Robert Naehu, Jr. v. Thomas Read
AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO REMAND CASE TO STATE COURT FROM WHICH IT WAS REMOVED re 11 , 19 , 29 - Signed by JUDGE DERRICK K. WATSON on 3/28/2017. "For the foregoing reasons, the Court ADOPTS the Findings and Recommendation to Grant Plaintiffs Motion to Remand Case To State Court From Which It Was Removed and OVERRULES Defendant Reads Objections." (emt, )CERTIFICATE OF SERVICE Participants 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 HAWAI‘I
ROBERT NAEHU, JR.,
CIVIL NO. 16-00673 DKW-KSC
AMENDED ORDER ADOPTING
RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION TO
REMAND CASE TO STATE COURT
FROM WHICH IT WAS REMOVED
AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATION
TO GRANT PLAINTIFF’S MOTION TO REMAND CASE
TO STATE COURT FROM WHICH IT WAS REMOVED
Plaintiff Robert Naehu, Jr. seeks remand on the basis that the Court lacks
subject matter jurisdiction over this negligence action involving the calculation of
his state prison sentence. The Magistrate Judge agreed, finding removal improper
because the Complaint alleged a single state-law claim and supplied no other basis
for federal court jurisdiction. Defendant Thomas Read now objects to the
Magistrate Judge’s January 24, 2017 Findings and Recommendation (“F&R”).
Because Naehu’s Complaint does not allege a violation of 42 U.S.C § 1983
nor any other federal constitutional, statutory or common law right, and Plaintiff, in
fact, disavows any claim for relief based on federal law, Read has not met his burden
of establishing this Court’s jurisdiction. The Court lacks subject matter
jurisdiction, this action was improperly removed, and the Magistrate Judge
appropriately recommended granting Naehu’s Motion to Remand. The Court
adopts the conclusions of the F&R and overrules Read’s Objections.1
Complaint And Notice of Removal
On December 21, 2016, Naehu filed his First Amended Complaint in the First
Circuit Court, State of Hawaii. Dkt. No. 1-2, Notice of Removal, Ex. A (First
Amended Complaint). Read removed the case on December 23, 2016, based solely
on the Court’s original jurisdiction under 28 U.S.C. § 1343(a)(3). See Dkt. No. 1,
Notice of Removal ¶ 2.
Naehu served jail sentences at various prisons in the State of Hawaii for
crimes committed in the State, originally with a maximum term release date
(“MTRD”) of May 7, 2010. First Amended Complaint (“FAC”) ¶¶ 1, 5.
Read was the Administrator for the State Department of Public Safety’s (“DPS”)
Offender Management Office, which was “ultimate[ly] responsible for the
The Court finds this matter suitable for disposition without a hearing pursuant to Local Rule
calculation of an inmate’s [MTRD].” FAC ¶ 2. Naehu alleges that, “on October
2009, before his release date, [he] was informed by letter there were ‘discrepancies’
in the computation of his release date and that convictions previously considered
‘concurrent’ were actually ‘consecutive’ by operation of law. This recalculation
was approved of by Read.” FAC ¶ 5. Although Naehu’s MTRD was extended
from May 7, 2010 to June 12, 2013, Naehu was able to “fix this wrongful
recalculation.” FAC ¶ 5. Naehu asserts that—
Although [Naehu] objected to this ‘recalculation’ it wasn’t until
[Naehu] was able to procure legal counsel to request the
sentencing court to reiterate the court’s true intent in sentencing
[him] was to a concurrent sentence. Once the sentencing court
clarified [Naehu’s] sentence was concurrent to any other
sentence, an amended judgment issued on March 3, 2011 after
which [he] was released. By this date [Naehu] had been forced
to serve an EXTRA 300 days in jail over what the sentencing
court intended all without legal justification which caused
Plaintiff to suffer damages in [an] amount to be shown at trial.
FAC ¶ 6.
According to Naehu, because his “original MTRD was calculated during the
period of the ‘practice,’ when it was ‘recalculated’ on October 15, 2009 under the
“P&P,” his MTRD was now considered a consecutive sentence without notice,
hearing or legal justification which caused his sentence to be extended[.]” FAC ¶ 9.
Moreover, he alleges that the new “P&P came with no precautions or procedural
safeguards to avoid recalculations as to how the P&P should be carried out.” FAC
¶ 9. Naehu alleges a single cause of action, entitled “Negligence,” which states, in
[Read’s] manner of carrying out the P&P without
procedural safeguards or precautions to guard against
overdetentions caused [Naehu] to remain in prison an
extra 300 days after his originally calculated MTRD of
May 7, 2010 had expired.
[Read] was both a lawyer and THE Administrator of
OMO for the State of Hawaii, so that,
Read would know or should have known a review of a
sentence pursuant to the “P&P”, PREVIOUSLY
calculated under the practice WOULD result in a
recalculation which happened to [Naehu].
Read would know or should know he must take
reasonable efforts to avoid needless harm to [Naehu]
while in DPS custody but did not make such efforts for
Read would know or should know circumstances may
require greater care if a defendant knows or should
know of other risks not contemplated by a prison
regulation which was the case with [Naehu].
Read would know or should have known of the risk
that would be prevented by imposing reasonable
precautions not otherwise required by the regulation
but chose not to take such measures.
Read’s conduct was a breach of the duty of care owed
[Naehu] and his breach of this duty caused [Naehu] to
suffer overdetention and emotional distress damages in an
amount to be shown at trial.
FAC ¶ 11-13. Naehu does not allege any other constitutional, statutory, or common
Prior to the filing of Naehu’s First Amended Complaint in state court on
December 21, 2016, this matter was part of consolidated prisoner overdetention
litigation handled by this Court and several others.2 On March 9, 2016, the Court
granted Read’s motion to dismiss plaintiffs’ Section 1983 claims and remanded the
remaining claims to state court. See Naehu v. Read, Civ. No. 11-00226-DKW-RLP
(D. Haw. Mar. 9, 2016), Dkt. No. 33 (dismissing federal claims and remanding
state-law claims in consolidated cases) (“3/19/16 Order”). The Ninth Circuit
affirmed. See Alston v. Read, No. 16-15628 (9th Cir. July 20, 2016), Dkt. No. 12
(affirming dismissal of consolidated cases (1) Alston v. Read, Civ. No. 07-00266
DKW-RLP; (2) Naehu v. Read, Civ. No. 11-00226 DKW-RLP; (3) Ortiz v. Read,
Civ. No. 11-00381 DKW-KSC; (4) Na‘o v. Read, Civ. No. 11-00382 DKW-RLP;
(5) Munzig v. Read, Civ. No. 11-00384 DKW-KSC; (6) Flores v. Read, Civ. No.
See, e.g., Alston v. Read, 678 F. Supp. 2d 1061 (D. Haw. 2010), reversed and remanded by 663
F.3d 1094 (9th Cir. 2011); Beckstrand v. Read, No. 14-15900, 2017 WL 957210, at *1 (9th Cir.
Mar. 13, 2017); Torres v. Read, 593 Fed. Appx. 742,743 (9th Cir. 2015), cert. denied, 136 S. Ct.
239 (Oct. 5, 2015), Simeona v. Dydasco, 134 Hawai‘i 540, 345 P.3d 206 (Ct. App. 2015), cert.
denied, 2015 WL 4756462 (Aug. 10, 2015).
11-00385 DKW-RLP; (7) Bartimac v. Read, Civ. No. 11-00386 DKW-RLP; and
(8) Albinio v. Read, Civ. No. 11-00387 DKW-RLP).
This Court’s March 9, 2016 Order noted that the consolidated complaints in
those actions each alleged that Read instituted the 2005 policy (or P&P) with
inadequate procedural safeguards, resulting in overdetention beyond plaintiffs’
MTRD. See 3/19/16 Order at 4. The complaints alleged violations of plaintiffs’
federal rights including: (1) unreasonable search and seizure in violation of the
Fourth Amendment; (2) cruel and unusual punishment in violation of the Eighth
Amendment; and (3) a “protected liberty interest” and right to due process under the
Fourteenth Amendment. Plaintiffs, including Naehu, also alleged corresponding
state constitutional violations and negligence claims. See 3/19/16 Order at 5-6.
The Court remanded those state-law claims in its March 9, 2016 Order. See 3/19/16
Order at 15-16.
According to Naehu—
While Plaintiff’s case was in the First Circuit Court on remand
Plaintiff moved to amend his Complaint to clarify his claim of
negligence. This motion was granted and the Order allowing
for Plaintiff to amend his Complaint was filed December 14,
2016. (Exhibit 4). The Amended Complaint eliminated all
Federal causes of action leaving only a State tort claim to decide
Dkt. No. 11-1, Mem. in Supp. of Mot. to Remand at 2.
Magistrate Judge’s F&R
Naehu’s Motion to Remand
On January 19, 2017, Naehu filed his Motion to Remand Case to State Court
From Which it Was Removed (Dkt. No. 11), on the grounds that he alleges no “due
process nor any other Federal Constitutional right . . nor [any] 42 U.S.C. § 1983
[claim].” Mem. in Supp. of Mot. to Remand at 2. Read opposed the motion, while
acknowledging that “[i]t is correct that Naehu does not mention 42 U.S.C. § 1983 in
his First Amended Complaint.” Dkt. No. 14, Response to Mot. to Remand at 3.
Read maintains that Naehu is attempting to defeat federal subject matter jurisdiction
by artful pleading—that, in fact, his “claim is based on a violation of his due process
rights, not a claim of negligence. It presents a substantial federal question, making
removal proper.” Response to Mot. to Remand at 5.
Magistrate Judge’s F&R
In the January 24, 2017 F&R, the Magistrate Judge rejected Read’s argument
that Naehu was attempting to “frustrate [Read’s] right to remove by omitting
reference to federal law.” Dkt. No. 19, F&R at 8-9. The F&R instead found that
Naehu’s “negligence claim does not and will not require application of federal law to
evaluate the propriety of [Read’s] conduct.” F&R at 9. The Magistrate Judge
likewise found meritless Read’s contention that Naehu’s “current claims must be
interpreted as federal claims given counsel’s past conduct and litigation strategy[.]”
F&R at 10.
Ambiguities manufactured by [Read] are not resolved in favor of
retaining jurisdiction. To the contrary, ambiguities are resolved
in favor of remand. Notably, there is no ambiguity here because
the FAC does not assert federal claims or implicate federal law.
Based on the foregoing, the Court finds that the Notice fails to
establish a proper basis for removal.
F&R at 10. The F&R thus recommended granting Naehu’s Motion to Remand.
F&R at 11.
Read’s Objections followed on February 7, 2017. Dkt. No. 21.
STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or recommendations,
the district court must review de novo those portions to which the objections are
made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also
United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review the
magistrate judge’s findings and recommendations de novo if objection is made, but
not otherwise.”). The district judge may accept the portions of the findings and
recommendation to which the parties have not objected as long as it is satisfied that
there is no clear error on the face of the record. See United States v. Bright, 2009
WL 5064355, at *3 (D. Haw. Dec. 23, 2009); Fed. R. Civ. P. 72(b) advisory
As a preliminary matter, the Court notes that Read’s Objections do not
comply with Local Rule 74.2, which requires that a party objecting to an F&R must
“specifically identify the portions of the order, findings, or recommendation to
which objection is made and the basis for such objections.” Rather, the Objections
appear to be a verbatim recitation of Read’s Response to Naehu’s Motion to
Remand. Cf. Dkt. Nos. 14 (Response) and 21 (Objections). The Court need not,
therefore, review de novo any portion of the F&R to which Read has not specifically
objected, and may instead review for clear error. See Reyna-Tapia, 328 F.3d at
1121; see also Seto v. Kamai‘Aina Care, Inc., 2011 WL 6779776, at *1 (D. Haw.
Dec. 27, 2011) (Overruling objection that failed to specify what was being objected
to and the basis of the objection, while also noting that, “if an objection in
compliance with Local Rule 74.2 would only have reiterated the points raised before
the Magistrate Judge, the result would not have changed even had the objection set
forth those points.”).
With respect to the merits, because Naehu’s Complaint alleges only
negligence under Hawai‘i state law and does not allege any federal cause of action,
this Court lacks subject matter jurisdiction over the dispute. Read’s removal to this
Court was therefore improper and his Objections to the F&R are overruled.
Removal of an action from state to federal court is proper if the federal court
would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). Read
initially relied solely on the Court’s original jurisdiction under 28 U.S.C.
§ 1343(a)(3) as the basis for removal in this case. See Notice of Removal ¶ 2.
Under Section 1343(a)(3), district courts have original jurisdiction over any civil
[t]o redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of
all persons within the jurisdiction of the United States.
28 U.S.C. § 1343(a)(3).
The parties, however, focused on the Court’s federal question jurisdiction in
briefing the Motion to Remand and Objections. See Dkt. Nos. 11, 14, 21, and 23.
Federal district courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Under
Section 1331, whether federal question jurisdiction exists is governed by the
“well-pleaded complaint rule,” which provides that federal question jurisdiction
may only be invoked when a federal question is presented on the face of a plaintiff’s
properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). Generally, an action is deemed to “arise under” federal law where it is a
“federal law [that] creates the cause of action” that the plaintiff has asserted. Gunn
v. Minton, 133 S. Ct. 1059, 1064 (2013). Actions asserting state-law claims may
also be deemed to “arise under” federal law for purposes of federal question
jurisdiction if the asserted state law: (1) “necessarily raise[s] a stated federal issue,”
(2) that is “actually disputed” and (3) “substantial,” and (4) “which a federal forum
may entertain without disturbing any congressionally approved balance of federal
and state judicial responsibilities.” Grable & Sons Metal Prods. v. Daru Eng’g &
Mfg., 545 U.S. 308, 314 (2005).
“Federal jurisdiction must be rejected if there is any doubt as to the right of
removal in the first instance,” and a defendant who invokes the federal court’s
removal jurisdiction “always has the burden of establishing that removal is proper.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted) (noting that
there is a “strong presumption” against removal jurisdiction); accord Washington v.
Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011). See generally 8 U.S.C.
§ 1447(c) (allowing parties to challenge removal by moving to remand).
Read has not met that burden in the instant case.
Read’s General Objection Is Overruled
Naehu does not allege a Section 1983 claim—his sole claim sounds in
negligence. Because Naehu does not allege a claim for violation of Section 1983, a
violation of his “federal civil rights,” or “federal due process rights,” the Court does
not have original jurisdiction pursuant to Section 1331 or 1343(a)(3).
Read’s Objection is based primarily on his conclusion that Naehu’s
Complaint means what it does not say on its face—that the negligence claim actually
requires the Court to determine “whether or not Read violated Naehu’s federal due
process rights by failing to write a policy which included ‘procedural safeguards.’”
Obj. at 13. Put another way, “that Read was negligent because he did not protect
Naehu’s due process rights.” Obj. at 12. The Complaint cannot be read in the
expansive manner urged by Read in order to manufacture federal jurisdiction.
The Complaint neither invokes nor implies any federal rights. Naehu is clear
in his briefing that he seeks to comply with this Court’s and the Ninth Circuit’s prior
rulings. See Pl.’s Response to Obj. at 9-10 (“[T]here can be little question the Ninth
Circuit has made its position clear in the consolidated cases . . . that federal claims in
that group of cases are to be considered disposed of.”); Mem. in Supp. of Mot. to
Remand at 11.3 As such, he plainly intends to assert a single negligence claim
See also F&R at 7 (“Plaintiff has explicitly disclaimed a § 1983 or other civil rights violation, and
he explains that his negligence claim will rely on the Restatement (Second) of Torts.”); id. at 7 n.2
against Read. See Mem. in Supp. of Mot. to Remand at 7 (“[Read was duty bound
to stop the growing number of overdetentions when approving recalculations and fix
his [policy] by acting reasonably to ferret out valid claims of
overdetention. . . [Read’s] conduct in this regard was neither objective nor
reasonable and therefore negligent which is what [Naehu’s] Complaint is all
Read asserts that “[a]ccepting the argument offered by [Naehu’s counsel]
would have the effect of allowing plaintiffs to evade removal to federal court by
merely claiming a ‘negligence’ cause of action based on the defendant having a duty
to protect the plaintiff’s federal civil rights and breach[ing] that duty resulting in
injury.” Obj. at 13. The factual and legal premises underlying Read’s argument
are not true. As “the ‘master’ of his complaint; where he may pursue state and
federal law claims, [Naehu] is free to pursue either or both, so long as fraud is not
involved.” Ultramar Am. Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990)
(quoting Savelson v. W. States Bankcard Ass’n, 731 F.2d 1423, 1426–27 (9th Cir.
1984)). In other words, Naehu can avoid federal jurisdiction by relying exclusively
on state law. Caterpillar, 482 U.S. at 392.
(“At the January 23, 2017 status conference, Plaintiff’s counsel again represented that Plaintiff is
only asserting a negligence claim, and not any federal claims.”).
Notably, the question of “whether the complaint states a claim ‘arising under’
federal law must ‘be ascertained by the legal construction of the plaintiff’s
allegations and not by the effect attributed to those allegations by the adverse
party.’” Ultramar, 900 F.2d at 1414 (quoting Tennessee v. Union & Planter’s
Bank, 152 U.S. 454, 460 (1894)) (some quotation marks and brackets omitted);
accord Pasion v. Cty. of Kauai, 2014 WL 957433, *4 (D. Haw. Mar. 11, 2014)
(quoting Ultramar, for the same). To be clear, it is the legal construction of
Naehu’s claims—not Read’s interpretation—that governs the Court’s jurisdictional
analysis. Naehu, as the master of his Complaint, chose not to plead a Section 1983
cause of action—or any other claim arising under federal law—but instead,
advanced a single state law-based negligence claim.
Neither of the exceptions to the well-pleaded complaint rule alluded to by
Read in his briefing is applicable under these circumstances. See Obj. at 7-8 (citing
Hays v. Cave, 446 F.3d 712 (7th Cir. 2006), and Sacks v. Dietrich, 663 F.3d 1065
(9th Cir. 2011)). First, the artful pleading doctrine does not apply here—there
simply is no underlying federal claim that was omitted or artfully avoided. See
Hays; 446 F.3d at 714 (Noting that “if federal law creates the claim on which the
plaintiff is suing, the fact that he has omitted from his complaint any reference to
federal law will not defeat removal” and that “the plaintiff cannot abrogate the
defendant’s right of removal by ‘artful pleading.’”) (citations omitted); see also
Lippitt v. Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1041 (9th Cir. 2003), as
amended (Sept. 22, 2003) (“The artful pleading doctrine allows courts to delve
beyond the face of the state court complaint and find federal question jurisdiction by
recharacteriz[ing] a plaintiff’s state-law claim as a federal claim.”) (citations and
quotation marks omitted). That is, the negligence claim is not simply a federal due
process claim in disguise. Naehu has acknowledged that he has no right to assert a
federal law-based claim, as recently confirmed by the Ninth Circuit, and he therefore
intends to pursue in state court his only available remedy under state law. That is
certainly his prerogative.
Second, Naehu’s right to relief does not depend on the resolution of a
substantial, disputed federal question. See, e.g., Grable & Sons Metal Prods., Inc.
v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005) (Whether or not a complaint
pleads a federal cause of action, “federal-question jurisdiction will lie over state-law
claims that implicate significant federal issues” because “a federal court ought to be
able to hear claims recognized under state law that nonetheless turn on substantial
questions of federal law.”).
A state law claim falls within this second category when: (1) a
substantial, disputed question of federal law is a necessary
element of . . . the well-pleaded state claim . . . or the claim is an
inherently federal claim articulated in state-law terms . . . ; or
(2) the right to relief depends on the resolution of a substantial,
disputed federal question[.]
Lippitt, 340 F.3d at 1042 (citations and quotation marks omitted). This is not such a
case. The state court on remand will not be required to reach any question of
federal law, much less a substantial one.
In sum, Read falls short of his burden of demonstrating that this Court has
subject matter jurisdiction over Naehu’s Complaint. Federal-question jurisdiction
does not attach here because Naehu’s Complaint alleges exclusively a state—not
federal—cause of action. Naehu “may defeat removal by choosing not to plead
independent federal claims.” See Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir.
2013) (citation and quotation signals omitted). Naehu chose to litigate his
remanded negligence cause of action in compliance with the orders issued by federal
courts in the consolidated prisoner litigation. Accordingly, removal to federal court
was improper, and the Court lacks jurisdiction to do anything other than remand this
case to state court.
Upon review of the F&R and consideration of the parties’ submissions, the
Court overrules Read’s Objections and adopts the F&R’s recommendation to grant
the Motion to Remand.
For the foregoing reasons, the Court ADOPTS the Findings and
Recommendation to Grant Plaintiff’s Motion to Remand Case To State Court From
Which It Was Removed and OVERRULES Defendant Read’s Objections.
IT IS SO ORDERED.
DATED: March 28, 2017 at Honolulu, Hawai‘i.
Naehu v. Read, CV NO 16-00673 DKW-KSC; AMENDED ORDER ADOPTING FINDINGS
AND RECOMMENDATION TO GRANT PLAINTIFF’S MOTION TO REMAND CASE
TO STATE COURT FROM WHICH IT WAS REMOVED
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