Shavelson v. Hawaii Civil Rights Commission et al
Filing
50
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT re 30 Motion to Dismiss for Lack of Jurisdiction. Signed by JUDGE LESLIE E. KOBAYASHI on 07/21/2015. Defendants' Motion to Dismiss or Alternatively, for Summary Judgment, filed April 24, 2015, is HEREBY GRANTED. There being no remaining claims in the case, the Court DIRECTS the Clerk's Office to close this case on August 10, 2015, unless Plaintiff files a motion for reconsideration by August 7, 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
EILEEN SHAVELSON,
)
)
Plaintiff,
)
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vs.
)
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HAWAI`I CIVIL RIGHTS
)
COMMISSION, CONSTANCE
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DEMARTINO, WILLIAM D. HOSHIJO )
AND MARCUS KAWATACHI, in
)
their individual capacities
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as Hawai`i Civil Rights
)
Commission Enforcement Staff, )
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Defendants.
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_____________________________ )
CIVIL 15-00055 LEK-KSC
ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT
Before the Court is Defendants Hawai`i Civil Rights
Commission (“HCRC”), Constance DeMartino (“DeMartino”),
William D. Hoshijo (“Hoshijo”), and Marcus Kawatachi’s
(“Kawatachi,” collectively “Defendants”) Motion to Dismiss or
Alternatively, for Summary Judgment (“Motion”), filed on
April 24, 2015.1
[Dkt. no. 30.] Pro se Plaintiff
Eileen Shavelson (“Plaintiff”) filed documents on May 1, 2015,
May 14, 2015, and June 8, 2015, [dkt. nos. 35, 39, 45,] which
this Court construed as memoranda in opposition [dkt. nos. 38,
49].
Defendants filed their reply on July 6, 2015.
1
[Dkt. no.
Also on April 24, 2014, Defendants filed an errata
attaching the Declaration of Livia Wang (“Wang Decl.”). [Dkt.
no. 31.]
47.]
The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).
After careful consideration of the
Motion, supporting and opposing memoranda, and the relevant legal
authority, Defendants’ Motion is HEREBY GRANTED for the reasons
set forth below.
BACKGROUND
On February 27, 2015, Plaintiff filed her Verified
Complaint/Claim (“Complaint”), pursuant to 42 U.S.C. § 1983,
against HCRC, its investigators, supervisors, director and codirector, in their individual and professional capacities, and
DeMartino, Hoshijo, and Kawatachi.
[Dkt. 1.]
In it, Plaintiff
alleges, in essence, that HCRC violated her Constitutional rights
during its investigation and in making a no cause determination,
related to an HCRC charge against her landlord, Jeffrey Hiranaka,
for discriminatory and retaliatory eviction.2
2
Specifically, she
The HCRC charge (“Charge”) was also against the property
management company, Kitaami, and the co-owners of the subject
property, Harvey T. Hiranaka and Milton A. Hiranaka. [Wang Decl.
Exh. 2 (Charge).] The Charge focused on Jeffrey Hiranaka and the
Court therefore refers to him as “Mr. Hiranaka.” Further, in
this Order, the Court considers some of the exhibits attached to
the Wang Declaration since they form the basis for the Complaint
and some are subject to judicial notice. See, e.g., Davis v.
KHNL/KGMB, LLC, Civil No. CIV. 14-00483 SOM/BMK, 2015 WL 3448737,
at *1 (D. Hawai`i May 28, 2015) (“[C]ourts may ‘consider certain
materials — documents attached to the complaint, documents
(continued...)
2
alleges that:
- DeMartino, an HCRC investigator,3 refused to consider
multiple pieces of evidence, including an anonymous
statement on behalf of Plaintiff, a letter relating
second-hand evidence of Mr. Hiranka’s discrimination, a
confession of guilt by her neighbor – with whom
Plaintiff had a dispute – to the Kauai Police
Department, and statement that Mr. Hiranaka threatened
potential witnesses with eviction;
- Kawatachi, an HCRC supervisor, and Hoshijo, the HCRC
director, refused to review Plaintiff’s file upon its
completion by DeMartino, even though the field
supervisor for the Department of Housing and Urban
Development (“HUD”) regional office, Jelani Maderaka,
admitted HCRC had made several procedural errors;
- HCRC denied Plaintiff access to the full investigative
file for fifteen months; and
- the faulty investigation “impeded the quality of [her]
life, and health, and a truthful inquiry into her
dangerous situation.”
[Id. at 1-3.]
Plaintiff requests the following relief: damages
incurred as a result of the revocation of her Section 8 housing
subsidy, which she claims to have lost due to her eviction;
$325,000, which Plaintiff represents is the “average amount
awarded a Plaintiff in a housing discrimination case[;]” [id. at
3;] punitive damages; “[a] retraction of the false report with
2
(...continued)
incorporated by reference in the complaint, or matters of
judicial notice — without converting the motion to dismiss into a
motion for summary judgment.’” (quoting United States v. Ritchie,
342 F.3d 903, 908 (9th Cir. 2003))).
3
Plaintiff refers to DeMartino throughout the Complaint as
“DeMartinez,” “Martinez” and other variations.
3
the added information and recanting of testimony proving
Plaintiffs [sic] innocence[;]” [id. at 4;] and all other just
relief.
[Id. at 3-4.]
Defendants move to dismiss the Complaint in its
entirety with prejudice.
[Reply at 6.]
DISCUSSION
Defendants argue that this lawsuit is procedurally
improper, since there is no statute that supports a lawsuit
against HCRC and its employees for a faulty administrative
investigation and a finding of no cause.
Motion at 7-9.]
[Mem. in Supp. of
Even if there was a ground for such a lawsuit,
Plaintiff could seek, and is already seeking, redress in state
court; thus she fails to state a cognizable claim for a § 1983
violation.
[Id. at 9-12.]
At the outset, the Court notes that it must (and does)
interpret the Complaint liberally since Plaintiff is not
represented by counsel.
This Court must “construe pro se
complaints liberally and may only dismiss a pro se complaint for
failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.”
Wilhelm v. Rotman, 680 F.3d 1113,
1121 (9th Cir. 2012) (citation and internal quotation marks
omitted).
However, normal court rules and procedures still apply
to Plaintiff.
See Solis v. McKessen, 465 F. App’x 709, 710 (9th
4
Cir. 2012) (“‘Pro se litigants must follow the same rules of
procedure that govern other litigants.’” (quoting King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987))).
I.
Grounds to Challenge HCRC’s Investigation
Plaintiff seeks to challenge HCRC’s investigation of
her claims of discrimination and retaliation.
In her section
titled, “Obstruction of Justice,” Plaintiff alleges that:
These events occurred from the beginning of
the HCRC intake Feb, 2013 after being referred
from the HUD regional office where the Plaintiffs
claim was first filed, to the HCRC final report
May/June 2013, and beyond when Plaintiff asked
HCRC to consider recanted testimony August 2013.
The HCRC is wholly responsible for denying
the Plaintiffs plea for proper presentation of the
facts . . . .
[Complaint at 1.]
A.
FHA and Haw. Rev. Stat. Chapter 368
The federal statute prohibiting discrimination in
housing, pursuant to the Fair Housing Amendments Act of 1988
(“FHA”), 42 U.S.C. §§ 3601-3619, 3631, and the Hawai`i antidiscrimination statute, Haw. Rev. Stat. Chapter 368, which covers
housing discrimination, have similar complaint and review
structures.
They both provide for an investigatory period, after
which either the Secretary of HUD or the Executive Director of
HCRC, respectively, must issue a reasonable cause determination.
42 U.S.C. § 3610(g)(1), (3) (Secretary must make reasonable cause
5
determination within 100 days of filing); Haw. Rev. Stat. § 36813(b), (c) (Executive Director must issue right to sue letter
within 180 days).
They also both provide, in the event of a no
cause determination, that the complainant may bring a case in
court.
42 U.S.C. § 3613(a)(1)(A); Haw. Rev. Stat. § 368-12.
Finally, in both schemes, a complainant may bring a lawsuit even
if she does not first file an administrative charge.
42 U.S.C.
§ 3613(a)(1)(A); Haw. Rev. Stat. § 515-9.
However, neither the state nor federal administrative
scheme permit a challenge such as Plaintiff’s: a private claim
against HCRC (or HUD) for a faulty investigation.
Federal
district courts in this circuit have recognized that the FHA does
not provide for a review of HUD investigations and no cause
determinations.
See, e.g., Enwere v. HUD Fair Hous., No. C
11-0716 PJH, 2011 WL 1842714, at *1 (N.D. Cal. May 16, 2011)
(“plaintiff’s claims, to the extent they do seek judicial review
of any investigation undertaken in relation to a complaint
plaintiff may have filed with HUD, are improper under the FHA”
(citation omitted)); Phifer v. Sec’y U.S. Dep’t of Hous. & Urban
Dev., No. CIV S-08-0299 LKK DAD PS, 2009 WL 8706810, at *4 (E.D.
Cal. Feb. 2, 2009) (explaining that Ҥ 3613 does not provide a
private right of action for judicial review of a determination by
HUD to dismiss an administrative complaint, and plaintiff has not
cited any provision of the FHA that provides such a right of
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action”), report and recommendation adopted, 2009 WL 8706811
(E.D. Cal. Mar. 19, 2009).
This is consistent with review of investigations into
employment discrimination by the Equal Employment Opportunity
Commission (“EEOC”), pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e-1, et
seq., to which courts analogize.
See, e.g., Ordelli v. Farrell,
586 F. App’x 355, 355 (9th Cir. 2014) (recognizing that courts
“apply[] Title VII discrimination analysis to FHA claims” (citing
Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997))).
The Ninth Circuit has held that, “there is no private cause of
action against the EEOC for their handling of an individual’s
claims.”
Jackson v. Potter, 115 F. App’x 351, 352 (9th Cir.
2004) (citing Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983)).
Thus, like Title VII, the FHA does not support a claim by an
individual against HUD as a defendant.
Although Defendants have not provided any state cases
addressing HCRC investigations, and this Court is not aware of
any, Hawai`i courts would likely look to federal courts analyzing
EEOC and HUD investigations for guidance.
When interpreting state law, a federal court
is bound by the decisions of a state’s highest
court. In the absence of a governing state
decision, a federal court attempts to predict how
the highest state court would decide the issue,
using intermediate appellate court decisions,
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decisions from other jurisdictions, statutes,
treatises, and restatements as guidance.
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., Civil No.
12-00064 LEK-KSC, 2015 WL 419654, at *11 (D. Hawai`i Jan. 30,
2015) (some citations omitted) (citing Trishan Air, Inc. v. Fed.
Ins. Co., 635 F.3d 422, 427 (9th Cir. 2011)).
In the civil rights context, the Hawai`i Supreme Court
has explained that the, “federal courts have considerable
experience in analyzing these cases, and we look to their
decisions for guidance.”
Furukawa v. Honolulu Zoological Soc’y,
85 Hawai`i 7, 13, 936 P.2d 643, 649 (1997).
Since Chapter 368
does not expressly provide for a cause of action against HCRC,
there are no state court decisions recognizing an implied cause
of action, and federal courts addressing the issue in the
analogous HUD and EEOC contexts have concluded there is no
private right of action, this Court CONCLUDES that Chapter 368
does not support a challenge to an HCRC investigation and no
cause determination.
B.
APA and HAPA
Similarly, Plaintiff may not bring her complaint under
the federal Administrative Procedures Act (“APA”) or the Hawai`i
Administrative Procedures Act (“HAPA”).
The APA provides, in
pertinent part: “Agency action made reviewable by statute and
final agency action for which there is no other adequate remedy
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in a court are subject to judicial review.”
(emphasis added).
5 U.S.C. § 704
HAPA similarly provides: “Any person aggrieved
by a final decision and order in a contested case or by a
preliminary ruling of the nature that deferral of review pending
entry of a subsequent final decision would deprive appellant of
adequate relief is entitled to judicial review thereof under this
chapter[.]”
Haw. Rev. Stat. § 91-14(a) (emphasis added).
Since both the FHA and Chapter 386 provide for court
review, the agency decision is not final and there is an adequate
alternative remedy.
See, e.g., Ward, 719 F.2d at 314 (holding
that “the statutory requirement that there be ‘no other adequate
remedy in a court’ [was] not met [because the complainant] could
and did remedy the EEOC’s failure to prosecute his discrimination
charge diligently by directly suing his employer in federal
district court”); Vickerman v. Dep’t of Hous. & Urban Dev., No.
03:03-CV-00222-LRH-VPC, 2010 WL 2291897, at *1 (D. Nev. June 1,
2010) (explaining that, “[a]lthough it appears that the Ninth
Circuit has not addressed the issue, other courts considering
whether a plaintiff may sue HUD under the APA have held that [42
U.S.C. § 3613] provides an ‘other adequate remedy in a court’
barring judicial review under the APA,” and collecting cases),
aff'd, 466 F. App’x 568 (9th Cir. 2012).
Due to the similarity
between the Hawai`i and federal statutes, and following the
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analysis above, supra Section I.A., this Court CONCLUDES that
HAPA does not provide a ground to bring the present lawsuit.
Since neither Chapter 368 nor HAPA provide for a
challenge to an HCRC investigation and no cause determination,
this Court does not have jurisdiction to consider the Complaint.
The Court thus GRANTS the Motion and DISMISSES the Complaint.
II.
Plaintiff’s § 1983 Claim
Although the Court has already dismissed the Complaint,
it discusses Plaintiff’s § 1983 claim for completeness and
because it impacts whether the dismissal is with or without
prejudice, that is, whether the Court will allow Plaintiff to
amend her Complaint.
As an initial matter, the law does not permit a
plaintiff to bring a § 1983 claim against a state agency or a
state agent acting in his or her official capacity because they
are immune from suit.
This type of claim can only be brought
against individuals and they cannot be sued in their official
capacity.
Therefore, the claims against HCRC and the individual
defendants – to the extent they were brought in their official
capacity – necessarily fail.
See, e.g., Ramsey v. Hawaii
Paroling Auth., 561 F. App’x 636, 637 (9th Cir. 2014) (quoting
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct.
2304, 105 L. Ed. 2d 45 (1989), and Hafer v. Melo, 502 U.S. 21,
27, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991), and upholding
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dismissal of the plaintiff’s § 1983 “claims against the State and
the HPA, as well as [the plaintiff’s] damages claims against the
Individual Defendants sued in their official capacities”).
Regarding Plaintiff’s claims against DeMartino,
Hoshijo, and Kawatachi in their individual capacities, “[t]o
state a claim under § 1983, 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
violation was committed by a person acting under the color of
State law.”
Esparza v. Cnty. of Los Angeles, 527 F. App’x 638,
639 (9th Cir. 2013) (citation and internal quotation marks
omitted).
Plaintiff alleges that her Fourteenth Amendment rights
were violated.4
“The Due Process Clause of the Fourteenth
Amendment protects individuals against deprivations of ‘life,
liberty, or property.’”
Marsh v. Cnty. of San Diego, 680 F.3d
4
Plaintiff also claims that Defendants violated her Sixth
Amendment rights. However, by its terms, the Sixth Amendment
only applies to criminal prosecutions. U.S. Const. amend. VI
(“In all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the
accusation[.]” (emphases added)); see also, e.g., United States
v. Hall, 419 F.3d 980, 985 (9th Cir. 2005) (“the Sixth Amendment
applies only to ‘criminal prosecutions’” (citing Crawford v.
Washington, 541 U.S. 36, 38 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004))). Moreover, even under state law, Plaintiff had no right
to the reports because state law provides that “they shall not be
disclosed to anyone” without court order or after a right-to-sue
notice has issued, which is when Defendants represent they
provided the complete file to Plaintiff. Haw. Rev. Stat. § 3684(a).
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1148, 1155 (9th Cir. 2012).
“To obtain relief on § 1983 claims based upon
procedural due process, the plaintiff must establish the
existence of (1) a liberty or property interest protected by the
Constitution; (2) a deprivation of the interest by the
government; [and] (3) lack of process.”
Guatay Christian
Fellowship v. Cnty. of San Diego, 670 F.3d 957, 983 (9th Cir.
2011) (alteration in Guatay) (citation and internal quotation
marks omitted).
Even if Plaintiff could prove that HCRC deprived
her of an interest, without process, Plaintiff cannot prove that
her interest was a valid constitutional interest.
The sole
interest conceivably alleged in the Complaint is Plaintiff’s
interest in a reasonable cause determination.
However, since
that determination is non-binding and non-final, and can be
appealed in state court, see supra Section I.B., it is legally
insufficient to form a property interest cognizable under § 1983.
Cf. Danielson v. I.R.S., 985 F.2d 571 (9th Cir. 1993) (“because
EEOC’s determination is non-binding and non-final, there is no
implication of the Due Process Clause even if the procedures the
EEOC employed were otherwise deficient” (citing Francis-Sobel v.
University of Maine, 597 F.2d 15, 17-18 (1st Cir.), cert. denied,
444 U.S. 949 (1979))).
12
This means that, even if there were statutory grounds
for a challenge to the investigation and no cause determination,
see supra Section I, Plaintiff’s Complaint would fail to state a
claim as to any Defendant.
Related, since the Complaint itself
is a challenge to the investigation and determination, any
attempt to amend the Complaint to state a plausible claim would
be futile.5
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To
survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” (citation and internal quotation marks
omitted)).
Since amendment would be futile, the Court’s
dismissal of the Complaint is WITH PREJUDICE.
See Akhtar v.
Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court
should not dismiss a pro se complaint without leave to amend
unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” (citation and
internal quotation marks omitted)).
5
To the extent that Plaintiff might have been attempting,
or might attempt, to amend her Complaint to allege a violation of
state law as the basis for her § 1983 claim, such a claim
necessarily fails. See, e.g., Gonzalez v. Okagawa, Civil No.
12-00368 RLP, 2013 WL 2423219, at *9 (D. Hawai`i June 4, 2013)
(“‘state law violations do not, on their own, give rise to
liability under § 1983’” (quoting Moreland v. Las Vegas Metro.
Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998))).
13
In short, this Court does not have any jurisdiction
over Plaintiff’s claims against HCRC for what she believes to
have been a faulty investigation.
As to Plaintiff’s § 1983
claim, the law does not permit her to make such a claim against a
state agency or any state agent acting in an official capacity.
Although Plaintiff does include certain individuals in their
individual capacities, she cannot prove that she has a valid
constitutional interest because the only interest she claims was
violated was her interest in a reasonable cause determination.
Because that determination is non-binding and non-final, and can
be appealed in state court, it does not meet the legal
requirements of a property interest upon which Plaintiff can
maintain a § 1983 claim.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss or Alternatively, for Summary Judgment, filed April 24,
2015, is HEREBY GRANTED.
There being no remaining claims in the
case, the Court DIRECTS the Clerk’s Office to close this case on
August 10, 2015, unless Plaintiff files a motion for
reconsideration by August 7, 2015.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, July 21, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
EILEEN SHAVELSON VS. HAWAII CIVIL RIGHTS COMMISSION, ET AL; CIVIL
15-00055 LEK-KSC; ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS OR
ALTERNATIVELY, FOR SUMMARY JUDGMENT
15
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