Chun v. Simpson et al

Filing 39

ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION re 38 Motion. Signed by JUDGE LESLIE E. KOBAYASHI on 11/05/2015.(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
CURTIS PAUL CHUN,

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)
Plaintiff,
)
)
vs.
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VICTORIA SIMPSON, ET AL.,
)
)
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Defendants.
_____________________________ )

CIVIL 15-00102 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION
Before the Court is pro se Plaintiff Curtis Chun’s
(“Plaintiff”) “Motion Request Clarification” (“Motion”), filed on
October 14, 2015.

[Dkt. no. 38.]

The Motion requests

clarification of the following orders:
1)

the May 5, 2015 Order Dismissing Complaint and Denying
Application to Proceed in District Court Without Prepaying
Fees or Costs (“5/5/15 Order”); [dkt. no. 9;]

2)

the September 28, 2015 Order Dismissing Amended Complaint
and Denying Application to Proceed in District Court Without
Prepaying Fees or Costs (“9/28/15 Order”); [dkt. no. 32;]

3)

the September 29, 2015 Entering Order that denied various
motions filed with Plaintiff’s Amended Complaint (“9/29/15
EO”); [dkt. no. 34;] and

4)

the October 2, 2015 Order Denying Plaintiff’s Motion for
Restraining Order and Permanent Injunction (“10/2/15 Order”)
[dkt. no. 37].

This Court CONSTRUES Plaintiff’s filing a motion for
reconsideration of these orders.

The Court has considered this

matter as a non-hearing motion pursuant to Rule LR7.2(e) 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 and the relevant legal authority,
Plaintiff’s Motion is HEREBY DENIED for the reasons set forth
below.
STANDARD
This Court has explained the standard applicable to
motions for reconsideration as follows:
A motion for reconsideration must
(1) “demonstrate reasons why the court should
reconsider its prior decision” and (2) “must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” Hele Ku KB, LLC v. BAC Home Loans
Servicing, LP, 873 F. Supp. 2d 1268, 1289 (D. Haw.
2012). The Ninth Circuit has held that
reconsideration is appropriate if (1) the district
court is presented with “newly discovered
evidence,” (2) the district court “committed clear
error or the initial decision was manifestly
unjust,” or (3) “if there is an intervening change
in controlling law.” Nunes v. Ashcroft, 375 F.3d
805, 807 (9th Cir. 2004).
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., Civil No.
12-00064 LEK-KSC, 2015 WL 274131, at *2 (D. Hawai`i Jan. 21,
2015) (some citations omitted).

“Mere disagreement with a

previous order is an insufficient basis for reconsideration.”
Barnes v. Sea Hawaii Rafting, LLC, 16 F. Supp. 3d 1171, 1183 (D.
Hawai`i 2014) (citation omitted).

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DISCUSSION
I.

Constitutional Claims
Plaintiff first argues that he responded to the 5/5/15

Order by amending his complaint to allege violations of his
constitutional rights under the Fourth and Fourteenth Amendments.
Plaintiff argues that this Court erred in the 9/28/15 Order by
failing to address the merits of his constitutional claims.
In the 9/28/15 Order, this Court stated that, based on
the allegations in Plaintiff’s original Complaint, this Court
could not construe Plaintiff’s constitutional claims in his
Amended Complaint as amended versions of the claims alleged in
the original Complaint.1

[9/28/15 Order at 11.]

This Court

therefore dismissed the constitutional claims because Plaintiff
improperly included them in the Amended Complaint without leave
of court.

See 5/5/15 Order at 11 (“This Court emphasizes that it

has only granted Plaintiff leave to amend the claims that he
alleged in the original Complaint.

If Plaintiff wishes to make

other changes — i.e., if he 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).”).

1

In other words,

On March 27, 2015, Plaintiff filed a document that this
Court construed as his Complaint. [Dkt. no. 1.] He filed his
Amended Complaint on September 14, 2015. [Dkt. no. 24.] The
defendants are Defendants Victoria Simpson, Veronica Simpson,
Valerie Simpson, Romeo Simpson, and an unnamed live-in boyfriend
(collectively “Defendants”).
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the 5/5/15 Order only granted Plaintiff leave to make changes to
the claims in the original Complaint.

It did not, as Plaintiff

argues in the instant Motion, give him permission to allege any
claim based on federal laws that he believes “rescues” him from
Defendants’ actions.

See Motion at 2.

This Court FINDS that Plaintiff has not established any
ground that warrants reconsideration of this Court’s rulings
regarding his constitutional claims.

Plaintiff’s Motion is

therefore DENIED as to his constitutional claims.
II.

ADA Claim
Plaintiff also argues that this Court should reconsider

the dismissal of his claim under the Americans with Disabilities
Act (“ADA”).

The 9/28/15 Order dismissed Plaintiff’s ADA claim

because he “still d[id] not allege that his residence and
Defendants’ residence are places of public accommodation.”
[9/28/15 Order at 7 (emphasis and citation omitted).]
Plaintiff argues that his residence is a place of
public accommodation because he operates a business out of his
home.

Plaintiff states that he performs audio electronic repair

services in exchange for non-monetary items, such as food and
beverages.

However, to the extent that Plaintiff alleges that

Defendants are discriminating against him based on his
disability, the ADA would not apply unless one or more of
Defendants is a “‘person who owns, leases (or leases to), or

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operates a place of public accommodation.’”
4 (quoting 42 U.S.C. § 12182(a)).

See 5/5/15 Order at

In the Motion, Plaintiff

concedes that he still does not know whether Defendants’ property
is a public accommodation.

[Motion at 2.]

This Court FINDS that Plaintiff’s Motion does not
establish any ground that warrants reconsideration of this
Court’s rulings regarding his ADA claim.

Plaintiff’s Motion is

therefore DENIED as to his ADA claim.
III. Dr. Donovan
Plaintiff next argues that this Court’s dismissal of
his claim against Dr. Donovan was erroneous because his Amended
Complaint did not state a claim against Dr. Donovan.

In the

9/28/15 Order, this Court stated that Plaintiff “appears to be
attempting to obtain relief against Dr. Donovan.

To the extent

that Plaintiff is attempting to allege a claim against
Dr. Donovan, Plaintiff did not have leave from this Court to add
that new claim.”

[9/28/15 Order at 5 (emphases added).]

Thus,

the 9/28/15 Order recognized the possibility that Plaintiff may
not have been attempting to bring a claim against Dr. Donovan.
This Court’s subsequent rulings regarding the purported claims
only applied if Plaintiff was in fact alleging claims against
Dr. Donovan.
Even though Plaintiff now makes it clear that the
Amended Complaint did not contain any claims against Dr. Donovan,
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this Court CONCLUDES that it was not manifest error to address
the possibility that Plaintiff was trying to allege claims
against Dr. Donovan.

Plaintiff’s Motion is therefore DENIED as

to the discussion of Dr. Donovan in the 9/28/15 Order.
IV.

Filing of a Second Amended Complaint
The upshot of the Motion is that Plaintiff is aware

that he must file a second amended complaint by November 30,
2015.

Plaintiff is also aware that, if he is unable to file his

second amended complaint by the deadline, he must file a motion
for an extension.

This Court will await the filing of

Plaintiff’s second amended complaint.
CONCLUSION
On the basis of the foregoing, Plaintiff’s “Motion
Request Clarification,” filed October 14, 2015, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 5, 2015.

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

CURTIS PAUL CHUN VS. VICTORIA SIMPSON, ET AL; CIVIL 15-00102 LEKRLP; ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION

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