Hyland v. County of Hawaii et al

Filing 47

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS OFFICE OF HOUSING & COMMUNITY DEVELOPMENT, COUNTY OF HAWAIIS MOTION TO DISMISS; AND GRANTING IN PART AND DENYING IN PART DEFENDANT HAWAII AFFORDABLE PROPERTIES, INC.'S SUBSTANTIVE JOINDER re 4 Motion to Dismiss for Failure to State a Claim; re 9 Motion for Joinder. Signed by JUDGE LESLIE E. KOBAYASHI on 03/16/2016. To the extent that this Court has dismissed any claim without prejudice, th is Court will allow Plaintiff to file a motion for leave to file an amended complaint. Plaintiff must attach a copy of his proposed amended complaint to the motion for leave to file an amended complaint. See Local Rule LR10.3 ("Any party filing or moving to file an amended complaint... shall reproduce the entire pleading as amended and may not incorporate any part of a prior pleading by reference, except with leave of court."). This Court ORDERS Plaintiff to file his motion for leave t o file an amended complaint by May 2, 2016. The motion will be referred to the magistrate judge. This Court CAUTIONS Plaintiff that, if he fails to file his motion for leave to file an amended complaint by May 2, 2016, all of the claims that this Court dismissed without prejudice in this Order will be dismissed with prejudice, and this Court will direct the Clerk's Office to issue the final judgment and close the case. In other words, Plaintiff would have no remaining claims in this case. This Court also CAUTIONS Plaintiff that,even if the magistrate allows Plaintiff to file his proposed amended complaint, as to any claim that this Order dismissed without prejudice, the corresponding amended claim may be dismissed with prejudic e if the amended claim fails to cure the defects identified in this Order. (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
LANRIC HYLAND,

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

CIVIL 15-00504 LEK-RLP

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS 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 SUBSTANTIVE JOINDER
Before the Court are: Defendants Office of Housing &
Community Development and the County of Hawaii’s (“the County
Defendants”) Motion to Dismiss (“Motion”), filed on December 14,
2015; and Defendant Hawaii Affordable Properties, Inc.’s (“HAPI”)
substantive joinder in the Motion (“Joinder”), filed on
December 18, 2015.

[Dkt. nos. 4, 9.]

Pro se Plaintiff

Lanric Hyland filed his memorandum in opposition to the Motion on
December 29, 2015, and his memorandum in opposition to the
Joinder on December 30, 2015.

[Dkt. nos. 21, 22.]

On

January 11, 2016, Defendant Ainakea Senior Residences LLLP
(“Ainakea”) filed a statement of no opposition to the Motion.
[Dkt. no. 27.]

The County Defendants filed their reply on

January 14, 2016, and HAPI filed its reply on January 16, 2016.
[Dkt. nos. 29, 30.]

On January 27, 2016, this Court issued an entering
order finding these matters 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”).

[Dkt. no. 33.]

After careful consideration of

the Motion, Joinder, supporting and opposing memoranda, and the
relevant legal authority, the County Defendants’ Motion and
HAPI’s Joinder are HEREBY GRANTED IN PART AND DENIED IN PART for
the reasons set forth below.
BACKGROUND
On August 11, 2015, Plaintiff filed his “Verified
Complaint of Lanric Hyland; Complaint for Complaint for [sic]
Declaratory & Injunctive Relief; Appeal from Declaratory
Petition” (“Complaint”) in the Circuit Court of the Third
Circuit, State of Hawai`i.

[Notice of Removal, filed 12/9/15

(dkt. no. 1), Decl. of Melody Parker, Exh. A.]

The County

Defendants removed the case to this district court based on
federal question jurisdiction.1

[Notice of Removal at ¶ 4.]

According to the Complaint, Plaintiff is a seventy-six
year-old retiree who lives in the County of Hawai`i.
at 7, § IV.]

[Complaint

He “liv[es] in housing funded by Low Income Housing

Tax Credits [(“LIHTC”)] and Section 8 subsidies.”

1

[Id.]

The

On February 1, 2016, Plaintiff filed a motion to remand
the case, but this Court issued an order denying the motion on
March 8, 2016. [Dkt. nos. 37, 46.]
2

housing project that Plaintiff lives in is called Ainakea Senior
Residences (“ASR”).

[Id. at 3, § II.]

Ainakea is the

owner/landlord of ASR, and HAPI is the property manager.

The

County Defendants administer federal housing funds pursuant to
federal statutes, rules, and regulations.2

[Id. at 7, § IV.]

ASR is located next to another senior living facility, Ainakea
Elderly Project (“AEP”).

AEP is owned by Kohala Union Housing

Corp. and managed by Bob Tanaka, Inc.

AEP is federally

subsidized through Section 202 of the Housing Act of 1959, 12
U.S.C. § 1701q, et seq., and Section 8 of the Housing Act of
1937.

[Id. at 8, § V.B.]
Plaintiff apparently challenges the increase in the

contract rent between the County Defendants and Ainakea for the
2015-2016 lease year.

Plaintiff states that contract rents for

federally subsidized housing are calculated each year based on
the United States Department of Housing and Urban Development’s
(“HUD”) determination of the fair market rent (“FMR”) for
apartments of similar size and location.

The County Defendants

enter into a Housing Assistance Payment (“HAP”) contract with the
landlord/owner for each housing project.

Pursuant to the HAP

contract, the tenant pays approximately thirty percent of his
monthly income as rent, and the County Defendants pay the

2

This Court will refer to the County Defendants, Ainakea,
and HAPI collectively as “Defendants.”
3

landlord/owner the difference between the tenant’s portion of the
rent and the contract rent.

Plaintiff states that, for the 2014-

2015 lease year, the contract rent for his unit was $800, and his
portion of the rent was $197.

For the 2015-2016 lease year, the

contract rent is $981, and his portion of the rent is $202.
Plaintiff argues that the current contract rent is exorbitant,
and he challenges the increase in his portion of the rent and the
increase in ASR tenants’ security deposit from $800 to $981.
[Id. at 12, § V.F.]

However, he acknowledges that tenants who

were living at ASR in October 2014 are not subject to the
increased security deposits; their deposits are “frozen at $800.”
[Id. at 12 n.5.]
Plaintiff argues that the HAP contract provides that
each lease between the facility’s landlord/owner and a family
receiving federal housing assistance must comply with HUD
requirements.

24 C.F.R. § 983.301 governs the initial

determination of subsidized housing rent, as well as the
redetermination of rent; and 24 C.F.R. § 983.303 governs the
determination of the amount of a “reasonable rent.”3

3

Plaintiff

Section 983.301(b) states, in pertinent part:
the rent to owner must not exceed the lowest of:
(1) An amount determined by the [local
public housing authority (“PHA”)], not to
exceed 110 percent of the applicable fair
market rent (or any exception payment
(continued...)
4

points out that the County Defendants would not disclose to him
the rent for the comparable unassisted units that they used to
support the increase.

[Id. 12-13, § V.G.]

He argues that, for

the past three fiscal years, Ainakea has requested – and the
County Defendants have approved – a contract rent for ASR units
that is the same as the amount determined according to
§ 983.301(b)(1).

Plaintiff contends that the County Defendants

have failed to determine whether a “reasonable rent” would be
lower than the amount that Ainakea requested.

He argues that

this is an abuse of discretion and, if the County Defendants had
determined the “reasonable rent,” that amount would likely have
been lower and that amount would have become the contract rent.
[Id. at 14, § V.H.]

Plaintiff apparently contends that the

County Defendants improperly inflated the contract rent by
calculating it based on rents for “Kailua-Kona ‘gated community’
apartments” that have “pools and views” that were not indicative
of “a reasonable rent for a North Kohala apartment” like the
units in ASR.

[Id. at 16, § V.H.]

3

(...continued)
standard approved by the Secretary) for the
unit bedroom size minus any utility
allowance;
(2)

The reasonable rent; or

(3)

The rent requested by the owner.
5

Plaintiff also challenges HAPI’s eviction of ASR tenant
Margaret “Peggy” Wilhelm in 2012.

According to the Complaint,

During her second lease term, Ms. Wilhelm received a Rules
Violation Notice dated November 7, 2011.

On November 5, 2011 at

7:05 a.m., Ms. Wilhelm allegedly pounded on another tenant’s wall
and yelled offensive language at her.

On March 9, 2012,

Ms. Wilhelm was informed that HAPI was terminating her lease.

On

April 24, 2012, the County Defendants – without conducting any
investigation of their own – informed Ms. Wilhelm that her lease
and contract would be terminated effective May 31, 2012.
16, § V.I.]

[Id. at

The reason provided for the termination was:

“‘Material non-compliance’ (e.g. one or more substantial
violations of the lease/rental agreement, non-payment or repeated
late payments, etc.) with the terms of your rental/lease
agreement.”

[Id., App’x D-1.]

Plaintiff argues that Ms. Wilhelm

was never given the opportunity to respond to the allegation that
she violated the rule prohibiting noise before 8:00 a.m., and he
argues that the other tenant was not cited for her violation of
the same rule – she was making noise while grinding coffee beans.
Plaintiff argues that HAPI should not be allowed to act as
“judge, jury and executioner” and, even accepting HAPI’s version
of events, it was fundamentally unfair to evict Ms. Wilhelm “for
such non-threatening, inoffensive behavior.”
§ V.I.]

[Complaint at 17,

Plaintiff asserts that the County Defendants are not

6

exercising sufficient supervisory control over HAPI, as evidenced
by the fact that there were four other seniors, in addition to
Ms. Wilhelm, that were “driven out” of ASR by HAPI over a oneyear period.

[Id.]

Plaintiff also argues that 24 C.F.R.

§ 983.257 governs termination of tenancy and eviction from
federally subsidized housing, and Defendants “routinely ignore”
the applicable provisions when terminating tenancy, such as in
Ms. Wilhelm’s case.

[Id. at 17, § V.J.]

He argues that

Jane Tabra and Eliza Roze also had their leases wrongfully
terminated, and “Sydney L” and “Barbara” were constructively
evicted.

[Id. at 17-18, § V.J.]
In addition, Plaintiff argues that Defendants have

wrongfully denied him the following rights: “to legally form and
participate in a tenants organization”; “to participate in the
redetermination of rent”; “to due process in rule-making through
public participation”; and “to due process in decisions to
terminate tenancy.”

[Id. at 18, § VI.]

Plaintiff asserts the following claims: a violation of
his right to due process under the United States Constitution and
the Hawai`i State Constitution because of the increase in the
contract rent, security deposit, and his portion of the rent, and
because his lease could be terminated for a rule violation
without due process (“Count I”); a violation of his right to
equal protection under the United States Constitution and the

7

Hawai`i State Constitution because he and other tenants at ASR
are treated differently than the tenants at AEP (“Count II”).

He

prays for: various forms of declaratory relief; various forms of
temporary and/or preliminary injunctions; and any other
appropriate relief.

In addition to his own claims, Plaintiff

seeks to bring similar claims on behalf of other current and
former ASR tenants (“Representative Claims”).
In the instant Motion, the County Defendants ask this
Court to dismiss all counts against them because Plaintiff fails
to state a claim upon which relief can be granted.

As to

Plaintiff’s claims based upon lease terminations, the County
Defendants argue that Plaintiff has not suffered any injury, and
he lacks standing to bring the Representative Claims based on the
eviction of other tenants.

Even if Plaintiff could bring a claim

based on Ms. Wilhelm’s eviction, it is barred by the statute of
limitations, and the claim would fail on the merits because
Defendants complied with all applicable laws when they evicted
her.

As to Plaintiff’s claims based on the five-dollar increase

in his portion of the rent, the County Defendants argue that: he
does not have standing to challenge the determination of the
contract rent because his portion of the rent is determined based
on his income; and he was provided with due process before his
portion of the rent was increased by five dollars.

The County

Defendants also argue that Plaintiff’s equal protection claim

8

fails because he has not alleged how the County Defendants treat
the AEP tenants better than they treat the ASR tenants, and, even
if they are treated differently, Plaintiff does not allege how
the difference is discriminatory.

The County Defendants urge

this Court to dismiss all claims against them with prejudice.
In the Joinder, HAPI argues that all of Plaintiff’s
claims regarding the increase in his portion of the rent must be
dismissed as to HAPI because the Complaint acknowledges that HAPI
has no role in the determination of rents.

HAPI makes the same

arguments that the County Defendants make regarding Plaintiff’s
claims based on lease terminations.

HAPI also urges this Court

to dismiss all claims against it with prejudice.
DISCUSSION
I.

Claims Regarding Other Tenants
At the outset, this Court notes that Plaintiff is

attempting to bring claims based on the alleged injuries – rent
increases, security deposit increases, and wrongful lease
terminations – of other ASR tenants.

However, Plaintiff is

proceeding pro se, and he is not an attorney licensed to practice
in this district.
In ruling that a non-lawyer proceeding pro se could not
represent the entity he identified as his tribe, this district
court stated:
In all courts of the United States, “parties
may plead and conduct their own cases personally
9

or by counsel.” See 28 U.S.C. § 1654. However,
the right to proceed pro se in civil cases is a
personal right. See C.E. Pope Equity Trust v.
United States, 818 F.2d 696, 697 (9th Cir. 1987)
(“Although a non-attorney may appear in propria
persona in his own behalf, that privilege is
personal to him. . . . He has no authority to
appear as an attorney for others than himself.”
(citation omitted)). Maui Loa, as a pro se
plaintiff, cannot represent the Hou in this
action. See Simon v. Hartford Life, Inc., 546
F.3d 661, 664–64 (9th Cir. 2008) (applying the
“general rule prohibiting pro se plaintiffs from
pursuing claims on behalf of others in a
representative capacity”). This court considers
only claims relating to injuries personal to
Maui Loa.
Hou 1778 Hawaiians v. United States Dep’t of Justice, CIVIL NO.
15-00320 SOM/BMK, 2016 WL 335851, at *3 (D. Hawai`i Jan. 27,
2016) (alteration in Hou 1778 Hawaiians).
For the same reasons, this Court CONCLUDES that it must
GRANT the Motion as to the Representative Claims because this
Court cannot grant Plaintiff the relief that he seeks in those
claims.

See Fed. R. Civ. P. 12(b)(6) (stating that the defense

of “failure to state a claim upon which relief can be granted”
can be asserted by motion).

All of the Representative Claims –

including the claims against Ainakea, which has not moved for
dismissal – are DISMISSED.4

This Court will only consider the

4

Because Plaintiff cannot pursue the Representative Claims,
this Court does not need to address the issues of whether the
Representative Claims based on the termination of Ms. Wilhelm’s
lease are barred by the statutes of limitations or whether
Defendants complied with the applicable laws when they terminated
Ms. Wilhelm’s lease.
10

merits of the claims that Plaintiff asserts based upon his own
alleged injuries.
II.

Claims Related to Rent Increases
A.

HAPI
The Complaint alleges that, pursuant to the HAP

contract between the County Defendants and Ainakea, “the
difference between the HAP and the contract rent is the rent paid
by the resident tenant.

The tenant portion varies with each

individual but it works out that tenants generally pay about 30%
of their own monthly income as their rent.”
§ V.F.1.]

[Complaint at 12,

Plaintiff also describes the process through which the

contract rent is determined by the County Defendants and Ainakea,
using the HUD FMR.

[Id. at 14, § V.H.]

Thus, based on the

allegations in the Complaint, HAPI is not involved in the
determination of either the contract rent or the portion of the
rent that Plaintiff must pay.

This Court therefore CONCLUDES

that Plaintiff’s claims related to the increase in the contract
rent and his portion of the rent fail as a matter of law against
HAPI.

Those claims against HAPI are DISMISSED.
B.

Security Deposit Increase
Plaintiff alleges that the contract rent between the

2014-2015 lease year to the 2015-2016 lease year increased from
$800 to $981, and that the amount of the tenants’ security
deposits also increased from $800 to $981.
11

However, he

acknowledges that tenants who were living at ASR in October 2014
are not subject to the higher security deposit.
§ V.G.]

[Id. at 12,

The County Defendants argue that Plaintiff is not

subject to the increased security deposit because he began his
tenancy at ASR prior to October 2014.
at 2 (citing Complaint at 14).]

[Mem. in Supp. of Motion

Page 14 of the Complaint,

however, does not clearly state that Plaintiff began his tenancy
at ASR prior to October 2014; it merely sets forth the FMR and
ASR contract rent for the 2013-2014 lease year, the 2014-2015
lease year, and the 2015-2016 lease year.
§ V.H.]

[Complaint at 14,

This Court also notes that the Complaint alleges that

“[t]his law suit has been some three years in the making.”
at 3, § II.]

[Id.

These allegations suggest, but do not clearly

indicate, that Plaintiff has been an ASR tenant since before
October 2014.
At the same time, the Complaint does not clearly allege
that Plaintiff began his ASR tenancy after October 2014,
requiring him to pay the increased security deposit.

Further, in

his memorandum in opposition to the Motion, Plaintiff did not
contradict the County Defendants’ argument about the length of
his tenancy.

This Court therefore CONCLUDES that Plaintiff’s has

failed to plead sufficient facts to establish that he is
subjected to the increased security deposit.

Because he does not

allege an injury, he fails to state plausible claims regarding

12

the security deposit increase.

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 Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955 (2007))).

Plaintiff’s claims arising from the increase

in the amount of the security deposit for the 2015-2016 lease
year are therefore DISMISSED.
C.

Contract Rent Increase
Plaintiff raises various challenges to the manner in

which the County Defendants and Ainakea determine the contract
rent for ASR.

However, regardless of what the contract rent is

in any given year, Plaintiff’s portion of the monthly rent is
thirty percent of his monthly income, i.e., his portion does not
depend upon the amount of the contract rent.

See Complaint at

12, § V.F.1.
Article III of the Constitution limits the
jurisdiction of federal courts to “Cases” and
“Controversies.” U.S. Const., Art. III, § 2. The
doctrine of standing gives meaning to these
constitutional limits by “identify[ing] those
disputes which are appropriately resolved through
the judicial process.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119
L. Ed. 2d 351 (1992). “The law of Article III
standing, which is built on separation-of-powers
principles, serves to prevent the judicial process
from being used to usurp the powers of the
political branches.” Clapper v. Amnesty Int’l
USA, 568 U.S. ––––, ––––, 133 S. Ct. 1138, 1146,
185 L. Ed. 2d 264 (2013). To establish Article
III standing, a plaintiff must show (1) an “injury
13

in fact,” (2) a sufficient “causal connection
between the injury and the conduct complained of,”
and (3) a “likel[ihood]” that the injury “will be
redressed by a favorable decision.” Lujan, supra,
at 560–561, 112 S. Ct. 2130 (internal quotation
marks omitted).
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)
(some alterations in Susan B. Anthony List) (footnote omitted).
Plaintiff’s alleged injury is the increase in his portion of the
monthly rent for his ASR unit, and the conduct he complains of is
the allegedly improper determination of the ASR contract rent.
Because Plaintiff’s portion of the monthly rent is determined
based upon his monthly income and not based upon the contract
rent, the Complaint does not contain sufficient factual
allegations that, if proven, would establish a causal connection
between his injury and the conduct he complains of.

Further,

even if Plaintiff is ultimately able to prove that the County
Defendants and Ainakea do not comply with the applicable laws and
regulations in determining the contract rent, the decision would
not redress Plaintiff’s injury, i.e. the decision would not
invalidate the increase in his portion of the rent.
To the extent that Plaintiff attempts to challenge the
increase in the ASR contract rent without regard to the increase
in his portion of the rent, Plaintiff’s claim still fails.
C.F.R. § 982.456 states, in pertinent part:
(b)(1)
The family is not a party to or third
party beneficiary of the HAP contract.
Except as provided in paragraph (b)(2) of
14

24

this section, the family may not exercise any
right or remedy against the owner under the
HAP contract.
(2) The tenant may exercise any right or
remedy against the owner under the lease
between the tenant and the owner, including
enforcement of the owner’s obligations under
the tenancy addendum (which is included both
in the HAP contract between the PHA and the
owner; and in the lease between the tenant
and the owner.)
(c) The HAP contract shall not be construed as
creating any right of the family or other third
party (other than HUD) to enforce any provision of
the HAP contract, or to assert any claim against
HUD, the PHA or the owner under the HAP contract.
Thus, the Section 8 regulations do not allow tenants in federally
subsidized housing to bring actions such as this one contesting
the determination of the contract rent or to otherwise enforce
the HAP contract.
This Court therefore CONCLUDES that Plaintiff has not
pled sufficient factual allegations that, if proven, would
establish that he has standing to bring claims challenging the
increase in the ASR contract rent.

Plaintiff’s claims

challenging the contract rent are DISMISSED.
D.

Increase in Plaintiff’s Rent
This Court does not construe Plaintiff’s Complaint as

challenging the increase in his portion of the ASR rent.

The

Complaint does not allege that the County Defendants and Ainakea
violated any statute or regulation in calculating Plaintiff’s
income.

To the extent that Plaintiff was attempting to allege a
15

claim that the County Defendants and Ainakea violated his right
to due process when it increased his portion of the ASR rent,
Plaintiff did not plead sufficient factual allegations to support
this claim, and the claim is DISMISSED.
III. Claims Regarding Lease Terminations
Plaintiff appears to allege a due process claim arising
from the possibility that Defendants may terminate his lease
based on a unilateral determination that he violated an ASR rule.
He cites the evictions of Ms. Wilhelm and other ASR tenants as
examples of what may happen to him.

The United States Supreme

Court has stated:
When an individual is subject to [the threatened
enforcement of a law], an actual arrest,
prosecution, or other enforcement action is not a
prerequisite to challenging the law. See Steffel
v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39
L. Ed. 2d 505 (1974) (“[I]t is not necessary that
petitioner first expose himself to actual arrest
or prosecution to be entitled to challenge a
statute that he claims deters the exercise of his
constitutional rights”); see also MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 128–129, 127 S.
Ct. 764, 166 L. Ed. 2d 604 (2007) (“[W]here
threatened action by government is concerned, we
do not require a plaintiff to expose himself to
liability before bringing suit to challenge the
basis for the threat”). Instead, we have
permitted pre-enforcement review under
circumstances that render the threatened
enforcement sufficiently imminent. Specifically,
we have held that a plaintiff satisfies the
injury-in-fact requirement where he alleges “an
intention to engage in a course of conduct
arguably affected with a constitutional interest,
but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.”
Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.
16

Ct. 2301, 60 L. Ed. 2d 895 (1979). . . .
Susan B. Anthony List, 134 S. Ct. at 2342 (some alterations in
Susan B. Anthony List).

Based on these principles, the fact that

Plaintiff has not been subjected to lease termination is not
fatal to his due process claim.

However, his Complaint must

allege facts that, if proven, would establish that he faces a
“sufficiently imminent” threat of lease termination.
For purposes of the instant Motion, this Court must
assume that all of the factual allegations in the Complaint are
true.

However, this Court is “‘not bound to accept as true a

legal conclusion couched as a factual allegation.’”

See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).

If this Court accepts

Plaintiff’s allegations that Ms. Wilhelm and four other ASR
tenants recently had their leases terminated for a rule violation
and that Defendants did not give them the opportunity to respond
to the alleged violation, those facts arguably establish a
credible threat of lease termination for a rule violation.

The

Complaint, however, does not allege Plaintiff intends to engage
in a course of conduct that is arguably affected with a
constitutional interest, but is prohibited by the ASR rules.5

5

The Complaint alleges that Plaintiff has been injured by
Defendants’ current practices because he, inter alia, has been
denied “the right to legally form and participate in a tenants
organization pursuant to 24 CFR 245.100 et sequel.” [Complaint
(continued...)
17

This Court therefore CONCLUDES that Plaintiff has not pled
sufficient allegations that, if proven, would establish an injury
in fact for his due process claim regarding threatened lease
termination.

It therefore fails to state a claim upon which

relief can be granted and must be DISMISSED.
IV.

Equal Protection Claims
Count II alleges that Defendants are violating

Plaintiff’s right to equal protection under the United States
Constitution and the Hawai`i State Constitution.

This Court has

stated:
A plaintiff can state an equal protection
claim in two ways. First, he or she can allege
that “defendants acted with an intent or purpose
to discriminate against the plaintiff based upon
membership in a protected class.” See Barren v.
Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998)
(citing Washington v. Davis, 426 U.S. 229, 239-40
(1976)).
If the challenged acts do not involve a
suspect classification, he or she can establish a

5

(...continued)
at 18, § VI.] However, the Complaint does not plead any factual
allegations regarding this injury, nor does it allege that his
attempts to form and participate in a tenants association are
prohibited by ASR rules. Plaintiff’s memorandum in opposition to
the Motion contains additional information on this issue, see,
e.g., Mem. in Opp. at 5, but this Court’s review – for purposes
of the instant Motion – is limited to the factual allegations in
the Complaint. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010) (stating that “generally the scope of
review on a motion to dismiss for failure to state a claim is
limited to the Complaint”). This Court therefore cannot consider
the additional information in the memorandum in opposition in
determining whether Plaintiff’s due process claim regarding lease
termination states a claim upon which relief can be granted.
18

“class of one” claim by alleging that he was
“intentionally treated differently from others
similarly situated and that there is no rational
basis for the difference in treatment.” See Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);
Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936,
944 (9th Cir. 2004), overruled on other grounds by
Action Apartment Ass’n v. Santa Monica Rent
Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007).
Lagmay v. Nobriga, CIV. NO. 15-00463 LEK/BMK, 2016 WL 164296, at
*5 (D. Hawai`i Jan. 12, 2016).

“Although the Ninth Circuit

recognizes the class-of-one theory, the court has cautioned that,
‘unless constrained, the class of-one-theory of equal protection
claim could provide a federal cause of action for review of
almost every . . . administrative decision.’”

Chachas v. City of

Ely, Nev., 615 F. Supp. 2d 1193, 1205-06 (D. Nev. 2009) (quoting
Engquist v. Oregon Dep’t of Agric., 478 F.3d 985, 993 (9th Cir.
2007), aff’d, 553 U.S. 591, 128 S. Ct. 2146, 170 L. Ed. 2d 975
(2008)).
Plaintiff does not allege that he is being
discriminated against based on his membership in a protected
class.

Instead, his claim compares a group of tenants in a

federally-subsidized housing for seniors to a group of tenants in
a similar facility.

This Court also notes that the United States

Supreme Court “has said repeatedly that age is not a suspect
classification under the Equal Protection Clause.”
Ashcroft, 501 U.S. 452, 470 (1991) (citing cases).

19

Gregory v.

Thus, Plaintiff appears to be asserting a “class of
one” equal protection claim.

Plaintiff, however, does not allege

either how the ASR tenants are treated differently from the AEP
tenants or that the differential treatment is intentional and
discriminatory.

See Iqbal, 556 U.S. at 678 (“Threadbare recitals

of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”).

In addition, it is not

clear from the Complaint whether the ASR tenants and the AEP
tenants are similarly situated because, as Plaintiff recognizes,
the two facilities are owned and managed by different entities
and are subsidized through different sources of federal funding.
See Complaint at 19, § VII.

This Court therefore CONCLUDES that

Count II – Plaintiff’s equal protection claim – fails to state a
plausible claim for relief and must be DISMISSED.
V.

Summary and Leave to Amend
Both the Motion and the Joinder argue that this Court

should dismiss Plaintiff’s claims with prejudice.

Plaintiff

argues that, if this Court dismisses his claims, the dismissal
should be without prejudice, i.e., this Court should allow him to
amend his Complaint.

The Ninth Circuit has held 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.”

See Lucas v. Dep’t of Corr., 66 F.3d

20

245, 248 (9th Cir. 1995).
A.

Claims Related to the Rent Increases
As to Plaintiff’s claims against HAPI related to the

increase in the ASR contract rent, the security deposit, and
Plaintiff’s portion of the rent, this Court CONCLUDES that it is
absolutely clear that no amendment can cure the defects in those
claims because HAPI is not involved in the determination of those
amounts.

This Court therefore GRANTS the Joinder insofar as

those claims are DISMISSED WITH PREJUDICE as to HAPI.
As to Plaintiff’s claims against the County Defendants
and Ainakea challenging the increases in the contract rent and
the security deposit, it is arguably possible for Plaintiff to
amend his claims to cure the defect in his claims if he can
allege that he has been harmed by the increase in the contract
rent.

For example, if he is subject to the increased security

deposit, which he alleges correlates to the increased contract
rent.

This Court therefore GRANTS the Motion insofar as

Plaintiff’s claims against the County Defendants and Ainakea
challenging the increase in the contract rent and the increase in
the security deposit are DISMISSED, and this Court DENIES the
Motion insofar as the dismissal of those claims is WITHOUT
PREJUDICE.
Similarly, this Court CONCLUDES that, to the extent
that Plaintiff wanted to assert claims against the County

21

Defendants and Ainakea challenging the increase in his portion of
the rent, it is arguably possible for him to cure the defects in
those claims by amendment.

For example, he may be able to plead

additional factual allegations showing that he was denied due
process in the determination of his monthly income.

This Court

therefore DENIES the Motion insofar as this Court GRANTS
Plaintiff leave to include in his amended complaint claims
against the County Defendants and Ainakea challenging the
increase in his portion of the rent.
B.

Claims Regarding Lease Termination
This Court CONCLUDES that it is arguably possible for

Plaintiff to cure the defects in his claims regarding lease
termination, if he can plead additional facts showing that he
faces a sufficiently imminent threat of lease termination.

This

Court therefore GRANTS the Motion and the Joinder insofar as
Plaintiff’s claims against all Defendants regarding lease
termination are DISMISSED, and it DENIES the Motion and the
Joinder insofar as the dismissal of those claims is WITHOUT
PREJUDICE.
C.

Equal Protection Claim
This Court CONCLUDES that it is arguably possible for

Plaintiff to cure the defects in his equal protection claim, if
he can plead additional facts regarding how he, as an ASR tenant,
is being intentionally discriminated against compared to the
22

similarly situated AEP tenants.

This Court therefore GRANTS the

Motion and the Joinder insofar as Plaintiff’s equal protection
claim against all Defendants is DISMISSED, and it DENIES the
Motion and the Joinder insofar as the dismissal of the equal
protection claim is WITHOUT PREJUDICE.
D.

Claims on Behalf of Other Current and Former Tenants
As to the Representative Claims, this Court CONCLUDES

that it is absolutely clear that no amendment can cure the
defects in the Representative Claims against HAPI regarding the
increases in the contract rent, security deposits, and the
tenants’ portions of the rent.

This Court therefore GRANTS the

Joinder insofar as those Representative Claims are DISMISSED WITH
PREJUDICE as to HAPI.
As to all of the remaining Representative Claims, this
Court CONCLUDES that it may be possible for Plaintiff to cure the
defects in those claims, but he must first retain counsel.

This

Court will not address the merits of the remaining Representative
Claims unless an attorney who is licensed to practice in this
district appears on behalf of Plaintiff in this case.

This Court

therefore GRANTS the Motion and the Joinder insofar as the
remaining Representative Claims, against all Defendants, are
DISMISSED, and it DENIES the Motion and the Joinder insofar as
the dismissal of the remaining Representative Claims is WITHOUT
PREJUDICE.

23

E.

Leave to Amend
To the extent that this Court has dismissed any claim

without prejudice, this Court will allow Plaintiff to file a
motion for leave to file an amended complaint.

Plaintiff must

attach a copy of his proposed amended complaint to the motion for
leave to file an amended complaint.

See Local Rule LR10.3 (“Any

party filing or moving to file an amended complaint . . . shall
reproduce the entire pleading as amended and may not incorporate
any part of a prior pleading by reference, except with leave of
court.”).

This Court ORDERS Plaintiff to file his motion for

leave to file an amended complaint by May 2, 2016.

The motion

will be referred to the magistrate judge.
This Court CAUTIONS Plaintiff that, if he fails to file
his motion for leave to file an amended complaint by May 2, 2016,
all of the claims that this Court dismissed without prejudice in
this Order will be dismissed with prejudice, and this Court will
direct the Clerk’s Office to issue the final judgment and close
the case.

In other words, Plaintiff would have no remaining

claims in this case.

This Court also CAUTIONS Plaintiff that,

even if the magistrate allows Plaintiff to file his proposed
amended complaint, as to any claim that this Order dismissed
without prejudice, the corresponding amended claim may be
dismissed with prejudice if the amended claim fails to cure the
defects identified in this Order.
24

CONCLUSION
On the basis of the foregoing, the County Defendants’
Motion to Dismiss, filed December 14, 2015, and HAPI’s
substantive joinder in the Motion, filed December 18, 2015, are
HEREBY GRANTED IN PART AND DENIED IN PART, as set forth supra
Discussion Section V.

Plaintiff must file his motion for leave

to file an amended complaint by May 2, 2016, and the motion must
comply with the rulings in Section V.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 16, 2016.

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

LANRIC HYLAND VS. OFFICE OF HOUSING & COMMUNITY DEVELOPMENT, ET
AL; CIVIL 15-00504 LEK-RLP; ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS 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
SUBSTANTIVE JOINDER

25