Cataluna v. Vanderford et al

Filing 7

ORDER REGARDING PLAINTIFF'S AMENDED COMPLAINT. Signed by JUDGE LESLIE E. KOBAYASHI on 12/12/2014. This Court therefore ORDERS Plaintiff to either pay the filing fee or file another Application to Proceed in District Co urt Without Prepaying Fees or Costs. Plaintiff must do so by Wednesday, January 14, 2015, regardless of whether or not she files a second amended complaint. This Court CAUTIONS Plaintiff that, if she fails to either pay the filing fee or file another Application by January 14, 2015, this entire action may be automatically dismissed. If Plaintiff wishes to amend her IDEA claim, she must file her second amended complaint, in accordance with the terms of this Order, by no later than Thurs day, January 29, 2015.Further, this Court ORDERS Plaintiff to either pay the filing fee or file another Application to Proceed in District Court Without Prepaying Fees or Costs by no later than Wednesday, January 14, 2015, regardless of whether s he files a second amended complaint. (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 CATALUNA,

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

CIVIL 14-00480 LEK-RLP

ORDER REGARDING PLAINTIFF’S AMENDED COMPLAINT
Pro se Plaintiff Mary Gold Cataluna (“Plaintiff”) filed
her original Complaint on October 22, 2014.

On October 27, 2014,

the magistrate judge issued his findings and recommendation
(“F&R”), which recommended, inter alia, that this Court dismiss
Plaintiff’s Complaint without prejudice.

[Dkt. no. 4.]

Plaintiff filed her Amended Complaint on November 7, 2014.
nos. 5, 5-1.1]
[Dkt. no. 6.]

[Dkt.

This Court adopted the F&R on November 18, 2014.
This Court has screened Plaintiff’s Amended

Complaint, and rules as set forth below.
BACKGROUND
Plaintiff lives in an apartment within the Mayor Wright
Homes (“Mayor Wright”), a federally subsidized housing facility
operated by the Hawaii Public Housing Authority (“HPHA”).

She

alleges that Defendant Vincent Vanderford (“Vanderford”), another

1

Because Plaintiff’s Amended Complaint is almost 200 pages
long, it has been divided into two docket numbers.

Mayor Wright resident, has been harassing her since 2010.
[Amended Complaint (dkt. no. 5) at 22-26.2]

She has attempted to

address the harassment by, inter alia: reporting it to the
Honolulu Police Department (“HPD”); reporting it to Mayor Wright
security; applying for a temporary restraining order in state
court (her application was denied); and requesting grievance
hearings before the HPHA.

Plaintiff alleges that Mayor Wright

personnel have protected Vanderford and disregarded her
complaints because he is of Native Hawaiian ancestry and she is
not.

In 2010, Plaintiff reported housing discrimination in

violation of federal fair housing laws to the United States
Department of Housing and Urban Development (“HUD”).
26, 28-31.]

[Id. at 24-

The Amended Complaint does not indicate the outcome

of either Plaintiff’s reports to HPHA or her report to HUD.
Plaintiff appears to allege that, as a result of the
harassment, she suffered financial hardship, and she and her
minor daughter suffered various physical injuries.
18.]

[Id. at 2-

Plaintiff and her daughter sought medical care for these

injuries and other conditions at, inter alia, Defendant “Queens
hospital” (“Queens”).

[Amended Complaint (dkt. no. 5-1) at 35-

64.]

2

Plaintiff’s Amended Complaint consists of a cover page,
followed by Exhibits A through Q. Neither the Amended Complaint
as a whole nor each exhibit is consecutively paginated. The
Court’s citations to the Amended Complaint refer to the page
numbers assigned in the Electronic Case Filing system.
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Plaintiff also expresses various concerns about the
conditions at Mayor Wright, including: she has no right to secure
her apartment with a personal lock, and therefore anyone with a
duplicate key can gain access; and there was a concealed camera
in her apartment.
33-34.]

[Id. (dkt. no. 5) at 32-33, (dkt. no. 5-1) at

Plaintiff also appears to have various disputes with her

daughter’s school, Defendant Kaiulani Elementary School (“KES”).
The disputes address, inter alia, bullying at school and the
denial of Plaintiff’s request for a geographic exception for her
daughter.

[Id. at 55-58, (dkt. no. 5-1) at 83).]

She has

provided a letter from the Department of Education, Office of the
Deputy Superintendent, dated May 28, 2013, stating that “an
investigation related to allegations of noncompliance of the
Individuals with Disabilities Education Improvement Act of 2004
(IDEA) and/or Hawaii Administrative Rules (HAR) Chapter 60 will
be conducted.”

[Id. (dkt. no. 5-1) at 74.]

The Amended

Complaint does not include information about the outcome of the
investigation.
In addition, the Amended Complaint includes various
documents which show that Plaintiff has concerns about and/or has
made various types of complaints 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;

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denial of her medication; road work near her residence; and
various consumer complaints.
STANDARD
This Court has recognized that the following standard
applies to the screening of a complaint by a pro se plaintiff:
Plaintiff is appearing pro se; consequently,
the court liberally construes her pleadings.
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 to dismissal of
the action.” Lucas v. Dep’t of Corr., 66 F.3d
245, 248 (9th Cir. 1995); see also Lopez v. Smith,
203 F.3d 1122, 1126 (9th. [sic] Cir. 2000).
Despite the liberal pro se pleading standard,
the court may dismiss a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) on its
own motion. See Omar v. Sea–Land Serv., Inc., 813
F.2d 986, 991 (9th Cir. 1987) (“A trial court may
dismiss a claim sua sponte under [Rule] 12(b)(6).
Such a dismissal may be made without notice where
the claimant cannot possibly win relief.”);
Ricotta v. California, 4 F. Supp. 2d 961, 968 n.7
(S.D. Cal. 1998) (“The Court can dismiss a claim
sua sponte for a Defendant who has not filed a
motion to dismiss under Fed. R. Civ. P.
12(b)(6).”); see also Baker v. Dir., U.S. Parole
Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990)
(holding that district court may dismiss cases sua
sponte pursuant to Rule 12(b)(6) without notice
where plaintiff could not prevail on complaint as
alleged). Additionally, a paid complaint that is
“obviously frivolous” does not confer federal
subject matter jurisdiction and may be dismissed
sua sponte before service of process. Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984);
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see also Fed. R. Civ. P. 12(h)(3); Grupo Dataflux
v. Atlas Global Group, L.P., 541 U.S. 567, 593
(2004) (“[I]t is the obligation of both district
court and counsel to be alert to jurisdictional
requirements.”). “Federal courts are courts of
limited jurisdiction,” possessing “only that power
authorized by Constitution and statute.” United
States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008)
(quoting Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994)). The assumption is that the
district court lacks jurisdiction. See Kokkonen,
511 U.S. at 377. Accordingly, 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).
Mather v. Nakasone, Civil No. 13–00436 LEK–KSC, 2013 WL 4788930,
at *1-2 (D. Hawai`i Sept. 5, 2013) (alterations in Mather)
(citation omitted).
DISCUSSION
I.

Federal Claims
Plaintiff’s Amended Complaint, liberally construed,

appears to allege the following claims under federal law:
violations of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq., at KES; and violations of
the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq., at Mayor
Wright.
A.

The Court first turns to Plaintiff’s IDEA claims.
IDEA Claims
Plaintiff’s Amended Complaint includes materials

regarding: her daughter’s illnesses at school; alleged bullying
incidents; and the denial of Plaintiff’s request for a geographic
exemption for her daughter.

The defendants in Plaintiff’s IDEA
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claims are apparently the State of Hawai`i (“the State”) and KES.
The Amended Complaint, however, does not specify how either the
State or KES allegedly violated the IDEA, nor does it specify the
relief that Plaintiff seeks.
To the extent that Plaintiff attempts to seek damages
under the IDEA, her claims fail as a matter of law.

The Ninth

Circuit has stated:
As we have previously noted, “[t]he wording
of the [IDEA] does not disclose a congressional
intent to provide a [compensatory] damage remedy.”
Mountain View–Los Altos Union High Sch. Dist. v.
Sharron B.H., 709 F.2d 28, 30 (9th Cir. 1983).
Nor does it disclose a congressional intent to
provide a remedy for nominal damages. It does
allow district courts to “give all ‘appropriate
relief,’ but absent legislative history suggesting
the contrary, such a phrase is usually construed
as a mere grant of jurisdiction . . . and not of
authority to award retrospective damages,” id.
(quoting 20 U.S.C. § 1415(e)(2)), whether they be
compensatory or nominal. See also Ortega v. Bibb
Cnty. Sch. Dist., 397 F.3d 1321, 1323–25 (11th
Cir. 2005) (refusing to infer a cause of action
for nominal damages for failure to provide a nurse
capable of addressing a child’s medical
needs). . . .
C.O. v. Portland Pub. Sch., 679 F.3d 1162, 1167 (9th Cir. 2012)
(some alterations in C.O.).

Insofar as Plaintiff’s Amended

Complaint alleges claims seeking damages under the IDEA, those
claims are DISMISSED WITH PREJUDICE because it is absolutely
clear that no amendment can cure the defects in those claims.
See Lucas, 66 F.3d at 248.

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If Plaintiff’s Amended Complaint seeks relief that is
available under the IDEA, the exhaustion of remedies requirement
applies.

20 U.S.C. § 1415(l) states, in pertinent part:
Nothing in this chapter shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution, the
Americans with Disabilities Act of 1990 [42
U.S.C.A. § 12101 et seq.], title V of the
Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et
seq.], or other Federal laws protecting the rights
of children with disabilities, except that before
the filing of a civil action under such laws
seeking relief that is also available under this
subchapter, the procedures under subsections (f)
and (g) shall be exhausted to the same extent as
would be required had the action been brought
under this subchapter.

(Brackets in original.)

There is no indication in the Amended

Complaint that Plaintiff has exhausted her administrative
remedies as required by the IDEA.

Plaintiff’s claims seeking

relief available under the IDEA are therefore DISMISSED.
Because it is arguably possible for Plaintiff to amend
her complaint to cure the defects in the portions of her IDEA
claims which seek relief that is available under the IDEA, she is
entitled to notice of the deficiencies in those claims and an
opportunity to amend.

This Court therefore GRANTS Plaintiff

leave to amend those claims.

This Court, however, CAUTIONS

Plaintiff that, if she fails to cure the defects in her IDEA
claims, this Court will dismiss her IDEA claims with prejudice,
in other words, she will no longer be able to pursue her IDEA
claims in this case, and she will not be able to bring those
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claims in a new case.
B.

FHA Violations
Plaintiff appears to allege that she reported the

harassment by Vanderford to various personnel at Mayor Wright,
but they failed to respond appropriately to her reports because
Vanderford is of Native Hawaiian ancestry and she is not.

This

Court liberally construes Plaintiff’s allegations as a claim
pursuant to 42 U.S.C. § 3604(b), which prohibits
“discriminat[ion] against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection therewith, because of
race, color, religion, sex, familial status, or national origin.”
The respondents in Plaintiff’s FHA claim are the State and
“Federal housing Mayor rights.”

See Amended Complaint (dkt. no.

5) at 1; 42 U.S.C. § 3602(n)(1) (stating that the “Respondent”
for purposes of an FHA action is “the person or other entity
accused in a complaint of an unfair housing practice”).
Although Plaintiff may have raised this alleged
discrimination in a HUD report, [id. at 30,] she was not required
to exhaust her administrative remedies related to that report
before filing a civil action.

The FHA provides that, “[a]n

aggrieved person may commence a civil action under this
subsection whether or not a complaint has been filed under
section 3610(a) of this title and without regard to the status of

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any such complaint.”

42 U.S.C. § 3613(a)(2).

The Court

therefore concludes that Plaintiff’s FHA claim survives the
screening process.
The Court now turns to Plaintiff’s apparent state law
claims.
II.

Harassment and Malpractice
Construing the Amended Complaint liberally, Plaintiff

alleges a tort claim against Vanderford based on the alleged
harassment, and she alleges a malpractice claim against Queens
based on problematic care that she received there.

These are

state law claims, and this Court does not have diversity
jurisdiction over them because - based on the allegations in the
Amended Complaint - Plaintiff, Vanderford, and Queens are all
citizens of Hawai`i.

See 28 U.S.C. § 1332(a) (“The district

courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between (1) citizens of different States[.]”).
This Court can exercise supplemental jurisdiction over
state law claims pursuant to 28 U.S.C. § 1367, which states, in
pertinent part:
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
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Article III of the United States Constitution.
Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of
additional parties.
Even if the state law claims meet the criteria set forth in
§ 1367, a federal court has the discretion to decide whether it
will exercise supplemental jurisdiction.

See United Mine Workers

v. Gibbs, 383 U.S. 715, 726 (1966) (“The power [of supplemental
jurisdiction] need not be exercised in every case in which it is
found to exist.

It has consistently been recognized that pendent

jurisdiction is a doctrine of discretion, not of plaintiff’s
right.”).
This Court finds that Plaintiff’s harassment claim is
sufficiently related to her FHA claim to support the exercise of
supplemental jurisdiction, and this Court concludes that the
harassment claim survives the screening process.

Plaintiff’s

malpractice claim, however, is not sufficiently related to either
her FHA claim or her attempted IDEA claim.

This Court cannot

find that Plaintiff’s malpractice claim is part of the same case
or controversy as her federal claims.

This Court therefore

declines to exercise supplemental jurisdiction over Plaintiff’s
malpractice claim.

Insofar as it is absolutely clear that

Plaintiff’s malpractice claim against Queens cannot be saved by
any amendment, that claim is DISMISSED WITH PREJUDICE.

Plaintiff

can no longer pursue her malpractice claim against Queens in this
action, but this Court’s Order does not prevent Plaintiff from
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bringing that claim in state court.
III. Other Defendants and Allegations
In addition to the defendants discussed in Sections I
and II, the Amended Complaint also identifies the following
defendants: the military; HPD; “samoan people[;]” “hawaiian
people[;]” the federal prison system; the postal service; four
“.com” entities; and “bioscience” (collectively “the Remaining
Defendants”).

[Amended Complaint (dkt. no. 5) at 1.]

These

defendants were also named in Plaintiff’s original Complaint.
[Complaint at 1.]
The magistrate judge’s F&R informed Plaintiff that,
“even liberally construed, the Complaint fails to state any
discernable basis for judicial relief.”

[F&R at 3.]

Further,

the magistrate judge stated:
Although the Complaint contains various statements
regarding Plaintiff’s physical condition, it does
not contain any factual allegations regarding the
conduct of the Defendants that would provide
sufficient notice to the Defendants of the claims
asserted against them. The Complaint does not
state which allegations are relevant to which
Defendants. . . . The Complaint fails to set
forth any cognizable causes of action.
[Id.]
Although the Amended Complaint, liberally construed,
alleges claims against the State, “Federal housing Mayor rights,”
KES, Vanderford, and Queens, this Court cannot identify any
cognizable claims in the Amended Complaint against the Remaining

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Defendants.3

Like the original Complaint, the Amended Complaint

merely presents allegations about Plaintiff’s and her daughter’s
physical conditions; it does not identify how the Remaining
Defendants are allegedly liable for their conditions.

Thus,

there is insufficient information in the Amended Complaint to
give the Remaining Defendants notice of the claims against them.
Insofar as the defects in the Amended Complaint’s claims against
the Remaining Defendants are the same as the defects that the
magistrate judge identified in the F&R, this Court finds that
Plaintiff would not be able to cure the defects in those claims
with further amendment.

This Court therefore FINDS that it is

absolutely clear that no amendment can cure the defects in
Plaintiff’s claims against the Remaining Defendants.

Plaintiff’s

claims against the Remaining Defendants are DISMISSED WITH
PREJUDICE.
IV.

Leave to Amend
This Court has dismissed Plaintiff’s IDEA claim against

the State and KES without prejudice.

3

If Plaintiff wishes to

Plaintiff’s original Complaint includes some additional
information that arguably sheds light upon her allegations
regarding some of the Remaining Defendants. This Court, however,
cannot consider the allegations in the original Complaint in
evaluating the Amended Complaint. As a general rule, “when a
plaintiff files an amended complaint, ‘[t]he amended complaint
supercedes the original, the latter being treated thereafter as
non-existent.’” Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th
Cir. 2010) (alteration in Rhodes) (quoting Loux v. Rhay, 375 F.2d
55, 57 (9th Cir. 1967)).
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amend this claim, she must file a second amended complaint by
[insert date].

Plaintiff’s second amended complaint must include

her FHA claim and her harassment claim - in addition to the IDEA
claim - and it must include all of the allegations that her
claims are based upon, even if she previously presented those
allegations in prior versions of the complaint.

She cannot

incorporate any part of her prior complaints into the second
amended complaint by merely referring to the prior complaint.
This Court CAUTIONS Plaintiff that, if she fails to
file her second amended complaint by Thursday, January 29, 2015,
or if the second amended complaint fails to cure the defects in
her IDEA claim that this Court has identified in this Order, this
Court will dismiss her IDEA claim with prejudice, and only her
FHA and harassment claims will proceed in this case.
This Court emphasizes that it has only granted
Plaintiff leave to amend her IDEA claim.

If Plaintiff wishes to

make other changes — i.e., if she wishes to add new parties,
claims, or theories of liability — Plaintiff must file a motion
for leave to amend pursuant to Fed. R. Civ. P. 15(a)(2).
V.

Filing Fee
Plaintiff filed an Application to Proceed in District

Court Without Prepaying Fees or Costs (“Application”) on
October 23, 2014, in conjunction with her original Complaint.
[Dkt. no. 2.]

Included in this Court’s adoption of the
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magistrate judge’s F&R on November 18, 2014, is the denial of
Plaintiff’s Application.

When Plaintiff filed her Amended

Complaint, she neither filed another Application nor paid the
filing fee.
This Court therefore ORDERS Plaintiff to either pay the
filing fee or file another Application to Proceed in District
Court Without Prepaying Fees or Costs.

Plaintiff must do so by

Wednesday, January 14, 2015, regardless of whether or not she
files a second amended complaint.

This Court CAUTIONS Plaintiff

that, if she fails to either pay the filing fee or file another
Application by January 14, 2015, this entire action may be
automatically dismissed.
CONCLUSION
On the basis of the foregoing, this Court rules as
follows:
-Plaintiff’s Fair Housing Act claim against the State of Hawai`i
and “Federal housing Mayor rights,” and Plaintiff’s
harassment claim against Vincent Vanderford survive the
screening process;
-Plaintiff’s claim under the Individuals with Disabilities
Education Act against the State and Kaiulani Elementary
School is HEREBY DISMISSED WITHOUT PREJUDICE;
-Plaintiff’s malpractice claim against “Queens hospital” in the
Amended Complaint, filed November 7, 2014, is HEREBY
DISMISSED WITH PREJUDICE; and
-all other claims and defendants identified in Plaintiff’s
Amended Complaint are HEREBY DISMISSED WITH PREJUDICE.
If Plaintiff wishes to amend her IDEA claim, she must file her
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second amended complaint, in accordance with the terms of this
Order, by no later than Thursday, January 29, 2015.
Further, this Court ORDERS Plaintiff to either pay the
filing fee or file another Application to Proceed in District
Court Without Prepaying Fees or Costs by no later than Wednesday,
January 14, 2015, regardless of whether she files a second
amended complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 12, 2014.

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

MARY GOLD CATALUNA VS. VINCENT VANDERFORD, ET AL; CIVIL 14-00480
LEK-RLP; ORDER REGARDING PLAINTIFF’S AMENDED COMPLAINT

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