De La Fuente v. Nago et al

Filing 25

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS 15 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 03/28/2017. Plaintiff must file his motion for leave to file an amended complaint by May 9, 2017, and the motion must comply with the rulings 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 served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
SCOTT T. NAGO, in his
official capacity as Chief
)
Election Officer, State of
)
Hawaii,
)
)
Defendant.
)
_____________________________ )
“ROCKY” ROQUE DE LA FUENTE,

CIVIL 16-00398 LEK-KJM

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION TO DISMISS
Before the Court is Defendants Scott T. Nago, in his
official capacity as Chief Election Officer (“Nago”), and the
State of Hawaii’s (collectively “Defendants”) Motion to Dismiss
(“Motion”), filed on September 27, 2016.

[Dkt. no. 15.]

Pro se

Plaintiff Roque De La Fuente (“Plaintiff”) did not file a
memorandum in opposition, and the Court therefore considers the
Motion unopposed.

The Court finds this matter 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”).

After careful

consideration of the Motion, the supporting memorandum, and the
relevant legal authority, Defendants’ Motion is HEREBY GRANTED IN
PART AND DENIED IN PART for the reasons set forth below.

BACKGROUND
Plaintiff was an independent candidate for President of
the United States who wanted to form a new political party, but
claims that he was unable to do so because of deadlines imposed
by Hawai`i law.

[Complaint for: 1) Violation of the Due Process

Clause – 42 U.S.C. § 1983 – Undue Burden 2) Violation of the
Equal Protection Clause (“Complaint”), filed 7/19/16 (dkt. no.
1), at ¶¶ 1-2, 7.]

Plaintiff states that Nago is the “delegated

official in charge of the administration of elections.”
¶ 8.]

[Id. at

Pursuant to Haw. Rev. Stat. § 11-62, the deadline to

submit signatures to have his new party placed on a ballot for
the November 2016 election was February 25, 2016, at 4:30 p.m.
[Id. at ¶ 11.]

Plaintiff asserts that this is the earliest

deadline in the entire country, and, in addition, Hawai`i
requires more signatures to form a new party than most other
states.

[Id. at ¶¶ 12-15.]
Plaintiff brings two claims for relief.

First, he

alleges that Defendants, acting under the color of state law,
have: “deprived and severely burden[ed] Plaintiff’s political
speech and political association rights in direct violation of
the First and Fourteenth Amendments to the United States
Constitution”; and “deprived Plaintiff of the rights, privileges
and immunities secured to him under the First and Fourteenth
Amendments to the United States Constitution and [42 U.S.C.

2

§ 1983] to participate in the democratic process free from
unreasonable impediments, undue restraints on core political
speech, and discriminatory ballot access restrictions”
(“Count I”).

[Id. at ¶¶ 19-20.]

Second, Plaintiff asserts that

enforcement of § 11-62 has deprived him of his Fourteenth
Amendment rights by preventing him from “participat[ing] in the
democratic process free from discriminatory action” because it
“make[s] it impossible to organize and qualify a political party
for election ballot purposes before the November General
election” (“Count II”).1

[Id. at ¶ 23.]

Plaintiff seeks:

declaratory relief; a permanent injunction;2 reasonable fees and
costs pursuant to 42 U.S.C. § 1988; and “such other and further

1

The title page of the Complaint states a violation of the
due process clause, see Complaint at pg. 1, but Plaintiff does
not assert such a violation anywhere else. Moreover, “[a]t a
minimum, the due process clause requires that a deprivation of
life, liberty or property by adjudication be preceded by notice
and opportunity to be heard, appropriate to the nature of the
case.” Oyama v. Univ. of Haw., Civ. No. 12-00137 HG-BMK, 2013 WL
1767710, at *8 (D. Hawai`i Apr. 23, 2013) (citing Armstrong v.
Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 1190, 14 L. Ed. 2d 62
(1965)). The Complaint does not allege that Plaintiff was denied
notice or an opportunity to be heard. In fact, it does not even
allege that Plaintiff filed the relevant application for ballot
access. As such, the Complaint cannot be construed as bringing a
claim for violation of the Fourteenth Amendment’s due process
clause.
2

Plaintiff states that he seeks a preliminary injunction,
see Complaint, Prayer for Relief ¶ B, but he did not file a
separate motion, see Local Rule LR10.2(g) (“An application for a
temporary restraining order or preliminary injunction shall be
made in a document separate from the complaint.”). For that
reason, the Court does not construe the Complaint as seeking a
preliminary injunction.
3

relief as the Court may deem just and proper.”

[Id., Prayer for

Relief ¶¶ A-D.]
DISCUSSION
As a preliminary matter, the Court “liberally construes
[Plaintiff’s] filings because [he] is proceeding pro se.”

See

Pregana v. CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015
WL 1966671, at *2 (D. Hawai`i Apr. 30, 2015) (citing Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987)).

“‘Pro se

litigations must [nonetheless] follow the same rules of procedure
that govern other litigants.’”

Id. (alteration in Pregana)

(quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),
overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d
896 (9th Cir. 2012)).
I.

Subject Matter Jurisdiction
The Complaint concerns the 2016 presidential election,

which has been held and completed.

See, e.g., Complaint at ¶ 23

(“the arbitrary restrictions of which make it impossible to
organize and qualify a political party for election ballot
purposes before the November General election.”).

The Court

therefore must consider whether it still has subject matter
jurisdiction over the instant dispute.

This district court has

stated that, in determining the presence or absence of subject
matter jurisdiction,
the court determines whether Plaintiffs’ challenge
is justiciable, as this court’s “role is neither
4

to issue advisory opinions nor to declare rights
in hypothetical cases, but to adjudicate live
cases or controversies consistent with the powers
granted the judiciary in Article III of the
Constitution.” Thomas [v. Anchorage Equal Rights
Comm’n], 220 F.3d [1134,] 1138 [(9th Cir. 2000)
(en banc)]. Justiciability includes the doctrines
of mootness, ripeness, and standing, see, e.g.,
Culinary Workers Union, Local 226 v. Del Papa, 200
F.3d 614, 617 (9th Cir. 1999) (observing that
Article III’s case or controversy “justiciability
limitations are reflected in the doctrines of
standing, mootness, and ripeness”).
Temple v. Abercrombie, 903 F. Supp. 2d 1024, 1030-31 (D. Hawai`i
2012).
A.

Standing
Defendants argue that the Motion should be granted

because Plaintiff lacks standing.

Specifically, Defendants argue

that, while Plaintiff challenges the statutory filing deadline to
form a new political party, he “does not allege that he could
have secured the number of required signatures from registered
voters or that he attempted to do so in February or at any time
after that.”

[Mem. in Supp. of Motion at 9 (emphasis omitted).]

Further, Defendants argue that “[i]f Plaintiff could not have
secured the required signatures even with a later deadline, then
[Haw. Rev. Stat.] § 11-62 did not cause his alleged injury and
enjoining it would provide him no relief.”

[Id. at 10.]

In

short, Defendants argue that Plaintiff has not shown injury,
causation, or redressability.

5

“Article III of the Constitution requires that a
plaintiff have standing before a case may be adjudicated.”
Covington v. Jefferson Cty., 358 F.3d 626, 637 (9th Cir. 2004).
Standing requires:

“(1) an injury in fact that is (a) concrete

and particularized and (b) actual or imminent; (2) that the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.”

Id. at 637-38 (alterations, footnote, citation, and

internal quotation marks omitted).

This district court has

stated:
“[Fed. R. Civ. P.] 12(b)(1) jurisdictional
attacks can be either facial or factual.” White
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In
a facial attack, the challenger asserts that the
allegations contained in a complaint are
insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack,
the challenger disputes the truth of the
allegations that, by themselves, would otherwise
invoke federal jurisdiction.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004).
When, as here, the challenge is facial rather
than factual, all allegations of material fact are
taken as true and construed in the light most
favorable to the nonmoving party. Fed’n of
African Amer. Contractors v. City of Oakland, 96
F.3d 1204, 1207 (9th Cir. 1996). In a facial
attack on jurisdiction, the court “confin[es] the
inquiry to allegations in the complaint.” Savage
v. Glendale Union High Sch., Dist. No. 205,
Maricopa Cnty., 343 F.3d 1036, 1040, n.2 (9th Cir.
2003).

6

Amsterdam v. Abercrombie, Civil No. 13-00649 SOM-KSC, 2014 WL
689764, at *2 (D. Hawai`i Feb. 19, 2014) (footnote omitted).
Defendants bring a facial challenge to the Complaint,
and, taking the factual allegations as true and reading them in
the light most favorable to Plaintiff, he has standing in the
instant matter.

Plaintiff submits that:

(1) he wanted to form a

new political party; (2) the deadline under Hawai`i law, which he
alleges is earlier than most other states, prevented him from
doing so; and (3) his access to the Hawai`i ballot was blocked as
a result.

He has alleged an imminent, concrete injury that is

traceable to Hawai`i law and that, at least in theory, can be
redressed by a favorable decision.

Therefore, insofar as

Defendants’ Motion seeks dismissal of the instant action for lack
of standing, it is HEREBY DENIED.3

3

Defendants also argue that Plaintiff’s request for
injunctive relief was filed too late, and that this relief should
be rejected. [Mem. in Supp. of Motion at 4-7.] To support this
position, Defendants rely almost exclusively on cases about
preliminary injunctions. See, e.g., Mem. in Supp. of Motion at 6
(citing Southwest Voter Registration Education Project v.
Shelley, 344 F.3d 914 (9th Cir. 2003), which affirmed the
district court’s denial of a preliminary injunction of a recall
election in California); id. (citing Kostick v. Nago, 878 F.
Supp. 2d 1124 (D. Hawai`i 2012), which denied a motion for
preliminary injunction of the enforcement of Hawaii’s 2012
Reapportionment Plan and the upcoming election). Here, the Court
does not construe the Complaint as requesting a preliminary
injunction. Further, the Complaint clearly states that Plaintiff
seeks to enjoin “the enforcement of the early deadline
requirement,” not the election. See Complaint at Prayer for
Relief ¶ B.
7

B.

Mootness
Defendants do not argue that this case is moot, but

“[b]ecause mootness is a jurisdictional issue, we are obliged to
raise it sua sponte.”

Gator.com Corp. v. L.L. Bean, Inc., 398

F.3d 1125, 1129 (9th Cir. 2005) (citations, alteration, and
internal quotation marks omitted).

The Ninth Circuit has stated:

It is an inexorable command of the United
States Constitution that the federal courts
confine themselves to deciding actual cases and
controversies. See U.S. CONST. art. III, § 2,
cl. 1. . . . Article III requires that a live
controversy persist throughout all stages of the
litigation. See Steffel v. Thompson, 415 U.S.
452, 459 n.10, 94 S. Ct. 1209, 39 L. Ed. 2d 505
(1974) (“an actual controversy must be extant at
all stages of review, not merely at the time the
complaint is filed”).
Id. at 1128-29.

Here, Plaintiff sought to form a new political

party, and wanted that party to be on the ballot during 2016
election.

[Complaint at ¶ 7.]

In Arizona Green Party v. Reagan,

the Arizona Green Party was not allowed on the 2014 Arizona
ballot because it missed the deadline for official party
recognition.

838 F.3d 983, 986-87 (9th Cir. 2016).

The Arizona

Green Party alleged that the requirements for party recognition
violated its rights under the First and Fourteenth Amendments,
id. at 987, and by the time the Ninth Circuit issued its
decision, the 2014 election was over.
concluded:

8

The Ninth Circuit

The 2014 election has come and gone, so we cannot
devise a remedy that will put the Green Party on
the ballot for that election cycle. All specific
demands for relief related to the 2014 election
are moot. Because the Green Party will need to
requalify as a new party every two election cycles
. . . , the 180-day deadline is likely to
resurface again and is therefore “capable of
repetition, yet evading review,” Norman v. Reed,
502 U.S. 279, 288, 112 S. Ct. 698, 116 L. Ed. 2d
711 (1992) (quoting Moore v. Ogilvie, 394 U.S.
814, 816, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969)).
Accordingly, the challenge to that deadline’s
constitutionality is not moot.
Id. at 987-988.

Insofar as Plaintiff sought relief specifically

related to the 2016 election, those specific demands are HEREBY
DISMISSED AS MOOT.

With regard to Plaintiff’s constitutional

challenge to Hawaii’s election laws, just as in Arizona Green
Party, these claims are “capable of repetition, yet evading
review.”
omitted).

See id. (citation and internal quotation marks
The Court therefore CONCLUDES that the instant matter

is not moot.

Accordingly, the Court has subject matter

jurisdiction over the instant matter.
II.

Section 1983 Claims
“Section 1983 does not create any substantive rights,

but is instead a vehicle by which plaintiffs can bring federal
constitutional and statutory challenges to actions by state and
local officials.”4

4

Anderson v. Warner, 451 F.3d 1063, 1067 (9th

Section 1983 states, in relevant part:
Every person who, under color of any statute,
(continued...)
9

Cir. 2006) (citing Cholla Ready Mix, Inc. v. Civish, 382 F.3d
969, 978 (9th Cir. 2004)).

While maintaining that states’

Eleventh Amendment immunity and § 1983 are distinct, the United
States Supreme Court held that “[s]ection 1983 provides a federal
forum to remedy many deprivations of civil liberties, but it does
not provide a federal forum for litigants who seek a remedy
against a State for alleged deprivations of civil liberties.”
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989).

As

a result, the Supreme Court held that “a suit against a state
official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office,”
and “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.”
omitted).

Id. at 71 (citation

Therefore, Plaintiff’s claims against Hawai`i itself

are barred, and are HEREBY DISMISSED WITH PREJUDICE.5

4

(...continued)
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 depravation 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[.]

5

Defendants did not address this issue in their brief.
However, “[a] trial court may dismiss a claim sua sponte under
Fed. R. Civ. P. 12(b)(6).” Omar v. Sea-Land Serv., Inc., 813
F.2d 986, 991 (9th Cir. 1987) (citation omitted). Further,
“[s]uch a dismissal may be made without notice where the claimant
(continued...)
10

Plaintiff also brings claims against Nago in his
official capacity.

In Will, the Supreme Court stated:

“Of

course a state official in his or her official capacity, when
sued for injunctive relief, would be a person under § 1983
because official-capacity actions for prospective relief are not
treated as actions against the State.”

491 U.S. at 71 n.10

(citations and internal quotation marks omitted); see also Flint
v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (“Will recognized
one vital exception to this general rule . . . .

This exception

recognizes the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.
Ct. 441, 52 L. Ed. 714 (1908), that a suit for prospective
injunctive relief provides a narrow, but well-established,
exception to Eleventh Amendment immunity.” (some citations
omitted)).

In addition, “[t]he Eleventh Amendment does not bar

suits for prospective declaratory relief against state officials
in their official capacity.”

Nichols v. Montana, No. CV 12-

00102-H-DLC, 2013 WL 943281, at *2 (D. Mont. Feb. 6, 2013)
(citing Idaho v. Couer d’Alene Tribe, 521 U.S. 261 (1997); Doe v.
Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.
1997)).

The Court has already found that Plaintiff’s request for

an injunction is moot.
declaratory relief.

However, Plaintiff also requests

Insofar as the declaratory relief that

5

(...continued)
cannot possibly win relief.”

Id. (citation omitted).
11

Plaintiff seeks on Counts I and II is prospective, his claims may
go forward.

To that end, the Court will consider each of

Plaintiff’s claims in turn.
A.

Count I – First Amendment Claim
Liberally construed, Count I brings a claim for

violation of Plaintiff’s First Amendment rights, as incorporated
to the states via the Fourteenth Amendment.6

See Nat’l Ass’n for

Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d
1043, 1053 (9th Cir. 2000) (“The First Amendment applies to state
laws and regulations through the Due Process Clause of the
fourteenth Amendment.” (citing 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 489 n.1, 116 S. Ct. 1495, 134 L. Ed. 2d 711
(1996))).
Defendants allege that, because Plaintiff challenges
only the deadline for formation of a new party under § 11-62, and
makes no reference to the rest of the statutory scheme governing
ballot access, he has failed to state a First Amendment ballot

6

The Court notes that the Complaint states that it “seeks
to overturn the unconstitutional statute as a matter of law and
as applied to Plaintiff.” [Complaint at pg. 2.] “[T]he
distinction between facial and as-applied challenges is not so
well defined that it has some automatic effect or that it must
always control the pleadings and disposition in every case
involving a constitutional challenge.” Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 331 (2010). “The distinction is
both instructive and necessary, for it goes to the breadth of the
remedy employed by the Court, not what must be pleaded in a
complaint.” Id. (citation omitted). Here, the distinction has
no bearing on the Court’s conclusions.
12

access claim.
agrees.

[Mem. in Supp. of Motion at 11.]

This Court

In Burdick v. Takushi, the Supreme Court affirmed the

Ninth Circuit’s reversal of a grant of summary judgment and
injunctive relief in favor of a plaintiff who had challenged
Hawaii’s ban on write-in voting under the First and Fourteenth
Amendment.

504 U.S. 428, 430-32 (1992).

In doing so, the

Supreme Court explained:
Election laws will invariably impose some
burden upon individual voters. Each provision of
a code, “whether it governs the registration and
qualifications of voters, the selection and
eligibility of candidates, or the voting process
itself, inevitably affects – at least to some
degree – the individual’s rights to vote and his
right to associate with others for political
ends.” Anderson v. Celebrezze, 460 U.S. 780, 788,
103 S. Ct. 1564, 1569-1570, 75 L. Ed. 2d 547
(1983). Consequently, to subject every voting
regulation to strict scrutiny and to require that
the regulation be narrowly tailored to advance a
compelling state interest, as petitioner suggests,
would tie the hands of States seeking to assure
that elections are operated equitably and
efficiently. Accordingly, the mere fact that a
State’s system “creates barriers . . . tending to
limit the field of candidates form which voters
might choose . . . does not of itself compel close
scrutiny.” Bullock v. Carter, 405 U.S. 134, 143,
92 S. Ct. 849, 856, 31 L. Ed. 2d 92 (1972);
Anderson, supra, 460 U.S., at 788, 103 S. Ct., at
1569-1570; McDonald v. Board of Election Comm’rs
of Chicago, 394 U.S. 802, 89 S. Ct. 1404, 22 L.
Ed. 2d 739 (1969).
. . . .
Under this standard, the rigorousness of our
inquiry into the propriety of a state election law
depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment
rights. Thus, as we have recognized when those
13

rights are subjected to “severe” restrictions, the
regulation must be “narrowly drawn to advance a
state interest of compelling importance.” Norman
v. Reed, 502 U.S. 279, 289, 112 S. Ct. 698, 705,
116 L. Ed. 2d 711 (1992). But when a state
election law provision imposes only “reasonable,
nondiscriminatory restrictions” upon the First and
Fourteenth Amendments rights of voters, “the
State’s important regulatory interests are
generally sufficient to justify” the restrictions.
Anderson, 460 U.S., at 788, 103 S. Ct., at 15691570; see also id., at 788-789, n.9, 103 S. Ct.,
at 1569-1570, n.9.
504 U.S. 428, 433-34 (1992).

The Supreme Court thereafter

examined Hawaii’s laws and the different ways in which a
candidate can get their name on the ballot – by forming a new
political party, through an established party, or by utilizing
the nonpartisan process.

Id. at 435-36.

The Supreme Court

concluded that, “[a]lthough Hawaii makes no provision for writein voting in its primary or general elections, the system
outlined above provides for easy access to the ballot until the
cutoff date for the filing of nominating petitions, two months
before the primary.”

Id. at 436-37.

still available today.

These three options are

See Mem. in Supp. of Motion at 11-12.

The importance of considering the entirety of a state’s
election laws has been repeatedly confirmed by the Ninth Circuit:
“Appellants here have failed to show Hawaii’s election scheme
imposes a severe burden on independent candidates for president
even in light of an examination of Hawaii’s regulatory scheme as
a whole.”

Narder v. Cronin, 620 F.3d 1214, 1218 (9th Cir. 2010);

14

see also Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 730
(9th Cir. 2015) (quoting Cronin in expressing that a court must
look at the entirety of a state’s elections procedures).

Here,

Plaintiff does not discuss Hawaii’s election laws other than
§ 11-62, and he does not allege that, together, they deny him his
constitutional rights.
In addition, to the extent that Plaintiff brings
Count I for violation of his First Amendment right to free
speech, see Complaint at ¶ 19 (“The Defendants’ actions, acting
under color of state law, deprived and severely burdens
Plaintiff’s political speech . . . .”), his allegations also
fail:
Petitioner’s argument is based on two flawed
premises. First, in Bullock v. Carter, we
minimized the extent to which voting rights cases
are distinguishable from ballot access cases,
stating that “the rights of voters and the rights
of candidates do not lend themselves to neat
separation.” 405 U.S., at 143, 92 S. Ct., at 856.
Second, the function of the election process is
“to winnow out and finally reject all but the
chosen candidates,” Storer [v. Brown], 415 U.S.
[724,] 735, 94 S. Ct. [1274,] 1281 [(1974)], not
to provide a means of giving vent to “short-range
political goals, pique, or personal quarrel[s].”
Ibid. Attributing to elections a more generalized
expressive function would undermine the ability of
States to operate elections fairly and
efficiently. Id., at 730, 94 S. Ct., at 1279.
Burdick, 504 U.S. at 438 (footnote omitted).

In short, Count I

fails to state a claim upon which relief can be granted, see Fed.
R. Civ. P. 12(b)(6), and it is HEREBY DISMISSED.

15

B.

Count II – Fourteenth Amendment Equal Protection
Count II appears to allege that § 11-62 is

discriminatory and arbitrary, in violation of the Fourteenth
Amendment’s Equal Protection Clause.

[Complaint at ¶ 23.]

Defendants argue that Plaintiff fails to state a claim upon which
relief can be granted because he does not explain how the state
statute “treats similarly situated individuals differently.”
[Mem. in Supp. of Motion at 14.]

Moreover, Defendants assert

that, “[i]f Plaintiff is attempting to raise an allegation that
unqualified political parties are subject to more burdensome
rules than established, qualified political parties, this claim
is foreclosed by Ninth Circuit precedent.”

[Id.]

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 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.”

16

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).
Plaintiff does not allege that he is a member of a
protected class, nor does he allege that he is a member of an
identifiable class.

Accordingly, the Court CONCLUDES that

Plaintiff has failed to state a claim upon which relief can be
granted, and Count II is HEREBY DISMISSED.7
III. Leave to Amend
The court has:

dismissed Hawai`i from this action,

with prejudice; dismissed as moot Counts I and II insofar as they
seek injunctive relief that relates to the 2016 election; and
dismissed the remainder of Counts I and II for failure to state a

7

Other courts have dismissed election-law cases for failure
to state a claim. See, e.g., Stone v. Bd. of Election Comm’r for
Chicago, 750 F.3d 678, 685-86 (7th Cir. 2014) (examining the
regulatory scheme for Chicago mayoral elections and affirming the
district court’s grant of a motion to dismiss for failure to
state a claim); Rubin v. City of Santa Monica, 308 F.3d 1008 (9th
Cir. 2002) (examining the regulatory scheme governing Santa
Monica’s city council elections, and affirming the district
court’s grant of a motion to dismiss for failure to state a
claim).
17

claim.8
Although unlikely, it is arguably possible that
Plaintiff’s claims – insofar as they seek prospective declaratory
relief – can be cured by amendment.

See Akhtar v. Mesa, 698 F.3d

1202, 1212 (9th Cir. 2012) (“A district court should not dismiss
a pro se complaint without leave to amend unless it is absolutely
clear that the deficiencies of the complaint could not be cured
by amendment.” (citation and internal quotation marks omitted)).
Accordingly, this Court will allow Plaintiff to file a motion for
leave to file an amended complaint.

Plaintiff must attach his

proposed amended complaint to the motion for leave to file.

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 9, 2017.

The motion will be referred to the

magistrate judge.

8

For the sake of judicial economy, the Court notes that,
while Plaintiff seeks attorneys’ fees pursuant to § 1988, this
statute does not apply to pro se litigants. See Friedman v.
Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990) (“Even if [the
plaintiff] had been the prevailing party, he could not obtain
attorney fees because he is pro se.”), superseded by statute on
other grounds as recognized in Warsoldier v. Woodford, 418 F.3d
989, 997 (9th Cir. 2005).
18

This Court CAUTIONS Plaintiff that his proposed amended
complaint must state all of the facts and all of the legal
theories upon which his claims rely.

Plaintiff may not rely upon

or incorporate by reference any portion of his original
Complaint.

This Court will not consider Plaintiff’s amended

complaint collectively with his prior filings in this case.
This Court also CAUTIONS Plaintiff that, if he fails to
file his motion for leave to file an amended complaint by May 9,
2017, the claims against Nago that this Court has dismissed
without prejudice 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, and his lawsuit would be over.
Further, this Court CAUTIONS Plaintiff that, even if the
magistrate allows Plaintiff to file his proposed amended
complaint, this Court may still dismiss the amended complaint
with prejudice if it fails to cure the defects identified in this
Order.
CONCLUSION
On the basis of the foregoing, Defendants Scott T.
Nago, in his official capacity as Chief Election Officer, and the
State of Hawaii’s Motion to Dismiss, filed September 27, 2016, is
HEREBY GRANTED IN PART AND DENIED IN PART.

Plaintiff must file

his motion for leave to file an amended complaint by May 9, 2017,
19

and the motion must comply with the rulings in this Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 28, 2017.

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

ROQUE DE LA FUENTE VS. SCOTT T. NAGO, ETC.; CIVIL 16-00398 LEKKJM; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

20