Chun v. Nakashima
Filing
5
ORDER (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING WITHOUT PREJUDICE APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS re 3 - Signed by JUDGE DERRICK K. WATSON on 5/17/2018. Based upon the foregoing, Chun's Complaint is DISMISSED with leave to amend. Chun is granted leave to file an amended complaint in accordance with the terms of this Order by June 15, 2018. The Court CAUTIONS Chun that failure to file an amended complaint by Jun e 15, 2018 may result in the automatic dismissal of this action without prejudice. Chun's IFP Application (Dkt. No. 3) is DENIED without prejudice. If he elects to file an amended complaint, Chun shall file a fully executed IFP Application or pay the requisite filing fee by June 15, 2018. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
CURTIS P. CHUN,
CV. NO. 18-00177 DKW-KSC
Plaintiff,
v.
HAWAII STATE FAMILY COURT
RULES UNDER THE HONORABLE
JUDGE STEVEN M. NAKASHIMA,
ORDER (1) DISMISSING
COMPLAINT WITH LEAVE TO
AMEND; AND (2) DENYING
WITHOUT PREJUDICE
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES OR COSTS
Defendant.
INTRODUCTION
On May 15, 2018, Plaintiff Curtis P. Chun, proceeding pro se, filed a
Complaint alleging violations of his federal civil rights, together with an incomplete
application to proceed in forma pauperis (“IFP Application”). 1 Dkt. Nos. 1 and 3.
The Complaint challenges unspecified Hawaii State Family Court Rules and
ongoing proceedings involving Chun and his family members in state court.
Because Chun fails to allege facts demonstrating that his rights have been violated,
that he is plausibly entitled to relief from any defendant, or that establish this Court’s
1
Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.
subject matter jurisdiction, the Complaint is DISMISSED with leave to amend
pursuant to 28 U.S.C. § 1915(e), with instructions below. The incomplete IFP
Application is denied without prejudice, pending the filing of an amended
complaint.
DISCUSSION
Because Chun is appearing pro se, the Court liberally construes his filings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to
liberally construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that
“[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977–78 (9th Cir.
2013).
I.
Plaintiff’s Incomplete IFP Application Is Denied
Federal courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an affidavit that
demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). “An affidavit in
support of an IFP application is sufficient where it alleges that the affiant cannot pay
2
the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787
F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co.,
335 U.S. 331, 339 (1948)); see also United States v. McQuade, 647 F.2d 938, 940
(9th Cir. 1981) (The affidavit must “state the facts as to affiant’s poverty with some
particularity, definiteness and certainty.”) (internal quotation omitted).
When reviewing an application filed pursuant to § 1915(a), “[t]he only
determination to be made by the court . . . is whether the statements in the affidavit
satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1307 (11th Cir. 2004). While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must
nonetheless show that he is “unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a).
The Court cannot properly evaluate Plaintiff’s IFP Application because it is
incomplete. While Chun’s IFP Application indicates, in places, that he is homeless,
with no mailing address, and unemployed, without any wages, assets, or debts, it
also notes that he receives income from “sources,” including his father, without
clearly indicating how much or how frequently this income is provided, or whether
the monies he receives must be repaid. Dkt. No. 3 at 1. In addition, in further
contradiction of his claim to destitution, Chun’s submission suggests that he
receives disability payments, but once again, does not clearly state how much or
3
how frequently these payments are received. See Compl. Ex. 2, Dkt. No. 1-2 at 2
¶ 5, 5. Further, Chun has failed to provide complete responses to the sections of the
IFP Application form regarding income, completing some of the requisite boxes
indicated, but not others.
Under these circumstances, the Court is unable to determine whether Chun
has made the required showing under Section 1915 to proceed without prepayment
of fees, and therefore denies his IFP Application without prejudice. If Chun elects
to file an amended complaint, as discussed below, he may resubmit a complete, fully
executed IFP Application on the court’s form or pay the civil filing fee in full. The
failure to do so will result in the dismissal of this action without further
consideration of the merits of Chun’s claims.
II.
The Complaint Is Dismissed With Leave To Amend
Upon review of the Complaint, the Court finds that Chun fails to state a claim
upon which relief may be granted. As discussed below, even liberally construed,
the Complaint fails to allege any discernable basis for judicial relief against any
party.
A.
Standard of Review
The Court subjects each civil action commenced pursuant to 28 U.S.C.
§ 1915(a) to mandatory screening and can order the dismissal of any claims it finds
“frivolous, malicious, failing to state a claim upon which relief may be granted, or
4
seeking monetary relief from a defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B).
Dismissal is proper when there is either a “‘lack of a cognizable legal theory
or the absence of sufficient facts alleged.’” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff must allege
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet—that the court must
accept as true all of the allegations contained in the complaint—“is inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party to
defend itself effectively.”).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
5
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Factual allegations that only permit the Court to infer “the mere possibility of
misconduct” do not show that the pleader is entitled to relief as required by Rule 8.
Id. at 679. For the reasons that follow, Chun fails to meet this standard.
B.
The Complaint Is Dismissed With Leave to Amend
Even given a liberal construction, the allegations in the Complaint fail to state
a plausible claim against any defendant. Although the factual averments in the
Complaint are not entirely clear, Chun appears to allege that the State of Hawaii
Family Court, pursuant to unspecified Hawaii Family Court Rules, denied him the
right to counsel during the course of adjudicating one or more petitions for a
temporary restraining order (“TRO”) against Chun. Assuming the truth of his
allegations, however, dismissal of the Complaint is necessary due to the “lack of a
cognizable legal theory [and] the absence of sufficient facts alleged.’” UMG
Recordings, Inc., 718 F.3d at 1014.
The caption of Chun’s Complaint states “violation of U.S. Constitution, the
14th Amendment of U.S. Citizen protection of both equal rights and due process.”
Compl. at 1. Chun explains that:
The Hawaii Family Court Rules under the Honorable Steven M.
Nakashima is requested to appoint Curtis Chun counsel to
advocate for Curtis in the lodged FC-DA 18-1-0482 that sequels
prior FC-DA 17-1-1866. Curtis does not have these court
documents owing to adverse homelessness conditions (wild
6
conditions). In the attachments[ 2] to the foundations for relief
are argued upon denied representation to Curtis who falls under
U.S. citizen stature, elder stature, permanently disabled stature,
homelessness stature, disintegration of health from adverse
homelessness wild conditions incurring stature, financialessness
stature.
Compl. at 2.
It appears that on May 14, 2018, Judge Nakashima, during the course of
considering a TRO petition filed in the State of Hawaii Family Court by Chun’s
sister Laurie Rodman, on behalf of Atsuko Sato Chun, their mother, denied Chun’s
request for the appointment of counsel. Judge Nakashima determined that “there is
no legal basis for the appointment of counsel in an HRS Chapter 586 TRO case.”
Compl. Ex. 1, Dkt. No. 1-1. As best the Court can discern, Chun is involved in an
ongoing dispute with his sister Laurie Rodman and her husband Thomas Rodman,
relating to his sister’s guardianship, trust relationship, and conservatorship over one
or more of their parent’s affairs. Chun, in an attachment to the Complaint,
“demands the following: That the protection agency issue appropriate tro against
Thomas Rodman to visit at any time . . . and stay away from Atsuko and Paul Chun
at any and all times,” and “immediately strip Laurie Jan Rodman from the family
2
Chun attaches to the Complaint: (1) a State of Hawaii Family Court Order, dated May 14, 2018,
continuing the hearing on a petition for a temporary restraining order filed on March 1, 2018, in
FC-DA No. 18-1-0482 (Dkt. No. 1-1); and (2) a narrative explanation entitled “14th May 2018 tro
fc-da 18-1-0482 Debrief Judge Steven M. Nakashima,” detailing those proceedings in Family
Court, which includes additional attachments and makes additional demands for relief (Dkt. No.
1-2).
7
court grant of her authority as appointed guardianship[.]” Compl. Ex. 2, Dkt. No.
1-2. Although they are not named as defendants, Chun asserts that “Laurie Jan
Rodman and Thomas Rodman should compensate [Chun] for undue stress, and
emotional distress, abuse and Civil Rights violation as the court in compliance with
the law would award him where harm suffered by [Chun] arose indirectly as a result
of harm done to him by violating the law, he should so be compensated.” Id.
The Complaint suffers from several deficiencies. First, the Complaint fails
to comply with Rule 8, which mandates that a complaint include a “short and plain
statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be
simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so
confusing that its “‘true substance, if any, is well disguised’” may be dismissed sua
sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530
F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d
426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1178–80 (9th
Cir. 1996) (affirming dismissal of complaint where “one cannot determine from the
complaint who is being sued, for what relief, and on what theory, with enough detail
to guide discovery”). That is the case here. Neither Chun’s Complaint naming the
Hawaii Family Court judge nor the attached Exhibits registering his grievances
against his family members coherently indicates who is being sued for what specific
relief in this civil action. Even applying the most liberal pleading standard, the
8
Court cannot discern from the pleadings the conduct on which any claim is based,
other than Chun’s vague statement that his Fourteenth Amendment rights were
violated by the denial of counsel during a family court TRO hearing. This
allegation fails to state a claim, for the reasons addressed below.
Second, insofar as he seeks damages for violations of his federal
constitutional rights—which is not clear—Chun fails to satisfy the pleading
requirements to state a claim under 42 U.S.C. § 1983.3 In order to state a Section
1983 claim, a plaintiff must allege: (1) that a right secured by the Constitution or
laws of the United States was violated, and (2) that the alleged violation was
committed by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48
(1988). To the extent Chun alleges that unspecified Family Court Rules or court
proceedings violate his Fourteenth Amendment rights, his claims are without merit.
See Williamson v. Basco, No. CIV. 06-00012 JMS/LEK, 2007 WL 4570496, at *3
n.7 (D. Haw. Dec. 31, 2007) (holding that HRS Chapter 586 does not violate due
process or equal protection rights and that Hawaii Family Court Rule 65, relating to
3
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation,
custom, or usage . . . subjects, or causes to be subjected, any citizen of the
United States . . . 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. . . .
9
restraining orders issued by Family Court, is also constitutional); see generally In re
Guardianship of Carlsmith, 113 Hawai‘i 236, 151 P.3d 717 (2007) (rejecting facial
and as-applied constitutional challenges to Hawaii Family Court Rule 65).4
Further, “neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997).
Accordingly, any Section 1983 claim is dismissed.
Third, although once again not entirely clear, insofar as Chun names Judge
Nakashima as a defendant in his official capacity as a result of the rulings made by
the judge during the course of state court judicial proceedings, Judge Nakashima is
entitled to immunity from damages under Section 1983. See, e.g., Ashelman v.
Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (“Judges and those performing judge-like
functions are absolutely immune from damage liability for acts performed in their
official capacities.”). This immunity applies “even when such acts are in excess of
4
As noted in the Family Court Order continuing the hearing on the TRO (Dkt. No. 1-1), there is no
provision for the appointment of counsel in HRS Chapter 586, and Chun does not include
additional factual allegations explaining why he is entitled to counsel under the circumstances.
See generally Turner v. Rogers, 564 U.S. 431, 453 (2011) (Thomas, J., dissenting) (explaining the
general framework of the Sixth and Fourteenth Amendment rights to counsel, and observing that
“[t]he Court has never found in the Due Process Clause a categorical right to appointed counsel
outside of criminal prosecutions or proceedings functionally akin to a criminal trial”) (citation and
quotation marks omitted); see also Jaa v. City of Dublin, No. 14-CV-03260-WHO, 2014 WL
6986234, at *5 (N.D. Cal. Dec. 10, 2014) (“There is no constitutional right to counsel in a civil
case, unless an indigent litigant may lose his physical liberty if he loses the litigation.”) (citing
Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981)).
10
their jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 355 (1978); see also Sadoski
v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006) (reasoning that “[a] judge will not be
deprived of immunity because the action he took was in error, was done maliciously,
or was in excess of his authority”) (citing Stump, 436 U.S. at 356); Roth v. King, 449
F.3d 1272, 1286 (D.C. Cir. 2006) (“42 U.S.C. § 1983, as amended in 1996 by the
Federal Courts Improvement Act, explicitly immunizes judicial officers against
suits for injunctive relief.”).
The Court likewise lacks subject matter jurisdiction over all claims against the
Hawaii Family Court, an entity entitled to Eleventh Amendment immunity. See
Pengelly v. Hawaii, Family Court of Third Circuit, No. CV 17-00306 SOM-KJM,
2017 WL 4683921, at *6 (D. Haw. Oct. 18, 2017) (dismissing claims for damages
against Hawaii Family Court as “an arm of the state of Hawaii [that] has not waived
its immunity”). “[I]n the absence of consent, a suit in which the State or one of its
agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). “This jurisdictional bar applies regardless of the nature of the relief
sought.” Id.
Finally, to the extent he complains of acts that were the subject of prior
judicial proceedings, those claims or issues that were previously decided by a
competent tribunal may be barred by the doctrines of res judicata and/or collateral
11
estoppel (or “claim preclusion” and “issue preclusion”).5 Because the Court cannot
determine with any certainty whether Chun has actually raised these claims or
issues, and whether any body has entered a final judgment on the merits, it is not
clear whether either of these doctrines presently bars any portion of Chun’s
allegations. Chun is cautioned, however, that these doctrines may operate to bar
any claims or issues that were decided or could have been decided in his prior cases.
Moreover, to the extent he is unsatisfied with the final outcome of his state court
cases, he may not seek appellate review in federal court, but must appeal those
matters in state court. 6
5
“[C]laim preclusion prevents a party from relitigating not only issues which were actually
litigated in a prior action, but also all grounds of claim and defense which might have been
properly litigated in the prior action.” Hanson v. Palehua Cmty. Ass’n, 2013 WL 1751504, at *7
(D. Haw. Apr. 23, 2013), aff’d, 599 F. App’x 299 (9th Cir. 2015) (citations omitted). “[I]ssue
preclusion similarly prevents a subsequent suit between the parties or their privies on a different
cause of action and prevents the parties or their privies from relitigating any issue that was actually
litigated and finally decided in the earlier action.” Id. (citation omitted).
6
Under the Rooker-Feldman doctrine (Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), collectively referred to as
Rooker-Feldman), “‘a losing party in state court is barred from seeking what in substance would
be appellate review of the state judgment in a United States District Court, based on the losing
party’s claim that the state judgment itself violates the loser’s federal rights.’” Bennett v.
Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998) (quoting Johnson v. De Grandy, 512 U.S. 997,
1005–06 (1994)). The Rooker-Feldman doctrine divests federal district courts of jurisdiction to
conduct direct reviews of state court judgments even when a federal question is presented.
Although not entirely clear, to the extent Plaintiff contests the entry of prior TROs or guardianship
orders and asks that they be dissolved, any such challenge must be made through the state court
appellate process. Chun may neither collaterally attack nor seek to relitigate state court
judgments in this Court. See also Williamson v. Basco, 2007 WL 4570496, at *2 (D. Haw. Dec.
31, 2007) (“to the extent Plaintiff seeks to collaterally attack the Family Court’s Divorce Decree,
custody and child support determinations, and procedural rulings, the court is without jurisdiction
to review the Family Court’s decisions”).
12
In sum, because Chun fails to state a plausible claim for relief, the Complaint
is DISMISSED. Because amendment may be possible, Chun is granted leave to
attempt to cure the deficiencies noted in this Order, with instructions below.
III.
Limited Leave To Amend Is Granted
Generally, when a complaint is dismissed, “leave to amend shall be freely
given when justice so requires.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d
876, 892 (9th Cir. 2010); see Fed. R. Civ. P. 15(a). The Ninth Circuit instructs “that
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 possibly be cured by the
allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
(citations and quotation marks omitted).
The Complaint is dismissed without prejudice, and Chun is granted leave to
amend to attempt to cure the deficiencies identified above. If Chun chooses to file
an amended complaint, he must write short, plain statements identifying: (1) the
specific basis of this Court’s jurisdiction; (2) the constitutional or statutory right
Plaintiff believes was violated; (3) the name of the defendant who violated that right;
(4) exactly what that defendant did or failed to do; (5) how the action or inaction of
that defendant is connected to the violation of Plaintiff’s rights; and (6) what specific
injury Plaintiff suffered because of that defendant’s conduct. Plaintiff must repeat
this process for each person or entity that he names as a defendant. If Chun fails to
13
affirmatively link the conduct of each named defendant with the specific injury he
suffered, the allegation against that defendant will be dismissed for failure to state a
claim.
An amended complaint generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded pleading. King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v. Maricopa
Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without prejudice
that are not re-alleged in an amended complaint may be deemed voluntarily
dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with prejudice
need not be realleged in an amended complaint to preserve them for appeal, but
claims that are voluntarily dismissed are considered waived if they are not re-pled).
The amended complaint must designate that it is the “First Amended
Complaint” and may not incorporate any part of the prior complaint. Rather, any
specific allegations must be retyped or rewritten in their entirety. Chun may
include only one claim per count. Failure to file an amended complaint by June 15,
2018 will result in the automatic dismissal of this action without prejudice.
CONCLUSION
Based upon the foregoing, Chun’s Complaint is DISMISSED with leave to
amend. Chun is granted leave to file an amended complaint in accordance with the
terms of this Order by June 15, 2018. The Court CAUTIONS Chun that failure to
14
file an amended complaint by June 15, 2018 may result in the automatic dismissal
of this action without prejudice.
Chun’s IFP Application (Dkt. No. 3) is DENIED without prejudice. If he
elects to file an amended complaint, Chun shall file a fully executed IFP Application
or pay the requisite filing fee by June 15, 2018.
IT IS SO ORDERED.
Dated: May 17, 2018 at Honolulu, Hawai‘i.
Chun v. Nakashima; Civil No. 18-00177 DKW-KSC; ORDER (1) DISMISSING COMPLAINT
WITH LEAVE TO AMEND; AND (2) DENYING WITHOUT PREJUDICE
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?