Flores v. Turtle Bay Resort et al

Filing 9

ORDER DISMISSING COMPLAINT; RESERVING RULING ON THE APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS; AND DENYING ALL OTHER PENDING MOTIONS re 2 Motion for Leave to Proceed in forma pauperis; re 3 Motion for Summary Judgment; re 4 Motion for TRO; re 5 Motion For Service ; re 6 Motion to Appoint Counsel. Signed by JUDGE LESLIE E. KOBAYASHI on 10/20/2016. --Plaintiff's Complaint, filed October 17, 2016, is HEREBY DISMISSED WITHOUT PREJUDICE. The Court GRANTS Plaintiff leave to file an amended complaint by November 21, 2016. The amended complaint must comply with the terms of this Order. -- The Court CAUTIONS Plaintiff that: if he fails to file his amended complaint by November 21, 2016; or, if the amended complaint fails to cure the defects identified in this Order, the Court will dismiss this action with prejudice. (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.
)
)
TURTLE BAY RESORT, MIKE LAIE )
- SECURITY, ALEX - GOLF
)
MANAGER, ASHLEY - CLUB HOUSE )
REP, TRAVIS JOERGER )
)
DIRECTOR, STACY - CLUBHOUSE
MANAGER,
)
)
)
Defendants.
_____________________________ )
XAVIER FLORES,

CIVIL 16-00561 LEK-KSC

ORDER DISMISSING COMPLAINT; RESERVING RULING ON
THE APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS; AND DENYING ALL OTHER PENDING MOTIONS
On October 17, 2016, pro se Plaintiff Xavier Flores
(“Plaintiff”) filed, inter alia, his Complaint and Application to
Proceed in District Court Without Prepaying Fees or Costs
(“Application”).

[Dkt. nos. 1, 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 Complaint and the relevant legal authority,
the Court HEREBY DISMISSES the Complaint WITHOUT PREJUDICE – in
other words, Plaintiff has LEAVE TO FILE an amended complaint.
The Court will RESERVE RULING on the Application until Plaintiff
files an amended complaint.

All of Plaintiff’s other pending

motions are HEREBY DENIED AS MOOT.

BACKGROUND
The Complaint concerns events that took place at the
Turtle Bay Resort in Kahuku, Hawai`i (“Turtle Bay”) on
September 22, 2016.

Plaintiff states that he went to Turtle Bay

“to use the golf range, [make] use of the showers, and make a few
local phone calls.”

[Complaint at pg. 3.]

Plaintiff states that

a Turtle Bay staff member approached him with some concerns about
Plaintiff’s interactions with a female Turtle Bay staff member.
Plaintiff admits that he was attracted to the female staff member
and that he was trying to get to know her.

According to

Plaintiff, there was also concern among the Turtle Bay staff
about him going through a drawer “behind the counter,” which
Plaintiff says was because he was charging his phone.
pg. 4.]

[Id. at

Shortly thereafter, Plaintiff went into the locker room

where he “began to shave [his] head,” at which time a security
guard asked to speak with him.

[Id. at 5.]

Plaintiff states

that he was given permission to finish shaving and to take a
shower.

Upon exiting the locker room, the security guard

informed Plaintiff that he needed to leave the property.
Plaintiff states that he requested that the security guard
contact the police.

While waiting for the Honolulu Police

Department (“HPD”) to arrive, the security guard took a picture
of Plaintiff.

[Id. at 6-7.]

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When HPD arrived, Plaintiff was issued a “trespass
notice.”

[Id. at pg. 7.]

Plaintiff asserts that he informed HPD

and Turtle Bay staff that “the bus run[s] thru [sic] the property
and that I would be left with no choice but to enter the
property.”1

[Id.]

Plaintiff states that “[t]he guard said I

cannot enter the property at all.”

[Id.]

Plaintiff informs the Court that, inter alia:

he deals

with a number of issues related to national security; he is under
constant surveillance by the United States Federal Bureau of
Investigation and the United States National Security Agency;
recently, many people have tried to steal his work, including the
United States Secret Service; and “[p]art of [his] work is to
rewrite a new agreement between the Native American – Hawaiian,
the U.S. government and [him]self.”

[Id. at pgs. 7-8.]

Finally, Plaintiff argues that this experience violated
his rights and tarnished his reputation, and he seeks fifteen
millions dollar, “[a] letter of apology from each defendant and
most importantly – investigation of each defendant.”

[Id. at pg.

9.]
STANDARD
Courts may authorize the commencement of a
suit without prepayment of fees by a person who

1

Along with the Complaint, Plaintiff includes a Trespass
Notice from Turtle Bay informing him that he may not enter Turtle
Bay property from September 22, 2016 to September 22, 2017.
[Complaint, Exh. A.]
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submits an affidavit that the person is unable to
pay such fees. 28 U.S.C. § 1915(a)(1). The Court
must subject each civil action commenced pursuant
to Section 1915(a) to mandatory screening and
order the dismissal of any claim that it finds
“frivolous, malicious, failing to state a claim
upon which relief may be granted, or seeking
monetary relief from a defendant immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(stating that 28 U.S.C. § 1915(e) “not only
permits but requires” the court to dismiss a
§ 1915(a) complaint that fails to state a claim);
Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.
2001) (holding that provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners).
The Court may also dismiss a complaint for
failure to comply with Federal Rule of Civil
Procedure 8. See Hearns v. San Bernardino Police
Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008).
Rule 8 requires that a complaint include “a short
plain statement of the claim” and that each
allegation “be simple, concise, and direct.” Fed.
R. Civ. P. 8(a)(2), (d)(1).
Cataluna v. Vanderford, Civ. No. 14-00480 LEK-RLP, 2014 WL
6490466, at *1 (D. Hawai`i Nov. 18, 2014).

As the United States

Supreme Court has explained:
[T]he pleading standard Rule 8 announces does not
require “detailed factual allegations,” but it
demands more than an unadorned, the-defendantunlawfully-harmed-me accusation. [Bell Atl. Corp.
v. Twombly, 550 U.S. 544], at 555, 127 S. Ct. 1955
[(2007)] (citing Papasan v. Allain, 478 U.S. 265,
286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A
pleading that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause
of action will not do.” 550 U.S., at 555, 127 S.
Ct. 1955. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further
factual enhancement.” Id., at 557, 127 S. Ct.
1955.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (some alterations in
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Iqbal).
Here, Plaintiff is proceeding pro se, and the Court
must liberally construe his pleadings.

See, e.g., 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.” (citation and internal
quotation marks omitted)).

Moreover, “[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.”
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995)
(citations omitted).
DISCUSSION
I.

The Sufficiency of the Complaint
Even liberally construed, the Complaint does not

specify what claim, or claims, Plaintiff is alleging against
Turtle Bay and the six other named defendants (collectively
“Defendants”).

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.
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He does

not state which rights or how they were violated, nor does he
explain the harm to his reputation.

It is clear that the

Complaint consists of the exact type of “unadorned, thedefendant-unlawfully-harmed-me accusation” that
Iqbal specifically states is insufficient for purposes of Rule 8.
See Iqbal, 556 U.S. at 678 (citation omitted).

Because Plaintiff

has failed to state a claim upon which relief can be granted, the
Complaint is HEREBY DISMISSED WITHOUT PREJUDICE.
II.

Leave to Amend
It is arguably possible that Plaintiff could amend the

Complaint to state a claim for relief.

However, the amended

complaint must comply with Rule 8 and all other applicable rules.
If Plaintiff wishes to amend the Complaint, he must file an
amended complaint by November 21, 2016.

The amended complaint

must include all allegations that his claims are based upon, even
if he previously presented these allegations to the Court.
Plaintiff may not incorporate any part of the Complaint by mere
reference to the earlier document.
that:

The Court CAUTIONS Plaintiff

if he fails to file his amended complaint by November 21,

2016; or, if the amended complaint fails to cure the defects
identified in this Order, the Court will dismiss this action with
prejudice.

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III. The Application and Other Pending Motions
Insofar as the Court has dismissed the Complaint with
leave to amend, the Court finds that it is not appropriate for it
to rule on the Application at this time.

The Court will

therefore RESERVE RULING on the Application until Plaintiff files
an amended complaint.

If any portion of Plaintiff’s amended

complaint survives the screening process, the Court will issue a
ruling on the Application.
Along with the Complaint and Application, Plaintiff
filed a Motion for Summary of Judgment, Motion for Restraining
Order, Motion for Service by the U.S. Marshall, and Motion for a
Lawyer.

[Dkt. nos. 3, 4, 5, 6.]

In light of the dismissal of

the Complaint, all of these motions are DENIED AS MOOT.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Complaint,
filed October 17, 2016, is HEREBY DISMISSED WITHOUT PREJUDICE.
The Court GRANTS Plaintiff leave to file an amended complaint by
November 21, 2016.

The amended complaint must comply with the

terms of this Order.
In light of the dismissal of the Complaint without
prejudice, the Court RESERVES RULING on the Application to
Proceed in District Court Without Prepaying Fees or Costs, also
filed on October 17, 2016, pending Plaintiff’s filing of an
amended complaint and the Court’s screening of the amended
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complaint.

All of the other pending motions are HEREBY DENIED AS

MOOT.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 20, 2016.

/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 COMPLAINT; RESERVING RULING ON THE
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES
OR COSTS; AND DENYING ALL OTHER PENDING MOTIONS

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