Cislo v. Fuchigami et al
Filing
30
ORDER GRANTING MOTION TO DISMISS 15 . Signed by JUDGE SUSAN OKI MOLLWAY on 12/22/2017. (afc) WRITTEN ORDER follows hearing held 12/11/2017. Minutes of hearing: ECF 29 . Docket text entry modified on 12/22/2017 to note:ORDER furthermore gives leave for plaintiff to amend his complaint consistent with the instant order. "Any Amended Complaint must be filed no later than January 12, 2018. If no Amended Complaint is filed by that date, the Clerk of Court is directed to enter judgment in favor of Defendants and to close this case." 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 Modified on 12/22/2017 (afc, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TIMOTHY J CISLO,
)
)
Plaintiff,
)
)
vs.
)
)
FORD N. FUCHIGAMI, in his
)
official capacity as
)
Director, Department of
)
Transportation, State of
)
Hawai`i, and as former Deputy )
Director, Department of
)
Transportation Airports
)
Division, State of Hawai`i;
)
ROSS M. HIGASHI, in his
)
official capacity as Deputy
)
Director or former
)
capacities, Department of
)
Transportation Airports
)
Division, State of Hawai`i;
)
ROY SAKATA, in his
)
official capacity as the
)
Airport District
)
Manager for the Oahu District )
Office of Department of
)
Transportation Airports
)
Division, State of Hawai`i;
)
ABIGAIL LAREAU, in her
)
official capacities for
)
Department of Transportation )
Airports Division, State of
)
Hawai`i, Property Management )
Section; and DEPARTMENT OF
)
TRANSPORTATION – AIRPORTS
)
DIVISION, STATE OF HAWAI`I,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 17-00487 SOM/KJM
ORDER GRANTING MOTION TO
DISMISS
ORDER GRANTING MOTION TO DISMISS
I.
INTRODUCTION.
This case arises out of a lease dispute at the Kalaeloa
Airport on Oahu, Hawaii.
Plaintiff Timothy Cislo asserts claims
under 42 U.S.C. § 1983 for violations of his equal protection and
due process rights (Count I), as well as state-law claims of
breach of contract--intended third party beneficiary (Count II),
negligent misrepresentation (Count III), breach of contract-revocable permit (Count IV), and breach of the covenant of good
faith and fair dealing (Count V).
Cislo asserts these claims
against the Department of Transportation, Airports Division,
State of Hawai`i, as well as various employees in their official
capacities only.
Cislo seeks monetary damages for each of these
counts, as well as injunctive relief.
The court grants Defendants’ motion to dismiss Cislo’s
Complaint.
Defendants have Eleventh Amendment immunity with
respect to the claims seeking money damages asserted in the
Complaint.
Although Eleventh Amendment immunity does not reach
the prayer for prospective injunctive asserted against the
individual Defendants in their official capacities, the court
rules that, because Cislo fails to allege what the individual
Defendants did or could do such that their future conduct could
be enjoined, injunctive relief is not available.
II.
BACKGROUND.
On or about July 1, 1999, Defendant Department of
Transportation, Airports Division, State of Hawai`i (“DOT-A”),
assumed ownership, control, and operation of the John Rodgers
Airfield on Oahu, which it renamed the Kalaeloa Airport.
2
The
land on which Kalaeloa Airport sits was formerly owned by the
United States Department of Defense, which transferred it to the
DOT-A as surplus land.
See Complaint ¶¶ 51-52, ECF No. 1, PageID
# 13. Cislo says the quitclaim deed transferring the property
required DOT-A to operate and maintain the airport for all civil
aviation users on reasonable terms and without discrimination.
Id. ¶ 11, PageID # 11.
Cislo alleges that, since receiving title to the land,
DOT-A has received grants from the federal government that also
require it to operate the Kalaeloa Airport for all civil aviation
users, under reasonable terms and without discrimination.
Id.
¶ 17, PageID # 6.
Cislo says the DOT-A has refused to give him a fair and
reasonable noncommercial long-term lease, instead giving him only
month-to-month revocable permits on two lots.
PageID # 7.
For the last ten years, Cislo has been renting space
at the Kalaeloa Airport.
During that time, Cislo constructed a
private hangar at a cost of about $250,000.
# 36.
Id. ¶¶ 20-21, 23,
Id. ¶ 160, PageID
Cislo alleges that the DOT-A notified him in August 2017
that his monthly rent was being increased from $491.00 to
$2,633.33 on one lot and from $193.67 to $292.21 on the other
lot, effective October 1, 2017.
Id. ¶¶ 25-26, 161, PageID #s 8,
36.
3
In connection with his application for a long-term
lease, the Complaint alleges that Defendants arbitrarily demanded
financial information that no other applicant was required to
submit.
Id. ¶ 117, PageID # 27.
Cislo sues Defendant Ford N. Fuchigami in only his
official capacity.
Fuchigami is described as the current
Director of the Department of Transportation, State of Hawaii,
and as the former Deputy Director or the Acting Deputy Director
of DOT-A.
Id. ¶ 2, PageID # 2.
In reality, Fuchigami is no
longer with DOT-A, but this court proceeds as if all references
to Fuchigami (including in this order) apply to his successor.
Cislo alleges that Defendant Ross M. Higashi, sued only
in his official capacity, is the Deputy Director of DOT-A and was
otherwise employed by the DOT-A during relevant periods.
Id.
¶ 3, PageID # 3.
Cislo alleges that Defendant Roy Sakata, sued only in
his official capacity, is the Airport District Manager for the
Oahu Office of DOT-A and was otherwise employed by the DOT-A
during relevant periods.
Id. ¶ 4, PageID # 3.
Cislo alleges that Defendant Abigail Lareau, sued only
in her official capacity, was at relevant times employed by the
DOT-A.
Id. ¶ 5, PageID # 3.
4
III.
MOTION TO DISMISS STANDARDS.
A.
Rule 12(b)(1) Standard.
Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a complaint may be dismissed for lack of 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.
Before this court is a facial attack.
In deciding a Rule 12(b)(1) motion, a court must assume
the facts alleged in the complaint to be true and must construe
the allegations in the light most favorable to the nonmoving
party.
Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139
(9th Cir. 2003).
However, courts “do not accept legal
conclusions in the complaint as true, even if ‘cast in the form
of factual allegations.’”
Lacano Invs., LLC v. Balash, 765 F.3d
1068, 1071 (9th Cir. 2014) (quoting Doe v. Holy See, 557 F.3d
1066, 1073 (9th Cir. 2009).
5
B.
Rule 12(b)(6) Standard.
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of a complaint.
Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d
1476, 1479 (9th Cir. 1996).
If matters outside the pleadings are
considered, the Rule 12(b)(6) motion is treated as one for
summary judgment.
See Keams v. Tempe Tech. Inst., Inc., 110 F.3d
44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934
(9th Cir. 1996).
However, the court may take judicial notice of
and consider matters of public record without converting a Rule
12(b)(6) motion to dismiss into a motion for summary judgment.
See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.
1988).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
6
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)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555.
The complaint must “state a
claim to relief that is plausible on its face.”
Id. at 570.
“A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
7
that the defendant is liable for the misconduct alleged.”
Iqbal,
556 U.S. at 678.
IV.
ANALYSIS.
Cislo seeks money damages for alleged violations of 42
U.S.C. § 1983 and state law, as well as injunctive relief, which
he prays for in Count VI.
Injunctive relief is a remedy, not a
stand-alone cause of action.
See Ramos v. Chase Home Fin., 810
F. Supp. 2d 1125, 1132 (D. Haw. 2011).
Accordingly, the court
dismisses the “injunctive relief claim” asserted in Count VI, but
will read the Complaint as seeking injunctive relief with respect
to each of the remaining counts.
Defendants’ Motion to Dismiss Complaint, ECF No. 15,
argues that Defendants have Eleventh Amendment immunity with
respect to the money damage claims asserted in the Complaint.
Defendants contend that only requests for prospective injunctive
relief against individuals sued in their official capacities
survive the Eleventh Amendment, but that those requests cannot be
maintained because they are not supported by sufficient factual
allegations.
This court agrees and dismisses Cislo’s Complaint.
8
A.
The Eleventh Amendment Bars Cislo’s Claims for
Money Damages from DOT-A, as a State Agency, and
the Individual Defendants Acting in their Official
Capacities as State Employees.
Cislo’s written opposition entirely fails to address
the Eleventh Amendment arguments raised in the motion to dismiss,
at most saying, “[s]uch immunity is not absolute.”
PageID # 172.
ECF No. 22,
Cislo’s opposition focuses on whether the claims
are viable and contains no discussion of whether a state agency
and its employees are immune from such claims.
Under the
circumstances presented here, the Eleventh Amendment bars Cislo’s
claims for money damages from DOT-A or from any individual
Defendant in that individual’s official capacity.
Under the Eleventh Amendment, a state is immune from
certain actions brought in federal court by her own citizens or
citizens of other states.
Papasan v. Allain, 478 U.S. 265, 276
(l986); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100, 106 (1984).
Federal court actions against agencies or
instrumentalities of a state are also barred by the Eleventh
Amendment.
Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928
(9th Cir. 2017).
Cislo alleges that DOT-A is an agency of the
State of Hawaii and does not contest the agency’s right to avail
itself of Eleventh Amendment immunity.
See Complaint ¶ 6
(“Defendant DEPARTMENT OF TRANSPORTATION - AIRPORTS DIVISION . .
. is an agency of the State of Hawai`i”).
9
A suit against state officials in their official
capacities is the same as a suit against the state itself and
therefore is subject to the Eleventh Amendment.
Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989) (“a suit against a
state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s
office”).
Cislo asserts claims against Fuchigami, Higashi,
Sakata, and Lareau in their official capacities as officials of
the State of Hawaii.
Cislo does not dispute that these
individual Defendants sued in their official capacities may avail
themselves of Eleventh Amendment immunity.
Unless a state unequivocally waives sovereign immunity
or Congress exercises its power under the Fourteenth Amendment to
override the immunity, the state, its agencies, and its officials
(acting in their official capacities) are immune under the
Eleventh Amendment from suit for money damages.
at 66; Pennhurst, 465 U.S. at 99.
Will, 491 U.S.
Cislo’s opposition did not
claim that Hawaii has unequivocally waived its immunity from
those claims or that Congress exercised its power under the
Fourteenth Amendment to override that immunity.
See Will, 491
U.S. at 66; Pennhurst, 465 U.S. at 99.
As this judge was walking into the hearing on the
present motion, however, she received Cislo’s Submission of
Further Authority, which Cislo filed as his “SUPPLEMENT re
10
Judge’s Inclination.”
See ECF No. 28.
This so-called
“SUPPLEMENT” clearly violated the court’s procedures relating to
its practice of issuing prehearing inclinations.
This court
clearly told the parties:
The parties are reminded that, under Local
Rule 7.4, they may not submit supplemental
briefs (such as briefs addressing the
inclination) unless authorized by the court.
Supplemental declarations, affidavits, and/or
other evidence in response to the court’s
inclinations are prohibited unless
authorized by the court. The parties are
also reminded that they must comply with
Local Rule 7.8 if they intend to rely on
uncited authorities at the hearing.
ECF No. 27, PageID # 451.
It appears that Cislo decided to
address the immunity issue only after receiving the court’s
inclinations stating that the court was inclined to rule that
Defendants had Eleventh Amendment immunity.
In so addressing Defendants’ Eleventh Amendment
immunity, Cislo also violated Local Rule 7.8, which requires any
submission of uncited authority to be submitted no later than 4
days before a hearing.
By submitting a list of authorities as
the hearing was about to start, Cislo deprived the court and
opposing counsel of the opportunity to examine those authorities
before the hearing.
The thrust of Cislo’s untimely submission of
authorities is that the State of Hawaii waived its Eleventh
Amendment immunity with respect to tort claims.
11
But the
authority cited does not stand for that proposition or has been
superseded by statute.
Ultimately, Cislo does not show that
Hawaii lacks Eleventh Amendment immunity or has waived that
immunity with respect to the § 1983 claims.
See Pennhurst, 465
U.S. at 120 (“if a § 1983 action alleging a constitutional claim
is brought directly against a State, the Eleventh Amendment bars
a federal court from granting any relief on that claim”); Pahk v.
Hawaii, 109 F. Supp. 2d 1262, 1267 (D. Haw. 2000) (holding that
Hawaii is immune from § 1983 claims under Eleventh Amendment).
Nor does Cislo show that Hawaii lacks Eleventh Amendment immunity
with respect to his contract claims.
See Sharafeldin v.
Maryland, Dep't of Pub. Safety & Corr. Servs., 94 F. Supp. 2d
680, 686 (D. Md. 2000) (“courts have concluded that actions for
breach of a settlement agreement dismissing Title VII claims are
actions which arise under state contract law and that no basis
for federal jurisdiction exists for breach of such agreements
because such actions are precluded by the Eleventh Amendment from
being brought in federal court”).
For example, Cislo cites In re Holoholo, 512 F. Supp.
889 (D. Haw. 1981), and sections 661-1 and 661-11 of Hawaii
Revised Statutes for the proposition that the State of Hawaii has
waived its Eleventh Amendment immunity in this case.
In
Holoholo, the plaintiffs brought a wrongful death action in
federal court arising out of the sinking of a boat.
12
Holoholo
examined sections 662-2 and -3, section 661-1, and section 661-11
of Hawaii Revised Statutes, concluding that those sections
demonstrated an express waiver of the State of Hawaii’s Eleventh
Amendment immunity.
Id. at 896-98.
Section 662-2 states: “The State hereby waives its
immunity for liability for the torts of its employees and shall
be liable in the same manner and to the same extent as a private
individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages.”
At the time Holoholo was decided, section 662-3 stated:
The circuit courts of the State and, except
where otherwise provided by statute or rule,
the district courts shall have original
jurisdiction of all tort actions on claims
against the State, for money damages,
accruing on and after July 1, 1957 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 State
while acting within the scope of his office
or employment.
Hawaii’s circuit and district courts are trial courts, with the
state district courts having more limited jurisdiction.
Holoholo
rejected the state defendants’ argument that section 662-3 waived
sovereign immunity with respect to tort actions only in state
courts, not federal courts.
Id. at 896.
Holoholo additionally
determined that section 661-1 provided nonexclusive jurisdiction
to state courts with respect to certain claims against the state,
13
and that section 661-11 provided the applicable statutory consent
to jurisdiction.
512 F. Supp. at 898.
At the time, section 661-11 stated:
This section applies to an action where
(1) the State is a party defendant; (2) the
subject matter of the claim is covered by an
insurance policy entered into by the State or
any of its agencies; and (3) chapter 662 does
not apply. No defense of sovereign immunity
shall be raised in an action under this
section. However, the State’s liability
under this section shall not exceed the
amount of, and shall be defrayed by, such
insurance policy.
An action under this section is not subject
to the provisions of sections 661-1 to
661-10.
In 1984, the Hawaii legislature enacted Act 135, which
stated: “This Act is a response to the court’s erroneous
interpretation of section 662-3, Hawaii Revised Statutes, in In
re Holoholo, 512 F. Supp. 889 (D. Haw. 1981).”
Act 135 amended
sections 661-1 and 662-3 to add the word “state” before “district
court” and was intended to clarify the intent of the statute:
to expressly restate, reiterate, and declare
the intent of the legislature in amending
section 661-1 and 662-3, Hawaii Revised
Statutes, in 1978 to extend jurisdiction to
district courts in tort actions on claims
against the State and certain other claims
against the State, was originally and is now
to extend jurisdiction for such actions and
claims against the State to state district
courts, and not to extend jurisdiction for
such actions and claims to federal district
courts.
14
Subsequent to passage of Act 135 by Hawaii’s
legislature, this district’s federal courts have recognized that,
although the State of Hawaii had consented to be sued in chapter
662 of Hawaii Revised Statutes with respect to torts asserted in
state court, that consent did not operate as a waiver by the
State of Hawaii of its Eleventh Amendment immunity in federal
court.
See Doe ex rel. Doe v. State of Hawaii Dep't of Educ.,
351 F. Supp. 2d 998, 1018 (D. Haw. 2004) (“Although the State of
Hawaii generally waives liability of its sovereign immunity as to
torts of its employees in the Hawaii State Tort Liability Act,
H.R.S. ch. 662, this waiver only applies to claims brought in
state courts and does not constitute a waiver of the State’s
Eleventh Amendment immunity.”); Bator v. Hawaii, 1992 WL 690295,
at *4 (D. Haw. May 20, 1992), 39 F.3d 1021 (9th Cir. 1994).
In
relying on Holoholo, Cislo is therefore relying on an outdated
authority that has been overtaken by a statutory change and by
subsequent decisions.
Cislo’s reliance on section 661-1 with respect to his
contract claims against the State of Hawaii is equally flawed.
The statute, as amended by Act 135, states:
The several circuit courts of the State and,
except as otherwise provided by statute or
rule, the several state district courts,
subject to appeal as provided by law, shall
have original jurisdiction to hear and
determine the following matters, and, unless
otherwise provided by law, shall determine
15
all questions of fact involved without the
intervention of a jury:
(1) All claims against the State founded upon
any statute of the State; upon any rule of an
executive department; or upon any contract,
expressed or implied, with the State, and all
claims which may be referred to any such
court by the legislature; provided that no
action shall be maintained, nor shall any
process issue against the State, based on any
contract or any act of any state officer that
the officer is not authorized to make or do
by the laws of the State, nor upon any other
cause of action than as herein set forth; and
(2) All counterclaims, whether liquidated or
unliquidated, or other demands whatsoever on
the part of the State against any person
making claim against the State under this
part.
Haw. Rev. Stat. § 661-1 (emphasis added).
By adding the word,
“state” before “district courts,” Act 135 clearly amended section
661-1 to provide a waiver of immunity only in state court, not in
federal court.
Thus, the State of Hawaii did not waive its
Eleventh Amendment immunity with respect to contract claims in
this court, only in state court.
Finally, this court turns to section 661-11, also cited
by Cislo as supporting the argument that he may seek money
damages against the State of Hawaii.
Section 661-11 states:
(a) This section applies to an action where:
(1) The State is a party defendant;
(2) The subject matter of the claim is
covered by a primary insurance policy entered
into by the State or any of its agencies; and
16
(3) Chapter 662 does not apply.
No defense of sovereign immunity shall be
raised in an action under this section.
However, the State’s liability under this
section shall not exceed the amount of, and
shall be defrayed exclusively by, the primary
insurance policy.
(b) An action under this section shall not be
subject to sections 661-1 to 661-10.
According to the 1971 Report of Committee on
Coordination of Rules and Statutes, vol. II, the revision of
section 661-11
is limited to cases not covered by chapter
662. When the section was enacted there was
no general waiver of sovereign immunity in
tort cases. The revision causes section
661-11 to fill any gap remaining under
chapter 662, if the State has insurance.
A paragraph has been added to make it
clear that an action under this section is
not governed by the remainder of chapter 661.
As shown by Act 253, L. 1955, this section
was not enacted as a part of chapter 661.
Cislo raised section 661-11 without analyzing it in any
brief.
His oral discussion at the hearing did not establish that
the State of Hawaii unequivocally waived Eleventh Amendment
immunity.
First, section 661-11 applies only to tort claims.
Cislo asserts the tort of negligent misrepresentation in
Count III of the Complaint.
Cislo, however, does not demonstrate
that the negligent misrepresentation claim is covered by a
primary insurance policy.
Although the State of Hawaii conceded
at the hearing that it does have a primary insurance policy, it
17
is not clear from the record that the negligent misrepresentation
claim is covered under the policy.
Moreover, section 661-11’s
reference to chapter 662 indicates that section 661-11 should be
read in conjunction with chapter 662.
Because the State of
Hawaii only consents to being sued in state court with respect to
tort claims under chapter 662, and because the legislative
history with respect to section 611-11 indicates that it is
limited to tort claims not covered by chapter 662, it makes sense
to view the State of Hawaii’s waiver of sovereign immunity in
section 661-11 as also limited to tort actions in state court.
This court concludes that the Eleventh Amendment bars
Cislo’s claim under § 1983 for money damages (Count I).
See
Mitchell v. Los Angeles Cmty. College Dist., 861 F.2d 198, 201
(9th Cir. 1988) (holding that the Eleventh Amendment bars §§ 1981
and 1983 claims).
money damages.
It also bars Cislo’s state law claims seeking
See, e.g., Sherez v. State of Haw. Dep't of
Educ., 396 F. Supp. 2d 1138, 1145 (D. Haw. 2005).
The Eleventh
Amendment therefore bars all of the money damage claims asserted
in the Complaint against the DOT-A or the individual Defendants
acting in their official capacities.
Even if the negligent misrepresentation claim is
excluded from chapter 662 of Hawaii Revised Statutes by section
662-15(4), which provides that chapter 662 shall not apply to
“[a]ny claim arising out of assault, battery, false imprisonment,
18
false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract
rights,” and even if the court assumes that the State of Hawaii
had a primary insurance policy covering the negligent
misrepresentation claim, the court declines to exercise
supplemental jurisdiction over the claim, given the dismissal of
the § 1983 claim providing this court with jurisdiction.
Supplemental jurisdiction over state claims exists when
a federal claim is sufficiently substantial to confer federal
jurisdiction, and there is “a common nucleus of operative fact
between the state and federal claims.”
Brady v. Brown, 51 F.3d
810, 816 (9th Cir. 1995) (citing Gilder v. PGA Tour, Inc., 936
F.2d 417, 421 (9th Cir. 1991)); see also 28 U.S.C. § 1367.
This
court may decline to exercise supplemental jurisdiction over a
state law claim if: (1) the claim raises a novel or complex issue
of state law; (2) the state law claim substantially predominates
over the claim or claims over which the district court has
original jurisdiction; (3) the district court has dismissed all
claims over which it has original jurisdiction; or (4) in
exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367.
Supplemental jurisdiction is a doctrine of discretion,
not of a plaintiff’s right.
City of Chicago v. Int’l College of
Surgeons, 522 U.S. 156, 172 (1997); United Mine Workers of Amer.
19
v. Gibbs, 383 U.S. 715, 726 (1966); Maltzman v. Friedman, 103
F.3d 139 (9th Cir. 1996) (“the doctrine of supplemental
jurisdiction is a flexible one, giving a district court the power
to exercise supplemental jurisdiction over a claim and the
discretion whether to exercise such jurisdiction”).
When, as
here, “the federal claims are dismissed before trial, even though
not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.”
Gibbs, 383 U.S. at 726.
Although
the Supreme Court later noted that such a dismissal is not “a
mandatory rule to be applied inflexibly in all cases,” it also
recognized that, “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine--judicial
economy, convenience, fairness, and comity--will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988).
B.
The Eleventh Amendment Bars Injunctive Relief,
With the Exception of Prospective Injunctive
Relief Based on Alleged Violations of Federal Law
With Respect to the State Officials Acting in
their Official Capacities.
As Defendants acknowledge, the Eleventh Amendment does
not prevent Cislo from proceeding against the individual
Defendants in their official capacities by seeking prospective
injunctive relief for violations of federal law.
20
In Ex parte
Young, 209 U.S. 123 (1908), the Supreme Court recognized that a
“suit challenging the constitutionality of a state official’s
action is not one against the State.”
Pennhurst, 465 U.S. 89,
103 (1983) (citing Ex Parte Young); 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.”).
Under the Ex Parte Young doctrine, a federal court may
enjoin a state official’s future conduct when a plaintiff brings
suit alleging a violation of federal law, Edelman v. Jordan, 415
U.S. 651 (1974), but not when a plaintiff alleges a violation of
state law.
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”); see also Will, 491 U.S. at 71 n.10 (“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’”) (quoting Kennedy v. Graham, 473
U.S. 159, 167 n.14 (1985)); Agua Caliente Band of Cahuilla
Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000) (“courts
21
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”); 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”).
The Ex Parte Young doctrine is inapplicable when a
claim is 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., Feb. 5, 2009) (noting that the
Ex Parte Young exception is inapplicable in suits against states
or state agencies).
Accordingly, the only matter that survives
the Eleventh Amendment bar is Cislo’s request under § 1983 for
prospective injunctive relief against the individual Defendants
in their official capacities.
22
C.
Cislo Fails to Adequately Plead Any § 1983 Claim
Seeking Prospective Injunctive Relief Against the
Individual Defendants in Their Official
Capacities.
This court now examines the only remaining claim, which
is the portion of Count I seeking prospective injunctive relief
to prevent violations of 42 U.S.C. § 1983 by the individual
Defendants acting in their official capacities.
This court
dismisses that claim.
Section § 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, 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, except that in any action brought
against a judicial officer for an act or
omission taken in such officer’s judicial
capacity, injunctive relief shall not be
granted unless a declaratory decree was
violated or declaratory relief was
unavailable. For the purposes of this
section, any Act of Congress applicable
exclusively to the District of Columbia shall
be considered to be a statute of the District
of Columbia.
For Cislo to succeed on his § 1983 claim, he must
prove: “1) that a person acting under color of state law
committed the conduct at issue, and 2) that the conduct deprived
the claimant of some right, privilege or immunity protected by
23
the Constitution or laws of the United States.”
Leer v. Murphy,
844 F.2d 628, 632-33 (9th Cir. 1988); accord Tsao v. Desert
Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (“To establish
§ 1983 liability, a plaintiff must show both (1) deprivation of a
right secured by the Constitution and laws of the United States,
and (2) that the deprivation was committed by a person acting
under color of state law”).
Cislo asserts that Defendants
Fuchigami, Higashi, Sakata, and Lareau acted under color of state
law, resulting in a violation of his federal constitutional equal
protection and due process rights.
The Ninth Circuit requires plaintiffs to “allege facts,
not simply conclusions, that show that an individual was
personally involved in the deprivation of his civil rights.
Liability under § 1983 must be based on the personal involvement
of the defendant.”
(9th Cir. 1998).
Barren v. Harrington, 152 F.3d 1193, 1194
Although the Complaint is 50 pages long and
contains 234 paragraphs of allegations, it fails to allege what
each individual Defendant did to deprive Cislo of his equal
protection and/or due process rights.
The Complaint does allege the positions held by
Defendants Fuchigami, Higashi, Sakata, and Lareau in the DOT-A.
See Complaint ¶¶ 2-5, ECF No. 1, PageID #s 2-3.
The Complaint
also alleges that each of the individual Defendants is
responsible for all of the actions alleged in the Complaint.
24
For
example, Paragraph 32 alleges that Defendants Fuchigami, Higashi,
Sakata and Lareau, under color of law, and on behalf of Defendant
DOT-A, engaged in conduct that deprived Cislo of constitutional
and other rights.
Id., PageID # 9.
Similarly, paragraph 172
alleges, “Defendants FUCHIGAMI, HIGASHI, SAKATA and LAREAU, at
all times relevant herein and with respect to all actions alleged
above, purported to be[] acting under color of State law” for
purposes of Cislo’s § 1983 claim.
These conclusory allegations
are insufficient to notify any Defendant of what the Defendant
personally did wrong.
At best, paragraphs 146 and 147 allege
that “Defendants FUCHIGAMI, HIGASHI, SAKATA and LAREAU, acting
under color of law and on behalf of Defendant DOT-A, attended and
participated in . . . meetings” regarding lease applications and
standards used to evaluate applications.
Id., PageID # 33.
But
it is not clear how any deprivation of a constitutional right
arose from attendance at a meeting.
Because there are no factual
allegations demonstrating who should be enjoined from what, the
§ 1983 claims are dismissed with leave to amend.
This court recognizes that Cislo may not possess all
facts relevant to his claim.
But, at a minimum, Cislo knows who
sent him the letter raising his rent.
In Paragraph 161 of the
Complaint, Cislo alleges, “By letter dated August 25, 2017,
Defendants advised Plaintiff of its intent to impose a rental
increase for Lot JRF 820 120 from the current rate of $491.00, to
25
$2,683.33, per month, effective October 1, 2017.”
# 36.
Id., PageID
Cislo’s general allegation that each Defendant
participated in every act complained of is belied by the copies
of the letters of August 25, 2017, which he attaches to his
opposition to the motion to dismiss.
See ECF Nos. 22-8 and 22-9.
These letters are signed only by Higashi, although they are on
letterhead listing Fuchigami as the director of DOT-A.
Id.
Cislo’s blanket allegations are not adequate to support his
claims for prospective injunctive relief.
A Defendant must be
informed of what action being taken by that Defendant Cislo is
seeking to enjoin.
The court dismisses Cislo’s § 1983 claim(s) seeking
prospective injunctive relief against the individual Defendants
in their official capacities.
The court, however, grants Cislo
leave to file an Amended Complaint asserting such claims.
The
court cautions Cislo that any such Amended Complaint must comply
with Rule 8(a) of the Federal Rules of Civil Procedure.
Cislo
should identify which Defendant needs to be enjoined from what
violation of federal law based on that particular Defendant’s
conduct.
For example, if Cislo asserts a § 1983 claim based on a
violation of the Equal Protection Clause, Cislo should allege
facts identifying the relevant class to which he belongs, as well
as a similarly situated person outside his class who was treated
26
differently by a particular Defendant.
705 F.3d 1021, 1030 (9th Cir. 2013).
See Furnace v. Sullivan,
“An equal protection claim
will not lie by conflating all persons not injured into a
preferred class receiving better treatment than the plaintiff.”
Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir.
2005) (quotation marks and citation omitted).
Instead, the
groups must consist of “similarly situated persons so that the
factor motivating the alleged discrimination can be identified.”
Id.
If Cislo is proceeding on a “class-of-one” theory, which
allows a plaintiff to assert an equal protection claim when the
plaintiff alleges that he or she “‘has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment,’” Engquist v.
Ore. Dep't of Agric., 478 F.3d 985, 993 (9th Cir. 2007), aff’d
sub nom. Engquist v. Ore. Dep't of Agr., 553 U.S. 591 (2008)
(quoting Village of Willowbrook v. Olech, 528 U.S. 562, 563)
(2000) (per curiam), he should allege facts supporting such a
theory.
Similarly, if Cislo asserts a § 1983 claim based on a
violation of the Due Process Clause, he should make it clear
whether he is asserting a substantive due process claim or a
procedural one.
If he is asserting a substantive due process
violation, he should allege facts demonstrating that a challenged
government action was “clearly arbitrary and unreasonable, having
27
no substantial relation to the public health, safety, morals, or
general welfare.”
Vill. of Euclid, Ohio v. Ambler Realty Co.,
272 U.S. 365, 395 (1926); Hoeck v. City of Portland, 57 F.3d 781,
786 (9th Cir. 1995), as amended (July 10, 1995).
If he is
asserting a procedural due process violation, he should identify
the constitutionally protected liberty or property interests at
stake and should allege facts supporting a claim of lack of
process.
See Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir.
2008).
Similarly, before asserting a § 1983 claim based on a
taking, Cislo should consider whether such a claim is ripe.
If a
takings claim is asserted, Cislo should clearly identify the
facts on which it is based.
IV.
CONCLUSION.
Defendants’ motion to dismiss is granted.
Cislo is given leave to amend his Complaint consistent
with this order.
Any Amended Complaint must comply with Rule
8(a) of the Federal Rules of Civil Procedure, not be needlessly
lengthy and repetitive.
Any Amended Complaint should clearly
identify the claim(s) being asserted, the factual basis or bases
for each claim, and the particular Defendant or Defendants
against whom each claim is asserted.
Any Amended Complaint must be filed no later than
January 12, 2018.
If no Amended Complaint is filed by that date,
28
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, December 22, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Cislo v. Fuchigami, et al., Civ. No. 17-00487 SOM/KJM; ORDER GRANTING MOTION
TO DISMISS
29
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