The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER GRANTING DEFENDANT STATE OF HAWAII'S, DEFENDANT HAWAII
SHERIFF'S DEPARTMENT'S, AND DEFENDANT THE HONORABLE RONALD
IBARRA'S MOTION TO DISMISS
Presently before the Court are motions to dismiss brought by
defendants State of Hawaii, Hawaii Sheriff's Department, and the
Honorable Ronald Ibarra. (collectively "defendants") motion to
dismiss the complaint. For the following reasons, the Court
grants defendants' motion.
Plaintiff Howard Hofelich ("plaintiff"), proceeding pro se,
brings this civil action against numerous defendants under
42 U.S.C. §§ 1983, 1988, and 18 U.S.C. §§ 1961, 1962, and 1964 "for
violation of the Fourth Amendment of the United States
Constitution, wire and mail fraud, obstruction of interstate commerce, fraud, racketeering, and
failure to protect and failure to adjudicate for its Hawaii
citizen, Plaintiff Howard R. Hofelich, a prior small business
owner (Hawaiian Divers) in Kailua-Kona, Hawaii." (Compl. ¶ 1.)
Plaintiff also claims that "Defendants knowingly and with malice,
ignored U.S. Code and Title 50 Servicemans Civil Relief Act and
deprived Plaintiff of his lawful property, even with the
knowledge he was deployed overseas." Id. ¶ 20.
In February of 1995, plaintiff alleges to have entered into an
agreement with defendant Mark McShane. McShane allegedly
represented himself as Lord & Auditor, Inc., a Nevada corporation
which was the purported owner and lessor of a certain commercial
vessel. Id. ¶ 5. The alleged agreement called for McShane to
lease to plaintiff the commercial vessel in exchange for
plaintiff's signing of an interstate leasing agreement for
hydrostatic test equipment.*fn1 Id. at 2. Plaintiff was
also to receive stock in Lord & Auditor, Inc. Id. Plaintiff
allegedly executed this agreement with the H. Isabelle McGarry
Thereafter, plaintiff alleges McShane breached the lease
agreement through various acts. First, plaintiff alleges that
Lord & Auditor, Inc. cancelled the transfer of its stock to him.
Compl. ¶ 2. Second, plaintiff contends the commercial vessel
lease was rescinded because Lord & Auditor, Inc. did not own the
vessel and it was no longer available to be leased or purchased.
Id. Lastly, plaintiff claims that the hydrostatic test
equipment was never delivered in full. Id. Because of McShane's
alleged breach, plaintiff claims that he had to purchase the
commercial vessel from its genuine owner, JK Llewellyn
Chiropractic Trust. Id.
In October 1995, Lord & Auditor, Inc. allegedly filed suit
against plaintiff in the State of Hawaii. In the suit, Lord &
Auditor, Inc. claimed that it owned the hydrostatic testing
equipment in Hawaii for the purposes of leasing it to plaintiff.
Compl. ¶ 6. Plaintiff claims that Lord & Auditor, Inc. and the H.
Isabelle McGarry Trust were trying to "double collect on the"
lease for the hydrostatic testing equipment. Id. at 2. After
filing suit against plaintiff in Hawaii, plaintiff claims that
Lord & Auditor, Inc. "vacated the judicial proceedings in Hawaii,
took their fraud over state lines, and took up the same proceeding in California, which did
not have proper jurisdiction or venue." Id. at 6. Plaintiff
claims that he "was forced to appear under protest in California
kangaroo court, which found him liable for judgment due to a
California home town judge tampering with the jury and the
tampering of evidentiary exhibits." Id. Judgment was allegedly
entered against plaintiff in March of 1997. Id.
Thereafter, plaintiff alleges that the California state court
judgment was enforced against him in Hawaii. Compl. ¶ 7.
Plaintiff makes specific claims against each of the three moving
defendants. First, plaintiff claims that the State of Hawaii
failed to adjudicate the contractual dispute between plaintiff
and Lord & Auditor, Inc., and "allowed the conduct of interstate
business of these fraudulent entities, without regulating with
business license or collection of tax." Second, plaintiff claims
that the Honorable Ronald Ibarra, a Hawaii state judge, failed to
adjudicate a State of Hawaii lease, allowed the complaint to be
transferred to California, and then executed the judgment in
Hawaii. Compl. ¶ 6. Third, plaintiff claims that the Hawaii
Sheriff's Department executed the judgment against him and seized
equipment valued in excess of one million dollars and allowed
flagrant and unimpeded theft during the execution of the order.
Compl. ¶¶ 7 and 8.
Plaintiff Howard Hofelich, proceeding pro se, filed the
instant civil action on June 7, 2005. (Doc. No. 1.) On August 29,
2005, defendant State of Hawaii, defendant Hawaii Sheriff's
Department, and defendant the Honorable Ronald Ibarra moved to
dismiss the complaint for lack of jurisdiction, or in the
alternative, under Federal Rule Civil Procedure 12(b)(6). (Doc.
No. 18.) Plaintiff filed an opposition on September 7, 2005, and
filed an amended complaint on September 13, 2005.*fn2
Defendants did not file a reply. The Court finds defendants'
motion appropriate for disposition without oral argument pursuant
to Civil Local Rule 7.1(d)(1).
DISCUSSION A. Legal Standard
1. Eleventh Amendment Immunity
The State of Hawaii argues that plaintiff's claims for damages
under 42 U.S.C. § 1983, 18 U.S.C. § 1964, and the Servicemembers
Civil Relief Act are barred by its Eleventh Amendment Immunity.
(Memo. ISO Motion at 10:14-21.) For the following reasons,
plaintiff's claims against the State of Hawaii are barred by the
doctrine of sovereign immunity.
The Eleventh Amendment prohibits federal courts from hearing
"any suit in law or equity, commenced or prosecuted against one
of the United States . . ." The Supreme Court has repeatedly held
that the Eleventh Amendment bars suits against a state by its own
citizens. See e.g., Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 120,(1984); Edelman v. Jordan,
415 U.S. 651 (1974); Missouri v. Fiske, 290 U.S. 18, 28 (1933).
Further, this prohibition "encompasses not only actions in which
a State is actually named as the defendant, but also certain
actions against state agents and state instrumentalities."
Kirchmann v. Lake Elsinore Unified School Dist., (2000)
83 Cal. App.4th 1098, 1101; Regents of Univ. of Cal. v. Doe,
519 U.S. 425, 429 (1997). ...