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, DERRICK KELLEY,
and JOESPH RUSSELL HIMONGALA,
Defendants.
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Civil NO. 21-00011 SOM-RT
ORDER GRANTING MOTIONS TO
DISMISS AND DENYING MOTION
FOR LIVE-STREAM MEDIA
COVERAGE
ORDER GRANTING MOTIONS TO DISMISS
AND DENYING MOTION FOR LIVE-STREAM MEDIA COVERAGE
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
and Defendant Joseph Russell Himongala. This order does not
address Denis’s claims against the two officers.
Instead, the present order concerns Denis’s claims
against four other Defendants (the “Moving Defendants”) who did
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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). Denis also maintains
that Defendant Todd Raybuck (Kauai’s Police Chief) is responsible
for his wrongful arrest because of his position of authority.
On May 12, 2021, this court dismissed Denis’s claims
against those four defendants but granted Denis leave to amend.
This court ruled that Denis had not stated a constitutional claim
against Ige, Connors, or Kawakami because he had not plausibly
alleged that the Mask Mandates targeted religion, speech,
association, or any other fundamental right. Nor had he alleged
that the Mask Mandates were an irrational response to the COVID-
19 pandemic. Finally, he had not stated a claim against Raybuck
because he had not claimed that Raybuck did anything to harm him.
In his First Amended Complaint, Denis largely repeats
his prior allegations. While he now contends that he “believes,
and has evidence that the wearing of a mask is not only unhealthy
but a sign of slavery to another man or government, [and] slavery
was abolished in 1865,” and that Defendants are “serving a deity
known as the Baphomet, Lucifer, Baal, or Satan” by refusing to
acknowledge “known effective cures” for COVID-19, see ECF No. 63,
2
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PageID # 728, 730, those assertions do not remedy the
deficiencies this court identified in the Order filed on May 12,
2021. Denis’s claims against the Moving Defendants are dismissed
with prejudice.
II. BACKGROUND
A. The COVID-19 Pandemic.
“In December 2019, individuals in Wuhan, China
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
August 26, 2021, more than 38 million cases of COVID-19 had been
identified in the United States, and more than 600,000 people
have died. https://covid.cdc.gov/covid-data-tracker/
#datatracker-home (last visited August 26, 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/
3
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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, 2020, Governor Ige required
anyone entering the State of Hawaii to self-quarantine for 14
days after arrival. Second Supplementary Proclamation,
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-
ATG_Second-Supplementary-Proclamation-for-COVID-19-signed.pdf.
Two days later, on March 23, 2020, Governor Ige ordered everyone
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-
Proclamation-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 2020, 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
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(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/cloth-face-cover.
html.1
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/
In ruling on the Moving Defendants’ motions, the court	1
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 through 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 the 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.
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Portals/0/Civil_Defense/EmergencyProclamations/Mayor%27s%20
Emergency%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
requiring an individual to wear a face mask upon leaving home to
shop at an essential business. 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-
masks.html.
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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 a violation was 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
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-
Related-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%
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27s%20Emergency%20Rule%20No_%2019%2C%20Amendment%20No_%201%20%28
certified%29%20-%20signed.pdf.
D. Denis’s Arrest
On December 5, 2020, Denis attended a protest in Kapaa,
Kauai. ECF No. 63, PageID # 14. At the protest, Denis allegedly
held a “free speech sign.” Id. At some point, according to
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, although he allegedly did not need to
wear a mask because he was more than 18 yards away from any other
protestor, two police officers, Defendants Derrick Kelley and
Joseph Russell Himongala, arrested him. Id. Denis maintains
that during the arrest he “received bodily harm” from both
officers. Id.
It appears that, at some point, Denis was charged with
having violated the Mask Mandates. Denis has indicated that the
charges against him were dismissed with prejudice on February 12,
2021. ECF No. 74, PageID # 904.
E. Procedural Background.
On January 6, 2021, Denis filed this action against
Defendants Ige, Connors, Kawakami, Raybuck, Kelley, Himongala,
and Arryl Kaneshiro, the Chair of the Kauai County Council. The	2
Denis sued each Defendant in his or her individual and	2
official capacities.
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initial complaint alleged that Defendants were liable under 42
U.S.C. § 1983 because the “unlawful arrest and 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 appeared to fall into three different categories.
The Police Officers. First, Denis brought claims
against the two police officers involved in his arrest, Kelley
and Himongala. Denis alleged 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.
In short, Denis appeared 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 brought
claims against the State and County officials involved in
promulgating the Mask Mandates. Denis alleged 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 appeared to
be claiming that those three Defendants violated his
constitutional rights by issuing the Mask Mandates, because,
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among other things, the mandates impermissibly burdened his
“unenumerated right to breathe oxygen without restriction.”
Id. at 11.
Other County Officials. Finally, Denis brought claims
against two other Kauai officials, Chief of Police Todd Raybuck
and County Council Chairperson Arryl Kaneshiro. Denis appeared
to be alleging that Raybuck and Kaneshiro were indirectly
responsible for his arrest. He stated that Raybuck was
“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
[was] equivalent to complicity with the actions of the other
Defendants[.]” Id. at 6-7.
Ige, Connors, Kawakami, Raybuck, and Kaneshiro filed
motions to dismiss the initial complaint. Ige, Kawakami, and	3
Connors argued that the Mask Mandates did not infringe on any
constitutional right, and that the claims against them turned on
that assertion. See ECF Nos. 24, 31, 48. Raybuck and Kaneshiro
contended that they could not be liable because Denis had not
alleged that they had done anything that caused him harm. See
ECF Nos. 21, 24.
Officers Kelley and Himongala did not move to dismiss and	3
instead filed answers.
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On May 12, 2021, this court granted the motions to
dismiss. ECF No. 62. This court dismissed the claims against
Ige, Connors, and Kawakami, because Denis had failed to state a
claim that the Mask Mandates violated the First, Ninth, or
Fourteenth Amendment. ECF No. 62, PageID # 700-13.
Specifically, this court held that (1) because the Mask Mandates
were neutral laws of general applicability, rational basis review
applied to Denis’s free speech claims, id. at 702; (2) Denis had
not alleged that the Mask Mandates infringed on his freedom of
speech or association, id. at 707-711; (3) Denis could not bring
a cause of action under the Ninth Amendment, id. at 711; (4)
because Denis had not alleged that the Mask Mandates impinged on
any fundamental rights, rational basis review applied to his Due
Process claims, id. at 712-13; and (5) the Mask Mandates were not
an irrational response to the COVID-19 pandemic. Id. at 702-07.
This court also held that Denis had not stated a claim against
Raybuck or Kaneshiro. Id. at 714-15. This court dismissed
Denis’s Ninth Amendment claims with prejudice, but granted him
leave to amend the remaining claims. Id. at 715.
On June 4, 2021, Denis filed the operative First
Amended Complaint. ECF No. 63. Denis dropped his claims against
County Council Chairperson Kaneshiro, but essentially repeated
his claims against Ige, Connors, Kawakami, Raybuck, Kelley, and
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Himongala. See generally id. He also added several new	4
allegations in an apparent attempt to bolster his claims that the
Mask Mandates violate the federal and state constitutions.
Referring to “defending and protecting his natural Birthrights
and covenant with the Creator of many names,” he asserts that
based on his “religious belief systems, sound intellectual
judgment, emotional security, and physical well-being [he]
believes, and has evidence that the wearing of a mask is not only
unhealthy but a sign of slavery to another man or government, but
slavery was abolished in 1865.” ECF No. 63, PageID # 728. He
also contends that by issuing Mask Mandates “when known effective
cures for the alleged ‘public health emergency’ exist,”
Defendants have demonstrated that they are “serving a deity known
as the Baphomet, Lucifer, Baal, or Satan.” Id. at 730.	5
Denis seeks “a combined restitution of six-hundred and
thirty-two million dollars” from Defendants collectively, in
The First Amended Complaint repeats Denis’s Ninth	4
Amendment claims even though this court already dismissed those
claims with prejudice. ECF No. 62, PageID # 715. Because this
court precluded Denis from bringing those claims again, it will
not consider them further.
In both the First Amended Complaint and his opposition	5
brief, Denis repeatedly asserts that Defendants have violated
various criminal laws. ECF No. 63, PageID # 736-37; ECF No. 74,
PageID # 904, 907-10, 915-17. Denis cannot enforce those
criminal laws in his civil action. See generally Tuomela v.
Waldorf-Astoria Grand Wailea Hotel, 2020 WL 3490027, at *2 (D.
Haw. June 26, 2020) (“courts consistently dismiss civil causes of
action based on criminal statutes”).
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addition to payment of his medical bills and legal costs. Id. at
737. 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 737-38.
Governor Ige, Attorney General Connors, Mayor Kawakami,
and Chief Raybuck have moved to dismiss the First Amended
Complaint on the grounds that some of Denis’s claims against them
are barred by sovereign immunity and that Denis has again failed
to state a claim against them. On the present motions, only the
claims against Ige, Kawakami, Connors, and Raybuck are at issue.
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 be bringing a facial attack. In
deciding such a motion, a court must assume the facts alleged in
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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)).
B. Rule 12(b)(6).6
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
In the Ninth Circuit, “[i]t is not entirely clear whether	6
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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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.”
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.
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IV. ANALYSIS.
A. Denis’s Claims Against Ige and Connors in their
Official Capacities are Barred by the Eleventh
Amendment
As an initial matter, Ige and Connors argue that the
doctrine of sovereign immunity precludes any claims for damages
Denis has brought against them in their official capacities. ECF
No. 843-45. Because that argument implicates this court’s power
to hear the case, this court addresses it at the outset. In
general, the “Eleventh Amendment bars actions against states,
state agencies, or departments of a state unless a state waives
sovereign immunity or Congress exercises its power to override
the immunity.” Trotter v. Hawaii, 2018 WL 912255, at *4 (D. Haw.
Feb. 15, 2018). Denis has not asserted that the State of Hawaii
has waived its sovereign immunity.
However, under the doctrine first set forth in Ex parte
Young, 209 U.S. 123 (1908), a plaintiff may proceed against
individual state officials in their official capacities under
certain circumstances. See Trotter, 2018 WL 912255, at *4. Ex
parte Young ensures that the federal courts have the power to put
a stop to ongoing violations of federal law. See Papasan v.
Allain, 478 U.S. 265, 276-78 (1986). The doctrine has been
“tailored to conform as precisely as possible” to that goal. Id.
at 277. It permits plaintiffs to seek prospective relief, i.e.,
relief that seeks to end continuing violations, but not
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retrospective relief. Thus, permissible suits generally assert
that “a violation of federal law by a state official is ongoing,”
whereas prohibited suits allege that “federal law has been
violated at one time or over a period of time in the past.”
Id. at 277-78.
To the extent that Denis seeks damages, his claims are
the paradigmatic example of a request for retrospective relief
that is precluded by the Eleventh Amendment. Aholelei v. Dep’t
of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (“The
Eleventh Amendment bars suits for money damages in federal court
against a state, its agencies, and state officials acting in
their official capacities.”); Bair v. Krug, 853 F.2d 672, 675
(9th Cir. 1988) (“Put simply, the eleventh amendment bars actions
against state officers sued in their official capacities for past
alleged misconduct involving a complainant's federally protected
rights, where the nature of the relief sought is retroactive,
i.e., money damages.”). Any claims for damages against Ige and
Connors in their official capacities are barred by the Eleventh
Amendment. While Denis can bring claims against those defendants
for injunctive and declaratory relief, those claims fail for the
reasons discussed below.
B. Denis Fails 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
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entitled to damages because Governor Ige and Mayor Kawakami
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. 63,
PageID # 721-23. Denis asks this court to declare the Mask
Mandates unconstitutional and to issue an injunction preventing
Defendants from enforcing them. Id. at 738.
In its Order of May 12, 2021 (“May Order”) this Court
dismissed Denis’s claims against Ige, Connors, and Kawakami
because Denis had failed to state a constitutional claim under
the First, Ninth, or Fourteenth Amendments. ECF No. 62. While
this court granted Denis leave to amend his First and Fourteenth
Amendment claims, Denis’s First Amended Complaint does not remedy
the deficiencies identified earlier by this court.
1. Denis Fails to State 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. 63,
PageID # 728. In its May Order, this court dismissed Denis’s
earlier Free Exercise claims for two reasons: (1) Denis had not
plausibly alleged that the Mask Mandates placed a substantial
burden on the exercise of his religion, and (2) Denis had not
plausibly alleged that the Mask Mandates were an irrational
response to the COVID-19 pandemic. ECF No. 62, PageID # 700-07.
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This court need not address the first issue again. Even if	7
Denis has now alleged that the Mask Mandates burden his practice
of religion, the mandates survive rational basis review.
As an initial matter, Denis does not challenge the
Moving Defendants’ assertion that the Mask Mandates are neutral
laws of general applicability. See ECF No. 64-1, PageID # 751;
ECF No. 70-1, PageID # 839. Accordingly, rational basis review
applies to Denis’s Free Exercise challenge. Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1074, 1084-86 (9th Cir. 2015); see also
Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872,
879 (1990) (“‘Conscientious scruples have not, in the course of
the long struggle for religious toleration, relieved the
individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs. The mere
possession of religious convictions which contradict the relevant
concerns of a political society does not relieve the citizen from
the discharge of political responsibilities.’” (quoting
Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586,
In that regard, Denis now alleges that his “Covenant, or	7
primary contact, is with the highest authority known as Source
energy, Creator, God, Ke Akua, and many other names,” and that he
“is in a state of sovereignty, as his Creator is sovereign, with
the protection of freedom of choice to wear or not wear a mask
moving forward in life.” ECF No. 63, PageID # 728-29. He says
that while his “religious beliefs are not of a ‘Religion,’ as
they are not adopted from any doctrine,” they are “founded on
[his] personal connection with [his] Creator and this
relationship is different from all other sentient beings.” Id.
at 729.
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594-595 (1940)). The Mandates are constitutional if (1) they
promote a “legitimate governmental purpose” and (2) there is a
“rational relationship between” that purpose and the means chosen
by the government. Heller v. Doe by Doe, 509 U.S. 312, 319
(1993). Ige, Kawakami, and Connors have “no obligation to
produce evidence to sustain the rationality” of the Mask
Mandates. See id. at 320. 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 id.
This court has already held that protecting the public
from the spread of COVID-19 is a legitimate governmental purpose,
and that the Mask Mandates are a rational means of accomplishing
that goal. ECF No. 62, PageID # 704-05. Denis’s amended
complaint offers only one new allegation on this issue: that the
Mask Mandates are unnecessary because “known effective cures” for
COVID-19 exist. ECF No. 63, PageID # 730. In support of that
assertion, the First Amended Complaint cites articles discussing
hydroxychloroquine, ivermectin, and budesonide, id., although in
his opposition Denis also cites “azithromycin, vitamin C, and
zinc.” ECF No. 74, PageID # 911.
Ige, Connors, and Kawakami could have rationally
concluded that many of the treatments that Denis points to are
ineffective. For instance, this court takes judicial notice of
an FDA decision on June 15, 2020 (before Defendants issued the
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operative Mask Mandates) in which the FDA “revoked the emergency
use authorization that allowed chloroquine phosphate and
hydroxychloroquine sulfate . . . to be used to treat certain
hospitalized patients with COVID-19” because “chloroquine and
hydroxychloroquine are unlikely to be effective in treating
COVID-19.” Food and Drug Administration, Coronavirus (COVID-19)
Update: FDA Revokes Emergency Use Authorization for Chloroquine
and Hydroxychloroquine, https://www.fda.gov/
news-events/press-announcements/coronavirus-covid-19-update-fda-
revokes-emergency-use-authorization-chloroquine-and (June 15,
2020). It would have been reasonable for Defendants to follow
the FDA’s guidance.8
It is certainly true that there are treatments that may
improve the clinical outcomes of patients who contract COVID-19.
For instance, the National Institute of Heath recommends using
certain corticosteroids to treat patients hospitalized with	9
COVID-19. National Institute of Health, Therapeutic Management
of Hospitalized Adults With COVID-19, https://www.covid19
The FDA has similarly indicated that ivermectin should	8
not be used to treat COVID-19. See, e.g., Food and Drug
Administration, Why You Should Not Use Ivermectin to Treat or
Prevent COVID-19, https://www.fda.gov/consumers/
consumer-updates/why-you-should-not-use-ivermectin-treat-or-
prevent-covid-19.
Budesonide, one of the treatments cited by Denis, appears	9
to be a corticosteroid, although the NIH does not specifically
recommend using budesonide to treat COVID-19.
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treatmentguidelines.nih.gov/management/clinical-management/
hospitalized-adults--therapeutic-management/ (July 8, 2021).
Corticosteroids, however, are far from a “cure.” See id.	10
In any event, the effectiveness of various treatments
for COVID-19 is beside the point. It is not irrational for cars
to have seatbelts and airbags, even if they both provide
protection from the same kinds of harm. It is equally reasonable
for public officials to seek to provide the public with multiple
layers of protection when confronted with a pandemic that has
killed more than 600,000 people in the United States. The Mask
Mandates and pharmaceutical treatments are two such layers of
protection. Denis’s new allegations concerning “cures” for
COVID-19 do not change this court’s conclusion that the Mask
Mandates were a rational response to the present pandemic.
Denis’s Free Exercise claims are dismissed with prejudice.
2. Denis Fails to State a Claim that the Mask
Mandates Impinge on His Freedom of Speech or
Association.
Denis also contends that the Mask Mandates violate the
Free Speech Clause and the Free Association Clause of the First
Shortly after the pandemic began, doctors began treating	10
COVID-19 patients with dexamethasone, a corticosteriod. See
Heidi Ledford, Coronavirus Breakthrough: Dexamethasone is First
Drug Shown to Save Lives, Nature, June 16, 2020,
https://www.nature.com/articles/d41586-020-01824-5. COVID-19 has
nevertheless continued to kill people in the United States. See
Centers for Disease Control and Prevention, COVID Data Tracker,
https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last
visited August 26, 2021).
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Amendment. See ECF No. 63, PageID # 720. In its May Order, this
court dismissed Denis’s freedom of speech and freedom of
association claims because Denis had not plausibly alleged that
the Mask Mandates imposed anything more than incidental burdens
on speech or association. ECF No. 62, PageID # 707-11. The
First Amended Complaint does not include any new allegations that
suggest otherwise. Denis’s freedom of speech and freedom of
association claims are dismissed with prejudice.
3. Denis Fails to State a Claim Under the
Fourteenth Amendment.
Denis next appears to claim that the Mask Mandates
violate the Due Process Clause of the Fourteenth Amendment. See
ECF No. 63, PageID # 733. In its May Order, this court dismissed
Denis’s due process claim because (1) Denis had not plausibly
alleged that the Mask Mandates infringed on any of his
fundamental rights, and (2) Denis had not plausibly alleged that
the Mask Mandates were an irrational response to the COVID-19
pandemic. ECF No. 62, PageID # 712-13. As stated previously,
none of the allegations in the First Amended Complaint suggests
that Ige, Connors, or Kawakami acted irrationally.
Nor has Denis plausibly alleged that the Mask Mandates
affected his fundamental rights. Denis’s only new allegation on
this point is the assertion that with his “religious belief
systems, sound intellectual judgment, emotional security, and
physical well-being [he] believes, and has evidence that the
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wearing of a mask is not only unhealthy but a sign of slavery to
another man or government, but slavery was abolished in 1865.”
ECF No. 63, PageID # 728.
Denis both trivializes the horrors of slavery and
fundamentally misconstrues the nature of the Mask Mandates.
Slavery involved the forced subjugation and brutal exploitation
of human beings. The Mask Mandates, by contrast, require
individuals to accept an inconvenience so that they can protect
themselves and others from a deadly disease. The two are not
remotely comparable. The Mask Mandates do not infringe on
fundamental rights. Denis’s Fourteenth Amendment claims are
dismissed with prejudice.
4. Denis Fails to State a Claim Under the Hawaii
Constitution.
Finally, the First Amended Complaint appears to allege,
for the first time, that the Mask Mandates violate sections 2, 4,
5, and 8 of article I of the Hawaii constitution. ECF No. 63,
PageID # 734-35. Those claims have no more merit than Denis’s
claims based on the federal Constitution.
As an initial matter, the Moving Defendants maintain
that Denis’s claims based on the Hawaii constitution should be
dismissed because “Hawaii courts have declined to recognize a
direct cause of action for violation of rights guaranteed under
the provisions of the Hawaii Constitution.” ECF No. 70-1, PageID
# 847; see also ECF No. 64-1, PageID # 759. This court does not
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treat that assertion as dispositive here. Judges in this
district have “declined to recognize a private cause of action
for damages for violations of rights guaranteed under the state
constitution.” Ilae v. Tenn, 2013 WL 4499386, at *17 (D. Haw.	11
Aug. 20, 2013) (emphasis added) (refusing to recognize a private
cause of action for damages, but reaching the merits of the
plaintiffs’ claims for declaratory and injunctive relief); see
also, e.g., Kaahu v. Randall, 2018 WL 472996, at *7 (D. Haw. Jan.
18, 2018) (“Courts in Hawaii have declined to recognize a direct
private cause of action for damages resulting from the violation
of rights guaranteed under the provisions of the Hawaii
Constitution.”); Davis v. Abercrombie, 2014 WL 3809499, at *16
(D. Haw. July 31, 2014) (“[T]he Hawaii Supreme Court would not
recognize a claim for damages arising directly under the Hawaii
State Constitution.”). The First Amended Complaint includes
claims for declaratory and injunctive relief. Even if this court
concluded that Denis could not pursue a private right of action
for damages, Moving Defendants have failed to establish that	12
In federal cases, it is well established that even if	11
plaintiffs cannot bring a claim for damages, “[c]ertain
provisions of the [federal] constitution give rise to equitable
causes of action.” Sierra Club v. Trump, 963 F.3d 874, 888 (9th
Cir. 2020), vacated on other grounds sub nom. Biden v. Sierra
Club, 2021 WL 2742775 (U.S. July 2, 2021).
This court notes that in its recent decision in Gordon	12
v. Maesaka-Hirata, the Hawaii Supreme Court addressed a due
process claim brought directly under article I, section 5 of the
Hawaii constitution. 143 Hawaii 335, 358, 431 P.3d 708, 731
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this court may not reach the merits of Denis’s claims to resolve
this motion.
In any event, Denis’s claims based on the state
constitution fail for the same reasons as his federal claims.13
Article I, section 4 of the Hawaii constitution is analogous to
the First Amendment. It states that “[n]o law shall be enacted
respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech or of the
press or the right of the people peaceably to assemble and to
petition the government for a redress of grievances.” Denis
fails to state a claim under that section for the same reasons
that he fails to state a federal First Amendment claim.
As discussed above, the Mask Mandates do not infringe
on the freedoms of speech or assembly. Moreover, it appears that
in considering free exercise claims based on article I, section
4, Hawaii courts would apply rational basis review to neutral
laws of general applicability. See State v. Armitage, 132 Hawaii
(2018). The court held that the plaintiff had established a due
process violation, but that Hawaii had not waived its sovereign
immunity for damages, and that the injunctive relief that the
plaintiff sought was “unnecessary.” Id. at 359-60, 431 P.3d at
732-33. The reasoning in Gordon suggests that the Hawaii Supreme
Court might recognize a private cause of action for violations of
the Hawaii constitution, even if a damages claim might be barred
by sovereign immunity.
Even after this court asked for supplemental briefing on	13
this issue, Denis did not identify any relevant differences in
the legal standards applied under the federal and state
constitutions. See generally ECF No. 93.
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36, 59, 319 P.3d 1044, 1067 (2014) (applying strict scrutiny in a
free exercise case only after determining that the challenged law
was not generally applicable); see also State v. Harris, 2013 WL
2156056 (Haw. Ct. App. 2013) (rejecting a “claim based on the
free exercise clauses of the U.S. and Hawaii Constitutions”
because the law at issue was “a neutral law of general
applicability”); State v. Kimmel, 2009 WL 154478, at *2-3 (Haw.
Ct. App. 2009) (rejecting a claim based on the “right to the free
exercise of . . . religion . . . under the Hawaii Constitution”
because the challenged law was “a neutral law of general
applicability”). To reiterate, Denis does not dispute that the
Mask Mandates are neutral laws of general applicability, and he
has not plausibly alleged that the mandates were an irrational
response to the COVID-19 pandemic.
Similarly, Denis’s due process claims based on sections
2 and 5 of article I of the Hawaii constitution are dismissed	14 15
Article I, section 2 of the Hawaii constitution states	14
that “[a]ll persons are free by nature and are equal in their
inherent and inalienable rights. Among these rights are the
enjoyment of life, liberty and the pursuit of happiness, and the
acquiring and possessing of property. These rights cannot endure
unless the people recognize their corresponding obligations and
responsibilities.”
Article I, section 5 of the Hawaii constitution states	15
that “[n]o person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal protection of
the laws, nor be denied the enjoyment of the person’s civil
rights or be discriminated against in the exercise thereof
because of race, religion, sex or ancestry.”
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for the same reasons as his due process claims under the
Fourteenth Amendment. Hawaii courts addressing claims under
sections 2 and 5 apply the rational basis standard if the
challenged statute does not affect fundamental rights.
Washington v. Fireman’s Fund Ins. Companies, 68 Haw. 192, 202,
708 P.2d 129, 136 (1985) (“Because no fundamental rights or
suspect classifications are involved, the rational basis standard
is used. Only if there is no rational basis to sustain the
challenged statutes will there be a violation of due process
under U.S. Const. amend. XIV and Haw. Const. art. I, § 5.”);
Maeda v. Amemiya, 60 Haw. 662, 669, 594 P.2d 136, 141 (1979)
(applying rational basis standard in case involving article I,
section 2 because fundamental rights were not at issue); State v.
Kantner, 53 Haw. 327, 332, 493 P.2d 306, 309 (1972) (rational
basis standard applies in cases that do not involve issues of
“fundamental liberty”).
Moreover, the Hawaii Supreme Court, like the United
States Supreme Court, has defined fundamental rights as those
rights that are “‘implicit in the concept of ordered liberty.”
In re Doe, 99 Hawaii 522, 533 n.14, 57 P.3d 447, 458 n.14 (2002)
(quoting Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)).
Because Denis has not plausibly alleged that the Mask Mandates
impinge on his fundamental rights, or that the Mask Mandates were
an irrational response to the COVID-19 pandemic, his claims under
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sections 2 and 5 of article I of the Hawaii constitution are
dismissed as well.16
5. Denis Fails to State A Claim Based on the
“Expiration” of the State of Emergency.
Finally, Denis’s sur-reply, filed in contravention of
this court’s local rules restricting the briefs allowed without
leave of court, includes language that could be interpreted as
asserting that, because any state of emergency declared by the
Governor “expired sixty days after being written and
implemented,” Ige and Kawakami lacked the authority to promulgate
the Mask Mandates. ECF No. 85, PageID # 974, 976. By failing to
raise that argument in a timely manner, Denis has waived it.
Because this court is dismissing the claims against Ige, Connors,
and Kawakami with prejudice, however, this court addresses
Denis’s argument to make it clear that any amendment would be
futile.
There is no federal analogue to article I, section 8 of	16
the Hawaii constitution, which states that “[n]o citizen shall be
disfranchised, or deprived of any of the rights or privileges
secured to other citizens, unless by the law of the land.” This
case, however does not involve a claim that Denis has been
disfranchised or treated differently from other citizens.
Similarly, in his opposition, Denis cites article XIV, see ECF
No. 74, PageID # 912-914, which provides, inter alia, that “each
political subdivision and the constitutional convention shall
adopt a code of ethics” and that each code of ethics shall be
administered by an ethics commission. This case does not involve
an ethics commission.
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Denis’s claims appear to be based on the language of
Haw. Rev. Stat. § 127A-14, which permits the Governor to declare
a state of emergency. That statute provides:
(a) The governor may declare the existence of
a state of emergency in the State by
proclamation if the governor finds that an
emergency or disaster has occurred or that
there is imminent danger or threat of an
emergency or disaster in any portion of the
State.
(b) A mayor may declare the existence of a
local state of emergency in the county by
proclamation if the mayor finds that an
emergency or disaster has occurred or that
there is imminent danger or threat of an
emergency or disaster in any portion of the
county.
(c) The governor or mayor shall be the sole
judge of the existence of the danger, threat,
or circumstances giving rise to a declaration
of a state of emergency in the State or a
local state of emergency in the county, as
applicable. This section shall not limit the
power and authority of the governor under
section 127A-13(a)(5).
(d) A state of emergency and a local state of
emergency shall terminate automatically sixty
days after the issuance of a proclamation of
a state of emergency or local state of
emergency, respectively, or by a separate
proclamation of the governor or mayor,
whichever occurs first.
(Emphasis added.)
Denis seems to be saying that the Governor’s and
Mayor’s authority to issue the Mask Mandates depends on the
existence of a state of emergency, see generally Haw. Rev. Stat.
§§ 127A-12, 127A-13, and that the Mask Mandates became
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inoperative after 60 days, when the state of emergency
automatically terminated. In response, the State contends that
“HRS § 127A-14(d) does not limit the Governor to just one 60-day
state of emergency,” and that the Governor has the power to issue
supplemental declarations extending the emergency period if
necessary. ECF No. 92, PageID # 1011. Several state trial
courts have agreed with the State. For Our Rights v. Ige, Civil
No. 5CCV-20-0000091, slip op. at 1-2 (Haw. Cir. Ct. Nov. 19,
2020); Partal v. Ige, Civil No. 3CCV-20-0000277, slip op. at 5-9
(Haw. Cir. Ct. Oct. 15, 2020).
Denis’s argument raises issues of statutory
interpretation. Under Hawaii law, “statutory construction is
guided by the following well established principles”:
[O]ur foremost obligation is to ascertain and
give effect to the intention of the
legislature, which is to be obtained
primarily from the language contained in the
statute itself. And we must read statutory
language in the context of the entire statute
and construe it in a manner consistent with
its purpose.
When there is doubt, doubleness of meaning,
or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity
exists.
In construing an ambiguous statute, the
meaning of the ambiguous words may be sought
by examining the context, with which the
ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true
meaning. Moreover, the courts may resort to
extrinsic aids in determining legislative
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intent. One avenue is the use of legislative
history as an interpretive tool.
The . . . court may also consider the reason
and spirit of the law, and the cause which
induced the legislature to enact it to
discover its true meaning.
Nakamoto v. Kawauchi, 142 Hawaii 259, 268, 418 P.3d 600, 609
(2018). Based on those principles, this court agrees with the
State’s construction of section 127A-14.
The language of the statute supports the State.
Section 127A-14 states that the Governor may declare a state of
emergency whenever he or she finds that an emergency or disaster
has occurred. There is no prohibition on supplementary or
successive proclamations. Thus, the plain language of the
statute suggests that if the Governor finds that a disaster is
still ongoing after 60 days, the Governor can issue a
supplemental proclamation to restart the 60-day period. See H’s
Bar, LLC v. Berg, 2020 WL 6827964, at *5 (S.D. Ill. Nov. 21,
2020) (construing a similar Illinois statute and concluding that
the statute’s “plain language . . . permits the Governor to issue
multiple and successive disaster proclamations and to exercise
emergency powers for additional . . . periods, so long as a
disaster continues to exist”).
Moreover, even if the language indicating that the
state of emergency shall terminate after 60 days did introduce an
element of ambiguity, the legislative purposes also favor the
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State’s interpretation. The legislature enacted chapter 127A to
“protect the public health, safety, and welfare, and to preserve
the lives and property of the people of the State” when disasters
affect the state. Haw. Rev. Stat. § 127A-1. It instructed
courts to construe the chapter “liberally” to “effectuate its
purposes.” Id. In some circumstances, it is necessary to give
the Governor the authority to extend a declaration of emergency
beyond 60 days to protect the public health, safety, and welfare.
After all, while “some types of disasters, such as a storm or
earthquake, run their course in a few days or weeks,” others “may
cause havoc for months or even years.” Cassell v. Snyders, 458
F. Supp. 3d 981, 1002 (N.D. Ill. 2020). It would make no sense
to give the Governor the authority he needs to respond to
protracted conditions of emergency and yet to impose a cutoff of
that authority while a state of emergency is ongoing. This is
particularly true when, as in Hawaii, the legislature is in
regular session for only a few months each year.
In other cases, plaintiffs have raised concerns that
the Governor could use supplemental or successive declarations of
emergency as a “power grab.” See, e.g., Partal, slip op. at 7.
In essence, these plaintiffs have asserted that the legislature
intended to use the 60-day limit on the duration of an emergency
of section 127A-14 to force the Governor to involve the
legislature after the expiration of the 60-day period. Under
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this analysis, even if, at its inception, an emergency required
an immediate response, after 60 days, consultation with the
legislature should be possible.
This court finds that argument unpersuasive. Some
emergencies will not permit prompt legislative action. For
instance, during times of armed conflict, or a disaster that
closes the Honolulu airport, it may be impossible for the
legislature to meet. Nothing in chapter 127A suggests that the
legislature would have wanted to leave the Governor powerless in
those circumstances.
That is particularly true because the legislature is
not without recourse if the Governor abuses the power conveyed by
chapter 127A. Under those circumstances, the legislature could
repeal section 127A-14 entirely, or it could amend the statute to
prevent the Governor from declaring an emergency based on the
then-current conditions. Because the legislature has other tools
to rein in abuses of power, there is no need for an
interpretation of section 127A-14 that limits the Governor’s
power to respond to a genuine emergency (such as the present
pandemic). Indeed, if the legislature believed that Governor Ige
had overstepped his bounds by extending his declaration that
COVID-19 constitutes an emergency, the legislature could have
enacted either amendment at some point in the last year and a
half, during which two legislative sessions have concluded. The
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legislature has not done that, although such amendments were
considered. See H.B. No. 103, 31st Leg., 2021 Sess. (Haw. 2021).
In short, this court agrees with the State. Because
section 127A-14 permits the Governor to issue supplemental or
successive declarations of emergency, his authority to issue the
Mask Mandates did not expire in May 2020. Denis does not state a
plausible claim based on that argument.
Because Denis does not allege that Ige, Connors, or
Kawakami was responsible for the purportedly unconstitutional
conduct of Kelley and Himongala, his claims against Ige,	17
Connors, and Kawakami depend on his assertions that the Mask
Mandates infringe on his constitutional rights or that the
Governor and Mayor lacked the authority to issue the Mask
Mandates. Denis’s allegations do not raise a plausible claim in
that regard. His claims against Ige, Kawakami, and Connors are
dismissed with prejudice.
C. Denis Fails to State a Claim Against Chief
Raybuck.
Finally, Denis seems to allege that Chief Raybuck is
legally responsible for his arrest and the injuries that he
allegedly suffered. In its earlier order, this court dismissed
Denis’s claims against Raybuck because Denis had not identified
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.
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any actions attributable to Raybuck individually that violated
the Constitution or caused him to suffer harm. ECF No. 62,
PageID # 714-15. Such allegations are again absent from the
First Amended Complaint.
The First Amended Complaint alleges that Raybuck is
responsible for Denis’s injuries because he failed “to act to
protect the rights of the Plaintiff when notified by written
affidavit of his liability in executing actions against the
Plaintiff that violate his God-given rights, including enforcing
unlawful mandates promulgated by Defendant Ige.” ECF No. 63,
PageID # 723; see also id. at 726 (“Defendant Raybuck was
notified of liability in failing to uphold his oath to protect
the people of Kauai, including the Plaintiff, from unlawful,
unwarranted mandates, through written affidavit, yet chose to
remain silent and failed to act accordingly.”). Denis has again
failed to identify an action attributable to Raybuck that
violated a constitutional right or caused him to suffer harm.
None of Denis’s allegations suggests that Raybuck had a legal
duty to respond to his “written affidavit.” Denis does not state
a claim simply by warning an official of liability. There must
still be a legally cognizable basis for liability.
Moreover, Denis appears to be saying that Raybuck is
liable for enforcing an unconstitutional law. As stated
previously, Denis has not stated a claim of any
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unconstitutionality. Denis’s claims against Raybuck are
dismissed with prejudice.18
V. CONCLUSION.
The motions to dismiss filed by Defendants Ige,
Kawakami, Connors, and Raybuck are granted. This is the second
time this court has dismissed Denis’s claims against those
Defendants, and this court determines that granting Denis leave
to amend would be futile. Denis’s claims against Defendants Ige,
Kawakami, Connors, and Raybuck are dismissed with prejudice. The
remainder of this case will proceed against only Kelley and
Himongala.
This court also denies Denis’s Motion for Live-Stream	18
Media Coverage of Trial. As an initial matter, Denis’s motion is
premised on the importance of the COVID-19 pandemic. ECF No. 79,
PageID # 951. With the dismissal of Denis’s claims against Ige,
Connors, Kawakami, and Raybuck, this case no longer involves the
validity of the Mask Mandates or COVID-19. Denis’s remaining
claims against Kelley and Himongala are straightforward excessive
force claims. The dismissal of Ige, Connors, Kawakami, and
Raybuck therefore undercuts the basis for Denis’s motion.
In any event, live video coverage of any trial in this
matter is not appropriate. The Supreme Court has indicated that
court proceedings should not be broadcast when the cases are
“high profile” or “involve witnesses.” Hollingsworth v. Perry,
558 U.S. 183, 198 (2010). Denis is asserting that proceedings
should be broadcast because this case is an important one, and it
will almost certainly involve witnesses. This is not a case in
which a live broadcast is warranted. Id.
Finally, another consideration is at play here. No
media outlet has requested permission to cover this case with a
live stream. This court does not itself offer live streaming.
Denis’s motion in this regard appears to assume that a media
outlet wants and will fund live-stream coverage, but this court
is unaware of any such media outlet.
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Denis’s Motion for Live-Stream Media Coverage is
denied.
It is so ordered.
DATED: Honolulu, Hawaii, August 31, 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 AND
DENYING MOTION FOR LIVE-STREAM MEDIA COVERAGE
38
Case 1:21-cv-00011-HG-RT Document 97 Filed 08/31/21 Page 38 of 38
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