Okawaki v. First Hawaiian Bank et al

Filing 19

ORDER Denying Request for Recusal, Dismissing Amended Complaint, and Denying as Moot Motion for Police Protection 18 . Signed by JUDGE DERRICK K. WATSON on 5/24/2016. Plaintiffs recusal request is DENIED, her Amended Complaint is DISMISSED with prejudice and her Motion for Police Protection is DENIED AS MOOT. The Clerk of Court is directed to close the case. (ecs, )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 5/25/2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL NO. 16-00232 DKW-KSC

JANIS SAKAE OKAWAKI,
Plaintiff,
vs.
FIRST HAWAIIAN BANK, et al.,
Defendants.

ORDER DENYING REQUEST FOR
RECUSAL, DISMISSING
AMENDED COMPLAINT,
AND DENYING AS MOOT
MOTION FOR POLICE
PROTECTION

ORDER DENYING REQUEST FOR RECUSAL,
DISMISSING AMENDED COMPLAINT, AND
DENYING AS MOOT MOTION FOR POLICE PROTECTION
INTRODUCTION
The Court dismissed Plaintiff Janis Sakae Okawaki’s Complaint and granted
her leave to file an amended complaint in a May 16, 2016 Order. See Dkt. No. 6.
On May 23, 2016, Plaintiff, proceeding pro se, filed an Amended Complaint, Notice
of Amendment of Parties of Complaint to Include FCH Enterprises, Inc. and City &
County of Honolulu, and Motion for Police Protection (“Motion”). See Dkt. Nos.
16, 17, and 18. Plaintiff, however, did not comply with the specific guidance
regarding amendment set forth in the Court’s May 16, 2016 Order. Because
Plaintiff again fails to state a claim for relief and again fails to identify a basis for this
Court to exercise subject matter jurisdiction, the Amended Complaint is

DISMISSED without leave to amend. To the extent Plaintiff seeks the Court’s
recusal, the request is DENIED. Plaintiff’s Motion is DENIED AS MOOT.
DISCUSSION
Mindful that Plaintiff is proceeding pro se, the Court liberally construes her
pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam)).
I.

The Request for Recusal Is Denied
The Court first addresses what it liberally construes as a recusal request,

pursuant to 28 U.S.C. § 455, which provides, in part:
(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party[.]
Under the statute, “the substantive standard is whether a reasonable person
with knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
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2008) (citations, quotations, and alterations omitted). The “reasonable person” is
not someone who is “hypersensitive or unduly suspicious,” but rather a
“well-informed, thoughtful observer” who “understand[s] all the relevant facts” and
“has examined the record and law.” United States v. Holland, 519 F.3d 909, 914
(9th Cir. 2008) (citations omitted). “The standard must not be so broadly construed
that it becomes, in effect, presumptive, so that recusal is mandated upon the merest
unsubstantiated suggestion of personal bias or prejudice.” Id. at 913 (quotations
omitted).
The facts alleged by Plaintiff, stripped of opinion, conjecture, hyperbole, and
innuendo, do not raise any question of prejudice, personal bias, impartiality, or
impropriety by the Court. At best, Plaintiff contends that the Court is incapable of
impartial judgment because of the Court’s prior ruling dismissing her Complaint.
See Amended Complaint at 5 (“If U.S. Federal District Court Judge Derrick K.
Watson cannot handle my English, maybe he should recuse himself from the bench
for lack of Doctoral level English comprehension.”).
The Court’s dismissal of her Complaint for failure to state a claim and based
on the lack of subject matter jurisdiction evidences no impropriety or basis for any
allegation of an extrajudicial source of bias or partiality. To the contrary, the
allegation that the Court cannot comprehend her claim stems solely from the Court’s
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conduct during the course of adjudicating Plaintiff’s case. Nor does the entry of the
Court’s May 16, 2016 Order “three (3) days after” Plaintiff filed her civil action
mean that she “cannot get a fair trial.” Amended Complaint at 1. See also id. at 4
(“I do not understand why Judge Watson is responding to me and dismissing my
case prior to my court date. Isn’t U.S. Judge Watson undermining and
disrespecting me, my case, the Defendants[?]”). The Supreme Court has explained:
First, judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion. In and of themselves . . . they
cannot possibly show reliance upon an extrajudicial
source. . . Second, opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for
a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion
that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). Plaintiff does not meet this
standard here.
Moreover, Plaintiff also launches what amounts to untethered falsehoods of
extrajudicial bias with no basis in fact or reality. See Holland, 519 F.3d at 913. To
wit:
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U.S. District Federal District Court Judge Derrick K. Watson is
one of the beneficiaries of loans from my Trust. U.S. District
Federal District Court Judge Derrick K. Watson has no
intentions of repaying the loan to me. This is the reason U.S.
District Federal District Court Judge Derrick K. Watson is
abusing, victimizing, terrorizing me in this case. U.S. District
Federal District Court Judge Derrick K. Watson needs to recuse
himself from my case for being biased.
Amended Complaint at 3.
These implausible statements hardly merit a response. To be crystal clear,
these pronouncements are not only untrue, but they are fanciful and lack any basis in
reality. Plaintiff identifies no actual personal bias stemming from an extrajudicial
source, evidences no “deep-seated favoritism or antagonism,” and otherwise fails to
show bias grounded in actual events or circumstances. Accordingly, Plaintiff’s
request that the Court recuse itself is DENIED.
II.

The Complaint Is Dismissed Without Leave to Amend
After affording Plaintiff the opportunity to file an Amended Complaint, and

providing specific instructions on the permissible parameters of such an amendment,
Plaintiff again fails to state a claim or provide a basis for the Court’s subject matter
jurisdiction.

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A.

Failure To State A Claim Under Rule 12(b)(6)

A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
tenet—that the court must accept as true all of the allegations contained in the
complaint—“is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
The Court may dismiss a complaint on its own motion. See Omar v.
Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a
claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be made without
notice where the claimant cannot possibly win relief.”); Ricotta v. Cal., 4 F. Supp. 2d
961, 968 n.7 (S.D. Cal. 1998) (“The Court can dismiss a claim sua sponte for a
Defendant who has not filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6).”).
“Unless it is absolutely clear that no amendment can cure the defect . . . a pro se
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litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995).
Plaintiff again fails to allege the essential elements of a civil RICO claim,
despite specific guidance in the Court’s previous order. The Court instructed:
To the extent she attempts to allege a civil RICO claim, Plaintiff
must prove “(1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity and, additionally must establish that
(5) the defendant caused injury to plaintiff’s business or
property.” Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083,
1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)); see
also 18 U.S.C. § 1961. The Complaint does not sufficiently
plead any of these elements. Plaintiff does not identify the
predicate acts that form the basis of the alleged “scheme of
racketeering.” See Graf v. Peoples, 2008 WL 4189657, at *6
(C.D. Cal. Sept. 4, 2008) (“Plaintiff does not expressly identify
any RICO predicate acts, but simply incorporates his previous
allegations. Such ‘shotgun’ pleading is insufficient to plead a
RICO claim.”) (citing Savage v. Council on American–Islamic
Relations, Inc., 2008 WL 2951281, at *14 (N.D. Cal. July 25,
2008) (finding that a RICO claim was insufficient where plaintiff
set forth a “redundant narrative of allegations and conclusions of
law, but [made] no attempt to allege what facts are material to his
claims under the RICO statute, or what facts are used to support
what claims under particular subsections of RICO”); and
Federal Reserve Bank of San Francisco v. HK Systems, 1997
WL 227955, at *3 (N.D. Cal. Apr. 24, 1997) (finding that a
complaint was insufficient for failure to “identify exactly which
acts are ‘predicate acts’ for RICO liability”)).
May 16, 2016 Order at 8-9. Instead, the Amended Complaint alleges that:

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My case is about Federal Racketeering. I am arguing violations
to the RICO Act of an on-going criminal enterprise of terrorism
against my life. I filed my 41 page Complaint and exhibits as
proof of the on-going criminal activity.
...
The best part of U.S. Federal District Court Judge Derrick K.
Watson’s document claims I do not have subject matter
jurisdiction in U.S. Federal District Court. I am arguing Federal
Racketeering charges in violation of the RICO Act. This
on-going criminal enterprise has been terrorizing my life for 50
years. It is called FEDERAL RACKETERING!
Amended Complaint at 4, 6. These conclusory allegations do not set forth factual
content that allows the Court to draw the reasonable inference that any defendant is
liable for the misconduct alleged, and Plaintiff’s claims lack facial plausibility.
Accordingly, she fails to state a claim for relief under Rule 12(b)(6).
B.

Subject Matter Jurisdiction Is Lacking

“A party invoking the federal court’s jurisdiction has the burden of proving
the actual existence of subject matter jurisdiction.” See Thompson v. McCombe, 99
F.3d 352, 353 (9th Cir. 1996). “Federal courts are courts of limited jurisdiction,”
possessing “only that power authorized by Constitution and statute.” United States
v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994)). At the pleading stage, a plaintiff must allege
sufficient facts to show a proper basis for the Court to assert subject matter
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jurisdiction over the action. McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936); Johnson v. Columbia Props. Anchorage, L.P., 437 F.3d 894, 899
(9th Cir. 2006); Fed. R. Civ. P. 8(a)(1). Claims may also be dismissed sua sponte
where the Court does not have federal subject matter jurisdiction. Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984); see also Fed. R. Civ. P. 12(h)(3);
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 593 (2004) (“[I]t is the
obligation of both the district court and counsel to be alert to jurisdictional
requirements.”).
Plaintiff attempts to assert federal question jurisdiction based on allegations
that defendants violated the Constitution and federal law. See 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”). Once again, to the extent
she attempts to allege a civil RICO claim, she does not state a colorable claim arising
under federal law. A claim is not colorable if: (1) the alleged claim under the
Constitution or federal statutes appears to be immaterial and made solely for the
purpose of obtaining jurisdiction; or (2) such a claim is wholly insubstantial and
frivolous. Bell v. Hood, 327 U.S. 678, 682 (1946). As discussed previously, her
conclusory allegations of federal racketeering by various defendants do not establish
claims that arise under federal law so as to create federal question jurisdiction.
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Plaintiff does not allege sufficient factual matter, accepted as true, to state a civil
RICO claim that is plausible on its face. Iqbal, 556 U.S. at 678. Plaintiff fails to
cure the jurisdictional defects identified in her original Complaint, and the Court
remains without the authority to adjudicate her claims.
C.

Amendment Is Futile

The Court has discretion to grant leave to amend “when justice so requires.”
See Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980) (“[A] district court has broad
discretion to grant or deny leave to amend, particularly where the court has already
given a plaintiff one or more opportunities to amend his complaint[.]”). Futility of
amendment can, by itself, justify the denial of a motion for leave to amend. See
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)).
The Court acknowledges Plaintiff’s pro se status and has very liberally
construed her pleadings. Despite prior guidance, Plaintiff’s Amended Complaint
does nothing to remedy the specific deficiencies noted by the Court in its previous
order granting her leave to amend. Like the claims in the previous Complaint, the
Amended Complaint again fails to state a claim and establish this Court’s subject
matter jurisdiction. The Court specifically cautioned Plaintiff in its May 16, 2016
Order that “[n]ew or different theories, causes of action, or additional parties are not
permitted,” and “that failure to file an amended complaint in conformity with this
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order will result in the automatic dismissal of this action.” May 16, 2016 Order at
15-16. In no respect, however, has Plaintiff even attempted to comply with these
instructions.
Based on the particular facts and circumstances of this case and the course of
the pleadings to date, the Court finds that further amendment would be futile. See
Ferris v. Santa Clara County, 891 F.2d 715, 718-719 (9th Cir. 1989) (dismissing
with prejudice plaintiff’s second amended complaint where plaintiff filed complaint,
district court dismissed without prejudice and indicated how to cure defects, and
plaintiff nonetheless failed to cure); Franklin v. Murphy, 745 F.2d 1221, 1228 n.9
(9th Cir. 1984); Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)
(per curiam) (dismissal without leave to amend is appropriate where it is “absolutely
clear that the deficiencies of the complaint could not be cured by amendment”).
Accordingly, the Amended Complaint is DISMISSED without leave to amend.
III.

The Motion Is Denied
Plaintiff asks the Court “for 24 hour 7 day a week police protection especially

on court day against the DEFENDANTS’ threats against my life. I am requesting
police protection until the threat against my life is over.” Motion at 2. According
to Plaintiff:

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On May 18, 2016, the Honolulu Police Department reported
three (3) times to my home in Manoa to deal with my complaints
of terrorism. Every day since then, the Honolulu Police
Department has been at my home on complaints of terrorism
against my life or for welfare checks.
The United States Witness Protection Program also known as the
Witness Security Program or WITSEC is authorized by the
Organized Crime Control Act. This Act was amended in 1984
by the Comprehensive Crime Control Act. This act is to protect
threatened witnesses or any person in the justice system before,
during, and after trial protection and applies to the State of
Hawaii through the Honolulu Police Department. Because I am
being terrorized and threatened by an on-going criminal
enterprise, I am requesting (VERY LOUDLY) for police
protection by the Honolulu Police Department!!!
Since filing my case in Federal Court regarding Federal
Racketeering, I have visits almost daily by the Honolulu Police
Department regarding terrorism against my life.
Motion at 2-3.
Because of the deficiencies of the Amended Complaint noted above, the
absence of the Court’s jurisdiction over this matter, and the Court’s DISMISSAL of
this action without leave to amend, the Motion is DENIED AS MOOT. Even
absent these issues, the Court notes that Plaintiff has not established entitlement to
the relief requested in the Motion, nor does this Court possess the authority to grant
it. The Motion is DENIED.

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CONCLUSION
Based upon the foregoing, Plaintiff’s recusal request is DENIED, her
Amended Complaint is DISMISSED with prejudice and her Motion for Police
Protection is DENIED AS MOOT. The Clerk of Court is directed to close the case.
IT IS SO ORDERED.
Dated: May 24, 2016 at Honolulu, Hawai‘i.

Okawaki v. First Hawaiian Bank, et al.; Civil No. 16-00232 DKW-KSC;
ORDER DENYING REQUEST FOR RECUSAL, DISMISSING AMENDED
COMPLAINT, AND DENYING AS MOOT MOTION FOR POLICE
PROTECTION

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