Hyland v. County of Hawaii et al

Filing 241

ORDER Granting In Part and Denying In Part Motions To Dismiss and Joinders re 173 181 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/29/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LANRIC HYLAND, ET AL.,

)
)
Plaintiffs,
)
)
vs.
)
)
OFFICE OF HOUSING & COMMUNITY )
DEVELOPMENT, ET AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL 15-00504 LEK-RLP

ORDER GRANTING IN PART AND DENYING IN PART
MOTIONS TO DISMISS AND JOINDERS
On May 11, 2018, Defendant Office of Housing &
Community Development, County of Hawai`i (“OHCD”) filed its
Motion to Dismiss [Doc 170] Plaintiffs’ Third Amended Complaint
(“OHCD Motion”).

[Dkt. no. 173.]

On May 15, 2018, Defendants

Ainakea Senior Residences LLLP (“Ainakea”) and Hawaii Island
Community Development Corporation (“HICDC,” collectively “Ainakea
Defendants”) filed their Motion to Dismiss (1) 42 U.S.C. § 1437f
Claims Alleged by All Plaintiffs in Second Claim for Relief in
the Third Amended Complaint for Declaratory and Injunctive
Relief, Filed May 1, 2018 and (2) 42 U.S.C. § 1983 Claims Alleged
by Plaintiff Eliza Roze (“Ainakea Motion”).

[Dkt. no. 181.]

Also before the Court are the following joinders of simple
agreement: the Ainakea Defendants’ joinder in the OHCD Motion,
filed May 11, 2018; Defendant Hawaii Affordable Properties,
Inc.’s (“HAPI”) joinder in the OHCD Motion, also filed on May 11;

and HAPI’s joinder in the Ainakea Motion, filed on May 16, 2018
(collectively “Joinders”).

[Dkt. nos. 176, 178, 183.]

Plaintiffs Lanric Hyland, Karen Martinez, and
Eliza Roze (“Plaintiffs”) filed their memorandum in opposition to
the OHCD Motion (“OHCD Opposition”) on July 20, 2018, and their
memorandum in opposition to the Ainakea Motion (“Ainakea
Opposition”) on July 22, 2018.

[Dkt. nos. 205, 206.]

OHCD filed

its reply (“OHCD Reply”) on July 26, 2018, and the Ainakea
Defendants filed their reply on July 27, 2018 (“Ainakea Reply”).
[Dkt. nos. 210, 215.]

On August 3, 2018, this Court issued an

entering order granting Plaintiffs leave to file a surreply
regarding the OHCD Motion, and Plaintiffs did so on August 5,
2018 (“OHCD Surreply”).

[Dkt. no. 222, 226.]

on for hearing on August 13, 2018.

These matters came

The OHCD Motion, the Ainakea

Motion, and the Joinders are hereby granted in part and denied in
part for the reasons set forth below.

Specifically, Plaintiffs’

equal protection claims against OHCD and Roze’s 42 U.S.C. § 1983
claims against the Ainakea Defendants are dismissed with
prejudice.

The OHCD Motion, the Ainakea Motion, and the Joinders

are denied in all other respects.
BACKGROUND
The relevant procedural history and the core factual
allegations in this case are set forth in this Court’s: Order
Granting in Part and Denying in Part Plaintiff’s Appeal of the

2

Magistrate Judge’s June 9, 2016 Order and August 1, 2016 Order;
and Withdrawing this Court’s March 16, 2017 Order (“6/30/17
Order”); and March 28, 2018 Order Granting in Part and Denying in
Part Defendant Office of Housing & Community Development, County
of Hawaii’s Motion to Dismiss; and Granting in Part and Denying
in Part Defendant Hawaii Affordable Properties, Inc.’s and
Defendant Ainakea Senior Residences LLLP’s Joinders (“3/28/28
Order”).

[Dkt. nos. 105, 153.1]
Hyland’s Second Amended Complaint for Declaratory and

Injunctive Relief (“Second Amended Complaint”), [filed 7/31/17
(dkt. no. 108),2] alleged two claims for relief: one alleging
overcharging in tenant security deposits (“Count I”); and one
alleging the denial of due process in terminations of tenancy,
threatened terminations of tenancy, and allegations of Ainakea
Senior Residences (“ASR”) rule infractions (“Count II”).

Each

count alleged multiple theories of liability.
In the 3/28/18 Order, this Court:
-denied the motion to dismiss as to 1) Count I, 2) the portions
of Count II alleging due process claims against OHCD based
on threatened termination of tenancy, 3) the portions of
Count II alleging OHCD’s threats to terminate tenancy
violated the National Housing Act of 1937 (“NHA”) and the
applicable Housing and Urban Development’s (“HUD”)
regulations, and 4) the portions of Count II alleging the
citations for ASR rule violations that OHCD issued violated

1

The 6/30/17 Order is also available at 2017 WL 2829595.

2

Only OHCD, Ainakea, and HAPI were named in the Second
Amended Complaint.
3

the NHA and applicable HUD regulations when they are used as
grounds for a threat to terminate tenancy (either eviction
or refusal to renew the tenant’s lease); [3/28/18 Order at
34-35;]
-dismissed, for lack of standing, all of Hyland’s claims in
Count II based on termination of tenancy; [id. at 35;] and
-dismissed Hyland’s claims against OHCD in Count II alleging ASR
residents are entitled to due process for all citations for
ASR rule violations, [id.].
The dismissals were without prejudice, and Hyland was allowed to
file a third amended complaint to cure the defects in the
dismissed claims and to include the parties that the magistrate
judge had previously granted Hyland leave to add.

[Id. at 35-

36.3]
After the 3/28/18 Order was issued, Hyland filed a
motion seeking leave to add Roze as a plaintiff, and the
magistrate judge granted that motion on April 25, 2018.

[Dkt.

nos. 162, 169.]
On May 1, 2018, Plaintiffs filed their Third Amended
Complaint for Declaratory and Injunctive Relief (“Third Amended
Complaint”).

[Dkt. no. 170.]

Plaintiffs allege the same two

claims for relief: one alleging overcharging in tenant security
deposits (“Amended Count I”); and one alleging the denial of due
process in terminations of tenancy, threatened terminations of

3

On March 1, 2018, the magistrate judge issued an order
granting Hyland leave to add HICDC as a defendant and Martinez as
a plaintiff. [Dkt. no. 150.]
4

tenancy, and allegations of ASR rule infractions (“Amended
Count II”).

Each count alleges multiple theories of liability.

Amended Count I alleges the practice of overcharging
for ASR tenants’ security deposits: violates the Hawai`i
Residential Landlord-Tenant Code (“Landlord-Tenant Code”); [Third
Amended Complaint at ¶¶ 299-320;] violates the NHA and the
applicable HUD regulations; [id. at ¶¶ 321-51;] constitutes a
denial of Plaintiffs’ right to equal protection under the United
States Constitution; [id. at ¶¶ 351-75;] and constitutes a denial
of Plaintiffs’ right to equal protection under the Hawai`i State
Constitution, [id. at ¶¶ 376-79].4
Amended Count II alleges that the wrongful terminations
of tenancy, the wrongful threats to terminate tenancy, and the
citations for rule infractions without meaningful due process:
violate the NHA and the applicable HUD regulations; [id. at
¶¶ 380-98;] constitute a denial of Plaintiffs’ right to due
process under the United States Constitution; [id. at ¶¶ 399435;] and constitutes a denial of Plaintiffs’ right to due
process under the Hawai`i State Constitution, [id. at ¶¶ 436-42].
The OHCD Motion asks this Court to dismiss Amended
Count I.

[OHCD Motion at 2.]

OHCD does not seek the dismissal

of Amended Count II, although OHCD generally denies the

4

The portions of Amended Count I alleging equal protection
violations are alleged only against OHCD.
5

allegations of the Third Amended Complaint in support of Amended
Count II.

[Mem. in Supp. of OHCD Motion at 1 n.1.]

The Ainakea

Motion seek dismissal, with prejudice, of the following: 1) all
claims against the Ainakea Defendants in Amended Count II that
are based on § 1437f because there is no private right of action
to assert the type of claims Plaintiffs bring in this case; and
2) all of Roze’s § 1983 claims against the Ainakea Defendants in
Amended Count II because they are time-barred.

[Ainakea Motion

at 2-3.]
DISCUSSION
I.

The Joinders
At the outset, this Court must address the effect of

the Joinders.

The Local Rules distinguish between substantive

joinders and joinders of simple agreement.

A substantive joinder

to a motion “must be filed and served within seven (7) days of
the filing of the motion . . . joined in” and must “be based on a
memorandum supplementing the motion,”5 whereas “[a] joinder of
simple agreement may be filed at any time,” and need not be
accompanied by a memorandum.

Local Rule LR7.9.

A party filing a

substantive joinder may “seek[] the same relief sought by the
movant for himself, herself, or itself,” whereas a joinder of

5

This Court can grant leave, upon a showing of good cause,
to file a substantive joinder after the seven-day period. Local
Rule LR7.9. However, that provision is not at issue at this
time.
6

simple agreement “simply seek[s] relief for the original movant.”
Id.
In the instant case, the Joinders were all filed within
seven days after the motion referred to in each of the Joinders.
However, none of the Joinders included a memorandum supplementing
the motion referred to in that joinder.

This Court therefore

construes each of the Joinders as a joinder of simple agreement
that merely supports the relief that OHCD seeks in the OHCD
Motion or that the Ainakea Defendants seek in the Ainakea Motion.
In other words, in considering the motions currently before it,
this Court will not rule upon the following claims: Plaintiffs’
claims against the Ainakea Defendants in Count I; Plaintiffs’
claims against OHCD in Count II; and all of Plaintiffs’ claims
against HAPI.

Unless summary judgment is granted as to those

claims, they will proceed to trial.
II.

Materials Beyond the Pleadings
The OHCD Motion includes the Housing Assistance Payment

Contract between the Hawai`i County Housing Agency and Ainakea,
effective March 1, 2010 (“HAP Contract”).6
of D. Kaena Horowitz, Exh. A.]

[OHCD Motion, Decl.

The Ainakea Motion includes the

6

The OHCD Opposition includes a Table titled “Amount of
Security Deposit to Collect from Tenant” from the HUD Handbook
4530.3 (Rev-1), chapter 6, section 2. [OHCD Opp., Exh. 1.]
However, Plaintiffs’ Exhibit 1 is merely a copy of legal
authority relied upon in the OHCD Opposition and it is not
subject to the analysis discussed in this section.
7

docket sheet for Hawaii Affordable Properties, Inc. v. Dennis
McKenna & Eliza Roze, Civil No. 12-1-0079H, an eviction action
filed in the State of Hawai`i, Third Circuit Court (“McKenna
Action”).

[Ainakea Motion, Decl. of Jordon J. Kimura, Exh. 1.]
As a general rule, this Court’s scope of review in

considering a motion to dismiss is limited to the allegations in
the complaint.

See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d

992, 998 (9th Cir. 2010).

“[A] court may consider evidence on

which the complaint necessarily relies if: (1) the complaint
refers to the document; (2) the document is central to the
plaintiff’s claim; and (3) no party questions the authenticity of
the copy attached to the [Fed. R. Civ. P.] 12(b)(6) motion.”
(citations and internal quotation marks omitted).

Id.

Ordinarily,

consideration of other materials requires the district court to
convert a motion to dismiss into a motion for summary judgment.
Yamalov v. Bank of Am. Corp., CV. No. 10-00590 DAE-BMK, 2011 WL
1875901, at *7 n.7 (D. Hawai`i May 16, 2011) (citing Parrino v.
FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)).7
The Third Amended Complaint refers to and relies upon
the HAP Contract.
63, 337.

See, e.g., Third Amended Complaint at ¶¶ 62-

It also refers to and relies upon the McKenna Action.

See, e.g., id. at ¶¶ 19, 136, 154.

7

The HAP Contract and the

Parrino was superseded by statute on other grounds, as
stated in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
681-82 (9th Cir. 2006) (per curiam).
8

McKenna Action are central to Plaintiffs’ claims, and no party
disputes the authenticity of these exhibits.

Thus, these

exhibits meet the requirements described in Daniels-Hall.
Further, this Court “may take judicial notice of court filings
and other matters of public record.”

Reyn’s Pasta Bella, LLC v.

Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

At this

stage of the case, it is not necessary consider the contents of
the filings in the McKenna Action, merely the fact that the
action and certain documents were filed therein.

See, e.g.,

Hirota v. Gen. Nutrition Corp., CIVIL 15-00191 LEK-KSC, 2015 WL
6673688, at *2–3 (D. Hawai`i Oct. 29, 2015) (noting that this
Court could take judicial notice of the docket in the plaintiffs’
bankruptcy proceedings and the filing of specific documents, but
converting the motion to dismiss into a motion for summary
judgment because “it [was] necessary to consider the contents of
the [plaintiffs’] filings in the Bankruptcy Court, not only the
Bankruptcy Court’s rulings or the fact that the [plaintiffs]
filed certain documents”).

This Court can therefore take

judicial notice of the docket in the McKenna Action, as reflected
in the Ainakea Defendants’ Exhibit 1.
In ruling on the instant motions, this Court will
consider OHCD’s Exhibit A and the Ainakea Defendants’ Exhibit 1,
as well as the factual allegations and the exhibits in
Plaintiffs’ Third Amended Complaint.

9

The consideration of these

materials does not require converting the OHCD Motion and the
Ainakea Motion into motions for summary judgment.
III. Amended Count I
The equal protection portion of Amended Count I asserts
that: ASR and Ainakea Elderly Residences (“AER”) are both
projects governed by § 8 of the NHA (“Section 8”); AER is next
door to ASR; OHCD, which is the public housing authority (“PHA”)
for the County of Hawai`i, oversees both AER and ASR; the
security deposits at AER are based on tenant rent (which in turn
is based on a tenant’s income, without regard to the contract
rent), whereas the security deposits at ASR are based on total
rent (tenant rent plus contract rent).
at ¶¶ 360-62.]

[Third Amended Complaint

Plaintiffs argue there is no rational

relationship justifying the differential treatment between ASR
residents and AER residents, and therefore the different security
deposit practices violate Plaintiffs’ federal and state equal
protection rights.

[Id. at ¶¶ 374-75, 379.]

Plaintiffs

acknowledge that, as compared to AER residents, ASR residents are
not a suspect class or quasi-suspect class, and therefore the
differential treatment need only survive the rational basis test.
[Id. at ¶¶ 356-58.]
This district court has explained the two
ways for a plaintiff to establish an equal
protection claim. “First, a plaintiff may show
that the defendant intentionally discriminated
against the plaintiff on the basis of the
plaintiff’s membership in a protected class, such
10

as race.” Kamakeeaina v. City & Cty. of Honolulu,
Civ. No. 11-00770 SOM-RLP, 2012 WL 3113174, at *8
(D. Hawai`i July 31, 2012) (some citations
omitted) (citing Thornton v. City of St. Helens,
425 F.3d 1158, 1167 (9th Cir. 2005)). “Second, a
plaintiff may establish an equal protection
violation by showing that he was treated
differently from similarly situated individuals,
and that the different treatment was not
rationally related to a legitimate state purpose.”
Id. (some citations omitted) (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
More generally, “[t]o state an equal protection
claim, [a p]laintiff must allege that: ‘(1) he is
a member of an identifiable class; (2) he was
intentionally treated differently from others
similarly situated; and (3) there is no rational
basis for the difference in treatment.’” Id.
(citing Olech, 528 U.S. at 564).
De La Fuente v. Nago, CIVIL 16-00398 LEK-KJM, 2017 WL 1159094, at
*7 (D. Hawai`i Mar. 28, 2017) (alterations in De La Fuente).

In

Olech, the United States Supreme Court stated,
we have explained that “‘[t]he purpose of the
equal protection clause of the Fourteenth
Amendment is to secure every person within the
State’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper
execution through duly constituted agents.’”
Sioux City Bridge Co. [v. Dakota Cty., 260 U.S.,
441,] 445 [(1923)] (quoting Sunday Lake Iron Co.
v. Township of Wakefield, 247 U.S. 350, 352
(1918)).
528 U.S. at 564 (some alterations in Olech).
As Plaintiffs acknowledge, AER was funded through § 202
of the Housing Act of 1959 (“Section 202”), whereas ASR is a
project-based voucher (“PBV”) program.
at ¶¶ 83, 236.]

[Third Amended Complaint

Further, the owner and the management company of

11

AER are different from the owner and the management company of
ASR.

[Id. at ¶ 360.]

As a Section 202 project, AER is governed

by 24 C.F.R. Part 891 and, as a PBV project, ASR is governed by
24 C.F.R. Part 983.
regulation.8

Each part has its own security deposit

More importantly, Section 202 projects provide a

type of housing that is distinct from that provided in PBV
projects.

Section 202 projects must provide a wide range of

services to their residents that PBV projects are not required to
provide.

Part 891 requires that, “[i]n carrying out the

provisions of this part, HUD shall ensure that housing assisted
under this part provides services as described in section 202 (12
U.S.C. 1701q(g)(1)).”

24 C.F.R. § 891.225(a).

12 U.S.C.

§ 1701q(g)(1) states, in pertinent part:
In carrying out the provisions of this section,
the Secretary shall ensure that housing assisted
under this section provides a range of services
tailored to the needs of the category or
categories of elderly persons (including frail
elderly persons) occupying such housing. Such
services may include (A) meal service adequate to
meet nutritional need; (B) housekeeping aid;
(C) personal assistance; (D) transportation
services; (E) health-related services;
(F) providing education and outreach regarding
telemarketing fraud, in accordance with the
standards issued under section 671(f) of the

8

Under Part 983, “[t]he PHA may prohibit security deposits
in excess of private market practice, or in excess of amounts
charged by the owner to unassisted tenants.” 24 C.F.R.
§ 983.259(b). In contrast, under Part 891, the amount of the
security deposit is limited to “an amount equal to one month’s
tenant payment or $50, whichever is greater.” 24 C.F.R.
§ 891.435(a).
12

Housing and Community Development Act of 1992 (42
U.S.C. 13631(f)); and (G) such other services as
the Secretary deems essential for maintaining
independent living. . . .
There is no comparable provision in Part 983 requiring similar
services in PBV projects.
Based on the different funding sources, the different
owners and property managers, and the distinct types of housing
programs provided at ASR and AER, this Court concludes that, as a
matter of law, the differential treatment of the two projects
under federal regulations does not constitute “intentional and
arbitrary discrimination.”

Thus, the practice of charging

different security deposits at the two projects survives the
rational basis test.

Plaintiffs’ claim against OHCD in Amended

Count I based on a federal equal protection theory fails to state
a claim that is plausible on its face.

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.’” (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007))).
Insofar as Plaintiffs’ federal equal protection claim
against OHCD fails to state a plausible claim for relief because
the different security deposit schemes pass the rational basis
test, Plaintiffs’ state equal protection against OHCD claim also
fails to state a plausible claim for relief.
13

See, e.g., Silva v.

City & Cty. of Honolulu, 115 Hawai`i 1, 11 & n.11, 165 P.3d 247,
257 & n.11 (2007) (applying rational basis test to distinction
that implicates “neither fundamental rights nor suspect
classifications”).
The portions of Plaintiffs’ Amended Count I alleging
federal and state equal protection claims against OHCD are
therefore dismissed.

The dismissal is with prejudice because it

is clear that Plaintiffs cannot cure the defects in these claims
by amendment.

See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma

Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a general rule,
dismissal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved by any
amendment.” (brackets, citation, and internal quotation marks
omitted)).

The OHCD Motion is granted insofar as the portions of

Plaintiffs’ Amended Count I alleging federal and state equal
protection claims against OHCD are dismissed with prejudice.
Plaintiffs’ remaining claims against OHCD in Amended
Count I, however, state plausible claims for relief.

The Court

notes that this ruling also applies to the portion of Amended
Count I alleging ASR’s security deposit scheme violates the
applicable HUD regulations.

Although Plaintiffs have abandoned

their prior position that 24 C.F.R. § 880.606(a) applies to the
ASR security deposits, [OHCD Surreply at 2,] and it is undisputed
that Part 983 permits a PBV project to charge a security deposit

14

of up to one month’s total rent, see § 983.259(b), the portion of
Amended Count I alleging violations of the applicable HUD
regulations states a plausible claim for relief.

Several issues

remain, including the relationship between Part 983 and other
legal authority and the issue of whether the practice of charging
a new security deposit each year violates Part 983.

Whether

Plaintiffs can prevail on the merits of these claims is an issue
that must be decided at a later stage of this case.

This Court

expresses no opinion as to whether Plaintiffs are likely to
prevail on the merits of these claims.
The OHCD Motion is denied as to all of Plaintiffs’
claims against OHCD in Amended Count I, other than the equal
protection claims.

As previously noted, Plaintiffs’ claims in

Amended Count I against the other defendants are not before the
Court at this time.
IV.

Amended Count II
As to the Ainakea Defendants’ argument that Roze’s

§ 1983 claims are time-barred,
federal courts apply the forum state’s statute of
limitations and its tolling provisions for
personal injury tort actions to claims under
§ 1983. See Wilson v. Garcia, 471 U.S. 261, 276
(1985), superseded by statute on other grounds as
stated in Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 377-78 (2004); Jones v. Blanas, 393 F.3d
918, 927 (9th Cir. 2004). Thus, Hawaii’s two-year
statute of limitations applies to § 1983 claims.
See Beckstrand v. Read, 680 Fed. Appx. 609, 610
(9th Cir. Mar. 13, 2017) (citing HRS § 657-7
(“Actions for the recovery of compensation for
15

damage or injury to persons . . . shall be
instituted within two years after the cause of
action accrued[.]”)). As a result, Plaintiff’s
claims are subject to the two-year statute of
limitations set forth in HRS § 657-7.
Namauu v. Dep’t of Pub. Safety, CIV. NO. 18-00062 JMS-RLP, 2018
WL 1733978, at *3 (D. Hawai`i Apr. 10, 2018) (alterations in
Namauu).

The Ainakea Defendants argue the statute of limitations

on Roze’s § 1983 claims against them began to run, at the latest,
either upon her alleged eviction in February 2012 or the
conclusion of the McKenna Action in July 2012.

This Court need

not determine on which specific date the statute of limitations
on Roze’s § 1983 claims against the Ainakea Defendants began to
run.

Based on either date, Roze’s § 1983 claims against the

Ainakea Defendants are time-barred, even if the Third Amended
Complaint is deemed to relate back to the filing of the original
complaint on August 11, 2015.

Further, there is nothing in the

factual allegations of the Third Amended Complaint which suggests
that tolling may apply to Roze’s § 1983 claims against the
Ainakea Defendants.

This Court therefore concludes that Roze’s

§ 1983 claims against the Ainakea Defendants are not plausible
because they are time-barred.

Further, it is clear that Roze

cannot cure the defect in those claims by amendment.

The Ainakea

Motion is granted insofar as Roze’s § 1983 claims against the
Ainakea Defendants are dismissed with prejudice.

16

The remainder of the issues presented in the Ainakea
Motion are issues that are not appropriate for determination on a
motion to dismiss.

With the exception of Roze’s § 1983 claims

against them, Plaintiffs’ claims against the Ainakea Defendants
in Amended Count II state plausible claims for relief, and the
Ainakea Motion is denied as to those claims.

However, the denial

of the Ainakea Motion as to those claims in no way suggests that
Plaintiffs are likely to prevail on those claims on summary
judgment or at trial.

As previously noted, Plaintiffs’ claims in

Amended Count II against the other defendants are not before the
Court at this time.
CONCLUSION
On the basis of the foregoing, OHCD’s Motion to Dismiss
[Doc 170] Plaintiffs’ Third Amended Complaint, filed May 11,
2018, and the Ainakea Defendants’ Motion to Dismiss (1) 42 U.S.C.
§ 1437f Claims Alleged by All Plaintiffs in Second Claim for
Relief in the Third Amended Complaint for Declaratory and
Injunctive Relief, Filed May 1, 2018 and (2) 42 U.S.C. § 1983
Claims Alleged by Plaintiff Eliza Roze, filed May 15, 2018, are
HEREBY GRANTED IN PART AND DENIED IN PART.
The OHCD Motion is GRANTED insofar as Plaintiffs’ equal
protection claims against OHCD in Count I of the Third Amended
Complaint for Declaratory and Injunctive Relief, [filed 5/1/18
(dkt. no. 170),] are DISMISSED WITH PREJUDICE.

17

The OHCD Motion

is DENIED in all other respects.

The Ainakea Defendants’ joinder

in the OHCD Motion, filed May 11, 2018, and HAPI’s joinder in the
OHCD Motion, also filed May 11, 2018, are also GRANTED IN PART
AND DENIED IN PART because the joinders merely support the relief
sought by OHCD in the OHCD Motion.
The Ainakea Motion is GRANTED insofar as all of Roze’s
§ 1983 claims against the Ainakea Defendants in Count II of the
Third Amended Complaint are DISMISSED WITH PREJUDICE.
Ainakea Motion is DENIED in all other respects.

The

HAPI’s joinder

in the Ainakea Motion, filed May 16, 2018, is also GRANTED IN
PART AND DENIED IN PART because it merely supports the relief
sought by the Ainakea Defendants in the Ainakea Motion.
All of the defendants are ORDERED to file their
respective answers to the Third Amended Complaint by
September 21, 2018.

This Court EMPHASIZES that, if any motion

for reconsideration of the instant Order is filed, it will not
affect either the deadline for the filing of the defendants’
answers, the hearing on the parties’ motions for summary
judgment, or the briefing deadlines for the motions for summary
judgment.9

9

The hearing date for the motions for summary judgment and
the filing deadlines are set forth in the entering order filed on
August 25, 2018. [Dkt. no. 237.]
18

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 29, 2018.

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

LANRIC HYLAND VS. OFFICE OF HOUSING AND COMMUNITY DEVELOPMENT, ET
AL; CV 15-00504 LEK-RLP; ORDER GRANTING IN PART AND DENYING IN
PART MOTIONS TO DISMISS AND JOINDERS

19