Hankins v. Hickam Airforce Base - Naval Magazine Pearl Harbor West Loch Branch

Filing 21

Order GRANTING Motion to Dismiss and DENYING Motion To Get Clarification For Judgment.The court dismisses the Complaint. Because the court lacks jurisdiction, the court also denies Plaintiffs Motion to Get Clarification for Judgment. Hankins may fil e an Amended Complaint no later than October 13, 2017. Signed by JUDGE SUSAN OKI MOLLWAY on 9/18/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document ele ctronically 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 Pro Se Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JASON HANKINS,

)
)
Plaintiff,
)
)
vs.
)
HICKAM AIR FORCE BASE - NAVAL )
)
MAGAZINE PEARL HARBOR WEST
)
LOCH BRANCH,
)
)
Defendant.
_____________________________ )

Civ. No. 17-00279 SOM-RLP
ORDER GRANTING MOTION TO
DISMISS AND DENYING MOTION TO
GET CLARIFICATION FOR
JUDGMENT

ORDER GRANTING MOTION TO DISMISS AND
DENYING MOTION TO GET CLARIFICATION FOR JUDGMENT
I.

INTRODUCTION.
Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires complaints to present “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Plaintiff Jason Hankins, proceeding pro se, filed a Complaint
that is neither short nor plain.

The court has attempted to

discern what claim is being asserted.

The Complaint appears to

invoke the Federal Torts Claim Act (“FTCA”), insofar as it
alleges that equipment at Defendant Hickam Air Force Base
(“HAFB”) injured Hankins and others.

However, the Complaint

does not say whether Hankins presented his damages claim to HAFB
before filing suit, which is a jurisdictional requirement under
the FTCA.
The United States moves to dismiss the Complaint for
lack of subject matter jurisdiction or, alternatively, for

failure to state a claim upon which relief can be granted.
court grants the motion on jurisdictional grounds.

The

Because the

court lacks jurisdiction, the court also denies Plaintiff’s
Motion to Get Clarification of Judgment.

The court decides the

motions without a hearing pursuant to Local Rule 7.2(d).
II.

BACKGROUND.
Hankins filed a “Proposed Judgment; Affidavit” in the

First Circuit of Hawaii on May 26, 2017, which this court
construes as Hankins’s Complaint.

See ECF No. 1-1, PageID # 6.

The United States removed the case to this court on June 12,
2017.

ECF 1, PageID # 3.
Hankins’s Complaint is not easily deciphered.

It

seeks unspecified damages following HAFB’s alleged operation of
“Equipment” that caused “Severe Harm” to several individuals,
including Hankins, residing at Kapalina Beach Homes in Ewa
Beach, Hawaii.

ECF 1-1, PageID # 7, 33-34.

The Complaint

variously refers to this “Equipment” as “Nas Daq Equipment,”
“Tamp Equipment,” “Prodigy Equipment,” a “Containment Unit,” and
“Sysco Technology Software.”

Id., PageID # 9-11, 31.

Hankins

claims that this equipment is “Harassing [and] Terrorizing the
People,” “Waking a Person from Sleeping,” “Keeping the People in
the Area,” “Controlling the People [by] . . . Changing The[] Way
that They Live,” and “Hit[ting]” people “with the Conversion of
Energy” and making them “Pass Out.”
2

Id., PageID # 10, 11, 21,

24, 27.

Hankins is the only specifically identified person

among those allegedly harmed by the equipment.

See, e.g., id.

PageID # 14.
Hankins appears to be trying to state a claim under
the FTCA.

The Complaint does not cite the FTCA, but the

allegations concern allegedly disruptive Air Force equipment,
and the FTCA is “the exclusive remedy for tortious conduct by
the United States” or federal agencies.
F.3d 697, 706 (9th Cir. 1998).

F.D.I.C. v. Craft, 157

The Complaint does discuss State

of Hawaii criminal laws and other “penal code” provisions, but
it references no federal law.

See ECF 1-1, PageID # 9, 16, 26

(mentioning portions of the Michigan Freedom of Information Act,
MICH. COMP. LAWS §§ 15.233, 15.235 (West 2017); a Michigan antistalking provision, id. § 750.411h (West 2017); a Michigan
evidentiary provision, id. § 750.157 (West 2017); and a Hawaii
provision incorporating the common law, HAW. REV. STAT. § 1-1 (West
2017)); see also ECF 5-4 (appending most of these statutes as
exhibits).
On July 20, the United States moved to dismiss the
Complaint under Rule 12(b)(1) of the Federal Rules of Civil
Procedure or, in the alternative, Rule 12(b)(6).

ECF 13-1.

August 1, Hankins filed a “Motion to Get Clarification for
Judgment.”

ECF 17.

The court dismisses the Complaint and

denies Hankins’s “clarification” motion.
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On

III.

STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).
Rule 12(b)(1) authorizes a court to dismiss claims

over which it lacks subject matter jurisdiction.

An attack on

subject matter jurisdiction “may be facial or factual.”

Safe

Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A facial attack asserts that “the allegations contained in a
complaint are insufficient on their face to invoke federal
jurisdiction.”

Id.

A factual attack, on the other hand,

“disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.”

Id.

When the moving party makes a facial challenge, the
court’s inquiry is “confin[ed] . . . to allegations in the
complaint.”

Savage v. Glendale Union High Sch., 343 F.3d 1036,

1040 (9th Cir. 2003).
as true.

Those allegations are taken by the court

Courthouse News Serv. v. Planet, 750 F.3d 776, 780

(9th Cir. 2014).

On the other hand, if the moving party makes a

factual challenge, the court may consider evidence beyond the
complaint and “need not presume the truthfulness of the
plaintiff’s allegations.”

Id.

“Once the moving party has

converted the motion to dismiss into a factual motion by
presenting affidavits or other evidence properly brought before
the court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.”
4

Id. (quoting Savage

v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.
2003)) (internal quotation marks omitted).
HAFB alternatively moves under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.

Dismissal under Rule 12(b)(6)

may be based on either: (1) lack of a cognizable legal theory,
or (2) insufficient facts under a cognizable legal theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 533–34 (9th Cir. 1984)).
The court addresses the jurisdictional challenges
first, reserving Rule 12(b)(6) matters for later consideration
if, with an Amended Complaint, the court ultimately determines
that it has subject matter jurisdiction.

The court’s present

analysis begins and ends with jurisdiction.
IV.

ANALYSIS.
A.

The Court Dismisses the Complaint.

“Federal courts are courts of limited jurisdiction,”
and “[i]t is to be presumed that a cause lies outside this
limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994).

The party invoking federal

jurisdiction has the burden of proving the existence of subject
matter jurisdiction.
(9th Cir. 1996).

Id.; Thompson v. McCombe, 99 F.3d 352, 353

If a court lacks subject matter jurisdiction,

it must dismiss the complaint, sua sponte if necessary.
5

Leeson

v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n. 12
(9th Cir. 2012) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006)).
Federal courts can lack subject matter jurisdiction
for a variety of reasons.

One is sovereign immunity: if an

entity entitled to sovereign immunity declines to waive it,
damage claims cannot proceed and Rule 12(b)(1) dismissal is
appropriate.

See Mills v. United States, 742 F.3d 400, 404-04

(9th Cir. 2014); see also Pistor v. Garcia, 791 F.3d 1104, 1111
(9th Cir. 2015) (explaining that although “sovereign immunity is
only quasi-jurisdictional in nature, Rule 12(b)(1) is still a
proper vehicle for invoking sovereign immunity from suit”).

In

the context of a Rule 12(b)(1) motion to dismiss, “‘the party
asserting subject matter jurisdiction has the burden of proving’
. . . that immunity does not bar the suit.”

Army & Air Force

Exch. Serv. v. Sheehan, 456 U.S. 728, 734 (1982) (quoting Miller
v. Wright, 705 F.3d 919, 923 (9th Cir. 2013)).
HAFB is an “arm of the [federal] government” that
“partakes of whatever immunities [the United States has] under
the Constitution and federal statutes.”

See Sheehan, 456 U.S.

at 733-34 (discussing the Army and Air Force Exchange Service as
an arm of the United States); see also Tobar v. United States,
639 F.3d 1191, 1194-95 (9th Cir. 2011) (same, with the United
States Coast Guard).

Because HAFB is entitled to sovereign
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immunity, this court can entertain this suit for damages “only
if Congress has consented” by enacting a statute that
“unequivocally” abrogates that immunity.

Sheehan, 456 U.S. at

734 (quoting United States v. Testan, 424 U.S. 392, 399 (1976));
see also Tobar, 639 F.3d at 1195.
The United States claims that, because the Complaint
does not establish a waiver of sovereign immunity, it must be
dismissed under Rule 12(b)(1).

ECF 13-1, PageID # 205-7.

The

United States first argues that Hankins “has cited no specific
statute[] which would waive the doctrine.”

Id., PageID # 207.

This initial argument is meritless.
The FTCA is a statute that “waives the United States’
sovereign immunity for actions in tort.”
States, 45 F.3d 297, 300 (9th Cir. 1995).

Cadwalder v. United
Although the

Complaint does not cite the FTCA, the court “has a duty to
ensure that pro se litigants do not lose their right to a
hearing on the merits of their claim due to ignorance of
technical procedural requirements,” and, as such, must construe
their pleadings “liberally.”

Balistreri v. Pacifica Police

Dep't, 901 F.2d 696, 699 (9th Cir. 1988); see also Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985).

A pro se

complaint is not automatically defective if it fails to cite the
right statute; instead, as long as the statute is clearly
related to the allegations, the court should construe the
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complaint as invoking it.

See, e.g., Bretz, 773 F.2d at 1027

(“Even though the [pro se] petitioner’s brief does not
specifically refer to [42 U.S.C.] § 1985, we must [nonetheless]
determine whether [petitioner’s pleadings] stated a cause of
action under [it].”).
The FTCA is clearly relevant.

The Complaint alleges

that “Equipment . . . Activity” by “enlistments” at “Hickam
Airforce [sic] Base” caused “Severe Harm” to Hankins and others.
ECF 1-1, PageID # 7-9.

Such allegations make out an FTCA claim.

See, e.g., Holloway v. United States, No. 2:12-CV-02120-MCE-CKD,
2015 WL 2185223, at *1 (E.D. Cal. May 8, 2015) (refusing to
dismiss part of an FTCA suit involving equipment at Beale Air
Force Base that allegedly electrically shocked the plaintiff).
The United States argues that, even if the Complaint
properly invokes the FTCA, it fails to include required
allegations that Hankins administratively exhausted his claim,
and thus this court still lacks subject matter jurisdiction.
ECF 13-1, PageID # 207.

This argument has merit.

The FTCA requires plaintiffs to exhaust administrative
remedies before filing suit against the United States.
United States, 211 F.3d 499, 502 (9th Cir. 2000).

Brady v.

This

requirement arises from 28 U.S.C. § 2675(a), which provides in
part:

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An action shall not be instituted upon a claim against
the United States for money damages for injury or loss
of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, unless the claimant shall have
first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by
the agency in writing and sent by certified or
registered mail. The failure of an agency to make
final disposition of a claim within six months after
it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim
for purposes of this section.

Id. (emphasis added).
The Ninth Circuit has explained that, to satisfy
§ 2675(a), “the claimant or his legal representative [must] file
(1) a written statement sufficiently describing the injury to
enable the agency to begin its own investigation [into the
matter], and (2) a sum certain damages claim.”

Warren v. U.S.

Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th
Cir. 1984) (en banc).

The claim should “put the agency on

notice of every essential feature of the plaintiffs’ case,
allowing the agency to investigate and, if possible, settle the
case before it [goes] to court.”

Brady, 211 F.3d at 503.

A

“skeletal” claim will suffice if it “inform[s] the agency of the
nature of the alleged injury and the amount of damages.”

Id. at

502-03 (describing Avery v. United States, 680 F.2d 608 (9th
Cir. 1982)).

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“The timely filing of an administrative claim is a
jurisdictional prerequisite to the bringing of a suit under the
FTCA . . . and, as such, should be affirmatively alleged in the
complaint.”

Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.

1980) (citing Caton v. United States, 495 F.2d 635 (9th Cir.
1974)); see also Saleh v. Bush, 848 F.3d 880, 887 n.4 (9th Cir.
2017) (citing Brady, 211 F.3d at 502).

Even in a pro se case,

“[a] district court may dismiss a complaint for failure to
allege this jurisdictional prerequisite.”

Gillespie, 629 F.2d

at 640; see also Mendoza v. United States, 661 F. App’x 501,
501–02 (9th Cir. 2016).
Hankins does not assert that he submitted an
administrative claim to HAFB before instituting this suit.
ECF 13-1, PageID # 207 (making this observation).

See

The United

States could presumably have submitted evidence indicating that
HAFB did not receive such a claim.

See, e.g., Tritz v. U.S.

Postal Serv., 721 F.3d 1133, 1140-41 (9th Cir. 2013) (discussing
an affidavit from the agency’s Torts Claims Coordinator that
helped the court find lack of exhaustion).

But the United

States’ failure to submit such evidence does not rescue Hankins
from the requirement that he allege exhaustion.

The burden

remains on Hankins not only to exhaust his administrative
remedies, but also to allege the jurisdictional requirement that
he has done so.

In the absence of any indication that Hankins
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submitted an administrative claim, this court dismisses the
Complaint for lack of jurisdiction.

See Gillespie, 629 F.2d at

640.
V.

CONCLUSION.
The court dismisses the Complaint.

Because the court

lacks jurisdiction, the court also denies Plaintiff’s Motion to
Get Clarification for Judgment.
Hankins may file an Amended Complaint no later than
October 13, 2017.

See Weilburg v. Shapiro, 488 F.3d 1202, 1205

(9th Cir. 2007) (“Dismissal of a pro se complaint without leave
to amend is proper only if it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment.”)
(quotation marks and citation omitted); Gillespie, 629 F.2d at
640 (similar).

If Hankins fails to timely file an Amended

Complaint, this action will be automatically dismissed.
Any proposed Amended Complaint must be complete in
itself; it may not simply incorporate by reference the original
Complaint or anything previously filed with this court or any
other court.
Also, pursuant to Rule 8(a) of the Federal Rules of
Civil Procedure, any Amended Complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”

With respect to each claim, Hankins should

describe what Hickam Air Force Base allegedly did in separate,
11

numbered paragraphs, including sufficient facts and references
to legal claims and statutory citations to put HAFB on notice of
why it is being sued.
plaintiff’s claim.

Complaints are the road map to a

Accordingly, any proposed Amended Complaint

should clearly and concisely articulate the claim being asserted
and the basis or bases of this court’s jurisdiction, including
whether Hankins wishes to proceed under the FTCA or some other
federal law.
If Hankins is proceeding under the FTCA, his
allegations should include factual information about his
exhaustion of administrative remedies.

If he is not proceeding

under the FTCA, then, depending on what law he is proceeding
under, he might not face an administrative exhaustion
requirement, but he must still state some claim that is not
barred by sovereign immunity.

Either way, he should include

sufficient factual detail to make any claim plausible.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 18, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Jason Hankins v. Hickam Air Force Base, Civ. No. 17-000279 SOM/RLP; ORDER
GRANTING MOTION TO DISMISS AND DENYING MOTION TO GET CLARIFICATION OF
JUDGMENT.

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