Monet v. State of Hawaii et al

Filing 33

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS 001 COMPLAINT FILED AUGUST 30, 2021 re 17 - Signed by JUDGE LESLIE E. KOBAYASHI on 1/11/2022. Excerpt of Conclusion: Plaintiff's Complaint for Declaratory, Compensatory and Injunctive Relief and Civil Penalties, filed August 30, 2021, is DISMISSED in its entirety. The dismissal is WITH PREJUDICE - in other words, without leave to amend - as to the following claims: all c laims against the State, DLNR, and DOCARE; all federal law claims for damages or other forms of retrospective relief and all state law claims against the Governor, Case, Underwood, Redulla, Fujioka, Moriwaki, and the Attorney General, in the ir official capacities; and Count IX (violation of the Hawai`i Landlord-Tenant Code), Count X (breach of contract), and Count XII (claim for injunctive relief). All of the other claims in the Complaint are DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to file an amended complaint by February 12, 2022. Because there are no remaining claims against the State, DLNR, and DOCARE, the Clerk's Office is DIRECTED to terminat e them as parties on January 26, 2022, unless a timely motion for reconsideration of this Order is filed. (eta)COURT'S CERTIFICATE OF SERVICE - All parties served electronica lly to the email addresses listed on the Notice of Electronic Filing (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF).

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
SAM MONET,

CIV. NO. 21-00368 LEK-KJM
Plaintiff,

vs.
STATE OF HAWAII, GOVERNOR DAVID
IGE, IN HIS OFFICIAL CAPACITY;
HAWAII DEPARTMENT OF LAND AND
NATURAL RESOURCES (DLNR),
SUZANNE CASE, DIRECTOR IN HER
OFFICIAL CAPACITY; EDWARD
UNDERWOOD, DLNR ADMINISTRATOR IN
HIS OFFICIAL AND INDIVIDUAL
CAPACITY; DIVISION OF
CONSERVATION AND RESOURCES
ENFORCEMENT (DOCARE), JASON
REDULLA, DOCARE ADMINISTRATOR IN
HIS OFFICIAL CAPACITY; COREY
FUJIOKA, DLNR HARBOR MASTER IN
HIS OFFICIAL CAPACITY; GORDON
WOOD, WORKING GROUP CHAIRMAN IN
HIS OFFICIAL CAPACITY AND AS AN
INDIVIDUAL; SHARON MORIWAKI,
HAWAII STATE SENATOR IN HER
OFFICIAL CAPACITY AND AS AN
INDIVIDUAL; CLARE CONNORS,
ATTORNEY GENERAL, STATE OF
HAWAII, IS SUED IN HER OFFICIAL
CAPACITY; AND DOE DEFENDANTS 120,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS [001] COMPLAINT FILED AUGUST 30, 2021
On September 20, 2021, Defendants State of Hawai`i
(“the State”); Governor David Ige, in his official capacity;
Department of Land and Natural Resources (“DLNR”); Suzanne Case,

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in her official capacity; Edward Underwood, in his individual
and official capacities; Division of Conservation and Resources
Enforcement (“DOCARE”); Jason Redulla, in his official capacity;
Corey Fujioka, in his official capacity; Gordon Wood, in his
individual and official capacities; Senator Sharon Moriwaki, in
her individual and official capacities; and Attorney General
Clare Connors, in her official capacity (all collectively
“Defendants”) filed their Motion to Dismiss [001] Complaint
Filed August 30, 2021 (“Motion”).

[Dkt. no. 17.]

The Court

finds this matter suitable for disposition without a hearing
pursuant to Rule LR7.1(c) of the Local Rules of Practice for the
United States District Court for the District of Hawaii (“Local
Rules”).

For the reasons set forth below, Defendants’ Motion is

granted, and the claims in this case are dismissed, with partial
leave to amend, in accordance with the rulings in this Order, by
February 12, 2022.
BACKGROUND
For over twenty years, pro se Plaintiff Sam Monet
(“Plaintiff”) has been living aboard a boat docked at slip 741
in the Ala Wai Small Boat Harbor (“AWSBH”).

[Complaint for

Declaratory, Compensatory and Injunctive Relief, and Civil
Penalties (“Complaint”), filed 8/30/21 (dkt. no. 1), at ¶ 27.]
The AWSBH is a State boating facility where a limited number of
boat owners are allowed to use their boat as their “principal
2

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habitation.”

PageID #: 373

See generally Haw. Rev. Stat. §§ 200-2.5, 200-2.6,

200-9(b).
I.

Allegations Regarding the Removal of Personal Property
Plaintiff is a native Hawaiian, and he asserts he is

entitled to exercise “traditional religious and customary
gathering rights” on lands controlled by the State, including
the AWSBH.

[Complaint at ¶¶ 24, 26.]

Plaintiff is also the

founder and director of a nonprofit organization that has a boat
docked at AWSBH slip 740.

[Id. at ¶ 27.]

According to the

Complaint, the organization’s boat is “currently being outfitted
to teach native Hawaiian kids and their parents to learn
conventional sailing skills.”

[Id. at ¶ 28.]

Plaintiff has

been growing native plants at slips 740 and 741, in accordance
with his native Hawaiian religious practices and cultural
beliefs and traditions.

[Id. at ¶ 32.]

According to Plaintiff, on July 14, 2021, Defendant
Edward Underwood (“Underwood”) ordered Defendant Corey Fujioka
(“Fujioka”) to issue citations only to boats on the 700 pier,1
where Plaintiff’s boat is docked, and the citations were “for
numerous knowingly untrue alleged violations of” the Hawai`i
Administrative Rules.

[Id. at ¶ 66.]

On July 15, 2021,

The Complaint alleges Underwood is the Administrator of
DOBOR, and Fujioka is the AWSBH Harbormaster. [Complaint at
¶¶ 175-76.]
1

3

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Plaintiff found a notice, dated July 14, 2021, addressed “To
Whom It May Concern,” signed by the Harbormaster, and titled
“NOTICE OF VIOLATION FOR STORAGE ON HARBOR GROUNDS,” on the
public sidewalk between slip 740 and slip 741 (“7/14/21
Notice”).

[Id. at ¶ 142, Exh. R (dkt. no. 1-18, 7/14/21 Notice)

(emphasis in original).]

Plaintiff emphasizes the 7/14/21

Notice was not addressed to him and did not indicate which slip
was allegedly in violation of the Hawai`i Administrative Rules.
[Complaint at ¶ 143.]

Plaintiff alleges employees of the AWSBH

Harbormaster’s office seized his plants, tools, and other
personal items on July 21, 2021, and he argues this violated his
rights under the United States Constitution, Hawai`i State
Constitution, and Hawai`i case law.

[Id. at ¶¶ 36, 147.]

Plaintiff made various attempts to obtain the return of his
property, including contacting Defendant Attorney General Clare
Connors (“Attorney General”).

Plaintiff’s attempts were

unsuccessful, and he believes Fujioka disposed of the seized
property.

[Id. at ¶¶ 149-52, 154.]
On August 4, 2021, Plaintiff received a Notice of

Violation for Storage on Harbor Grounds in the mail from Fujioka
(“8/4/21 Notice”), which stated the following items at slip 741
violated Haw. Admin. R. §§ 13-232-40(b) and/or 13-232-41:
plants, an umbrella, buckets, storage bins, materials including pipes and wood, and vice.
4

[Id. at ¶ 155, Exh. V (dkt.

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no. 1-22, 8/4/21 Notice).]

PageID #: 375

On August 6, 2021, because the State

and DLNR threatened him with fines and eviction, and because he
felt intimidated and harassed, Plaintiff killed, removed, or
disposed of all of the items listed in the 8/4/21 Notice,
including the native plants that he uses in his religious and
cultural practices.

[Complaint at ¶¶ 33, 156-57.]

According to Plaintiff, he is the only live-aboard
tenant at the AWSBH who is a native Hawaiian practicing his
traditional, religious, and cultural rights.

He also asserts

the plants at slips 740 and 741 were not encumbering anyone’s
access because the spaces where the plants were located were
only for use by him and his organization.

[Id. at ¶¶ 34-35.]

Plaintiff alleges the State, DLNR, Underwood, Fujioka, Defendant
Senator Sharon Moriwaki (“Moriwaki”), and Defendant Gordon Wood
(“Wood”) “conspired to harass, intimidate, threaten, and . . .
otherwise force [him] to remove his traditional, native Hawaiian
medicinal plants and herbs from slip 740 and 741 at AWSBH.”2
[Id. at ¶ 38.]

Plaintiff alleges one of the goals of the

According to Plaintiff, Wood is another live-aboard tenant
at the AWSBH. [Complaint at ¶ 158.] Plaintiff alleges Wood was
recruited by Moriwaki and Underwood and appointed by Moriwaki to
be the chairman of an AWSBH Working Group, which was created to
patrol the AWSBH and enforce the applicable rules. [Id. at
¶¶ 2, 52, 139.] Plaintiff alleges all of the members of the
Working Group are white, and Wood is a white supremacist. [Id.
at ¶ 140.] According to Defendants, the Working Group is a
legislatively created entity. [Mem. in Supp. of Motion at 5.]
2

5

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conspiracy was to evict him from the AWSBH.

PageID #: 376

[Id. at ¶ 65.]

Plaintiff’s theory is that the eviction of problematic tenants
will allow the AWSBH to be sold to the Howard Hughes
Corporation.
II.

See, e.g., id. at ¶¶ 3, 125-27.

Allegations Regarding the Navigation Requirement
Until approximately 2000, all boats at the AWSBH were

required to remove their boats from their slips at least once a
year to prove that they are capable of operation in navigable
waters.

A boat could satisfy this requirement and return to its

slip after reaching the Ala Wai Canal, a navigable waterway,
governed by federal law (“Buoy Run”).
require the boat to enter the canal.

The Buoy Run did not
[Id. at ¶¶ 77-78.]

According to Plaintiff, DLNR amended the appliable Hawai`i
Administrative Rules to require boats to enter the Ala Wai Canal
and proceed to the United States Coast Guard marker
approximately half a mile out of the harbor before returning to
their slips (“New Buoy Run”).

Plaintiff alleges the DLNR did

not provide prior notice about the proposed rule change, nor did
it hold a hearing.

[Id. at ¶ 79.]

Plaintiff does not specify

when the rules regarding the New Buoy Run were adopted.
According to Plaintiff, the more demanding New Buoy
Run has caused “several boats” to suffer extensive damage or
total destruction.

[Id. at ¶ 81.]

Plaintiff alleges the

administrative adoption and legislative confirmation of the New
6

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Buoy Run was part of the conspiracy to evict him from the AWSBH.
[Id. at ¶ 80.]

Further, the New Buoy Run requirement forces him

to put his boat, which is his dwelling, at risk, in violation of
the Landlord-Tenant Code.

[Id. at ¶ 82.]

III. The Instant Case
Plaintiff makes various allegations about longstanding problems at the AWSBH.

See, e.g., id. at ¶¶ 153, 168.

Because Plaintiff is proceeding pro se, his Complaint must be
liberally construed.

See Erickson v. Pardus,551 U.S. 89, 94

(2007) (per curiam).

Even liberally construing the Complaint,

Plaintiff’s allegations about the long-standing problems at the
AWSBH appear to be background.

Plaintiff’s claims therefore

will only be construed as arising from the incidents summarized
in this Order.
Plaintiff alleges the following claims: a state law
fraud claim against the State, DLNR, Underwood, Fujioka,
Moriwaki, and Wood, based on the alleged attempt to have him
evicted as a live-aboard tenant (“Count I”); a claim against the
State, DLNR, DOCARE, Underwood, Defendant Suzanne Case (“Case”),3
and Fujioka, alleging selective enforcement of rules and
regulations applicable to the AWSBH, in violation of the Fourth

Plaintiff alleges Case is the Director of the DLNR
Division of Boating and Ocean Recreation (“DOBOR”). [Complaint
at ¶ 173.]
3

7

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and Fourteenth Amendments to the United States Constitution
(“Count II”); a claim against the State, DLNR, Underwood,
Moriwaki, and Fujioka, alleging violation of Plaintiff’s right
to free exercise of his religion (“Count III”); a state law
theft claim against the State (“Count IV”); a claim against the
State, the Attorney General, DLNR, DOCARE, Underwood, Fujioka,
Case, and Defendant Jason Redulla (“Redulla”),4 alleging
violations of Plaintiff’s Fourteenth Amendment due process
rights (“Count V”); a claim against the State, Underwood, Case,
and Defendant Governor David Ige (“the Governor”) challenging
Haw. Rev. Stat. § 200-9(f) (“Count VI”); a claim against
Underwood, Moriwaki, and Wood, alleging violation of the Civil
Rights Act (“Count VII”);5 a claim against the State, DLNR, and
Underwood, alleging unsafe conditions at the AWSBH, which
appears to be a state law negligence claim (“Count VIII”); a
claim against DLNR and Underwood, alleging violation of the
Hawai`i Landlord-Tenant Code, Haw. Rev. Stat. Chapter 521
(“Count IX”); a state law breach of contract claim against the

Plaintiff alleges Redulla is the DOBOR Enforcement Chief.
[Complaint at ¶ 177.]
4

Because Plaintiff lives aboard his boat at the AWSBH,
Count VII is construed as a racial and religious discrimination
claim brought pursuant to Title VIII of the Civil Rights Act of
1968, as amended by the Fair Housing Amendments Act of 1988, 42
U.S.C. §§ 3601-3619.
5

8

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State, DLNR, and Underwood, alleging they breached his slip
rental contract by improperly raising his monthly rent during
the contract term (“Count X”); a claim alleging that Underwood,
Moriwaki, and Wood negligently and intentionally caused him to
suffer mental anguish, physical distress, and emotional distress
(“Count XI”);6 a claim against the State, DLNR, DOCARE,
Underwood, and Fujioka for injunctive relief (“Count XII”); and
a civil conspiracy claim under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), against
Underwood and Moriwaki (“Count XIV”).7
Counts II, III, and V appear to be claims alleging
violations of the United States Constitution, brought pursuant
to 42 U.S.C. § 1983.

Although not specifically identified in

the Complaint, Count III may also be based upon: Plaintiff’s
rights under article XII, section 7 of the Hawai`i Constitution;8
and/or the land-use provisions of the Religious Land Use and

Count XI is construed as alleging state law claims of
intentional infliction of emotional distress (“IIED”) and
negligent infliction of emotional distress (“NIED”).
6

7

The Complaint does not have a Count XIII.

Article XII, section 7 states: “The State reaffirms and
shall protect all rights, customarily and traditionally
exercised for subsistence, cultural and religious purposes and
possessed by ahupua`a tenants who are descendants of native
Hawaiians who inhabited the Hawaiian Islands prior to 1778,
subject to the right of the State to regulate such rights.”
8

9

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Institutionalized Persons Act (“RLUIPA”).9

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Further, when read in

the context of the Complaint as a whole, Count VI may be
liberally construed as a § 1983 claim alleging that Haw. Rev.
Stat. § 200-9(f) violates Plaintiff’s rights under the United
States Constitution.
In the instant Motion, Defendants seek the dismissal
of all of Plaintiffs’ claims.
DISCUSSION
I.

Eleventh Amendment Immunity
A.

The State and State Agencies
“The ultimate guarantee of the Eleventh Amendment is

that nonconsenting States may not be sued by private individuals
in federal court.”

Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 363 (2001) (citation omitted).

9

“It is well

Under RLUIPA:
No government shall impose or implement a land
use regulation in a manner that imposes a
substantial burden on the religious exercise of a
person, including a religious assembly or
institution, unless the government demonstrates
that imposition of the burden on that person,
assembly, or institution(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of
furthering that compelling governmental
interest.

42 U.S.C. § 2000cc(a)(1).
10

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established that agencies of the state are immune under the
Eleventh Amendment from private damages or suits for injunctive
relief brought in federal court.”

Sato v. Orange Cnty. Dep’t of

Educ., 861 F.3d 923, 928 (9th Cir. 2017) (citation and quotation
marks omitted); see also P.R. Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 144 (1993) (“Absent waiver, neither
a State nor agencies acting under its control may be subject to
suit in federal court.” (citations and internal quotation marks
omitted)).
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. Ex Parte
Young, 209 U.S. 123, 149–56, 28 S. Ct. 441, 52 L.
Ed. 714 (1908); see also Quern v. Jordan, 440
U.S. 332, 337, 99 S. Ct. 1139, 59 L. Ed. 2d 358
(1979);[10] Agua Caliente Band of Cahuilla Indians
v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000).
The Young doctrine allows individuals to pursue
claims against a state for prospective equitable
relief, including any measures ancillary to that
relief. Green v. Mansour, 474 U.S. 64, 68–71,
106 S. Ct. 423, 88 L. Ed. 2d 371 (1985). To
bring such a claim, the plaintiff must identify a
practice, policy, or procedure that animates the
constitutional violation at issue. Hafer v.
Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed.
2d 301 (1991); Monell v. N.Y.C. Dep’t of Soc.
Servs., 436 U.S. 658, 690 & n.55, 98 S. Ct. 2018,
56 L. Ed. 2d 611 (1978).

Quern was overruled on other grounds by Hafer v. Melo,
502 U.S. 21 (1991). See, e.g., Gonzalez v. Cal. Highway Patrol,
No. 1:20-cv-01422-DAD-JLT, 2021 WL 3287717, at *4 (E.D. Cal.
Aug. 2, 2021).
10

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Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 865
(9th Cir. 2016) (some citations omitted).
Because the State has not consented to the type of
federal law claims asserted in this case, the Eleventh Amendment
precludes Plaintiff’s federal law claims against the State, the
State agency defendants, and the state official defendants, in
their official capacities, unless the Young doctrine applies.
Plaintiff’s state law claims against them are also barred by the
Eleventh Amendment because, “[a]lthough Hawaii has waived its
sovereign immunity as to some state tort and statutory claims,
it has done so solely with respect to state court actions.”

See

Beckmann v. Ito, 430 F. Supp. 3d 655, 678 (D. Hawai`i 2020)
(citations omitted); see also Haw. Rev. Stat. §§ 661-1, 661-2,
661-3.
DLNR is a State agency, see, e.g., Umberger v. Dep’t
of Land & Nat. Res., 140 Hawai`i 500, 505, 403 P.3d 277, 282
(2017), and DOCARE is a division within DLNR, see, e.g., Captain
Andy’s Sailing, Inc. v. Johns, 195 F. Supp. 2d 1157, 1161 (D.
Hawai`i 2001).

Thus, all of Plaintiff’s claims against the

State, DLNR, and DOCARE must be dismissed because of Eleventh
Amendment immunity.

The dismissal is with prejudice - in other

words, without leave to amend those claims - because it is
absolutely clear that Plaintiff cannot cure the defects in those
claims.

Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 854 (9th
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Cir. 2016) (“Unless 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.” (quotation marks and citation
omitted)).
The portions of Plaintiff’s federal law claims against
the Governor, Case, Underwood, Redulla, Fujioka, Moriwaki, and
the Attorney General, in their official capacities (collectively
“State Official Defendants”),11 seeking damages or any other form
of retrospective relief are barred by their Eleventh Amendment
immunity and must be dismissed.

The dismissal is with prejudice

because it is absolutely clear that Plaintiff cannot cure the
defects in those claims.
Plaintiff may allege federal law claims seeking
prospective injunctive relief against the State Official
Defendants, as long as the injunction does not: 1) require the
expenditure of State funds; and 2) rely upon the measurement of
past injuries.

See K.W. ex rel. D.W. v. Armstrong, 789 F.3d

962, 974 (9th Cir. 2015) (“Equitable relief is impermissible if
it will likely require payment of state funds and is measured in
terms of a monetary loss resulting from a past breach of a legal
duty on the part of the defendant state officials.” (citation

11

Wood is not a state official.

179.
13

See Complaint at ¶¶ 140,

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and internal quotation marks omitted)).

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In addition, the Ninth

Circuit has stated:
For Ex parte Young to apply, a plaintiff
must point to threatened or ongoing unlawful
conduct by a particular governmental officer.
The doctrine does not allow a plaintiff to
circumvent sovereign immunity by naming some
arbitrarily chosen governmental officer or an
officer with only general responsibility for
governmental policy. Ex parte Young, 209 U.S. at
157, 28 S. Ct. 441 (“In making an officer of the
state a party defendant in a suit to enjoin the
enforcement of an act alleged to be
unconstitutional, it is plain that such officer
must have some connection with the enforcement of
the act, or else it is merely making him a party
as a representative of the state, and thereby
attempting to make the state a party.”).
Jamul Action Comm. v. Simermeyer, 974 F.3d 984, 994 (9th Cir.
2020), cert. denied, 142 S. Ct. 83 (2021), reh’g denied, 2021 WL
5763396 (U.S. Dec. 6, 2021).

Plaintiff’s federal law claims

against the State Official Defendants for prospective injunctive
relief fail to state plausible claims for relief because
Plaintiff has not sufficiently alleged the specific involvement
of each official that gives rise to Plaintiff’s federal claims.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” (citation and internal quotation marks
omitted)).

These claims must be dismissed, but the dismissal is

14

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without prejudice because it may be possible for Plaintiff to
cure this defect by amendment.
Because the Young exception does not apply to state
law claims, all of Plaintiff’s state law claims against the
State Official Defendants are barred by their Eleventh Amendment
immunity and must be dismissed.

The dismissal is with prejudice

because it is absolutely clear that Plaintiff cannot cure the
defects in those claims by amendment.12
The remaining claims are: the claims against Underwood
and Moriwaki, in their individual capacities; and all claims
against Wood.
II.

Legislative Immunity
Under the doctrine of legislative immunity,
members of Congress and state legislators are
entitled to absolute immunity from civil damages
for their performance of lawmaking functions.
See Tenney v. Brandhove, 341 U.S. 367, 376–77,
379, 71 S. Ct. 783, 95 L. Ed. 1019 (1951)
(finding that state legislators were absolutely
immune from damages when acting within the
“sphere of legitimate legislative activity”).
Legislative immunity, however, is not limited to
officials who are members of legislative bodies.
See Cleavinger v. Saxner, 474 U.S. 193, 201, 106
S. Ct. 496, 88 L. Ed. 2d 507 (1985) (“Absolute
immunity flows not from rank or title or
‘location within the Government,’ but from the
nature of the responsibilities of the individual
official.” (citation omitted) (quoting Butz v.

The dismissal with prejudice of Plaintiff’s claims that
are subject to Eleventh Amendment immunity does not preclude
Plaintiff from asserting those claims in state court. This
Court makes no findings or conclusion about the merits of such
claims, if Plaintiff asserts them in state court.
12

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Economou, 438 U.S. 478, 511, 98 S. Ct. 2894, 57
L. Ed. 2d 895 (1978))). “[O]fficials outside the
legislative branch are entitled to legislative
immunity when they perform legislative
functions.” Bogan v. Scott-Harris, 523 U.S. 44,
55, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998).
Thus, under this functional approach, the
Supreme Court has held that legislative immunity
does not depend on the actor so much as the
functional nature of the act itself. See id. at
54–55, 118 S. Ct. 966 (“Absolute legislative
immunity attaches to all actions taken ‘in the
sphere of legitimate legislative activity.’”
(quoting Tenney, 341 U.S. at 376, 71 S. Ct.
783)).
Jones v. Allison, 9 F.4th 1136, 1139–40 (9th Cir. 2021)
(alteration in Jones).
Plaintiff’s allegations against Moriwaki relate solely
to actions taken in her position as a State Senator, and
Plaintiff’s allegations against Wood relate solely to actions
taken in his position as chairman of the AWSBH Working Group, a
position that Moriwaki appointed him to in a legislatively
created group.

Plaintiff’s claims against Wood therefore arise

from Wood’s conduct of legislative activity.

Thus, both

Moriwaki and Wood have absolute, legislative immunity from
Plaintiff’s claims.

All of Plaintiff’s claims against Moriwaki,

in her individual capacity, and Wood, in his official and
individual capacities, must be dismissed.

The dismissal is

without prejudice because it may be possible for Plaintiff to
cure the defects in by amendment.

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III. Service upon Underwood
Defendants argue Plaintiff failed to comply with Fed.
R. Civ. P. 4(e) when he attempted service upon Underwood.
in Supp. of Motion at 8.]

[Mem.

According to Plaintiff, he served the

Complaint and summons on Underwood on August 30, 2021 by
providing the documents “a clerk of DLNR, who is designated by
law to accept service of process on behalf of Ed
Underwood . . . .”
no. 14).]

[Proof of Service, filed 9/9/21 (dkt.

Rule 4(e) states, in relevant part:
Unless federal law provides otherwise, an
individual - other than a minor, an incompetent
person, or a person whose waiver has been filed may be served in a judicial district of the
United States by:
(1) following state law for serving a
summons in an action brought in courts of
general jurisdiction in the state where the
district court is located or where service
is made; or
(2)

doing any of the following:
(A) delivering a copy of the summons
and of the complaint to the individual
personally;
(B) leaving a copy of each at the
individual’s dwelling or usual place of
abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an
agent authorized by appointment or by
law to receive service of process.

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Rule 4(d)(1) of the Hawai`i Rules of Civil Procedure contains
similar requirements for service of process on an individual.
Haw. R. Civ. P. 4(d)(5) requires that service upon a State
officer be made “by delivering a copy of the summons and of the
complaint to such officer.”

Thus, a clerk at the DLNR office is

not authorized to receive service of process upon Underwood when
he is sued in either his official capacity or his individual
capacity.

The remaining claims against Underwood are therefore

dismissed, without prejudice, for insufficient service of
process.

See Fed. R. Civ. P. 12(b)(4).
However, because Defendants do not dispute that

Underwood is a State official, because defense counsel has
appeared on behalf of Underwood in his official and individual
capacities, counsel is strongly encouraged to work with
Plaintiff to assist him in effecting service of the summons and
the amended complaint upon Underwood.
IV.

Counts IX and X
A.

Violations of the Landlord-Tenant Code
Count IX alleges a Haw. Rev. Stat. Chapter 521 claim

against DLNR and Underwood.

[Complaint at ¶¶ 400-02.]

The

Landlord-Tenant Code contains various remedies that a tenant may
exercise against a landlord.
Chapter 521, Part VI.

See generally Haw. Rev. Stat.

According to the Complaint, the landlord

in Plaintiff’s slip rental contract is the State.
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at ¶ 119.

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Thus, any Chapter 521 remedies available to Plaintiff

are only available against the State.

All claims against the

State and DLNR have been dismissed with prejudice.
Discussion Section I.A.

See supra

Even if the portion of Count IX alleged

against Underwood had not been dismissed for improper service,
see supra Discussion Section III, this Court would have
dismissed it because the Complaint does not state a plausible
Chapter 521 claim against Underwood.

Because it is absolutely

clear that Plaintiff cannot amend his Chapter 521 claim to state
a plausible claim against Underwood, the dismissal of Count IX
is with prejudice.
B.

Breach of Contract
Count X is a breach of contract claim that is only

alleged against the State, DLNR, and Underwood.
¶¶ 403-11.]

[Complaint at

Because all claims against the State and DLNR have

been dismissed with prejudice, the only portion of Count X that
this Court will address is Plaintiff’s claim against Underwood.
Under Hawai`i law, “[t]he elements of a
breach of contract claim are ‘(1) the contract at
issue; (2) the parties to the contract;
(3) whether plaintiff performed under the
contract; (4) the particular provision of the
contract allegedly violated by defendants; and
(5) when and how defendants allegedly breached
the contract.’” Marine Lumber Co. v. Precision
Moving & Storage Inc., CIVIL 16-00365 LEK-RLP,
2017 WL 1159093, at *6 (D. Hawai`i Mar. 28, 2017)
(quoting Liberty Mut. Ins. Co. v. Sumo-Nan LLC,
Civil No. 14-00520 DKW-KSC, 2015 WL 2449480, at
*3 (D. Hawai`i May 20, 2015)).
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Chavez v. Deutsche Bank Nat’l Tr. Co., CIV. NO. 17-00446 LEK-RT,
2019 WL 2330885, at *6 (D. Hawai`i May 31, 2019) (alteration in
Chavez).

Even if the portion of Count X alleged against

Underwood had not been dismissed for improper service, this
Court would have dismissed it because the Complaint does not
plead sufficient allegations to state a plausible breach of
contract claim.

Further, the dismissal of Count X must be with

prejudice because it is absolutely clear that it is not possible
for Plaintiff to cure the defects in his breach of contract
claim because Underwood is not a party to Plaintiff’s slip
rental contract.
V.

Count XII
Count XII is a claim for injunctive relief.

However,

“a claim for injunctive relief is not a standalone claim.”
Hancock v. Kulana Partners, LLC, Case No. 13-cv-00198-DKW-WRP,
2020 WL 5665056, at *5 (D. Hawai`i Sept. 23, 2020) (citing Amina
v. WMC Finance Co., 329 F. Supp. 3d 1141, 1166 (D. Haw. 2018)
(“To the extent Plaintiffs seek declaratory and injunctive
relief as an independent claim, the Court follows the wellsettled rule that a claim for such relief, standing alone, is
not a cause of action.”)), aff’d, 852 F. App’x 293 (9th Cir.
2021).

Count XII is therefore dismissed with prejudice.

In

other words, Plaintiff’s amended complaint must not include a

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separate count for injunctive relief, but Plaintiff may still
ask for injunctive relief among the remedies he seeks for the
other counts that he has leave to include in his amended
complaint.
VI.

Summary and Guidance to Plaintiff
All of the claims in Plaintiff’s Complaint have been

dismissed.

Because some of Plaintiff’s claims have been

dismissed without prejudice, i.e., with leave to amend, the
Court provides the following analysis to guide Plaintiff.
A.

Fraud
To the extent that Plaintiff is asserting a state law

fraud claim, it is subject to a heightened pleading standard.
Rule 9(b) imposes a heightened pleading standard
on a party alleging fraud and requires the party
to “state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). “Averments of fraud must be accompanied
by the ‘who, what, when, where and how’ of the
misconduct charged.” Kearns v. Ford Motor Co.,
567 F.3d 1120, 1125 (9th Cir. 2009). . . . Fraud
claims, “in addition to pleading with
particularity, also must plead plausible
allegations. That is, the pleadings must state
‘enough fact[s] to raise a reasonable expectation
that discovery will reveal evidence of [the
misconduct alleged].’” Cafasso ex rel. United
States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1055 (9th Cir. 2011) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 566 (2007)).
. . . When there are multiple defendants —
Rule 9(b) does not allow a complaint to
merely lump multiple defendants together but
require[s] plaintiffs to differentiate their
allegations when suing more than one
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defendant . . . and inform each defendant
separately of the allegations surrounding
his alleged participation in the fraud. In
the context of a fraud suit involving
multiple defendants, a plaintiff must, at a
minimum, identif[y] the role of [each]
defendant[] in the alleged fraudulent
scheme.
Swartz v. KPMG LLP, 476 F.3d 756, 764–65 (9th
Cir. 2007) (alterations in Swartz) (internal
quotation marks and citations omitted); see also
Meridian Project Sys., Inc. v. Hardin Constr.
Co., 404 F. Supp. 2d 1214, 1226 (E.D. Cal. 2005)
(“When fraud claims involve multiple defendants,
the complaint must satisfy Rule 9(b)
particularity requirements for each defendant.”)
(citations omitted). . . .
Chavez, 2019 WL 2330885, at *5–6 (some alterations in Chavez).
To establish a fraud claim, a plaintiff must
allege the following elements: “(1) false
representations were made by [the defendant],
(2) with knowledge of their falsity (or without
knowledge of their truth or falsity), (3) in
contemplation of plaintiff’s reliance upon these
false representations, and (4) plaintiff did rely
upon them.” Shoppe v. Gucci Am., 14 P.3d 1049,
1067 (Haw. 2000) (quoting TSA Int’l Ltd. v.
Shimizu Corp., 990 P.2d 713, 725 (Haw.
1999)). . . .
Evans v. Gilead Scis., Inc., Case No. 20-cv-00123-DKW-KJM, 2020
WL 5189995, at *13 (D. Hawai`i Aug. 31, 2020) (some alterations
in Evans).

Even if the claims against all of the defendants

named in Count I had not been dismissed on other grounds, this
Court would have dismissed the claim without prejudice because
the Complaint does not meet the fraud pleading standards.

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B.

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Section 1983 Claims
“To state a claim under 42 U.S.C. § 1983, [the

p]laintiff must allege two essential elements: (1) that a right
secured by the Constitution or laws of the United States was
violated, and (2) that the alleged deprivation was committed by
a person acting under color of state law.”

Morelli v. Hyman,

Civ. No. 19-00088 JMS-WRP, 2020 WL 252986, at *4 (D. Hawai`i
Jan. 16, 2020) (citing West v. Atkins, 487 U.S. 42, 48 (1988);
OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir.
2012)).
To act under color of state law, “the party
charged with the deprivation must be a person who
may fairly be said to be a state actor . . .
because he is a state official, because he has
acted together with or has obtained significant
aid from state officials, or because his conduct
is otherwise chargeable to the State.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982).
That is, Ҥ 1983 excludes from its reach merely
private conduct, no matter how discriminatory or
wrong.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 50 (1999) (citation and internal
quotation marks omitted).
Id. at *5 (alteration in Morelli).
“As a general rule, a violation of state law does not
lead to liability under § 1983.”

Campbell v. Burt, 141 F.3d

927, 930 (9th Cir. 1998) (citing Davis v. Scherer, 468 U.S. 183,
194, 104 S. Ct. 3012, 3019, 82 L. Ed. 2d 139 (1984); Doe v.
Connecticut Dept. of Child & Youth Services, 911 F.2d 868, 869
(2nd Cir. 1990)).
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The Supreme Court has recognized, however,
that state law may form the basis for a federal
action for purposes of qualified immunity in some
cases: “Neither federal nor state officials lose
their immunity by violating the clear command of
a statute or regulation - of federal or of state
law - unless that statute or regulation provides
the basis for the cause of action sued upon.”
Davis, 468 U.S. at 194 n.12, 104 S. Ct. at 3019
n.12. One example where state law forms the
basis for a federal action is the law of
property: “State law may bear upon a claim under
the Due Process Clause when the property
interests protected by the Fourteenth Amendment
are created by state law.” Id. at 193, 104 S.
Ct. at 3019. . . .
Id.
Even if the claims against all of the defendants named
in Plaintiff’s § 1983 claims had not been dismissed on other
grounds, this Court would have dismissed the § 1983 claims
without prejudice because the Complaint does not include
sufficient allegations to meet the foregoing standards.
C.

RICO Conspiracy
To state a claim for conspiracy to violate
RICO under § 1962(d), a plaintiff must allege
“either an agreement that is a substantive
violation of RICO or that the defendants agreed
to commit, or participated in, a violation of two
predicate offenses.” Howard v. Am. Online, Inc.,
208 F.3d 741, 751 (9th Cir. 2000). “The illegal
agreement need not be express as long as its
existence can be inferred from the words,
actions, or interdependence of activities and
persons involved.” Oki Semiconductor Co. v.
Wells Fargo Bank, 298 F.3d 768, 775 (9th Cir.
2002). Under § 1962(d), while a conspiracy
defendant need not have personally committed a
predicate act, or even an overt act in
furtherance of the RICO conspiracy, the defendant
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must be “aware of the essential nature and scope
of the enterprise and intended to participate in
it.” Baumer v. Pachl, 8 F.3d 1341, 1346 (9th
Cir. 1993). “[T]he failure to adequately plead a
substantive violation of RICO precludes a claim
for conspiracy.” Howard v. Am. Online Inc., 208
F.3d 741, 751 (9th Cir. 2000).
Ryan v. Salisbury, 382 F. Supp. 3d 1031, 1057 (D. Hawai`i 2019)
(alteration in Ryan).

Even if the claims against all of the

defendants named in Count XIV had not been dismissed on other
grounds, this Court would have dismissed Count XIV without
prejudice because the Complaint does not include sufficient
allegations to state a plausible civil RICO conspiracy claim.
D.

Negligence
Count VIII has been construed as a state law

negligence claim.
Pursuant to Hawaii law, a negligence claim
must allege the following four elements:
(1) a duty, or obligation, recognized by
law, requiring the actor to conform to a
certain standard of conduct, for the
protection of others against unreasonable
risks;
(2) a failure on the actor’s part to
conform to the standard required;
(3) a reasonable close casual connection
between the conduct and the resulting
injury; and,
(4) actual loss or damage resulting to the
interests of another.
Ono v. Applegate, 612 P.2d 533, 538-39 (Haw.
1980).
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Moises v. Par Pac. Holdings, Inc., CIV. NO. 21-00321 HG-WRP,
2021 WL 5890657, at *4 (D. Hawai`i Dec. 13, 2021).

Even if the

claims against all of the defendants named in Count VIII had not
been dismissed on other grounds, this Court would have dismissed
Count VIII without prejudice because the Complaint does not
include sufficient allegations to state a plausible negligence
claim.
E.

Count XI
Count XI has been construed as alleging state law NIED

and IIED claims.

This district court has stated the elements of

a NIED claim are:
(1) that the defendant engaged in negligent
conduct;
(2) that the plaintiff suffered serious
emotional distress; and,
(3) that such negligent conduct by the
defendant was a legal cause of the serious
emotional distress.
Kauhako v. State of Hawaii Bd. Of [sic] Ed., Civ.
No. 13-00567 DKW-BMK, 2015 WL 5312359, *11 (D.
Haw. Sept. 9, 2015).
An NIED claim is merely a negligence claim
alleging a wholly psychic injury. Duty and
breach of duty are essential elements of an NIED
claim and are analyzed utilizing ordinary
negligence principles. Kahoohanohano v. Dep’t of
Human Servs., 178 P.3d 538, 582 (Haw. 2008).
Ricks v. Matayoshi, CIV. NO. 16-00044 HG-KSC, 2017 WL 1025170,
at *11 (D. Hawai`i Mar. 16, 2017), aff’d sub nom. Ricks v. Dep’t
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of Educ., 752 F. App’x 518 (9th Cir. 2019).

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Further, under

Hawai`i law, as part of the plaintiff’s requirement to prove
actual injury, he must prove “that someone was physically
injured by the defendant’s conduct, be it the plaintiff himself
or herself or someone else.”

Doe Parents No. 1 v. State, Dep’t

of Educ., 100 Hawai`i 34, 69–70, 58 P.3d 545, 580–81 (2002)
(citation omitted).

There is an exception to this rule for

circumstances that “provide the requisite assurance that the
plaintiff’s psychological distress is trustworthy and genuine,”
such as exposure to blood that is positive for the human
immunodeficiency virus or where a corpse was mishandled while it
was being prepared for a funeral, burial, or cremation.

Id. at

70, 58 P.3d at 581 (citing John & Jane Roes 1-100 v. FHP, Inc.,
91 Hawai`i 470, 476-77, 985 P.2d 661, 667-68 (1999); Guth v.
Freeland, 96 Hawai`i 147, 154–55, 28 P.3d 982, 989–90 (2001)).
Further, Haw. Rev. Stat. § 663-8.9 requires that, if “the
psychological distress arises solely out of damage to property
or to material objects,” the plaintiff himself must have a
predicate physical injury.

Id. at 69, 58 P.3d at 580.

This Court has stated:
The elements of an IIED claim are: “1) that
the act allegedly causing the harm was
intentional or reckless, 2) that the act was
outrageous, and 3) that the act caused 4) extreme
emotional distress to another.” Young v.
Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d
666, 692 (2008). “The term ‘outrageous’ has been
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construed to mean without cause or excuse and
beyond all bounds of decency.” Enoka v. AIG Haw.
Ins. Co., 109 Hawai`i 537, 559, 128 P.3d 850, 872
(2006) (citation and internal quotation marks
omitted)). “The question whether the actions of
the alleged tortfeasor are unreasonable or
outrageous is for the court in the first
instance, although where reasonable people may
differ on that question it should be left to the
jury.” Young, 119 Hawai`i at 429, 198 P.3d at
692 (citation and quotation marks omitted). . . .
Chavez, 2019 WL 2330885, at *15.
Even if the claims against all of the defendants named
in Plaintiff’s NIED and IIED claims had not been dismissed on
other grounds, this Court would have dismissed Count XI without
prejudice because the Complaint does not include sufficient
allegations to meet the foregoing standards.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to
Dismiss [001] Complaint Filed August 30, 2021, which Defendants
filed September 20, 2021, is HEREBY GRANTED.

Plaintiff’s

Complaint for Declaratory, Compensatory and Injunctive Relief
and Civil Penalties, filed August 30, 2021, is DISMISSED in its
entirety.

The dismissal is WITH PREJUDICE - in other words,

without leave to amend - as to the following claims:
-all claims against the State, DLNR, and DOCARE;
-all federal law claims for damages or other forms of
retrospective relief and all state law claims against the
Governor, Case, Underwood, Redulla, Fujioka, Moriwaki, and
the Attorney General, in their official capacities; and

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-Count IX (violation of the Hawai`i Landlord-Tenant Code),
Count X (breach of contract), and Count XII (claim for
injunctive relief).
All of the other claims in the Complaint are DISMISSED WITHOUT
PREJUDICE.
Plaintiff is granted leave to file an amended
complaint by February 12, 2022.

The amended complaint must only

include the claims that has been dismissed without prejudice,
and Plaintiff must include all of the factual allegations and
claims that he wishes to assert in the amended complaint, even
if he previously included them in the Complaint.

In other

words, he cannot incorporate any part of the Complaint into the
amended complaint merely referring that part of the Complaint.
Plaintiff is cautioned that, if he fails to file his
amended complaint by February 12, 2022, the claims that were
dismissed without prejudice in this Order will be dismissed with
prejudice and this Court will direct the Clerk’s Office to close
the case.

Plaintiff is also cautioned that, if he files a

timely amended complaint but fails to cure the defects in his
claims that are identified in this Order, his claims may be
dismissed with prejudice.
Because there are no remaining claims against the
State, DLNR, and DOCARE, the Clerk’s Office is DIRECTED to
terminate them as parties on January 26, 2022, unless a timely
motion for reconsideration of this Order is filed.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 11, 2022.

SAM MONET VS. STATE OF HAWAII, ET AL; CV 21-00368 LEK-KJM; ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS [001] COMPLAINT FILED
AUGUST 30, 2021

30