Flores v. Turtle Bay Resort et al
ORDER DISMISSING AMENDED COMPLAINT WITH PREJUDICE AND DENYING AS MOOT THE 2 APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS. Signed by JUDGE LESLIE E. KOBAYASHI on 1/6/2017. - Plaintiff's 13 Amended Complaint, filed December 12, 2016, is HEREBY DISMISSED WITH PREJUDICE. Further, Plaintiffs 2 Application to Proceed in District Court Without Prepaying Fees or Costs, filed on October 17, 2016, is DENIED AS MOOT. There being no remaining c laims, the Court DIRECTS the Clerk's Office to enter judgment in favor of Defendants and close this case on January 27, 2017, unless Plaintiff files a motion for reconsideration of this Order by January 23, 2017. (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 date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TURTLE BAY RESORT, MIKE LAIE )
- SECURITY, ALEX - GOLF
MANAGER, ASHLEY - CLUB HOUSE )
REP, TRAVIS JOERGER )
DIRECTOR, STACY - CLUBHOUSE
CIVIL 16-00561 LEK-KSC
ORDER DISMISSING AMENDED COMPLAINT WITH PREJUDICE
AND DENYING AS MOOT THE APPLICATION TO PROCEED
IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
On December 12, 2016, pro se Plaintiff Xavier Flores
(“Plaintiff”) filed an Amended Complaint.
[Dkt. no. 13.]
pending before the Court is Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs (“Application”),
filed on October 17, 2016.
[Dkt. no. 2.]
The Court has
considered these matters without a hearing pursuant to Rule
LR7.2(e) 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 Amended Complaint and the
relevant legal authority, the Court HEREBY DISMISSES the Amended
Complaint WITH PREJUDICE.
DENIED AS MOOT.
Further, the Application is HEREBY
The background of the instant matter is well known to
the parties, and the Court only repeats the facts that are
relevant to consideration of the Amended Complaint.
filed his Complaint on October 17, 2016.
[Dkt. no. 1.]
October 20, 2016, the Court issued its Order Dismissing
Complaint; Reserving Ruling on the Application to Proceed in
District Court Without Prepaying Fees or Costs; and Denying All
Other Pending Motions (“10/20/16 Order”).
[Dkt. no. 9.]
10/20/16 Order dismissed the Complaint for failure to state a
[10/20/16 Order at 5-6.]
The Court, however, gave
Plaintiff an opportunity to file an amended complaint, noting
that “the amended complaint must comply with [Fed. R. Civ. P.] 8
and all other applicable rules,” and that it “must include all
allegations that his claims are based upon, even if he previously
presented these allegations to the Court.”
[Id. at 6.]
10/20/16 Order also reserved ruling on the Application.
The standard that this Court applies when screening a
pro se plaintiff’s complaint is set forth in the 10/20/16 Order
The Sufficiency of the Amended Complaint
The Amended Complaint does not explain how Defendants
Turtle Bay Resort (“Turtle Bay”) and the six other named
defendants (collectively “Defendants”) allegedly harmed
Instead, Plaintiff cites the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, states that “[m]y
disability deals with my lower back,” and describes an injury
that occurred when he was a New York Fire Department employee.1
[Amended Complaint at 3-4.2]
While Plaintiff does not specify a specific provision
of the ADA, it is clear to the Court that the only claim
Plaintiff might have falls under Title III.3
Title III states,
The caption of the Amended Complaint states, inter alia:
“Demand for jury trial; Exhibit A; Motion for summary of
Judgement [sic]; Motion for restraining order; Motion for Service
by the U.S. Marshal; Motion for a lawyer.” [Amended Complaint at
1.] None of these documents were included with the Amended
Complaint or filed separately. Moreover, in the 10/20/16 Order,
the Court denied as moot Plaintiff’s Motion for Summary of
Judgment, Motion for Restraining Order, Motion for Service by the
U.S. Marshall, and Motion for a Lawyer. [10/20/16 Order at 7.]
The Court therefore FINDS that these motions and filings are not
properly before the Court, and the Court does not need to address
them in the instant Order.
The Amended Complaint is not consecutively paginated, and
the Court therefore cites to the page numbers assigned by this
district court’s electronic case filing system.
Title I concerns employment discrimination, 42 U.S.C.
§ 12112(a) (“No covered entity shall discriminate against a
qualified individual on the basis of a disability in regard to
job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.”), and Title II
concerns public services, 42 U.S.C. § 12132 (“Subject to the
provisions of this subchapter, no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subject to
in relevant part, that, “[n]o individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.”
42 U.S.C. § 12182(a).
The statute defines “public accommodation” as, inter alia, “an
inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more
than five rooms for rent or hire and that is actually occupied by
the proprietor of such establishment as the residence of such
42 U.S.C. § 12181(7)(A).
This district court has stated that, “[i]n order to
state a claim under Title III of the ADA, Plaintiff must show
(1) he has a disability; (2) defendant is subject to
Title III; (3) and he was denied full and equal treatment or
otherwise discriminated against because of his disability.”
Hackett v. Red Guahan Bus, CIVIL NO. 16-00066 ACK-RLP, 2016 WL
1445212, at *3 (D. Hawai`i Mar. 22, 2016) (citations omitted).
Plaintiff also references the First Amendment to the
United States Constitution and submits that it was “[a]nother law
which was broken by the staff of Turtle [B]ay Resort and by
discrimination by any such entity.”).
Turtle [B]ay Resort.”
[Amended Complaint at 4.]
Amendment protects individuals only against government, not
private, infringements upon free speech rights.”
Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996)
(citing Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct.
2764, 2769, 73 L. Ed. 2d 418 (1982)).
As such, “[i]ndividuals
bringing actions against private parties for infringement of
their constitutional rights . . . must show that the private
parties’ infringement somehow constitutes state action.”
The 10/20/16 Order found:
The events described in the Complaint reveal that
Plaintiff, who was not a guest at Turtle Bay, was
asked to leave the property. When he refused to
do so, he was issued a trespassing citation.
Nowhere in the Complaint does Plaintiff allege
actions by Defendants that even suggest a claim
upon which relief could be granted. Instead,
Plaintiff alleges simply that his rights were
violated and his reputation was harmed.
[10/20/16 Order at 5.]
As noted above, this Court also warned
Plaintiff that any amended complaint had to include all of the
relevant allegations, even if they were included in the original
[Id. at 6.]
Plaintiff’s Amended Complaint, however,
includes even fewer details than his original Complaint.
regard to Plaintiff’s ADA claim, there is no indication that
Defendants “discriminated against [him] because of his
See Hackett, 2016 WL 1445212, at *3 (citations
Similarly, Plaintiff has failed to state a claim for
violation of his First Amendment rights because he has not
alleged any connection between Defendants’ actions and the
It is clear to the Court that Plaintiff’s Amended
Complaint contains only “naked assertions devoid of further
factual enhancement,” see Aschroft v. Iqbal, 556 U.S. 662, 678
(2009) (alteration, citation, and internal quotations marks
omitted), and therefore fails to state a claim upon which relief
can be granted.
Plaintiff was given notice of the deficiencies in his
Complaint, and he was given ample time to correct those
He failed to do so in the Amended Complaint, and
there is no indication that Plaintiff would be able to correct
the deficiencies if he had another opportunity to amend his
The Court CONCLUDES that it is absolutely clear that
Plaintiff cannot amend his claims to cure the defects, and the
Court DISMISSES the Amended Complaint WITH PREJUDICE, in other
words, without leave to amend.
See Lucas v. Dep’t of Corr., 66
F.3d 245, 248 (9th Cir. 1995) (“Unless 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.”
The 10/20/16 Order reserved ruling on the Application
and stated that, “[i]f any portion of Plaintiff’s amended
complaint survives the screening process, the Court will issue a
ruling on the Application.”
[10/20/16 Order at 7.]
In light of
the dismissal of the Amended Complaint with prejudice, the
application is HEREBY DENIED AS MOOT.
On the basis of the foregoing, Plaintiff’s Amended
Complaint, filed December 12, 2016, is HEREBY DISMISSED WITH
Further, Plaintiff’ Application to Proceed in
District Court Without Prepaying Fees or Costs, filed on
October 17, 2016, is DENIED AS MOOT.
There being no remaining
claims, the Court DIRECTS the Clerk’s Office to enter judgment in
favor of Defendants and close this case on January 27, 2017,
unless Plaintiff files a motion for reconsideration of this Order
by January 23, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 6, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
XAVIER FLORES VS. TURTLE BAY RESORT, ET AL; CIVIL 16-00561 LEKKSC; ORDER DISMISSING AMENDED COMPLAINT WITH PREJUDICE AND
DENYING AS MOOT THE APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS
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