Denis v. Ige et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
:MEGESO-WILLIAM-ALAN: DENIS
a.k.a. WILLIAM DENIS
Plaintiff,
vs.
DAVID Y. IGE, CLARE E.
CONNORS, DEREK S.K. KAWAKAMI,
TODD RAYBUCK, DEREK KELLEY,
RUSSELL HIMONGALA, and ARRYL
KANESHIRO,
Defendants.
_____________________________
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Civil NO. 21-00011 SOM-RT
ORDER GRANTING MOTIONS TO
DISMISS
ORDER GRANTING MOTIONS TO DISMISS
I. INTRODUCTION
On December 5, 2020, Plaintiff Megeso-William-Alan
Denis was arrested during a protest in Kapaa, on the island of
Kauai. According to Denis, even though he was socially distanced
from other people, police officers arrested him because he was
not wearing a face mask. Denis claims that during the arrest
the officers treated him roughly, and that he suffered injuries
as a result. Denis, proceeding pro se, has sued two of the
police officers involved in his arrest, Defendant Derrick Kelley	1
In his answer, Kelley asserts that the Complaint	1
incorrectly identifies him as “Derek Kelley,” but that his name
should be spelled “Derrick.” ECF No. 35, PageID # 200.
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and Defendant Joseph Russell Himongala. This order does not	2
address Denis’s claims against the two officers.
Instead, the present order concerns Denis’s claims
against five other Defendants who did not physically arrest him.
Denis contends that Defendants David Y. Ige (Hawaii’s Governor),
Clare E. Connors (Hawaii’s Attorney General), and Derek S.K.
Kawakami (Kauai’s Mayor) violated his constitutional rights by
issuing rules that required him to wear a mask in the first place
(even though he was allegedly complying with those rules when he
was arrested). For instance, he asserts that the rules violated
his “unenumerated right to breathe oxygen without restriction.”
Denis also maintains that Defendant Todd Raybuck (Kauai’s Police
Chief) and Defendant Arryl Kaneshiro (the Chairperson of Kauai’s
County Council) are responsible for his wrongful arrest because
of their positions of authority.
Before the court are motions to dismiss filed by those
five defendants (the “Moving Defendants”). Those motions are
granted. Denis’s claims against the Moving Defendants are
dismissed.
II. BACKGROUND
A. The COVID-19 Pandemic.
“In December 2019, individuals in Wuhan, China
In his answer, Himongala states that the Complaint	2
incorrectly identifies him as “Russell Himongala,” but that his
first name is Joseph. ECF No. 34, PageID # 184.
2
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identified a novel coronavirus. In the ensuing months, the
disease spread across the world. The novel coronavirus came to
be known as SARS-CoV-2, and the disease that it causes is called
COVID-19. The virus is highly transmissible and is primarily
spread through exchange of respiratory droplets emitted when a
person talks, breathes, coughs, or sneezes.” Heights Apartments,
LLC v. Walz, 2020 WL 7828818, at *1 (D. Minn. Dec. 31, 2020).
According to the Centers for Disease Control and Prevention, by
May 12, 2021, more than 32 million cases of COVID-19 had been
identified in the United States, and 580,073 people have died.
https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last
visited May 12, 2021).
B. Hawaii’s Initial Response to the Pandemic.
Hawaii’s first case of COVID-19 was confirmed on March
6, 2020. Audrey McAvoy, Hawaii Records its First Case of New
Coronavirus, A.P. News, March 6, 2020, https://apnews.com/
article/877078a229df18bbbb531524dab3f96c. On March 16, 2020,
Mayor Kawakami, citing the dangers of the disease, issued an
Emergency Rule prohibiting gatherings of 10 or more people in the
County of Kauai. Mayor’s Emergency Rule #1,
https://www.kauai.gov/Portals/0/Civil_Defense/EmergencyProclamati
ons/Mayor%27s%20Emergency%20Rule%20%231_20200316.pdf.
Shortly thereafter, on March 21, Governor Ige required all
persons entering the State of Hawaii to self-quarantine for 14
3
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days after arrival. Second Supplementary Proclamation,
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-AT
G_Second-Supplementary-Proclamation-for-COVID-19-signed.pdf. Two
days later, on March 23, 2020 Governor Ige ordered all persons in
the State of Hawaii to shelter in place until April 30, 2020.
Third Supplementary Proclamation, https://governor.hawaii.gov/
wp-content/uploads/2020/03/2003162-ATG_Third-Supplementary-Procla
mation-for-COVID-19-signed.pdf.
C. Mask Mandates in Hawaii.
As COVID-19 continued to spread, the medical community
and the Centers for Disease Control and Prevention worked to
identify measures that could limit the virus’s transmission. By
early April, those experts were recommending wearing face
coverings in public. Specifically, on April 3, 2020, the CDC
recommended “wearing cloth face coverings in public settings
where other social distancing measures are difficult to maintain
(e.g., grocery stores and pharmacies) especially in areas of
significant community-based transmission.” Centers for Disease
Control and Prevention, Recommendation Regarding the Use of Cloth
Face Coverings, Especially in Areas of Significant Community-
Based Transmission, April 3, 2020, available at
https://web.archive.org/web/20200404003200/
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cl
4
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oth-face-cover.html.3
Both Governor Ige and Mayor Kawakami revised their
emergency rules to incorporate that recommendation. On April 13,
2020, Mayor Kawakami, after noting that the CDC “currently
recommends wearing cloth face coverings in public settings,”
issued an order requiring all persons over the age of five on
Kauai to wear some form of face covering or mask when outside of
their homes. Mayor’s Emergency Rule #6, https://www.kauai.gov/
Portals/0/Civil_Defense/EmergencyProclamations/Mayor%27s%20Emerge
ncy%20Rule%20%236%2020200413.pdf. Violations were punishable by
a $5,000 fine or a prison sentence of up to one year. Id.
Similarly, on April 17, 2020, after recognizing that the CDC had
“recommended wearing cloth face coverings in public settings
where other social distancing measures are difficult to
maintain,” Governor Ige updated his shelter-in-place order by
In ruling on the Moving Defendants’ motions, the court	3
can consider the various releases posted on the CDC’s website.
Courts may take judicial notice of such documents, even if they
are currently only available by accessing the Internet Archive’s
Wayback Machine. See, e.g., Brown v. Google LLC, 2021 WL 949372,
at *5 (N.D. Cal. Mar. 12, 2021) (“Courts have taken judicial
notice of the contents of web pages available through the Wayback
Machine as facts that can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.”);
Murphy v. Lamont, 2020 WL 4435167, at *10 n.14 (D. Conn. Aug. 3,
2020) (“The CDC is the nation’s healthcare protection agency.
The court takes judicial notice of CDC’s various COVID-19-related
postings and guidance.”); Pohl v. MH Sub I, LLC, 332 F.R.D. 713,
716 (N.D. Fla. 2019) (taking judicial notice of a website
archived on the Wayback Machine). The fact that the CDC actually
released the statements cited by the court cannot reasonably be
disputed.
5
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requiring individuals to wear a face mask if they did leave their
home to shop at essential businesses. Fifth Supplementary
Proclamation, https://governor.hawaii.gov/wp-content/uploads/
2020/04/2004088-ATG_Fifth-Supplementary-Proclamation-for-COVID-19
-distribution-signed.pdf. Again, violations were punishable by a
$5,000 fine or a prison sentence of up to one year. Id.
As the pandemic progressed, the CDC issued several
additional releases endorsing face masks. For instance, on July
14, 2020, the CDC issued a press release stating that “cloth face
coverings are a critical tool in the fight against COVID-19 that
could reduce the spread of the disease,” and that “[t]here is
increasing evidence that cloth face coverings help prevent people
who have COVID-19 from spreading the virus to others.” Centers
for Disease Control and Prevention, CDC Calls on Americans to
Wear Masks to Prevent COVID-19 Spread, July 14, 2020,
https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-m
asks.html.
Governor Ige and Mayor Kawakami continued to require
individuals to wear face coverings in public settings. At the
times at issue in this case, the following orders (collectively,
the “Mask Mandates”) were in force, and violations were again
punishable by a fine of $5,000 or a prison sentence of up to one
year:
State of Hawaii: All individuals shall wear
face coverings over their noses and mouths
6
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when in public settings.
The only exceptions to this requirement are:
. . .
J. While outdoors when physical distance of
six (6) feet from other individuals (who are
not members of the same household/living
unit/residence) can be maintained at all
times.
County of Kauai: [A]ll persons five (5)
years of age or older are required to wear a
face covering over their nose and mouth,
whether indoors or outdoors, in any setting
in which they are in close contact (within 6
feet) of people who don’t live in their
immediate household. Face coverings must be
worn by employees, customers, and visitors at
all times inside any establishment in which
close contact may occur.
. . .
Sixteenth Emergency Proclamation, https://governor.hawaii.gov/
wp-content/uploads/2020/11/2011098-ATG_Sixteenth-Proclamation-Rel
ated-to-the-COVID-19-Emergency-distribution-signed.pdf; Mayor’s
Emergency Rule #19 (As Amended), https://www.kauai.gov/Portals/
0/Civil_Defense/EmergencyProclamations/2010134-COK_Mayor%27s%20Em
ergency%20Rule%20No_%2019%2C%20Amendment%20No_%201%20%28certified
%29%20-%20signed.pdf.
D. Denis’s Arrest
On December 5, 2020, Denis attended a protest in Kapaa,
Kauai. ECF No. 1, PageID # 14. At the protest, Denis allegedly
7
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held a “free speech sign.” Id. At some point, according to	4
Denis, several police officers arrived and informed Denis that he
was violating the law because he was not wearing a face mask.
Id. Denis contends that he did not need to wear a mask because
he was more than 18 yards away from any other protestor. Id.
Nevertheless, two police officers, Defendants Derrick Kelley and
Joseph Russell Himongala, allegedly arrested him. Id.
Denis alleges that during the arrest, Kelley and
Himongala “manhandle[d]” him, causing “physical injuries to his
hands, wrists, and shoulder area.” Id. at 15. The Complaint
also states that Denis “received additional injuries to his
hands, wrists, shoulder, and neck while being forcibly placed in
the police cruiser.” Id. The officers took Denis to Mahelona
Hospital for evaluation, where he was allegedly “diagnosed [with]
a cervical sprain to the neck area, soft tissue damage to the
shoulder and soft tissue damage and bone bruising in the wrists.”
Id. After leaving the hospital, Denis was allegedly incarcerated
for several hours, until he posted bail. Id.
It appears that, at some point, Denis was charged with
violating the Mask Mandates. Denis states that the charges
against him were dismissed on either December 12, 2020, see ECF
No. 50, PageID # 579, or February 12, 2021, see ECF No. 43,
In his opposition, Denis indicated that the sign read “I	4
will not be muzzled.” ECF No. 43, PageID # 254.
8
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PageID # 244.
E. Procedural Background.
On January 6, 2021, Denis filed this action against
Defendants Ige, Connors, Kawakami, Raybuck, Kelley, Himongala,
and Kaneshiro. The Complaint claims that Defendants are liable	5
under 42 U.S.C. § 1983 because the “unlawful arrest and	6
incarceration of Denis under pretenses effectuated by the
Governor’s Emergency Proclamation Related to COVID-19” violated
Denis’s “First, Ninth, and Fourteenth Amendment rights.” ECF No.
1, PageID # 2-3. His claims appear to fall into three
categories.
The Police Officers. First, Denis brought claims
against two police officers involved in his arrest, Kelley and
Himongala. Denis alleges that those two officers violated his
rights by carrying out “an unjust arrest and incarceration . . .
based on the premise that he was failing to abide by the
Governor’s rules related to COVID-19.” ECF No. 1, PageID # 7.
Denis sued each Defendant in his or her individual and	5
official capacities.
In his opposition, Denis cites Bivens v. Six Unknown Named	6
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). “A
Bivens action is the federal analog to suits brought against
state officials under [§ 1983].” Hartman v. Moore, 547 U.S. 250,
254 n.2 (2006). In other words, constitutional claims against
state officials are § 1983 actions, whereas claims against
federal officials fall under Bivens. See Hydrick v. Hunter, 669
F.3d 937, 940 n.3 (9th Cir. 2012). Because all Defendants are
state or county officials, § 1983 applies here.
9
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In short, Denis appears to be arguing that the two officers
wrongfully arrested him without probable cause, and that the
manner of the arrest violated the Fourth Amendment because the
officers used excessive force. Id. at 16.
State and County Officials. Second, Denis has brought
claims against the State and County officials involved in
promulgating the Mask Mandates. Denis alleges that Governor Ige
and Mayor Kawakami issued the proclamations, supplements, and
executive orders at issue, and that Attorney General Connors
“formally approved” those orders. Id. at 5-6. Denis appears to
be claiming that those three Defendants violated his
constitutional rights by issuing the Mask Mandates, because,
among other things, the mandates impermissibly burden his
“unenumerated right to breathe oxygen without restriction.”
Id. at 11.
Other County Officials. Finally, Denis has brought
claims against two other Kauai officials, Chief of Police Todd
Raybuck and County Council Chairperson Arryl Kaneshiro. Denis
appears to be alleging that Raybuck and Kaneshiro are indirectly
responsible for his arrest. He states that Raybuck is
“responsible for the actions of officers within the police force,
including those actions which unduly violated [his]
constitutional rights,” and that Kaneshiro’s “failure . . . to
create long term policy that represents the will of the people is
10
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equivalent to complicity with the actions of the other
Defendants[.]” Id. at 6-7.
Denis seeks “a combined restitution of six-hundred and
thirty-two million dollars” from Defendants collectively, in
addition to payment of his medical bills and legal costs. Id. at
18. He also requests “a public apology from each of the
Defendants,” an injunction preventing Defendants from enforcing
the Mask Mandates, and declaratory relief stating that the Mask
Mandates are unconstitutional. Id. at 18-19.
Governor Ige, Mayor Kawakami, Attorney General Connors,
Chief Raybuck, and Chairperson Kaneshiro moved to dismiss the
complaint on the grounds that Denis failed to state a claim
against them and that some of Denis’s claims against them were
barred by sovereign immunity. Officers Kelley and Himongala did
not move to dismiss and instead filed answers. On the present
motions, only the claims against Ige, Kawakami, Connors, Raybuck,
and Kaneshiro are at issue.7
In his opposition, Denis repeatedly argues that Kelley and	7
Himongala violated his constitutional rights. See, e.g., ECF No.
43, PageID # 252. But because Kelley and Himongala did not move
to dismiss Denis’s complaint, Denis’s claims against those two
Defendants are left for further adjudication. The question
before the court is whether the claims against the other
Defendants also survive.
11
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III. LEGAL STANDARD.
A. Rule 12(b)(1).
Under Rule 12(b)(1), a complaint may be dismissed for
lack of subject matter jurisdiction. An attack on subject matter
jurisdiction “may be facial or factual.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack
asserts that “the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction[,]”
while a factual attack “disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.” Id.
Defendants appear to bring a facial attack. In
deciding such a motion, a court must assume the facts alleged in
the complaint to be true and construe them in the light most
favorable to the nonmoving party. Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). However,
courts “do not accept legal conclusions in the complaint as true,
even if ‘cast in the form of factual allegations.’ ” Lacano
Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014)
(emphasis in original) (quoting Doe v. Holy See, 557 F.3d 1066,
1073 (9th Cir. 2009)).
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B. Rule 12(b)(6).8
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of a complaint. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d
1476, 1479 (9th Cir. 1996). On a Rule 12(b)(6) motion to
dismiss, all allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party.
Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d
1204, 1207 (9th Cir. 1996). However, conclusory allegations of
law, unwarranted deductions of fact, and unreasonable inferences
are insufficient to defeat a motion to dismiss. Sprewell, 266
F.3d at 988; Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.
1996).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
In the Ninth Circuit, “[i]t is not entirely clear whether	8
an Eleventh Amendment challenge should be analyzed under Rule
12(b)(1) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction or under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.” Monet v.
Hawaii, 2011 WL 2446310, at *3 (D. Haw. June 14, 2011). But, in
this case, “whether the court examines Eleventh Amendment
immunity under Rule 12(b)(1) for lack of jurisdiction or under
Rule 12(b)(6) for failure to state a claim makes no difference,
as those standards are essentially the same for purposes of this
motion.” Id.
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “state a
claim to relief that is plausible on its face.” Id. at 570. “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.” Iqbal,
556 U.S. at 678.
IV. ANALYSIS.
A. Denis Has Failed to State a Claim Against
Defendants Ige, Connors, and Kawakami.
The constitutionality of the Mask Mandates is central
to several of Denis’s claims. Denis appears to argue that he is
entitled to damages because Governor Ige and Mayor Kawakami9
In his motion to dismiss, Mayor Kawakami observes that,	9
on multiple occasions, Denis alleges that his injuries were
caused by the Governor’s statewide mask mandate, rather than the
Kauai County mandate issued by Mayor Kawakami. ECF No. 24-1,
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violated his constitutional rights by issuing the Mask Mandates,
and that Attorney General Connors participated in the violation
by approving the Governor’s Emergency Proclamation. ECF No. 1,
PageID # 4-6. Denis also asks this court to declare the Mask
Mandates unconstitutional and to issue an injunction preventing
Defendants from enforcing them. Those claims all fail. Denis
has not shown that the Mask Mandates infringe on any of the
rights guaranteed by the Constitution.
1. The Court Need Not Decide Whether the Usual
Constitutional Framework Applies To Decisions
Made During a Pandemic, Because Denis’s
Claims Fail Under any Standard.
Before reaching the substance of Denis’s constitutional
claims, this court must address a preliminary question: whether
an approach based on the traditional tiers of scrutiny applies to
constitutional review during a pandemic. The Moving Defendants
assert that the Mask Mandates are emergency measures to which
this court should apply the “highly deferential standard”
articulated in Jacobson v. Commonwealth of Massachusetts, 197
U.S. 11 (1905), rather than the usual constitutional framework.
ECF No. 31-1, PageID # 127-30.
PageID # 81-82. However, at one point, Denis does refer to the
“Governor’s and Mayor’s proclamations,” ECF No. 1, PageID # 14,
and Denis’s claims against Mayor Kawakami include allegations
that he “issued the proclamations and supplements and executive
orders for this county.” Id. at 6. This court therefore
liberally construes Denis’s claims against Mayor Kawakami and
assumes that Denis is asserting constitutional claims against him
because he issued the Kauai County mask mandate.
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In Jacobson, the Supreme Court considered a challenge
to a regulation that required individuals to be vaccinated during
a smallpox outbreak. 197 U.S. at 12-13. The defendant asserted
that the law was unconstitutional because it was “hostile to the
inherent right of every freeman to care for his own body and
health in such way as to him seems best.” Id. at 26.
The Supreme Court disagreed. The Court began by
recognizing that the Constitution does not grant individuals an
absolute freedom from restraint:
There are manifold restraints to which every
person is necessarily subject for the common
good. . . . Real liberty for all could not
exist under the operation of a principle
which recognizes the right of each individual
person to [act without regard for] the injury
that may be done to others. . . . Even
liberty itself, the greatest of all rights,
is not unrestricted license to act according
to one’s own will. It is only freedom from
restraint under conditions essential to the
equal enjoyment of the same right by others.
It is, then, liberty regulated by law.
Id. at 26-27 (quotation marks omitted). Such regulations are
particularly important during a pandemic. When society is placed
“under the pressure of great dangers,” it is “the duty of the
constituted authorities primarily to keep in view the welfare,
comfort, and safety of the many, and not permit the interests of
the many to be subordinated to the wishes or convenience of the
few.” Id. at 29.
Accordingly, the Court held that the smallpox
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vaccination requirement did not violate the due process clause
because (1) the Court could not “confidently assert that the
means prescribed by the state” had “no real or substantial
relation to the protection of the public health and the public
safety” and (2) the vaccination requirement “cannot be affirmed
to be, beyond question, in palpable conflict with the
Constitution.” Id. at 31.
There is no dispute that Jacobson remains good law
today. And its reasoning is also relevant. During the present
pandemic, public health authorities still have a duty to enact
reasonable regulations to protect the public welfare,
irrespective of the “wishes or convenience of the few” who
object. But, because Jacobson was decided well before the
Supreme Court developed the modern tiers of scrutiny approach to
constitutional review, it is not clear how to harmonize Jacobson
with more recent developments. Courts have split on that issue.
Several courts have concluded that, during a pandemic,
Jacobson’s two-part test supersedes the usual constitutional
framework. See, e.g., In re Abbott, 954 F.3d 772, 784 (5th Cir.
2020), judgment vacated on other grounds sub nom. Planned
Parenthood Ctr. for Choice v. Abbott, 141 S. Ct. 1261 (2021); see
also In re Rutledge, 956 F.3d 1018, 1023 (8th Cir. 2020). Those
courts appear to reason that Jacobson involved what would now be
understood as the right to bodily integrity. See generally
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Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997) (citing
Rochin v. California, 342 U.S. 165 (1952)). Today, strict
scrutiny would be applied in such a case. Yet in Jacobson the	10
Supreme Court relied on its highly deferential two-part test.
Some courts have therefore concluded that Jacobson’s test	11
applies to all measures enacted to “combat a public health
emergency,” even if they infringe on fundamental rights. Abbott,
954 F.3d at 786.
That reasoning has been criticized on several grounds.
Because Jacobson was decided before the Supreme Court developed
the tiers of scrutiny applicable to constitutional review, the
This court is not holding that Jacobson actually	10
implicated the right to bodily integrity. The case establishing
that right, Rochin, involved “the forcible extraction of [a
defendant’s] stomach’s contents.” 342 U.S. at 172. That is a
very different intrusion from a vaccination. This court is only
noting that decisions such as Abbott appear to have concluded
that Jacobson involved what today would have been considered a
fundamental right.
Defendants maintain that other judges in this district	11
have concluded that Jacobson renders inapplicable the usual tiers
of scrutiny during a pandemic. ECF No. 31-1, PageID # 127-30
(citing Carmichael v. Ige, 470 F. Supp. 3d 1133, 1143 (D. Haw.
2020), Bannister v. Ige, 2020 WL 4209225, at *5 (D. Haw. July 22,
2020), and Kelley O'Neil's Inc. v. Ige, 2021 WL 767851, at *7 (D.
Haw. Feb. 26, 2021)). In two of those decisions, however, the
court applied strict scrutiny when fundamental rights were at
issue. Carmichael, 470 F. Supp. 3d at 1147 (“[B]ased on the
record presently before it, the Court finds that the quarantine
survives strict scrutiny.”); Bannister, 2020 WL 4209225, at *6
(“[B]ased on the record presently before it, the Court finds that
the quarantine survives strict scrutiny.”). The third case did
not involve fundamental rights at all. Kelley O’Neil’s, 2021 WL
767851, at *7. Thus, none of those cases relied on Jacobson to
fundamentally alter the usual constitutional approach.
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question of whether that approach should be set aside in a
pandemic simply was not before it. See generally Delaney v.
Baker, 2021 WL 42340, at *11 (D. Mass. Jan. 6, 2021) (summarizing
criticism). More substantively, Jacobson’s approach may not
afford sufficient protection to constitutional rights. See,
e.g., Denver Bible Church v. Azar, 494 F. Supp. 3d 816, 829 (D.
Colo. 2020) (“The court cannot accept the position that the
Constitution and the rights it protects are somehow less
important, or that the judicial branch should be less vigilant in
enforcing them, simply because the government is responding to a
national emergency.”).
The Fifth Circuit’s decision in Abbott illustrates the
problem with adopting the Jacobson approach during a pandemic.
Abbott upheld a Texas law “temporar[ily banning] . . . all
medication abortions and procedural abortions” during the COVID-
19 pandemic. See Abbott, 954 F.3d at 796-97 (Dennis, J.,
dissenting). Serious scrutiny was not applied. See id. at 800-
04. Texas had a history of testing the limits of the
constitutional right to an abortion, see generally Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2299-2301 (2016), and
there was an uncertain relationship between banning abortions and
protecting the public from COVID-19. See Abbott, 954 F.3d at
801-03 (Dennis, J., dissenting). A more searching review may
therefore have been warranted. Id. at 804 (“In a time where
19
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panic and fear already consume our daily lives, the majority’s
opinion inflicts further panic and fear on women in Texas by
depriving them, without justification, of their constitutional
rights[.]”).
Some courts have therefore attempted to fit Jacobson
within the modern constitutional framework:
So the better view is thus that Jacobson fits
within existing constitutional doctrine.
First, Jacobson means that most state and
local public-health orders that don’t
implicate fundamental rights will be analyzed
under what is now known as the rational basis
test. . . . Second, as noted above, even
where heightened scrutiny does apply,
Jacobson stands for the undeniable
proposition that fighting a pandemic is a
compelling state interest.
Third, and perhaps less obviously, Jacobson’s
emphasis . . . on the need for judicial
deference to policymakers’ analysis of
evolving scientific and medical knowledge
helps explain why, as “emergency”
restrictions extend beyond the short-term
into weeks and now months, courts may become
more stringent in their review. In the
court’s view, this admonition comes into play
in the “tailoring” prong of current
constitutional doctrine. Where fundamental
rights are implicated, this requires
assessing whether the government’s action is
the least restrictive means available.
In the earliest days of a pandemic or other
true emergency, what may be the least
restrictive or invasive means of furthering a
state’s compelling interest in public health
will be particularly uncertain, and thus
judicial intervention should be rare. But as
time passes, scientific uncertainty may
decrease, and [if it does] officials’ ability
to tailor their restrictions more carefully
will increase.
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Denver Bible Church, 494 F. Supp. 3d at 829–30.
In Roman Catholic Diocese of Brooklyn v. Cuomo, the
Supreme Court implicitly sided with the line of decisions
applying strict scrutiny to law affecting fundamental rights,
even during a pandemic. Roman Catholic Diocese involved a
challenge to an executive order that placed limits on attendance
at religious services. 141 S. Ct. 63, 66-67 (2020). In striking
down the order, the Supreme Court applied strict scrutiny, rather
than Jacobson’s more deferential standard. See id. at 67; see	12
also id. at 71 (Gorsuch, J., concurring) (arguing that Jacobson
did not create a separate test and noting that neither the
majority opinion nor the dissents argued that “anything other
than our usual constitutional standards should apply during the
current pandemic”). That holding suggests that Jacobson does not
permit courts to set aside the usual constitutional framework
during a pandemic. Nevertheless, even after Roman Catholic
Diocese, some district courts have continued to cite Jacobson in
challenges to regulations involving COVID-19. See Forbes v. Cty.
In his concurrence in South Bay United Pentecostal	12
Church v. Newsom, Chief Justice Roberts cited Jacobson in
passing. 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J.,
concurring). In Roman Catholic Diocese, however, Chief Justice
Roberts rejected assertions that his earlier concurrence had
advocated abandoning the application of the tiers of scrutiny.
141 S. Ct. at 75-76 (Roberts, C.J., dissenting).
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of San Diego, 2021 WL 843175, at *4 (S.D. Cal. Mar. 4, 2021)
(collecting cases).13
In any event, this court does not need to resolve this
dispute to decide the present motion. The approach applying
tiers of scrutiny is more favorable to Denis. See Let Them Play
MN v. Walz, 2021 WL 423923, at *6 (D. Minn. Feb. 8, 2021) (“[I]f
Jacobson does establish a different standard of review that
applies only during a public-health crisis, that standard would
certainly be more deferential than the typical constitutional
analysis.”). Even applying the tiers of scrutiny, this court
concludes that Denis fails to state a constitutional claim.
2. Denis has not Stated a Claim Under the Free
Exercise Clause.
Denis first claims that the Mask Mandates violate the
Free Exercise Clause of the First Amendment. See ECF No. 43,	14
PageID # 53. He appears to contend that because the Mask
Forbes distinguished Roman Catholic Diocese by noting	13
that the case before it did not involve the Free Exercise Clause.
2021 WL 843175, at *4. It is not clear why Jacobson should apply
in cases involving only certain constitutional rights, but not
others.
Denis also asserts claims under the Religious Freedom	14
Restoration Act. See, e.g., ECF No. 43, PageID # 254. In City
of Boerne v. Flores, however, the Supreme Court held that to the
extent RFRA applied to states or municipalities, Congress had
exceeded its powers and the law was unconstitutional. 521 U.S.
507, 534–36 (1997); see also Walker v. Beard, 789 F.3d 1125, 1134
(9th Cir. 2015) (explaining that Boerne “held unconstitutional
the Religious Freedom and Restoration Act as applied to the
states”). Having asserted claims against state and local actors,
Denis cannot rely on RFRA.
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Mandates “infringe[] upon [his] right to breathe oxygen without
restriction,” which is “in violation [of his] covenant with his
Creator of many names,” the Mask Mandates inhibit his religious
practices. ECF No. 1, PageID # 11; see also ECF No. 43, PageID #
254. Those allegations do not state a plausible claim for two
reasons.
a. Denis has not Alleged that the Mask
Mandates Place a Substantial Burden on
His Practice of Religion.
As an initial matter, Denis has failed to allege the
basic elements of a free exercise claim. “A person asserting a
free exercise claim must show that the government action in
question substantially burdens the person’s practice of her
religion.” Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir.
2015). “A substantial burden places more than an inconvenience
on religious exercise; it must have a tendency to coerce
individuals into acting contrary to their religious beliefs or
exert substantial pressure on an adherent to modify his behavior
and to violate his beliefs.” Id. at 1031-32 (internal quotation
marks and punctuation omitted).
Denis’s allegations do not permit the court to infer
that the Mask Mandates place a substantial burden on the exercise
of his religion. The Complaint does not even identify his
religion. It certainly does not describe the tenets of that
religion or explain how the Mask Mandates affect any religious
23
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practice. Without more, this court cannot determine whether the
Mask Mandates coerce Denis to act in a way that is contrary to
his beliefs.
b. The Mask Mandates Survive Rational
Basis Review.
Even if Denis had sufficiently alleged a substantial
burden on his exercise of religion, he has failed to allege that
the Mask Mandates were an irrational response to COVID-19. “The
right to exercise one’s religion freely . . . does not relieve an
individual of the obligation to comply with a valid and neutral
law of general applicability.” Stormans, Inc. v. Wiesman, 794
F.3d 1064, 1075 (9th Cir. 2015); accord Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
Denis has never asserted that the Mask Mandates are not neutral
laws of general applicability. See Delaney, 2021 WL 42340, at
*13 (concluding that orders requiring all Massachusetts residents
to wear masks were neutral and generally applicable).
Accordingly, the Mask Mandates only violate the Free Exercise
Clause if they fail to survive rational basis review. Stormans,
794 F.3d at 1076, 1084-85.
Under rational basis review, the Mask Mandates are
“accorded a strong presumption of validity.” Heller v. Doe by
Doe, 509 U.S. 312, 319 (1993). The mandates are constitutional
if (1) they promote a “legitimate governmental purpose” and (2)
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there is a “rational relationship between” that purpose and the
means chosen by the government. Id. at 320. The second prong
does not require the chosen means to promote the government’s
purpose “with mathematical nicety.” Id. (internal quotation
marks omitted). “Where there are plausible reasons for [the
government’s] action, [the] inquiry is at an end.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 313–14 (1993)
Ige, Kawakami, and Connors have “no obligation to
produce evidence to sustain the rationality” of the Mask
Mandates. See Heller, 509 U.S. at 320. When it comes to
determining a legislature’s purpose, courts may “hypothesize a
legitimate governmental purpose.” HSH, Inc. v. City of El Cajon,
44 F. Supp. 3d 996, 1008 (S.D. Cal. 2014); see also Beach
Commc’ns, 508 U.S. at 315 (“[I]t is entirely irrelevant for
constitutional purposes whether the conceived reason for the
challenged distinction actually motivated the [government].”).
Similarly, the government’s choice of means “is not subject to
courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data.” Id.
As a result, courts can evaluate the rationality of a
statute on a motion to dismiss. HSH, 44 F. Supp. 3d at 1008
(“The rational basis test may be applied on a motion to
dismiss.”); see also Olson v. California, 2020 WL 6439166, at *4
(C.D. Cal. Sept. 18, 2020); Bd. of Trustees of Leland Stanford
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Junior Univ. v. Cty. of Santa Clara, 2019 WL 5087593, at *11
(N.D. Cal. Oct. 10, 2019). It is a plaintiff’s burden to plead
facts that demonstrate no conceivable government purpose could
have provided a rational basis for the law. See Heller, 509 U.S.
at 320 (“the burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might
support it” (internal quotation marks and brackets omitted)).
The Mask Mandates satisfy both prongs of the rational
basis test. As to the Mandates’ goal, the court does not need to
hypothesize a legitimate government purpose. Both the Governor’s
Emergency Proclamation and the Mayor’s Emergency Rule explicitly
state that they are intended to limit the spread of COVID-19.
Sixteenth Emergency Proclamation, https://governor.hawaii.gov/
wp-content/uploads/2020/11/2011098-ATG_Sixteenth-Proclamation-Rel
ated-to-the-COVID-19-Emergency-distribution-signed.pdf; Mayor’s
Emergency Rule #19 (As Amended), https://www.kauai.gov/Portals/
0/Civil_Defense/EmergencyProclamations/2010134-COK_Mayor%27s%20Em
ergency%20Rule%20No_%2019%2C%20Amendment%20No_%201%20%28certified
%29%20-%20signed.pdf. There is no question that public officials
may act to protect the public from a disease that has killed more
than three million people worldwide. Denver Bible Church, 494 F.
Supp. 3d at 828 (“there is no question that the State here has a
compelling interest in protecting its citizens from the
SARS-CoV-2 virus”); see also Jacobson, 197 U.S. at 25-31.
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The Mask Mandates are a rational measure designed to
accomplish that goal. Indeed, they are the very response
recommended by the federal agency responsible for controlling the
spread of COVID-19, the CDC. In the midst of a pandemic, it is
clearly reasonable for state and local officials to follow the
CDC’s guidance. See Oakes v. Collier Cty., 2021 WL 268387, at *3
(M.D. Fla. Jan. 27, 2021) (“It would be difficult to contend with
a straight face that a mask requirement does not bear a rational
relation to protecting people’s health and preventing the spread
of COVID-19. The Stores do not point to a single court holding
otherwise.”).
Denis’s only argument on this point is a section of his
opposition that appears to be copied from another publication.
ECF No. 43, PageID # 262-274. That section cites authorities
that, according to Denis, show that masks do not prevent COVID-19
from spreading. Id. This court does not find Denis’s argument
on this point persuasive. But even if Denis’s authorities were	15
reliable, the most Denis could show is that there was a debate
among experts concerning the effectiveness of face masks. That
does not mean that it was irrational for state and local
Almost all of Denis’s citations are from articles that	15
either predate the pandemic or from articles that were published
at the very beginning of the pandemic, when there was some
dispute over whether face coverings should be worn in public.
Since that time, however, the overwhelming consensus of experts
appears to be that face masks inhibit the transmission of the
virus.
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officials to follow the CDC, rather than Denis’s chosen experts.
See Forbes, 2021 WL 843175, at *5 (“Plaintiff’s first claim does
not plausibly plead that the Mask Rules lack any rational basis.
His contentions disputing the scientific basis for the Mask Rules
are simply not enough to state a plausible clam that the rules
are not rationally related to a legitimate government
interest.”).
To the contrary, if such a dispute did exist, a rule
requiring individuals to wear face coverings while in public
would be a sensible response. If the CDC is right, then face
coverings save lives. And even if the CDC is wrong, Denis cannot
plausibly claim that anyone has died as a result of having had to
wear a mask. Thus, even if there were some dispute concerning	16
masks’ efficacy, it is hardly irrational for state and local
officials to adopt a potentially life-saving measure when there
is no commensurate downside.
In sum, the Mask Mandates survive rational basis
review. Because Denis has neither alleged the preliminary
elements of a free exercise claim nor shown that the Mask
Mandates were irrational, his free exercise claims are dismissed
Both of the Mask Mandates at issue here contain	16
exemptions for those who are medically unable to wear masks.
https://governor.hawaii.gov/wp-content/uploads/2020/11/2011098-AT
G_Sixteenth-Proclamation-Related-to-the-COVID-19-Emergency-distri
bution-signed.pdf; https://www.kauai.gov/Portals/0/Civil_Defense
/EmergencyProclamations/2010101-COK_Mayor%27s%20Emergency%20Rule%
20No_%2019%20%28part%201%29%20-%20signed.pdf.
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with leave to amend. If Denis chooses to revive these claims in
an amended complaint, he must, at a minimum, identify the
specific religion that he practices and explain how the Mask
Mandates prevent him from practicing his religion. In addition,
he must make a plausible showing that the Mask Mandates are
unconstitutional under the standards discussed above.
3. Denis has not Stated a Freedom of Speech
Claim.
Denis also maintains that the Mask Mandates infringe on
the freedom of speech guaranteed by the First Amendment. ECF No.
43, PageID # 257-58. That claim fails because the Mask Mandates
regulate conduct, not speech, and do not implicate the Free
Speech Clause at all.
“The First Amendment does not prevent restrictions
directed at commerce or conduct from imposing incidental burdens
on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567
(2011); accord HomeAway.com, Inc. v. City of Santa Monica, 918
F.3d 676, 684 (9th Cir. 2019). Two threshold questions determine
whether the First Amendment applies in a free speech case.
HomeAway, 918 F.3d at 685. Courts must ask (1) “whether conduct
with a significant expressive element drew the legal remedy” and
(2) whether “the ordinance has the inevitable effect of singling
out those engaged in expressive activity.” Id. (quoting Int’l
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Franchise Ass’n v. City of Seattle, 803 F.3d 389, 408 (9th Cir.
2015)).
Here, the answer to both questions is “no.” First, the
Mask Mandates plainly were intended to reduce the spread of
COVID-19. See id. (concluding at the motion to dismiss stage
that the ordinance at issue was “plainly a housing and rental
regulation”); see also Int’l Franchise Ass’n, 803 F.3d at 408
(“Seattle’s minimum wage ordinance is plainly an economic
regulation that does not target speech or expressive conduct.”).
They require specific conduct: wearing a mask in public. That
conduct does not include a significant expressive element. See
Minnesota Voters All. v. Walz, 492 F. Supp. 3d 822, 837 (D. Minn.
2020) (holding that an order requiring face coverings did not
target conduct with a significant expressive element); Stewart v.
Justice, 2020 WL 6937725, at *5 (S.D.W. Va. Nov. 24, 2020)
(same); Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d 214,
236 (D. Md. 2020). People wearing masks can still speak.
Nor do the Mask Mandates have the effect of singling
out those engaged in expressive activity. The Mask Mandates
apply to all individuals in the State of Hawaii or the County of
Kauai when they are in public settings, irrespective of whether
they seek to communicate with others.
Finally, the Mask Mandates do not impose more than an
incidental burden on speech. To the contrary, individuals can
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still engage in expressive activity. They just have to wear
masks while they do.
Denis appears to maintain that the mandates burdened
his ability to speak freely because he was arrested at a protest.
The Complaint, however, alleges that Denis was in compliance with
the Mask Mandates when he was arrested by Officers Kelley and
Himongala. ECF No. 1, PageID # 14. Setting aside the question
of whether those officers violated the Constitution, Denis’s
allegations show that he could publicly communicate his message
while still complying with the Mask Mandates, and he himself
alleges that he was doing so at the time of his arrest. Thus, he
has not alleged that the Mandates placed even an incidental
burden on his ability to speak.
In short, Denis has not sufficiently alleged that the
Mask Mandates target speech. See Minnesota Voters, 492 F. Supp.
3d at, 837 (holding that a similar mask mandate did “not
implicate the First Amendment at all”); Stewart, 2020 WL 6937725,
at *5 (same); Hogan, F. Supp. 3d at 236 (same). He has failed to
state a claim under the Free Speech Clause. Denis’s free speech
claims are dismissed with leave to amend.
4. Denis has not Stated a Freedom of Association
Claim.
Denis’s freedom of association claim fails for the same
reason. “The Supreme Court has held that, consonant with the
First Amendment, government may engage in some conduct that
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incidentally inhibits protected forms of association.” Fighting
Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996).
“Though such inhibiting conduct might make it more difficult for
individuals to exercise their freedom of association, this
consequence does not, without more, result in a violation of the
First Amendment.” Id. “To be cognizable, the interference with
associational rights must be ‘direct and substantial’ or
‘significant.’” Id. (quoting Lyng v. UAW, 485 U.S. 360, 366, 367
& n.7 108 (1988)).
That rule is necessary to prevent the “‘absurd result
that any government action that had some conceivable’” impact on
the freedom of association would trigger heightened scrutiny
under the First Amendment. See Int’l Franchise Ass’n,(quoting
Arcara v. Cloud Books, Inc., 478 U.S. 697, 708 (1986) (O’Connor,
J., concurring)) (discussing the related Free Speech Clause).
For instance, a statute prohibiting public nudity does not
implicate the First Amendment simply because some people do not
want to wear clothes when they go outside.
The Mask Mandates do not infringe on the freedom of
association for the same reasons. See Oakes, 2021 WL 268387, at
*8 (characterizing a claim that a mask mandate infringed on the
plaintiff’s freedom of association as “a head scratcher”). The
Mask Mandates allow “[a]nyone [to] freely assemble and associate”
as long as “they are socially distanced” or wearing a mask. Id.
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They therefore “[do] not prohibit assemblies,” but instead place
“a minor restriction on the way they occur.” Id. They do not
place a significant burden on the right to freely associate.
Denis’s freedom of association claims are dismissed with leave to
amend.
5. Denis Cannot Pursue a Ninth Amendment Claim.
Denis also contends that the Mask Mandates infringe on
the “unenumerated right to breathe oxygen without restriction”
guaranteed by the Ninth Amendment. ECF No. 1, PageID # 11. The
Ninth Amendment, however “is a rule of interpretation rather than
a source of rights.” Froehlich v. State, Dep’t of Corr., 196
F.3d 800, 801 (7th Cir. 1999); accord Griego v. Cty. of Maui,
2017 WL 1173912, at *11 (D. Haw. Mar. 29, 2017). It “has never
been recognized as independently securing any constitutional
right, for purposes of pursuing a civil rights claim.”
Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).
“Because the Ninth Amendment does not guarantee any specific
constitutional right, as required for pursuing a constitutional
claim under § 1983, [Denis] may not proceed against the
Defendants under § 1983 based on the Ninth Amendment.” See
Griego, 2017 WL 1173912, at *11. Denis’s Ninth Amendment claims
are dismissed with prejudice.
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6. Denis has not Stated a Claim Under the
Fourteenth Amendment.
Finally, Denis appears to claim that the Mask Mandates
violate the Due Process Clause of the Fourteenth Amendment. See
ECF No. 1, PageID # 11. Again, that claim fails because Denis
has not alleged that the Mask Mandates were an irrational
response to COVID-19.
Governmental action “challenged as violating
substantive due process . . . is reviewed for a rational basis so
long as it does not implicate a suspect class or impinge on
fundamental rights.” Pakdel v. City & Cty. of San Francisco, 798
F. App’x 162, 163 (9th Cir. 2020); accord Franceschi v. Yee, 887
F.3d 927, 937 (9th Cir. 2018); Bowers v. Whitman, 671 F.3d 905,
917 (9th Cir. 2012). The “right to breathe oxygen without
restriction” is not a fundamental right. Denis cannot plausibly
allege that that right is “deeply rooted in our history and
traditions” or “fundamental to our concept of constitutionally
ordered liberty.” Glucksberg, 521 U.S. at 727; accord
Franceschi, 887 F.3d at 937 (“The range of liberty interests that
substantive due process protects is narrow and only those aspects
of liberty that we as a society traditionally have protected as
fundamental are included within the substantive protection of the
Due Process Clause.” (internal quotation marks omitted));
Accordingly, rational basis review applies. Forbes, 2021 WL
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843175, at *5 (holding that rational basis review applied to a
similar law). And as this court has already explained, the Mask
Mandates are rationally related to a legitimate government
purpose. This court dismisses Denis’s Fourteenth Amendment
claims with leave to amend.
In sum, because Denis does not allege that Ige,
Kawakami, or Connors was responsible for the purportedly
unconstitutional conduct of Kelley and Himongala, his claims	17
against those Defendants depend on his assertions that the Mask
Mandates infringe on his constitutional rights. Denis’s
allegations do not raise a plausible claim that the Mask Mandates
violate any of the constitutional amendments that he has cited.
Accordingly, those claims must be dismissed.18
To the extent Denis is attempting to hold any of those	17
Defendants responsible for the conduct of Defendants Kelley and
Himongala, his claims fail for the reasons discussed below.
In his opposition, Denis also argues that Defendants Ige	18
and Connors are “in violation of Hawaiian Kingdom law due to the
illegal occupation and current State of War status as indicated
in . . . the Apology Resolution signed by President William
Jefferson Clinton.” ECF No. 43, PageID # 247. The Apology
Resolution is not “tantamount to a recognition that the
[Hawaiian] Kingdom continues to exist.” State v. Lorenzo, 77
Haw. 219, 221, 883 P.2d 641, 643 (Ct. App. 1994); cf. Hawaii v.
Off. of Hawaiian Affs., 556 U.S. 163, 172 (2009) (rejecting claim
for injunctive relief based on the Apology Resolution). Denis
cannot assert claims based the Hawaiian Kingdom’s laws in federal
court. See, e.g., Lorenzo, 77 Haw. at 221 (identifying no
“factual (or legal) basis for concluding that the Kingdom exists
as a state in accordance with recognized attributes of a state’s
sovereign nature”); State v. French, 77 Haw. 222, 228, 883 P.2d
644, 650 (Ct. App. 1994) (same); see also United States v.
Lorenzo, 995 F.2d 1448, 1456 (9th Cir. 1993) (“The appellants
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B. Denis has failed to state a claim against Chief
Raybuck and Chairperson Kaneshiro.
Finally, Denis seems to allege that Chief Raybuck and
Chairperson Kaneshiro are legally responsible for his arrest and
the injuries that he allegedly suffered. He contends that
Raybuck is “responsible for the actions of the officers within
the police force,” and that Kaneshiro is “responsible for
protecting the Constitutional rights of [Kauai residents].” ECF
No. 1, PageID # 7. Those allegations, without more, fail to
state a § 1983 claim.
“[V]icarious liability is inapplicable to . . . § 1983
suits.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Consequently, a plaintiff cannot state a claim by alleging that a
defendant exercised supervisory responsibility. Lacey v.
Maricopa Cty., 693 F.3d 896, 916 (9th Cir. 2012) (internal
quotation marks omitted). Even if a defendant is a supervisor,
“a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676 ; see also Lacey, 693 F.3d
at 916 (“A supervisor can [only] be held liable for the
constitutional torts of his subordinates if a sufficient causal
connection between the supervisor’s wrongful conduct and the
have presented no evidence that the Sovereign Kingdom of Hawaii
is currently recognized by the federal government or that they
have received any immunity arising from the existence of the
Kingdom.”).
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constitutional violation exists.”). “Section 1983 requires a
connection or link between [the] defendant’s [own] actions and
the plaintiff’s alleged deprivation.” Scaperotta v. Oahu Cmty.
Corr. Ctr., 2021 WL 969193, at *2 (D. Haw. Mar. 15, 2021).
Denis has not provided that link here. He has not
identified any actions attributable to Raybuck or Kaneshiro
individually that violated the Constitution or caused him to
suffer harm. Denis’s § 1983 claims against Raybuck and Kaneshiro
must be dismissed.
III. CONCLUSION.
Denis’s claims against Defendants Ige, Kawakami,
Connors, Raybuck, and Kaneshiro are dismissed. Denis’s Ninth	19
Amendment claims are dismissed with prejudice. The remainder of
Denis’s claims against the Moving Defendants are dismissed with
leave to amend. If Denis opts to submit a Amended Complaint, he
must do so no later than June 4, 2021. Any Amended Complaint
must be a complete document; it may not simply incorporate the
original complaint by reference. If Denis fails to file an
Amended Complaint by June 4, 2021, the remainder of this case
will proceed against only Kelley and Himongala.
Because Denis has failed to state a claim against any of	19
the Moving Defendants, this court does not need to address their
assertions that Denis’s claims are barred by sovereign immunity
at this time.
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In responding to any future motions, Denis is again
reminded that he must follow all court rules, including those
rules governing briefing schedules and those setting page limits.
Local Rule 7.4 states that briefs shall not exceed 25 pages in
length. Denis may not file briefs beyond those permitted by
court rules. Any briefs submitted in violation of court rules
may be disregarded.
It is so ordered.
DATED: Honolulu, Hawaii, May 12, 2021.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Denis v. Ige et al., Civil No. 21-00011 SOM-RT, ORDER GRANTING MOTIONS TO DISMISS
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