Gomes v. Cnty. of Kauai, Civ. No. 20-00189 JMS-WRP

481 F.Supp.3d 1104

Lance Kamuela GOMES; Brandee Leigh Abuan; I.A.G.; B.A.K.G., Plaintiffs,

v.COUNTY OF KAUAI; et al., Defendants.

Civ. No. 20-00189 JMS-WRP

United States District Court, D. Hawai‘i.

Signed August 26, 2020

Lance Kamuela Gomes, Kalaheo, HI, pro se.

Brandee Leigh Abuan, Kalaheo, HI, pro se.

Mark L.E. Bradbury, Office of the County Attorney, Lihue, HI, for Defendant County of Kauai.

Andrew Scott Michaels, Office of the County Attorney, Lihue, HI, for Defendants Derek S.K. Kawakami, Patrick Porter, Wallace G. Rezentes, Jr., Robin Serquina, Ellsworth Kaleiohi, Ray Ortiz.

Charles Arthur Foster, Office of the County Attorney, Lihue, HI, for Defendants Kauai Police Department, Todd Raybuck, Kauai Police Commission, Mary K. Hertog.

ORDER GRANTING MOTIONS TO DISMISS, ECF NOS. 32-34

J. Michael Seabright, Chief United States District Judge

I. INTRODUCTION

On April 27, 2020, pro se Plaintiffs Lance Kamuela Gomes, Brandee Leigh Abuan, I.A.G., and B.A.K.G.¹ (collectively, "Plaintiffs"), filed a Complaint against Defendants County of Kauai, Derek S.K. Kawakami, Patrick Porter, Wallace G. Rezentes Jr., Robin Serquina, Ellsworth Kaleiohi, Ray Ortiz, Kauai Police Department, Todd Raybuck, Kauai Police Commission, and Mary K. Hertog (collectively "Defendants").² ECF No. 1.

II. BACKGROUND

A. Factual Background³

Plaintiffs are "current or formerly registered homeless, camping at Salt Pond Beach Park in Hanapepe, County of Kauai, State of Hawaii." ECF No. 1 at PageID #3. The Complaint alleges that the County of Kauai has one homeless shelter with a maximum capacity of 19 occupants, with over 500 registered homeless individuals in the County. Id. at PageID #4. While homeless and camping at Salt Pond Beach Park, the Complaint alleges that Plaintiffs were cited for illegal camping and constructing an illegal structure pursuant to Kauai County Code ("KCC") on multiple dates from October 2019 though January 2020. Id. at PageID #4-9. Specifically, the Complaint alleges that Defendants enforced KCC §§ 19-2.3(a)⁴ and 19-1.4(a)(13)⁵ against them in violation of the Eighth Amendment and Martin v. City of Boise , 920 F.3d 584 (9th Cir. 2019). Further, the Complaint alleges that on December 9, 2019, Plaintiffs "obtained camping permits from the County of Kauai for Salt Pond Beach Park," but were nonetheless cited for camping without a permit and constructing an unauthorized structure (again, in violation of KCC §§ 19-2.3(a) and 19-1.4(a)(13) on December 10, 2019). Id. at PageID #7-8. Further, Plaintiffs allege that on December 3, 2019, Defendants Kaleiohi and Serquina removed Plaintiffs’ personal property from Salt Pond Beach Park, but failed to return all of the property.

Id. at PageID #6. Finally, Plaintiffs allege that on April 8, 2020, "Defendants" turned off the electricity at Salt Pond Beach Park. Id. at PageID #10.

B. Procedural Background

On April 27, 2020, Plaintiffs filed this action against Defendants asserting a single claim under 42 U.S.C. § 1983 based on a violation of the Eighth Amendment. ECF No. 1.⁶

Defendant County of Kauai filed its Motion to Dismiss on June 8, 2020, arguing that the Complaint fails to state an Eighth Amendment claim under Martin. ECF No. 33. Defendants Kawakami, Porter, Rezentes, Serquina, Kaleiohi, and Ortiz filed a Motion to Dismiss on June 8, 2020, arguing that claims against them in their official capacities are duplicative of claims against the County of Kauai. ECF No. 32. Defendants Kauai Police Department, Raybuck, the Kauai Police Commission, and Hertog filed a separate Motion of Dismiss on June 8, 2020, also arguing that the claims against them are duplicative of the claims against the County. ECF No. 34. Plaintiffs filed oppositions on July 29, 2020, ECF Nos. 39-41, and replies were filed on August 6, 2020. ECF Nos. 42-44. A telephonic hearing was held on August 24, 2020.

As set forth below, the court GRANTS the County's Motion to Dismiss with leave to amend; GRANTS Defendants Kawakami, Porter, Rezentes, Serquina, Kaleiohi, and Ortiz’ Motion to Dismiss without leave to amend; and GRANTS Defendants Kauai Police Department, Raybuck, the Kauai Police Commission, and Hertog's Motion of Dismiss without leave to amend.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) 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) ).

"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.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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," and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Rather, "[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 misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Factual allegations that only permit the court to infer "the mere possibility of misconduct" do not show that the pleader is entitled to relief. Id. at 679, 129 S.Ct. 1937.

Because Plaintiffs are proceeding pro se, the court liberally construes their Complaint. See Erickson , 551 U.S. at 94, 127 S.Ct. 2197 ; Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). A liberal construction of a pro se complaint, however, does not mean that the court will supply essential elements of a claim that are absent from the complaint. See Litmon v. Harris , 768 F.3d 1237, 1241 (9th Cir. 2014) (citation omitted). The court must grant leave to amend if it appears that Plaintiffs can correct the defects in their Complaint, Lopez v. Smith , 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc), but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate, Sylvia Landfield Tr. v. City of L.A. , 729 F.3d 1189, 1196 (9th Cir. 2013). See also Leadsinger, Inc. v. BMG Music Publ'g , 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons "repeated failure to cure deficiencies by amendments previously allowed ... [and] futility of amendment") (citation omitted).

IV. DISCUSSION

A. The County's Motion to Dismiss (ECF No. 33)

As set forth above, the Complaint alleges that Plaintiffs are homeless, that there is limited shelter space for homeless on Kauai (that is, fewer shelter beds than the number of registered homeless), and that Plaintiffs were cited under KCC §§ 19-2.3(a) and 19-1.4(a)(13) while camping at Salt Bond Beach Park. Finally, Plaintiffs allege that the various citations issued to them were dismissed with prejudice in state court.⁷ According to Plaintiffs, these facts state a plausible Eighth Amendment violation.

Specifically, the Complaint alleges that Defendants violated their Eighth Amendment rights as established in Martin v. City of Boise. Martin involved two Boise, Idaho ordinances: 1) Boise City Code § 9-10-02, which makes it a misdemeanor to use "any of the streets, sidewalks, parks, or public places as a camping place at any time;" and 2) Boise City Code § 6-01-05, which bans "[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private ... without the permission of the owner or person entitled to possession or in control thereof." Martin , 920 F.3d at 603-04. Martin concluded that "the Eighth Amendment's prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to." Id. at 603. Martin articulated "the principle ... that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being." Id. at 616-17 (citation and quotation marks omitted).

But Martin's holding is not as broad as Plaintiffs claim—at different times, the court explained that its holding is limited to the criminalization of "sleeping outside on public property" or "sleeping in public" or "sleeping outdoors, on public property" where there is no option of indoor sleeping. See, e.g., id. at 603-04, 617. In fact, the court explicitly characterized its holding "as a narrow one" that did not "dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets ... at any time and at any place." Id. at 617 (citation omitted). As an example, "an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible," as well as "an ordinance barring the obstruction of public rights of way or the erection of certain structures." Id. at 617 n.8. And "[c]ourts following Martin have declined to expand its holding beyond criminalization of homelessness." Young v. City of L.A. , 2020 WL 616363, at *5 (C.D. Cal. Feb. 10, 2020) (citing Aitken v. City of Aberdeen , 393 F. Supp. 3d 1075, 1081-82 (W.D. Wash. 2019) (collecting cases)). " Martin does not limit the [c]ity's ability to evict homeless individuals from particular public places." Aitken , 393 F. Supp....