERFORD, ET AL; CIVIL 14-00480
LEK-RLP; ORDER STRIKING PROPOSED COMPLAINT FILED ON JANUARY 28,
2015

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