Perreira v. Adult Client Servs. Branch

1

CALVIN PERREIRA, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CURTIS MORTIN ABORDO, Plaintiff, v. ADULT CLIENT SERVICES BRANCH, STATE OF HAWAII JUDICIARY, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, DOE NONPROFIT ENTITIES 1-10, Defendants.

Civ. No. 23-00066 LEK-WRP

United States District Court, D. Hawaii

August 31, 2023

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FILED FEBRUARY 3, 2023, WITH PREJUDICE

LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Adult Client Services Branch, State of Hawaii Judiciary's (“Defendant”) Motion to Dismiss Plaintiff's Complaint Filed February 3, 2023 with Prejudice (“Motion”), filed on March 16 2023. [Dkt. no. 12.] Plaintiff Calvin Perreira (“Perreira”), Personal Representative of the Estate of Curtis Mortin Abordo (“Abordo”), filed his memorandum in opposition on April 12, 2023, and Defendant filed its reply on April 26, 2023. [Dkt. nos. 18, 19.] 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”). Defendant's Motion is hereby granted in part and denied in part.

This Court has assumed that Perreira's factual allegations are true for purposes of the instant Motion.^[1] If what Perreira describes in the Complaint did in fact occur, then the State of Hawai'i (“the State”) has done Abordo a grievous injustice. This Court regretfully is constrained by the constitutional mandate of the Eleventh Amendment and is required to dismiss Perreira's claim and foreclose him from proceeding against Defendant in federal court. However Perreira may plausibly have a claim against Defendant in state court. Moreover, this Court fervently hopes that the State has investigated Perreira's contentions and, if his averments are in any way true, has remedied the shameful way Abordo was mistreated to avoid illegal imprisonment of individuals.

Defendant's Motion is granted, insofar as Perreira's claims in the instant case are dismissed, and insofar as the dismissal of his claims against Defendant is with prejudice. The Motion is denied, insofar as the dismissal is without prejudice to the filing an action against Defendant in state court, and insofar as Perreira is allowed to file an amended complaint in the instant case against any appropriate individual defendant, in his or her individual capacity.

BACKGROUND

Perreira filed this action on February 3, 2023. [Complaint, filed 2/3/23 (dkt.no. 1).] The central allegation of the Complaint is that, because of Defendant's actions and omissions Abordo was unlawfully imprisoned at Oahu Community Correctional Center (“OCCC”) for a period of eighty-one days from February 11, 2017 to May 3, 2017. Perreira alleges the unlawful imprisonment caused Abordo to suffer both physical harm and severe emotional distress. See id. at ¶¶ 39-34.

I. Factual Background

In 2004, following a no contest plea to a state forgery charge, Abordo was sentenced to, inter alia, five years of probation, which commenced on March 29, 2004. See id. at ¶¶ 6-9. A bench warrant was issued on April 14, 2005 after the State of Hawai'i (“the State”) filed a motion to revoke Abordo's probation, but the warrant was not served on Abordo until March 15, 2010. [Id. at ¶¶ 13-14.] Ultimately, the state court dismissed the revocation motion but tolled Abordo's probation period from the date the motion as filed until the date the warrant was executed. [Id. at ¶¶ 17-18.] Abordo's amended probation term was therefore scheduled to end on February 27, 2014. [Id. at ¶ 19.] Perreira alleges that, while Abordo was on probation, “Defendant was responsible for monitoring [Abordo]'s compliance with the terms of his probation, including issuing a timely certificate discharging him from probation” when he completed his term. [Id. at ¶ 11.]

According to the Complaint, Abordo received no further notifications from Defendant from date that his probation term was amended until February 27, 2014, and therefore he successfully completed his five-year probation term. However, Defendant did not issue a certificate of discharge nor did Defendant file such a certificate with the state court. Perreira argues Defendant's failure to do so resulted in Abordo's unlawful imprisonment in 2017. See id. at ¶¶ 21-24. On August 10, 2016, the State filed a motion to revoke Abordo's probation, based on an affidavit by Defendant alleging that Abordo violated certain terms of his probation on March 29, 2013, October 9, 2014, November 19, 2015, and May 12, 20216. See id. at ¶¶ 25-27.d. Perreira argues that, before Defendant submitted the affidavit, “Defendant knew or should have known that the Amended Probation Period had expired years ago, so there was no probation to revoke,” and “this later caused [Abordo] to be falsely arrested and falsely imprisoned for 81 days.” [Id. at ¶ 29.]

While responding to an unrelated report about Abordo on February 11, 2017, police officers discovered his alleged probation violations and arrested him. See id. at ¶¶ 33-36. Because he was unable to post his bail, Abordo remained in custody from February 11, 2017 to his May 3, 2017 return hearing on the 2016 revocation motion. See id. at ¶¶ 38-39. At the return hearing, the state court denied the 2016 revocation motion, apologized to Abordo, and discharged him. [Id. at ¶ 44.] A certificate of discharge was filed in Abordo's forgery case on September 1, 2017, stating he completed his term of probation on February 27, 2014. [Id. at ¶ 45.]

II. Abordo's Prior Action

On March 13, 2019, Abordo, proceeding pro se, filed his “1983 Civil Rights Complaint for Illegal Detention Illegal Restraint” in Abordo v. Hawai'i, Department of Public Safety, CV 19-00130 DKW-RT (“CV 19-130”). [CV 19-130, dkt. no. 1.] The only defendant originally named in CV 19-130 was the State Department of Public Safety (“DPS”). See id. at ¶ 2. Abordo's claims were based on the same factual allegations that form the basis of the action currently before this Court. See id. at ¶¶ 3-5. Abordo was granted leave to amend as to some of his claims. See CV 19-130, Order (1) Granting Application to Proceed Without Prepayment of Fees or Costs; and (2) Dismissing Complaint in Part with Partial Leave to Amend, filed 4/10/19 (dkt. no. 4).

Abordo filed an amended complaint against DPS on May 3, 2019. [Id., 1st Amended 1983 Civil Rights Complaint for Illegal Detention Illegal Restraint, False Arrest, filed 5/3/19 (dkt. no. 5).] Abordo's amended complaint was dismissed without prejudice because he only asserted 42 U.S.C. § 1983 claims, and DPS is not a “person” for purposes of § 1983. [Id., Order Dismissing First Amended Complaint with Leave to Amend, filed 5/24/19 (dkt. no. 7), at 1.] Abordo was instructed that, if he wished to pursue his § 1983 claims, he had to “name as defendants the officers who committed the alleged acts in their individual capacities.” [Id. at 3.]

On June 10, 2019, Abordo filed his 2^nd Amended Civil Rights Complaint for Illegal Detention Illegal Restraint, False Arrest. [CV 19-130, dkt. no. 10.] Abordo alleged DPS staff John Doe and Jane Doe were responsible for his unlawful arrest and detention. [Id. at ¶¶ 2-3.]

On September 10, 2020, Abordo, represented by pro bono counsel, filed his Third Amended Complaint. [CV 19-130, dkt. no. 39.] The Third Amended Complaint named Defendants Jennifer Kudo (“Kudo”), Sumi Caldeira (“Caldeira”), and Sidney Nakamoto (“Nakamoto”), in their individual capacities. [Id. at pgs. 12.] Abordo's pro bono counsel was permitted to withdraw after the filing of the Third Amended Complaint. See generally CV 19- 130, Order Granting Motion to Withdraw as Counsel for Plaintiff Curtis M. Abordo, filed 10/23/20 (dkt. no. 48).

On February 17, 2021, Edmund M. Abordo, Abordo's brother, filed a motion seeking leave to prosecute Abordo's claims on his behalf. See id., Permission to Prosecute My Brother Curtis M. Abordo's Case as He Is Incapacitated and Is Deathly Ill. in the Hospital in Washington State This Motion is Made Under Rule 17(c)(2), filed 2/17/21 (dkt. no. 68).^[2] On April 12, 2021, Edmund Abord filed a “Motion for Mag Judge Rom Trader to Issue an Order to Allow Edmund to Represent the Estate of My Brother Curtis or in the Alternative Appoint Counsel.” [Id., dkt. no. 72.] Attached to the April 12, 2021 motion was Abordo's State of Washington Certificate of Death, which stated Abordo passed away on February 27, 2021. [Id. at PageID.244.] The magistrate judge construed the April 12, 2021 motion as a notice of suggestion of death and a motion to substitute Edmund Abordo as a party in place of Curtis Abordo, and later denied the motion. See CV 19-130, EO, filed 4/16/21 (dkt. no. 73); id., Order Denying Edmund M. Abordo's Motion to Substitute Party, filed 7/13/21 (dkt. no. 86).

On October 27, 2021, Perreira, as the Personal Representative of Curtis Abordo's estate,^[3] filed a motion to be substituted as the plaintiff in the case. [CV 19-130, Motion for Order Substituting Calvin Perreira, Personal Representative of the Estate of Curtis Mortin Abordo, for Plaintiff Curtis Abordo, filed 10/27/21 (dkt. no. 90).] The magistrate judge issued an order granting Perreira's motion on November 1, 2021. [Id., dkt. no. 93.]

On May 13, 2022, Caldeira, Kudo, and Nakamoto each filed a motion for summary judgment. [Id., dkt. nos. 107, 111 113.] On July 22, 2022, the parties filed a Stipulation for Dismissal of Plaintiff's Third Amended Complaint Filed on September 10, 2020 (“Stipulation”). [Id., dkt. no. 120.] Thus, the hearing on the motions for summary judgment, the trial date, and all other dates and...