Yellen et al v. Hara et al
Filing
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ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER re: 11 . Signed by JUDGE J. MICHAEL SEABRIGHT on 8/13/2015. (afc)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 will be served by first class mail on August 14, 2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MIKE YELLEN, PAUL CHILSON,
and CAROLE CHILSON,
)
)
)
Plaintiffs,
)
)
vs.
)
)
GLENN HARA, JOHN S. CARROLL, )
MERRILL LYNCH, PETER K.
)
KUBOTA, MICHELLE OISHI, M.
)
KANANI LAUBACH, and STATE OF )
HAWAII,
)
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Defendants.
)
_______________________________ )
CIVIL NO. 15-00300 JMS-KSC
ORDER DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER
ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
I. INTRODUCTION
Before the court is pro se Plaintiffs Mike Yellen, Paul Chilson, and
Carole Chilson’s (collectively, “Plaintiffs”) Motion for an Expedited Temporary
Restraining Order and Permanent Injunction (“Motion for TRO”), filed on August
11, 2015. Doc. No. 11. Plaintiffs’ Motion for TRO seeks the following relief:
1. [T]o enjoin Defendant Hara and Oishi from taking
any money from Plaintiff Paul and Carole’s (sic)
Chilson’s bank accounts; to enjoin Defendant Lacbach
(sic) from acting in her conspiratorial matter (sic) to not
protect Plaintiff Carole Chilson’s constitutional rights, in
filing her motion to dismiss or withdrawal of Plaintiff
Carole Chilson’s motion to vacate Defendant Hara’s
illegal court orders. To also stop the retaliatory actions
by Defendants against Plaintiff Yellen.
2. [T]o enjoin Defendant Merrill Lynch from placing
any restriction on access to the trust account held in
Merrill Lynch.
Doc. No. 11, Mot. at 2.
The court has reviewed (1) the Motion, and Exhibits A to G attached
to the Motion; (2) the Complaint filed on August 4, 2015; and (3) the publiclyavailable docket in In the Matter of the Conservatorship and Guardianship of
Carole June Chilson, No. 3CG 14-1-001 (Haw. Third Cir. Ct. filed Apr. 8, 2014)
(“In re Carole June Chilson”), pending in the Circuit Court of the Third Circuit of
the State of Hawaii. Based on the following, the Motion for TRO is DENIED.
II. BACKGROUND
Plaintiffs’ Complaint alleges federal jurisdiction based on, among
other provisions, violations of civil rights under 42 U.S.C. §§ 1983, 1985, 1986 &
1988. Doc. No. 1, Compl. at 1. The court construes the Complaint liberally in
favor of the pro se Plaintiffs. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987). So construed, Plaintiffs are alleging violations of due process based on
actions of several officials of the Third Circuit Court of the State of Hawaii taken
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in a pending state court case, In re Carole June Chilson, and others acting in
concert with that pending action. The Complaint alleges that
• Defendant Glenn Hara (“Hara”) is a state Circuit Court Judge in
Hilo, Hawaii who is “presiding over Plaintiff Yellen’s civil rights
complaint and Plaintiff Paul Chilson and Carole Chilson’s
guardianship/conservatorship case.” Doc. No. 1, Compl. ¶ 5.
• Defendant John S. Carroll (“Carroll”) was “Plaintiff Paul Chilson’s
attorney with regards to . . . filing for guardianship for Plaintiff Paul
Chilson over Carole Chilson.” Id. ¶ 6. Elsewhere, Plaintiffs appear
to allege that Hara wrongfully appointed Carroll as guardian ad litem
for Plaintiff Carole Chilson. Id. ¶ 27.
• Defendant Peter K. Kubota (“Kubota”) “was appointed by
Defendant Hara as a Kokua Kanawai . . . to serve[] as an extension of
the court to conduct an independent review of the situation, to
interview the respondent and the person seeking to be appointed
conservator or guardian, and to report its findings and
recommendations to the court.” Id. ¶ 7.1
• Defendant Michelle Oishi (“Oishi) “was appointed by Defendant
Hara as a conservator over Carole Chilson[’s] accounts and trust.” Id.
¶ 8.
1
The Hawaii Probate Code defines a “Kokua Kanawai” (Helper in the Law) as “an
individual appointed by a court who has the role and authority granted under Rule 113 of the
Hawaii probate rules.” Haw. Rev. Stat. (“HRS”) § 560:5-102. In turn, Rule 113 provides in
part:
In conservatorship proceedings, the Kokua Kanawai’s duties shall
include those items listed in Hawai‘i Revised Statutes Section
560:5-406(c) and (d); in guardianship proceedings the duties shall
include those items listed in Hawai‘i Revised Statutes Section
560:5-305(c) and (d). The Kokua Kanawai shall have access to all
medical and psychological records of the respondent without
further court order, but shall not reveal confidential information to
others.
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• Defendant M. Kanani Laubach (“Laubach”) “was appointed by
Defendant Hara as a guardian ad litem for Carole Chilson.” Id. ¶ 9.
• Defendant Merrill Lynch “is a Corporate Financial Company in
which Plaintiff Paul and Carole Chilson has an account and money
with.” Id. ¶ 10.
• Defendant State of Hawaii “must ensure that all judges in the State
of Hawaii are properly trained, in which they do not deliberately
violate[] the rights of the individuals living in the State of Hawaii[.]”
Id. ¶ 11.
The Complaint describes particular proceedings in the state court
conservatorship proceedings. It alleges that Carroll “filed for conservatorship
when Plaintiff was just asking for guardianship,” id. ¶ 14, and claims that he “was
acting in a conspiratorial act with Defendant Hara and Kubota to take control over
Plaintiffs Paul and Carole Chilson[’s] bank accounts.” Id. It claims that Carroll
“was responsible to ensure that Plaintiff Carole Chilson was served with the
petition for guardianship/conservatorship, [and] that failing to do so violated [her]
constitutional rights to due process, the right to be heard and the right to be
represented at any and all hearings held in which Plaintiff Carole Chilson’s money
is [to] be taken.” Id.
As for Hara, Plaintiffs allege that Hara violated Carole Chilson’s
rights by conducting a May 7, 2014 hearing without proper notice to her, and
“illegal[ly] appointed attorneys in the attempt to [draw] all the money out of
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Plaintiffs Paul and Carole Chilson[’s] bank account and trust.” Id. ¶ 22. Plaintiffs
refer to the appointments of Kubota, Oishi, and Laubach. Id. ¶¶ 22-24, claiming
that Hara “has done nothing more than pray (sic) on the elderly.” Id. ¶ 25. They
also allege that Hara and Carroll are conspiring to violate Carole Chilson’s rights,
pointing to Hara’s act of appointing Carroll as guardian ad litem for her even
though Paul Chilson had a disciplinary action pending against Carroll. Id. ¶ 27.
(Plaintiff Yellen had filed a motion to be appointed as her guardian ad litem, but
the motion was denied. Id. ¶ 28.)2
As for Kubota, Plaintiffs allege that he wrongfully performed duties
as Kokua Kanawai by not interviewing Paul Chilson, preaching to Carole Chilson,
and conspiring with Merrill Lynch to be the successor trustee. Id. ¶ 34. They
complain of his “conspiratorial action with Defendants Hara, Carroll, Oishi and
Laubach.” Id.
As for Oishi, the Complaint alleges that, after his “illegal
appointment” as conservator, Oishi “illegally took control over [Carole Chilson’s]
bank account” and “Paul and Carole Chilson[’s] trust account.” Id. ¶ 35. It
alleges that she conspired with Hara, Carroll, Kubota, and Laubach to violate
2
It is unclear what specific rights of Yellen (as opposed to Carole or Paul Chilson) are
being violated.
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Carole Chilson’s constitutional rights. Id. ¶ 36.
Similarly, the Complaint alleges that Laubach was wrongfully
appointed as guardian ad litem as part of a conspiracy “to have Defendant Laubach
withdraw Plaintiff Carole Chilson’s motion to vacate Defendant Hara’s illegal
order appointing Defendant Oishi as conservator and to have the case
[dismissed].” Id. ¶ 37. It alleges that Laubach was part of the same conspiracy
with Hara, Carroll, Kubota, and Oishi. Id.
As to Merrill Lynch, the Complaint alleges that Merrill Lynch, as
trustee of an account “in Plaintiff Paul Chilson’s name,” is acting illegally by
freezing access “supposedly based on a court order.” Id. ¶ 39. It alleges that the
order is “illegal as the court never had jurisdiction,” id., and that Merrill Lynch did
“not check into if the courts had jurisdiction over Plaintiff Carole Chilson before
taking any adverse action over a personal account.” Id. ¶ 40. It further alleges
that Merrill Lynch should have known its actions were in violation of the
Constitution, and that it was part of the same conspiracy with Hara, Carroll,
Kubota, Laubach, and Oishi. Id. ¶ 42.
Finally, apparently attempting to stop the actions of Hara, the
Complaint alleges that “Plaintiff Yellen filed a writ of mandate with the Hawaii
Supreme Court . . . alon[g] with other motions, but the Hawaii Supreme Court has
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failed to take any corrective measures in Defendant Hara’s unconstitutional
conduct.” Id. ¶ 29.
Among other relief, the Complaint seeks injunctive and declaratory
relief (1) to enjoin Defendants from continuing to violate Plaintiffs’ Constitutional
rights; and (2) to require Hara to “immediately dismiss the case[] before him, [In
re Carole June Chilson].” Id. at 15-16. It also seeks compensatory damages of $5
million from each Defendant, punitive damages in the same amount, as well as
attorney’s fees and costs. Id. at 16.
On August 11, 2015, Plaintiffs filed their Motion for TRO, seeking
the relief as set forth above in the Introduction. The Motion for TRO repeats
many of the allegations of the Complaint, and describes the same alleged
conspiracy to violate Plaintiffs’ Constitutional rights. Pursuant to Local Rule
7.2(d), the court finds the Motion for TRO suitable for disposition without an oral
hearing.
III. STANDARD OF REVIEW
A court may issue a TRO without written or oral notice to the adverse
party only if the party requesting the relief provides an affidavit or verified
complaint providing specific facts that “clearly show that immediate and
irreparable injury, loss, or damage will result to the movant before the adverse
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party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). In addition, the
movant or his attorney must certify in writing “any efforts made to give notice and
the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1)(B).
Even if such notice is provided, a TRO may issue only if Plaintiffs
meet their burden under well-established factors. The standard for issuing a
temporary restraining order is identical to the standard for issuing a preliminary
injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1247
(D. Haw. 1999); cf. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction
is “substantially identical” to an analysis of a temporary restraining order).
A “preliminary injunction is an extraordinary and drastic remedy
never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
24 (2008) (citation omitted). A “plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” Id. at 20; accord
Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). “That is,
‘serious questions going to the merits’ and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary injunction, so long as
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the plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632
F.3d 1127, 1135 (9th Cir. 2011). Winter emphasizes that plaintiffs seeking
preliminary relief must demonstrate that “irreparable injury is likely in the absence
of an injunction.” 555 U.S. at 22; see also Stormans, Inc. v. Selecky, 586 F.3d
1109, 1127 (9th Cir. 2009).
IV. DISCUSSION
Plaintiffs fail to meet the requirements for granting a TRO without
notice. First, Plaintiffs have not demonstrated compliance with the requirements
of Federal Rules of Civil Procedure 65(b)(1)(A) & (B). As to the first
requirement, Plaintiffs did not provide any specific facts establishing that
“immediate and irreparable injury, loss, or damage will result” to Plaintiffs. No
declaration or affidavit attesting to the facts alleged in the Complaint was filed,
and the Complaint was not verified. See Fed. R. Civ. P. 65(b)(1)(A) (requiring
“specific facts in an affidavit or a verified complaint”). As to the second
requirement, Plaintiffs states only that the Motion for TRO was mailed to each
Defendant on August 10, 2015. Doc. No. 11, Mot. at 13. They have not
“certifie[d] in writing any efforts made to give notice and the reasons why it
should not be required.” Fed. R. Civ. P. 65(b)(1)(B).
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More importantly, even if all Defendants have had sufficient notice,
Plaintiffs’ Motion for TRO fails to establish all the Winter standards. At
minimum, Plaintiffs fall well short of establishing that they are likely to succeed
on the merits. Plaintiffs have therefore failed to carry their burden on their Motion
for TRO.
All of the relief sought in their Motion for TRO challenges state court
rulings or actions taken by court officials, or those acting in concert with those
officials, in the In re Carole June Chilson conservatorship proceeding.
Initially, given such allegations, it is clear that most (if not all) of the
Defendants (e.g., a state judge, and individuals appointed to perform judicial
functions) are entitled to immunity from damages under § 1983. See, e.g.,
Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (“Judges and those
performing judge-like functions are absolutely immune from damage liability for
acts performed in their official capacities.”). This immunity extends “even when
such acts are in excess of their jurisdiction.” Stump v. Sparkman, 435 U.S. 349,
355 (1978). See, e.g., Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006)
(reasoning that “[a] judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his authority”)
(quoting Stump, 436 U.S. at 356); Franceschi v. Schwartz, 57 F.3d 828, 830-31
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(9th Cir. 1995) (holding that a court commissioner was entitled to judicial
immunity from damages liability for claims arising out of official acts or the
performance of judge-like functions).3
And although Pulliam v. Allen, 466 U.S. 522, 541-42 (1984), held
that absolute judicial immunity does not extend to actions under § 1983 seeking
prospective injunctive relief against state judges on account of their judicial acts,
Congress responded to Pulliam in 1996 by amending § 1983 to abrogate its
holding. Specifically, § 1983 now provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of
this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a
statute of the District of Columbia.
(Emphasis added to highlight the amendment added in the Federal Courts
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Claims for damages against the State of Hawaii are barred by Eleventh Amendment
immunity. See, e.g., Edelman v. Jordan, 415 U.S. 651, 677 (1974).
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Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847). See,
e.g., Haas v. Wisconsin, 109 F. App’x 107, 114 (7th Cir. 2004) (“This amendment
was intended to overrule the Supreme Court’s decision in [Pulliam].”);
Agbannaoag v. Honorable Judges of Circuit Court of First Circuit of Haw., 2013
WL 5325053, at *3 (D. Haw. Sept. 20, 2013) (“Pulliam has been abrogated on this
issue and judicial immunity may now bar § 1983 claims for equitable relief.”).
That is, under the plain language of § 1983, courts lack authority to grant the
injunctive relief sought in the Motion for TRO. See, e.g., Roth v. King, 449 F.3d
1272, 1286 (D.C. Cir. 2006) (“42 U.S.C. § 1983, as amended in 1996 by the
Federal Courts Improvement Act, explicitly immunizes judicial officers against
suits for injunctive relief.”).
Moreover, Plaintiffs’ Complaint does not allege that “a declaratory
decree was violated or that declaratory relief was unavailable.” In any event,
“[d]eclaratory relief against a judge for actions taken within his or her judicial
capacity is ordinarily available by appealing the judge’s order.” Agbannaoag,
2013 WL 5325053, at *3 (quoting La Scalia v. Driscoll, 2012 WL 1041456, at *7
(E.D.N.Y. Mar. 26, 2012)).
In this regard, limited and non-binding authority indicates that
Pulliam might still apply for actions seeking “prospective declaratory relief.” See
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Esensoy v. McMillan, 2007 WL 257342, at *1 n.5 (reasoning that, although
Congress abrogated Pulliam, “judicial immunity protects the Defendants only
from Appellant’s request for injunctive relief. But § 1983 does not explicitly bar
Appellant’s request for declarative relief”); Ray v. Judicial Corrs. Servs., Inc.,
2014 WL 5090723, at *4 (N.D. Ala. Oct. 9, 2014) (“Notwithstanding § 1983’s
clarity regarding injunctive relief, that statute fails to address the availability of
prospective declaratory relief to defeat judicial immunity.”).
Nevertheless, even if “prospective declaratory relief” was still
available under Pulliam, the court would not likely grant it in this case. In
recognizing that equitable relief against a state judicial officer could be necessary
to protect a petitioner’s constitutional rights, Pulliam acknowledged some “risk
that judges will be harassed and their independence compromised by the threat of
having to defend themselves against suits by disgruntled litigants.” 466 U.S. at
538-39. Pulliam reasoned, however, that “[t]he limitations already imposed by the
requirements for obtaining equitable relief against any defendant -- a showing of
an inadequate remedy at law and of a serious risk of irreparable harm severely
curtail” that risk. Id. at 537 (internal citation omitted). It observed that “[s]imilar
limitations serve to prevent harassment of judges through the use of writs of
mandamus” because such writs are “reserved for really extraordinary causes.” Id.
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at 538 (quoting Ex parte Fahey, 332 U.S. 258, 260 (1947)). Finally, Pulliam
reasoned that the concern that federal judges “should not sit in constant
supervision of the actions of state judicial officers . . . has been addressed as a
matter of comity and federalism[.]” Id. at 539. It therefore “reaffirm[ed] the
validity of those principles and the need for restraint by federal courts called on to
enjoin the actions of state judicial officers.” Id. In short, any “prospective
declaratory relief” would be limited to “extraordinary” circumstances.
Here, to obtain any equitable relief (such as a TRO seeking
declaratory relief), Plaintiffs must show “that [they have] an inadequate remedy at
law and a serious risk of irreparable harm.” Id. at 537. But Plaintiffs have a right
of appeal. See, e.g., Affeldt v. Carr, 628 F. Supp. 1097, 1103 (N.D. Ohio 1985)
(declining to grant injunctive relief, reasoning that plaintiff had an adequate
remedy at law by appeal). More importantly, Plaintiffs’ allegations establish only
that they are dissatisfied with the performance of appointed court officials and/or
the results of ongoing conservatorship proceedings. And it is unclear whether
they even have a viable claim for a deprivation of constitutional rights -- although
Plaintiffs appear to allege that Defendants have “conspired” to deprive them (or at
least Paul and Carole Chilson) of money from a trust, a court order limiting Merrill
Lynch from dispersing funds would seem to be a legal and proper consequence of
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a conservatorship proceeding. See, e.g., HRS § 560:5-425 (detailing the powers of
a conservator, including collecting, holding, and retaining assets, and acquiring or
disposing of an asset of the estate). Even if an error was made, it would not
constitute an “extraordinary” circumstance to justify interference with an ongoing
state court proceeding, especially at this TRO stage.
In short, Plaintiffs have not demonstrated any likelihood of success
on the merits of their claims seeking to enjoin state court proceedings, or to void
the state court orders. And because Plaintiffs have not demonstrated that they are
likely to succeed, they necessarily cannot obtain a TRO -- Winter requires all four
elements (likelihood of success, likelihood of irreparable harm, a favorable
balance of equities, and demonstrating that an injunction is in the public interest).
Winter, 555 U.S. at 20.
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V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Temporary
Restraining Order, Doc. No. 11, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 13, 2015.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Yellen et al. v. Hara et al., Civ. No. 15-00300 JMS-KSC, Order Denying Motion for Temporary
Restraining Order
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