Trotter v. State of Hawaii et al

Filing 28

ORDER Granting Defendants' Motion for Judgment on the Pleadings; ORDER Denying Plaintiff's Motion for Judgment on the Pleadings. "Defendants' 23 motion for judgment on the pleadings is granted. Trotter's 26 motio n for judgment on the pleadings is denied. The court declines to allow Trotter to file an amended complaint, as any such amended pleading would be futile. The Clerk of Court is directed to enter judgment in favor of Defendants' and to close this case." Signed by JUDGE SUSAN OKI MOLLWAY on 2/15/18. (cib, )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. Copy of order mailed to Plaintiff Willie Trotter

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIE TROTTER,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII;
)
HAWAII PAROLING AUTHORITY;
)
and HAWAII CRIMINAL JUSTICE
)
DATA CENTER,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 17-00016 SOM/KSC
ORDER GRANTING DEFENDANTS’
MOTION FOR JUDGMENT ON THE
PLEADINGS; ORDER DENYING
PLAINTIFF’S MOTION FOR
JUDGMENT ON THE PLEADINGS

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS;
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
I.

INTRODUCTION.
In 1983, Plaintiff Willie Trotter was convicted in

Minnesota of Criminal Sexual Conduct in the Third Degree.

In

2000, he was living in Hawaii and was required to register as a
sex offender.

Trotter brings this action under 42 U.S.C. § 1983,

claiming that his federal due process rights were violated when
he was required to register as a sex offender.

Trotter, who is

proceeding pro se, seeks more than $12 million in damages and an
injunction prohibiting the State of Hawaii and its agencies from
requiring him to remain registered as a sex offender and
mandating that his name be removed from Hawaii’s sex offender
database.
On December 19, 2017, Defendants filed a motion to
dismiss.

See ECF No. 23.

Trotter did not timely oppose that

motion, but later filed his own Motion for Judgment on the

Pleadings, which the court deems to also be his opposition to
Defendants’ motion.

See ECF Nos. 26 and 27.

The court grants

Defendants’ motion without a hearing pursuant to Local Rule
7.2(d).
II.

The court denies Trotter’s motion.
BACKGROUND.
In 1983, Trotter was convicted in Minnesota of Criminal

Sexual Conduct in the Third Degree.

Section 609.344 (1982) of

Minnesota Statutes prohibits sexual penetration by force or
coercion.

Trotter was sentenced to 32 months imprisonment.

See

Complaint, ECF No. 1, PageID # 3 (“In 1983 I was convicted of a
sex offense in Minneapolis, Minn sentence to 32 month I served
out my entire sentence.”); State v. Trotter, 354 N.W.2d 539, 540
(1984) (“Appellant Willie Darrel Trotter was convicted of . . .
criminal sexual conduct in the third degree . . . in violation of
Minn. Stat. § . . . 609.344(c) . . . (1982) . . . .

Appellant

was sentenced to a prison term of 32 months.”); see also State v.
Daby, 359 N.W.2d 730, 732-33 (1984) (quoting section 609.344
(1982) of Minnesota Statutes as providing, “A person is guilty of
criminal sexual conduct in the third degree . . . if he engages
in sexual penetration with another person and . . . (t)he actor
uses force or coercion to accomplish the penetration . . . .”).
A violation of Minnesota’s section 609.344 requires
“intent to sexually penetrate.”

State v. Wenthe, 865 N.W.2d 293,

302 (Minn. 2015) (“Generally, criminal sexual conduct offenses
2

require only an intent to sexually penetrate, unless additional
mens rea requirements are expressly provided.”); see also 10
Minn. Prac., Jury Instr. Guides–Crim. CRIMJIG 12.21 (6th ed 2017)
(Minnesota model criminal jury instruction for section 609.344
requiring intentional sexual penetration of victim).
On appeal, Minnesota’s Court of Appeals determined that
there was sufficient evidence to support Trotter’s conviction.
The court said that the jury could have reasonably concluded that
Trotter was guilty because it was entitled to believe the
victim’s account of what happened and there was corroborating
physical evidence.

Trotter, 354 N.W.2d at 540-41.

Trotter alleges that he is not required to register as
a sex offender in Minnesota.

Complaint, ECF No. 1, PageID 3 (“I

do not have to register in the state the offense occur.”); ECF
No. 1-4, PageID # 9 (nongovernmental website describing the
Minnesota Sex Offender Registry as requiring registration of “sex
offenders who are released, sentenced, or adjudicated delinquent
on or after August 1, 1991”).

Trotter’s allegation appears

consistent with Minnesota’s registration law, which refers only
to offenders released after the date Trotter would have completed
his prison sentence.

For example, in the bill enacting

Minnesota’s registration law, the Minnesota legislature expressly
provided that its effective date was “August 1, 1991, and applies
to offenders released from imprisonment on or after that date.”

3

1991 Minn. ch. 285, § 13a.

The Court of Appeals of Minnesota has

therefore stated, “The legislature provided that the
[registration] statute applies to offenders released from prison
August 1, 1991, regardless of the date of the offense.”

State v.

Manning, 532 N.W.2d 244, 247 (1995).
In 1997, Trotter was convicted in Hawaii of a drug
paraphernalia offense and sentenced to an open 5-year term of
imprisonment.

See Complaint, ECF No. 1, PageID # 3.

Trotter

says that, in 2000 when he was paroled, he was forced to register
as a sex offender pursuant to Chapter 846E of Hawaii Revised
Statutes.

Id.
Section 846E-2(a) of Hawaii Revised Statutes provides

that, whenever a “covered offender” is a resident or remains in
the state for more than ten days (or for

an aggregate period of

more than 30 days in any one year), that “covered offender shall
register with the attorney general and comply with the provisions
of this chapter for life or for a shorter period of time as
provided in this chapter.”

In addition to registering with the

attorney general, each “covered offender” must also register with
the chief of police for the purpose of providing the “covered
offender’s” photograph, fingerprints, and registration
information.

Haw. Rev. Stat. 846E-2(g).

Beginning on June 30,

2009, a “covered offender” was required to report in person to
the chief of police every year, within a 30-day period following

4

the “covered offender’s” birthday, to review the existing
information in the registry and correct any information that was
inaccurate and to allow for the taking of a new photograph of the
“covered offender.”
in September 2000.

Id.

Trotter reported to the chief of police

See ECF No. 1-7 (Trotter’s Sept. 25, 2000,

Sex Offender Registration); ECF No. 1-2 (letter indicating that
Trotter registered with the Honolulu Police Department on
September 25, 2000).
Chapter 846E defines “covered offender” as a “sex
offender.”

Haw. Rev. Stat. § 846E-1. “Sex offender” is defined

as including a “person who is or has been convicted at any time .
. . of a ‘sexual offense.’”

Id. (emphasis added). “Sex offense”

covers a number of sex crimes, including section 707-731(1)(a),
which states: “A person commits the offense of sexual assault in
the second degree if: (a) The person knowingly subjects another
person to an act of sexual penetration by compulsion.”

Id.

Chapter 846E also defines “sex offense” as including “[a]
criminal offense that is comparable to or that exceeds a sexual
offense defined in [section 707-731(1)(a)].”

Id.

“Sex offense”

also includes out-of-state convictions “for any offense that
under the laws of [Hawaii] would be a sexual offense,” including
under section 707-731(a).
Trotter was convicted in Minnesota of intentional
sexual penetration by force or coercion, which is comparable to

5

and would be the sexual offense described in Hawaii’s section
707-731(1)(a)–-knowingly subjecting another person to sexual
penetration by compulsion.

Trotter is therefore a “sex offender”

or “covered offender” for purposes of Hawaii’s Chapter 846E.
Section 846E-2(a) provides that a “covered offender
shall be eligible to petition the court in a civil proceeding for
an order that the covered offender’s registration requirements
under this chapter be terminated, as provided in section
846E-10.”

Trotter says he was labeled as a Tier 3 offender.

Id.

It appears that this determination was made pursuant to section
846E-10 of Hawaii Revised Statutes, which categorizes Tier 3
offenses as including “[a]ny criminal offense that is comparable
to” a number of listed offenses, including that described in
section 707-731(1)(a).

Tier 3 offenders must register for life,

unless the requirement is terminated.
10(a).

Haw. Rev. Stat. 846E-

Tier 3 offenders may not petition a court in a civil

proceeding for termination of the registration requirements until
“forty years after the covered offender’s date of release or
sentencing, whichever is later.”

Haw. Rev. Stat. 846E-10(e).

Trotter complains that the Hawaii Paroling Authority
and the Hawaii Criminal Justice Center, two official offices for
the State of Hawaii, “did not comply with giving plaintiff due
process hearing before placing plaintiff on the sex offender
registration” in 2000.

ECF No. 1, PageID # 2.

6

Trotter claims

that Chapter 846E is inapplicable to out-of-state convictions and
says that he was denied due process when he was not given a
chance to raise this argument in a hearing before being forced to
register as a sex offender in 2000 under Chapter 846E.

Id.,

PageID # 3.
III.

MOTION FOR JUDGMENT ON THE PLEADINGS STANDARD.
Rule 12(c) states, “After the pleadings are closed--but

early enough not to delay trial--a party may move for judgment on
the pleadings.”

The standard governing a Rule 12(c) motion for

judgment on the pleadings is “functionally identical” to that
governing a Rule 12(b)(6) motion.

United States ex rel. Caffaso

v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.
2011); accord Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d
1147, 1155 (9th Cir. 2015) (“Analysis under Rule 12(c) is
‘substantially identical’ to analysis under Rule 12(b)(6)
because, under both rules, a court must determine whether the
facts alleged in the complaint, taken as true, entitle the
plaintiff to a legal remedy.”).
For a Rule 12(c) motion, the allegations of the
nonmoving party are accepted as true, while the allegations of
the moving party that have been denied are assumed to be false.
See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,
1550 (9th Cir. 1989).

A court evaluating a Rule 12(c) motion

must construe factual allegations in a complaint in the light
7

most favorable to the nonmoving party.
F.3d 922, 925 (9th Cir. 2009).

Fleming v. Pickard, 581

Under Rule 12(c), “‘Judgment on

the pleadings is properly granted when, accepting all factual
allegations as true, there is no material fact in dispute, and
the moving party is entitled to judgment as a matter of law.’”
Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012)
(quoting Fleming, 581 F.3d at 925).
IV.

THE ELEVENTH AMENDMENT BARS TROTTER’S CLAIMS.
Trotter sues Defendants under 42 U.S.C. § 1983.

See

Complaint, Sec. II, ECF No. 1, PageID # 2 (“I file in federal
court Under 42 U.S.C. 1983”).

Section 1983 states:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . , subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation 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 . . . .
Trotter alleges that the “Hawaii Paroling Authority and
the Hawaii Criminal Justice Center did not comply with giving
plaintiff due process hearing before placing plaintiff on the sex
offender registration.”

Id., Sec. II(A).

Trotter says he was

forced to register as a sex offender in Hawaii approximately 18
years ago, in 2000.

Id., Sec. III, PageID # 3.

According to

Trotter, his status as a “Tier 3” offender means that he can
8

first petition Hawaii for relief from the registration
requirements 40 years after his release from incarceration for
his 1983 Minnesota conviction.

Id.

He says that, because he

need not register as a sex offender in Minnesota, he should have
been given a hearing before being required to register as a sex
offender in Hawaii.

Id.; see also Plaintiff Pro-Se Motion for

Judgment on the Pleadings, ECF No. 26, PageID # 93 (“On January
12, 2017 plaintiff files U.S.C. 1983 complaint stating the
defendants did not provide due process hearing before placing
plaintiff on Hawaii sex offender registration violating his
constitutinal [sic] rights . . . .”).

Trotter seeks more than

$12 million in damages and an injunction prohibiting the State of
Hawaii and its agencies from requiring him to remain registered
as a sex offender and mandating that his name be removed from
Hawaii’s sex offender database.
Trotter and Defendants have filed competing motions for
judgment on the pleadings with respect to the single § 1983 claim
asserted in the Complaint.

Under the circumstances presented

here, the court rules that the Eleventh Amendment bars Trotter’s
claim.
The Eleventh Amendment bars actions against states,
state agencies, or departments of a state unless a state waives
sovereign immunity or Congress exercises its power to override
the immunity.

Bd. of Trs. of the Univ. of Alabama v. Garrett,

9

531 U.S. 356, 363 (2001); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99-100 (1984).
The Eleventh Amendment, however, does not prevent
plaintiffs from proceeding against individual defendants in their
official capacities for prospective injunctive relief based on
alleged violations of federal law.

Ariz. Students' Ass'n v.

Ariz. Bd. of Regents, 824 F.3d 858, 865 (9th

Cir. 2016)

(“Although sovereign immunity bars money damages and other
retrospective relief against a state or instrumentality of a
state, it does not bar claims seeking prospective injunctive
relief against state officials to remedy a state’s ongoing
violation of federal law.”); Agua Caliente Band of Cahuilla
Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000) (“courts
have recognized an exception to the Eleventh Amendment bar for
suits for prospective declaratory and injunctive relief against
state officers, sued in their official capacities, to enjoin an
alleged ongoing violation of federal law”).
This exception is rooted in the case of Ex parte Young,
209 U.S. 123, 159-60 (1908), in which the Supreme Court
explained:
If the act which the state attorney general
seeks to enforce be a violation of the
Federal Constitution, the officer, in
proceeding under such enactment, comes into
conflict with the superior authority of that
Constitution, and he is in that case stripped
of his official or representative character
and is subjected in his person to the
10

consequences of his individual conduct. The
state has no power to impart to him any
immunity from responsibility to the supreme
authority of the United States.
Thus, “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.’”

See Will v. Mich. Dep't

of State Police, 491 U.S. 58, 71 n.10 (1989) (quoting Kennedy v.
Graham, 473 U.S. 159, 167 n.14 (1985)).
Prospective injunctive relief claims allowed by Ex
Parte Young do not include those asserted under state law.

See

Pennhurst, 465 U.S. at 106 (stating that “when a plaintiff
alleges that a state official has violated state law,” then “the
entire basis for the doctrine of Young . . . disappears”); Pena
v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992) (“the eleventh
amendment bars suits in federal court, for both retrospective and
prospective relief, brought against state officials acting in
their official capacities alleging a violation of state law”).
Nor do they include claims asserted against a state or a state
agency, as opposed to against a state official.

See In Re

Pegasus Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005) (stating
that “agencies of the state are immune from private damage
actions or suits for injunctive relief brought in federal
court”); Apisaloma v Hawaii, 2009 WL 294551, *1 n.2 (D. Haw.,

11

Feb. 5, 2009) (noting that the Ex Parte Young exception is
inapplicable in suits against states or state agencies).
A.

Judgment on the Pleadings is Granted in Favor of
Defendant State of Hawaii.

There is no question that Defendant State of Hawaii has
Eleventh Amendment immunity with respect to Trotter’s § 1983
claim seeking money damages.

See, e.g., Price v. Hawaii, 764

F.2d 623, 629 (9th Cir. 1985) (dismissing claims based on
Hawaii’s sovereign immunity); Young v. Haw., 911 F. Supp. 2d 972,
982 (D. Haw. 2012) (noting that Hawaii has not waived its
sovereign immunity and that Congress did not abrogate that
immunity with respect to § 1983 claims, and barring money damage
claims under § 1983 because of Hawaii’s Eleventh Amendment
immunity).

Nor does the Ex Parte Young doctrine allow

prospective injunctive relief for a § 1983 claim against the
State of Hawaii.

See Pegasus Gold Corp., 394 F.3d at 1195;

Apisaloma, 2009 WL 294551, at *1 n.2.

The court therefore grants

judgment on the pleadings in favor of Defendant State of Hawaii
with respect to Trotter’s § 1983 claim for money damages and for
prospective injunctive relief.

12

B.

Judgment on the Pleadings is Granted in Favor of
Defendant Hawaii Paroling Authority.

This court next turns to whether the Hawaii Paroling
Authority is an agency or instrumentality of the State of Hawaii
such that it also has Eleventh Amendment immunity with respect to
Trotter’s § 1983 claim.

To determine whether an entity is an

“arm of the state” such that it is immune from certain suits
under the Eleventh Amendment, this court analyzes a number of
factors identified by the Ninth Circuit.

The most important

factor concerns “whether the named defendant has such independent
status that a judgment against the defendant would not impact the
state treasury.”
Cir. 1982).

Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th

Other factors include performance by the entity of

an essential government function, its ability to sue or be sued,
its power to take property in its own name or in the name of the
state, and its corporate status.

Id.; see also Sato v. Orange

Cty. Dep't of Educ., 861 F.3d 923, 928 (9th

Cir. 2017).

It is not clear from the record whether a judgment
against the Hawaii Paroling Authority would be paid from Hawaii’s
treasury.

The court nevertheless rules that the Hawaii Paroling

Authority has Eleventh Amendment immunity with respect to
Trotter’s § 1983 claim.
Section 26-14.6(c) places the Hawaii Paroling Authority
within the State of Hawaii’s Department of Public Safety (“DPS”)
for administrative purposes.

The Hawaii Paroling Authority has
13

broad statutory discretion to determine whether an inmate should
be granted or denied parole.

Turner v. Haw. Paroling Auth., 93

Haw. 298, 302, 1 P.3d 768, 772 (Ct. App. 2000); Haw. Rev. Stat.
§ 353-62(a)(1) (Hawaii Paroling Authority “[s]erve[s] as the
central paroling authority for the State”).
Trotter does not challenge the Hawaii Paroling
Authority’s contention that it is an “arm of the state” for
Eleventh Amendment purposes.

The Hawaii Paroling Authority is

part of DPS, a state department that has sovereign immunity with
respect to money damage claims.

See Blaisdell v. Haw. Dep't of

Pub. Safety, 2012 WL 5880685, at *3 (D. Haw. Nov. 21, 2012)
(dismissing § 1983 claim), vacated in part on other grounds, 621
F. App’x 414 (9th Cir. 2015) (“The district court properly
dismissed Blaisdell’s action against the Hawaii Department of
Public Safety because it is barred by the Eleventh Amendment.”);
accord Kaimi v. Haw., Dep't of Pub. Safety, 2013 WL 5597053, at
*3 (D. Haw. Oct. 11, 2013) (ruling that DPS has Eleventh
Amendment immunity with respect to § 1983 claims).

Moreover, the

Hawaii Paroling Authority performs an obviously essential
government function.

This court therefore rules that the Hawaii

Paroling Authority is an agency or instrumentality of Hawaii for
purposes of Eleventh Amendment immunity, meaning that the Hawaii
Paroling Authority is immune with respect to Trotter’s money
damage claims under § 1983.

For the same reasons, this court

14

rules that the Ex Parte Young doctrine is inapplicable to
Defendant Hawaii Paroling Authority.

See Pegasus Gold Corp., 394

F.3d at 1195; Apisaloma, 2009 WL 294551, at *1 n.2.
The court therefore grants the Hawaii Paroling
Authority judgment on the pleadings with respect to Trotter’s
§ 1983 claim for money damages and for prospective injunctive
relief.
C.

Judgment on the Pleadings is Granted in Favor of
Defendant Hawaii Criminal Justice Data Center.

The Hawaii Criminal Justice Data Center is part of
Hawaii’s Department of the Attorney General.
§ 846-2.

Haw. Rev. Stat.

It is responsible for administering Hawaii’s sex

offender registration system.

Doe v. Dep’t of Attorney Gen., 135

Haw. 390, 391, 351 P.3d 1156, 1157 (2015) (“HCJDC is an agency of
the Department of the Attorney General in the State of Hawai‘i,
which administers the State’s sex offender registration system.”
(quotation marks and citation omitted)); Haw. v. Bani, 97 Haw.
285, 290, 36 P.3d 1255, 1260 (2001) (“The Hawai‘i Criminal
Justice Data Center currently publishes collected information
about registered sex offenders on the official website of the
State of Hawai‘i, making it readily accessible to persons
throughout the world.”).
Another judge in this court has held that Hawaii’s
Department of the Attorney General is entitled to Eleventh
Amendment immunity.

See Gao v. Haw. Dep't of Attorney Gen., 2009
15

WL 2849140, at *6 (D. Haw. Sept. 2, 2009).

No facts are before

this court demonstrating that the Hawaii Criminal Justice Data
Center, an agency within Hawaii’s Department of the Attorney
General, should be treated any differently than the department.
Nor has Trotter articulated any opposition to treating the Hawaii
Criminal Justice Data Center as an agency or instrumentality of
Hawaii.

Accordingly, this court rules that the Hawaii Criminal

Justice Data Center has Eleventh Amendment immunity with respect
to Trotter’s § 1983 claim.
The court here grants the Hawaii Criminal Justice Data
Center judgment on the pleadings with respect to Trotter’s § 1983
claim for money damages and for prospective injunctive relief.
V.

THE COURT DECLINES TO ALLOW TROTTER TO FILE AN AMENDED
COMPLAINT.
This court would normally give a pro se plaintiff such

as Trotter leave to file an Amended Complaint.

However, the

court declines to allow the filing of such an Amended Complaint
in this case because it would be futile.

See Yagman v. Garcetti,

852 F.3d 859, 863 (9th Cir. 2017) (“‘In dismissing for failure to
state a claim, a district court should grant leave to amend even
if no request to amend the pleading was made, unless it
determines that the pleading could not be cured by the allegation
of other facts.’” (quoting Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995)); Sharkey v. O'Neal, 778 F.3d 767, 774 (9th Cir.
2015) (“dismissal with prejudice constitutes an abuse of
16

discretion where the district court fails to make a determination
that the pleading could not possibly be cured by the allegation
of other facts” (quotation marks and citation omitted)).
For the reasons set forth in this order, Hawaii and its
agencies or instrumentalities have Eleventh Amendment immunity
with respect to § 1983 claims.
for purposes of § 1983.

Moreover, they are not “persons”

See Will, 491 U.S. at 66 (“a State is

not a ‘person’ within the meaning of § 1983”); Pauline v. Haw.
Dep't of Pub. Safety, 773 F. Supp. 2d 914, 922 (D. Haw. 2011)
(ruling that the Department of Public Safety, the agency that the
Hawaii Paroling Authority is a part of, is not a “person” for
purposes of § 1983).
Although Trotter cannot assert § 1983 claims against
Hawaii or one of its agencies or instrumentalities, he could
conceivably amend his Complaint to assert § 1983 claims against a
non-state actor, such as the Chief of Police for the Honolulu
Police Department, or an individual state official named in an
official capacity for prospective injunctive relief or in an
individual capacity for monetary damages.
amendment would also be futile.

However, any such

The thrust of Trotter’s § 1983

claim is that he was denied due process in violation of the
federal Constitution when he was required to register as a sex
offender in Hawaii in 2000.

Such an amended claim would be

precluded by the applicable two-year limitations period.

17

See

Owens v. Okure, 488 U.S. 235, 240-41 (1989) (“Because § 1983
claims are best characterized as personal injury actions, we held
that a State’s personal injury statute of limitations should be
applied to all § 1983 claims.” (quotation marks and citation
omitted)); Gregg v. Haw., Dep’t of Pub. Safety, 870 F.3d 883, 887
(9th Cir. 2017) (applying two-year statute of limitations to
§ 1983 claim asserted in Hawaii federal court); Andrade v. Darren
Cho, 2017 WL 2974926, at *5 (D. Haw. July 12, 2017) (“Section
1983 claims are subject to the two-year statute of limitations
applicable to personal injuries set forth in HRS § 657–7.”).
While a time bar is normally addressed as an
affirmative defense that a defendant has the burden of proving, a
district court does not abuse its discretion when it denies leave
to file an amended claim barred by a statute of limitations under
circumstances similar to those before this court.

In Naas v.

Stolman, 130 F.3d 892 (9th Cir. 1997), for example, the Ninth
Circuit affirmed a district court’s dismissal of a claim with
prejudice based on the applicable statute of limitations.

The

Ninth Circuit then ruled that the district court did not abuse
its discretion in denying leave to amend a complaint to add a
potential claim that would still be barred by the statute of
limitations.
fully briefed.

Id. at 892-93.

Here, the limitations issue was

Although this court grants Defendants judgment on

the pleadings on Eleventh Amendment immunity grounds, Trotter’s
18

§ 1983 claim unquestionably would have been time-barred, as
argued by Defendants.

See ECF No. 23-1, PageID #s 84-85.

Trotter alleges that he did not receive a hearing prior to being
required to register as a sex offender in Hawaii in 2000.

This

claim is certainly older than two years and Trotter made no
argument that the limitations period should be equitably tolled.
Assuming that Trotter would want to name state officials with
respect to a § 1983 claim based on the same facts, it is clear
that Defendants’ counsel, who would likely represent such state
officials, would again raise the statute of limitations defense.
Allowing such an amended claim would therefore be futile.
Moreover, any attempt to amend the Complaint to assert
a viable due process claim, including any attempt to assert a
continuing violation to which the limitations period might not
pose a bar, would also fail.

That is because, under Ninth

Circuit precedent, there is no fundamental right at issue,
regardless of whether the conduct complained of continues.
In United States v. Juvenile Male, 670 F.3d 999, 1012
(9th Cir. 2012), the Ninth Circuit rejected a substantive due
process claim under the federal Constitution based on the federal
sex offender registry law, reasoning that it did not implicate a
fundamental right.

Absent an effect on a fundamental right, the

law was not subject to strict scrutiny review.

Instead, the

court examined whether the law was reasonably related to a

19

legitimate state interest.

The Ninth Circuit determined that sex

offender registry laws advance “a legitimate nonpunitive purpose
of public safety” by “alerting the public to the risk of sex
offenders in the community.”

Id.

The Ninth Circuit’s reasoning compels the conclusion
that Hawaii’s sex offender law does not involve a fundamental
right and serves the legitimate nonpunitive purpose of notifying
the public of the risk of sex offenders in the community.
Accordingly, no valid substantive due process claim under the
federal Due Process Clause could be asserted by Trotter based on
Hawaii’s requirement that he register as a sex offender in
Hawaii.
Juvenile Male is also dispositive of any potential
federal procedural due process claim that could be asserted by
Trotter.

Procedural due process claims require courts to conduct

a two-step analysis.

In step one, the court determines whether

there is a liberty or property interest that has been interfered
with by the state.

In step two, the court examines “whether the

procedures attendant upon that deprivation were constitutionally
sufficient.”

Id. at 1013.

Here, no property interest is

implicated by Hawaii’s sex offender registry laws.

Moreover, the

Ninth Circuit noted in Juvenile Male that “adverse publicity or
harm to the reputation of sex offenders does not implicate a

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liberty interest for the purposes of due process analysis.”

Id.

(citing Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003)).
Even if Trotter could identify some liberty interest
that might be implicated by Hawaii’s sex offender registration
laws, Trotter’s federal procedural due process claim would be
precluded by Juvenile Male, which noted that, with respect to the
second step, additional process is necessary only when “it gives
a sex offender the ability to prove or disprove facts related to
the applicability of the registration requirement.”
Male, 670 F.3d at 1014.

Juvenile

Trotter seeks a hearing to challenge the

applicability of Hawaii’s registration laws to him.

Trotter also

argues that he did not receive a hearing in which he could argue
that “Hawaii 846-E does not cover out of state sex conviction.”
Complaint, Sec. III, ECF No. 1, PageID # 3.

Trotter argues that

he need not register in Hawaii because he is not required to
register in Minnesota, the state in which he committed the sexual
assault.

Id.
But Hawaii’s sex offender registry laws do not turn on

whether Trotter’s sexual assault occurred in Hawaii or whether
Trotter is required to register as a sex offender in Minnesota.
Instead, under section 846E-2, a “covered offender” must
register.

Whether Trotter is a “covered offender” turns on

whether he is a “sex offender,” defined as a “person who is or
has been convicted at any time . . . of a ‘sexual offense.’”

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Haw. Rev. Stat. § 846E-1 (emphasis added).

A “sexual offense”

includes an out-of-state conviction for an offense that would be
or is comparable to numerous sexual offenses under Hawaii law,
including a violation of section 707-731(a).

Id.

Trotter was convicted in Minnesota of intentional
sexual penetration by force or coercion.

The sexual offense

described in Hawaii’s section 707-731(1)(a) is knowingly
subjecting another person to sexual penetration by compulsion.
Trotter’s Minnesota conviction makes him a “sex offender” or
“covered offender” for purposes of Chapter 846E.

Trotter’s

status as a “sex offender” turns on his conviction alone.

A

hearing, challenge, or additional due process was not necessary
because Trotter had already had a procedurally safeguarded
opportunity to contest his conviction through Minnesota’s courts.
See Juvenile Male, 670 F.3d at 1014.
Because Trotter could not amend his Complaint to assert
a viable claim based on the requirement that he register as a sex
offender, the court declines to grant him leave to do so.
IV.

CONCLUSION.
Defendants’ motion for judgment on the pleadings is

granted.
denied.

Trotter’s motion for judgment on the pleadings is
The court declines to allow Trotter to file an amended

complaint, as any such amended pleading would be futile.

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The

Clerk of Court is directed to enter judgment in favor of
Defendants and to close this case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 15, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Trotter v. State of Hawaii, et al., Civ. No. 17-00016 SOM/KSC; ORDER GRANTING
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS; ORDER DENYING PLAINTIFF’S MOTION FOR
JUDGMENT ON THE PLEADINGS

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