Eileen Shavelson v. HAWAII CIVIL RIGHTS COMMISSION, (HCRC) the investigators, supervisors, director

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EILEEN SHAVELSON,
Plaintiff-Appellant,
v.
HAWAII CIVIL RIGHTS
COMMISSION, (HCRC) the
investigators, supervisors, director and co-
director, in their individual professional
capacity at HCRC; CONSTANCE
DeMARTINO; WILLIAM D. HOSHIJO;
MARCUS KAWATACHI,
Defendants-Appellees.
No. 15-16525
DC No. CV 15-55 LEK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted June 11, 2018
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.
FILED
JUL 03 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Plaintiff-Appellant Eileen Shavelson (“Shavelson”) appeals the district
court’s dismissal of her civil rights complaint against Defendants-Appellees the
Hawaii Civil Rights Commission (“HCRC”) and individual HCRC employees
Constance DeMartino, William Hoshijo, and Marcus Kawatachi.1 We affirm in
part, reverse in part, and remand.
1. Shavelson first contends that the district court erred in dismissing her
Sixth Amendment claim. However, the protections of the Sixth Amendment apply
only to criminal prosecutions. United States v. Hall, 419 F.3d 980, 985–86 (9th
Cir. 2005). The district court thus properly dismissed Shavelson’s Sixth
Amendment claim.
2. Shavelson next contends that she stated a Fourteenth Amendment
procedural due process claim against the HCRC employees. To have a property
interest protected by the Fourteenth Amendment, Shavelson must have a
“legitimate claim of entitlement” to a government benefit, which entitlement is
created “by existing rules or understandings that stem from an independent source
such as state law. . . .” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577
(1972). “[A] benefit is not a protected entitlement if government officials may
1 After briefing was complete, the court appointed pro bono counsel for
Shavelson, and the parties submitted supplemental opening, answering, and reply
briefs.
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grant or deny it in their discretion.” Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th
Cir. 2013) (quoting Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)).
“A reasonable expectation of entitlement is determined largely by the language of
the statute and the extent to which the entitlement is couched in mandatory terms.”
Wedges/Ledges of Cal., Inc. v. City of Phx., 24 F.3d 56, 62 (9th Cir. 1994) (internal
quotation marks and citations omitted).
Shavelson contends that she has a property interest in “an HCRC
investigation that comports with due process.” However, the government benefit
Shavelson desires is the HCRC’s reasonable cause determination and resulting
assistance. A reasonable cause determination is one potential outcome of a HCRC
investigation, but whether to grant such a determination is discretionary, Haw.
Rev. Stat. § 368-13, and a plaintiff may sue (as Shavelson did) without receiving a
reasonable cause determination. Haw. Rev. Stat. § 515-9. Because “[n]o
constitutionally protected property interest can exist in the outcome of a decision
‘unmistakably committed . . . to the discretion of the [public entity],” Ulrich v. City
& Cty. of S.F., 308 F.3d 968, 976 (9th Cir. 2002) (all but first alteration in original)
(citing Parks v. Watson, 716 F.2d 646, 657 (9th Cir. 1983)), Shavelson cannot state
a procedural due process claim. Therefore, the court did not err in dismissing with
prejudice Shavelson’s due process claim.
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3. Finally, Shavelson contends that the district court erred in dismissing
with prejudice her Fourteenth Amendment claim. The district court did not
address whether Shavelson had stated an equal protection claim; with respect to the
Fourteenth Amendment, the court addressed only whether Shavelson stated a
procedural due process claim, as discussed in Part 2, above. To state a Fourteenth
Amendment equal protection claim, a plaintiff must allege “that the defendants
acted with an intent or purpose to discriminate against the plaintiff based upon
membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998); see Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir. 2011) (“[A]llegations
in a complaint or counterclaim . . . must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to defend itself
effectively.”). Shavelson’s complaint is deficient in several respects. For example,
she does not allege that she was a member of a protected class, nor does she clearly
allege how each HCRC employee acted with discriminatory animus.
However, the district court should have granted Shavelson leave to amend to
state an equal protection claim. When a plaintiff is pro se, the district court is
“required to explain the deficiencies” in a complaint, and only dismiss with
prejudice if it is “absolutely clear that [Shavelson] could not cure the deficiencies
by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). A court
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may consider “[f]acts raised for the first time in a plaintiff’s opposition papers”
when deciding whether leave to amend is warranted. Broam v. Bogan, 320 F.3d
1023, 1026 n.2 (9th Cir. 2003); see Byrd v. Phx. Police Dep’t, 885 F.3d 639, 643
(9th Cir. 2018) (“This rule relieves pro se litigants from the strict application of
procedural rules and demands that courts not hold missing or inaccurate legal
terminology or muddled draftsmanship against them.” (quoting Blaisdell v.
Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013))). Shavelson’s complaint,
opposition, and motion for reconsideration all put the district court on notice that
Shavelson was trying to allege that the HCRC’s investigation was plagued by
racial favoritism. Therefore, the district court should have granted Shavelson leave
to amend to attempt to assert an equal protection claim.2
• ! •
The judgment of the district court is AFFIRMED in part, REVERSED in
part, and REMANDED with instructions for the district court to grant Shavelson
leave to amend her complaint to state a Fourteenth Amendment equal protection
2 We do not separately discuss the claims argued in Shavelson’s pro se
briefs because they are either barred as due process claims, as discussed in Part 2,
or are subsumed as part of her equal protection claims, as to which she has been
granted leave to amend on remand.
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claim against the HCRC employees. Each party shall bear her, his, or its own costs
on appeal.
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