Aguilera v. Kauai County

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DEREK AGUILERA,
Plaintiff,
vs.
KAUAI COUNTY,
Defendant.
Case No. 25-cv-00485-DKW-RT
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS1
On March 4, 2026, Defendant Kauai County (“the County”) moved to dismiss
pro se Plaintiff Derek Aguilera’s Amended Complaint, Dkt. No. 20, asserting that
Aguilera had—once again—failed to state a claim, Dkt. No. 21. Having reviewed
the Amended Complaint, the parties’ briefs, and relevant authority, the Court agrees
that dismissal is appropriate. Accordingly, the motion to dismiss is GRANTED with
leave to amend, as described below.
FACTUAL & PROCEDURAL BACKGROUND
I. 	The Amended Complaint
In 2015, the County issued a Certificate of Occupancy for real property
located at 5691A Hauaala Rd, Kapaa, HI 96746 (“the Property”), a residential
1 Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing.
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building with an upper and lower unit. Dkt. No. 20 ¶¶ 7–10. In February 2023, the
County issued a letter stating that there were no violations of building or zoning
codes on the Property. 	Id. ¶ 13. 	On October 6, 2023, Aguilera purchased the
Property, relying on the County’s representations and issuance of a Certificate of
Occupancy. Id. ¶¶ 14–16.
In November 2024, the County issued a “Notice of Apparent Violation”
claiming that the Certificate of Occupancy had been “reversed” on August 26, 2015
due to purported violations of flood regulations. 	Id. ¶¶ 17–18. 	County records
reflected that the Property’s flood elevation certificate was marked as “WAIVED”
on July 2, 2015, and neighboring properties at similar or lower elevations to the
Property were not subject to enforcement action by the County. Id. ¶¶ 33–34. The
County had not enforced the purported violations on any of the Property’s prior
owners over a ten-year period. Id. ¶ 37.
Despite this, “[i]n December 2023,” the County forced Aguilera to remove
the cabinets, countertops, plumbing fixtures, and electrical components from the
Property’s lower unit, rendering the unit “uninhabitable and unusable as a rental
dwelling.” Id. ¶¶ 19–21.2 This was done without a hearing or any opportunity for
Aguilera to contest the removal. Id. ¶¶ 22–23. As a result, Aguilera lost the rental
2 In his Amended Complaint, Aguilera alleges that County officials “caused the removal” of the
fixtures in the Property’s lower unit. Dkt. No. 20 ¶ 19. In his opposition, Aguilera clarifies that
he, not the County, remove the fixtures, presumably due to a County order. Dkt. No. 23 at 2.
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value of the unit, approximately $4,000 per month for a total loss to date of more
than $104,000. 	Id. ¶¶ 26–27. 	Aguilera was also forced to incur approximately
$50,000 in various fees and expenses relating to the removal. Id. ¶ 28.
II. 	Procedural History
On November 17, 2025, Aguilera initiated this action. 	Dkt. No. 1. 	On
December 30, 2025, the County moved to dismiss, Dkt. No. 9-1, which the Court
granted on January 28, 2026 with leave to amend. On February 18, 2026, Aguilera
filed his Amended Complaint, asserting 1) violation of his procedural due process
rights under 42 U.S.C. § 1983; 2) a Fifth Amendment regulatory takings claim under
Section 1983; and 3) a Fifth Amendment physical takings claim under Section
1983.3 Dkt. No. 20 ¶¶ 39–97. 	Aguilera demands compensatory damages and a
declaratory judgment stating that the Property “has no code violations” and that the
enforcement action against the Property violated Aguilera’s rights. Id. at 10–11.
On March 4, 2026, the County moved to dismiss the Amended Complaint,
arguing that Aguilera fails to state any claim under Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978) and that his physical takings claim is vague and conclusory.
3 Aguilera lists “Declaratory Judgment” as Count 4 of the Amended Complaint. Dkt. No. 20 ¶¶
98–113. The County, however, argues that declaratory judgment is a remedy, not a cause of action,
and should be dismissed. Dkt. No. 21 at 9–10. The Court agrees. See Rymal v. Bank of Am., No.
10-CV-00280 (DAE)(BMK), 2011 WL 6100979, at *12 (D. Haw. Dec. 6, 2011) (“[D]eclaratory
relief is not an independent claim.”). Count 4 is dismissed without prejudice to Aguilera seeking
declaratory relief as a remedy for his other claims.
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Dkt. No. 21. Aguilera opposes, responding that 1) Kaua’i County Code Chapter 15,
which concerns flood management, established a County policy that violated his
rights for the purposes of Monell, and 2) that the County’s own records reflected that
an improper taking had occurred because the Property had no code violations. Dkt.
No. 23. 	Aguilera attaches to his opposition two Notices of Apparent Violation
issued by the County, dated April 30, 2024 and November 22, 2024. Dkt. No. 23-1.
The County replies, substantially repeating the grounds for dismissal. Dkt. No. 25.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.” 	Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” 	556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In addition, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” 	Iqbal, 556 U.S. at 678. 	Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” 	Id. 	Rather, “[a] claim has facial plausibility when the plaintiff pleads
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factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 	Id. 	Factual allegations that only
permit the court to infer “the mere possibility of misconduct” do not show that the
pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.
The Court liberally construes a pro se pleading. Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987); Lopez, 203 F.3d at 1131 (“[T]he rule favoring liberality
in amendments to pleadings is particularly important for the pro se litigant.”)
(citation and internal quotation marks omitted). 	However, the Court cannot act as
counsel for a pro se litigant, such as by supplying the essential elements of a
claim. 	Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
DISCUSSION
I. 	Plausibility
The County moves to dismiss on the grounds that Aguilera fails to state a
claim. Dkt. No. 21. In addition to the arguments presented by the County, the Court
finds that Aguilera’s claims lack facial plausibility. See Iqbal, 556 U.S. at 678.
The issue arises from a discrepancy within Aguilera’s Amended Complaint.
In that pleading, Aguilera alleges that he was forced to remove the improvements
from the Property’s lower unit in “December 2023”, presumably at the direction of
the County. 	Dkt. No. 20 ¶ 19. 	That requirement had significant implications, as
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there was not only cost involved in the removal Aguilera appears to have incurred,
but it caused the loss of rental income and depreciated the value of the Property as a
whole. The date of this removal does not appear to be a mistake: Aguilera repeats
December 2023 throughout the Amended Complaint. 	See, e.g., id. ¶¶ 12, 45, 54.
But Aguilera alleges elsewhere that he only received notice from the County of the
Property’s apparent code violations in 2024. Id. ¶ 17. In fact, the County’s Notices
of Apparent Violation, which Aguilera attaches to his opposition brief, reflect that
the County did not notify Aguilera of the purported flood regulation violations until
April and November 2024. See Dkt. No. 23-1.
This presents an obvious problem: if the County did not serve Aguilera with
notice of an “apparent” violation until 2024, how then is it responsible for the
consequences of Aguilera’s removal of the lower-unit improvements in 2023? The
Notices themselves provide no answer. In fact, they only serve to muddy the waters
further, as they are only Notices of Apparent Violations, which do not actually order
the alleged removals—rather, the Notices request only that Aguilera provide proof
of compliance with County regulations. Dkt. No. 23-1 at 3. All of Aguilera’s claims
arise out of these alleged removals—if he cannot show that the removals were forced
or in some manner, required, by the County, his claims invariably fail.
Accordingly, in light of above-noted discrepancy, the claims in the Amended
Complaint lack facial plausibility and must be dismissed. See Openwave Messaging,
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Inc. v. Open-Xchange, Inc., No. 16-CV-00253 (WHO), 2016 WL 6393503, at *5
(N.D. Cal. Oct. 28, 2016) (“Courts may dismiss a claim as not plausible where its
supporting factual allegations are contradictory.”).
II. 	Monell
The County argues that Aguilera fails to state a claim against the County under
Monell. Dkt. No. 21. The Court agrees.
Section 1983 claims against a local government, such as the County here, “can
be brought only through a Monell claim.” Est. of CMW v. Cnty. of Los Angeles, No.
24-CV-00889 (DSF)(MAA), 2024 WL 4468004, at *6 (C.D. Cal. May 3, 2024).
That can be accomplished in one of three ways. 	First, a local government can be
liable when it or a person with final policymaking authority within the local
government 	expressly 	enacts 	or 	authorizes 	a 	policy 	respecting 	a 	challenged
action. Monell, 436 U.S. at 690; Pembaur v. City of Cincinnati, 475 U.S. 469, 481–
483 (1986). 	Second, a local government can be liable for a custom that, although
not expressly enacted, is “so permanent and well settled”, it operates with the force
of law. 	Monell, 436 U.S. at 691 (internal quotation marks omitted). Third, a local
government can be liable for the failure to train its employees when such failure
amounts to deliberate indifference towards the rights of its inhabitants. 	City of
Canton v, Harris, 489 U.S. 378, 388 (1989). 	A local government cannot be held
liable under Section 1983 “solely because it employs a tortfeasor—or, in other
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words, 	a 	municipality 	cannot 	be 	held 	liable 	under § 	1983 on 	a respondeat
superior theory.” Monell, 436 U.S. at 691 (emphasis in original).
Aguilera does not address 	Monell 	in his Amended Complaint. 	In his
opposition brief, he vaguely refers to Chapter 15 of the Kaua’i County Code as
containing evidence of an unconstitutional “policy, custom, or practice.” Dkt. No.
23 at 4. There are two problems with this assertion. First, in assessing a motion to
dismiss, courts will typically not consider facts raised for the first time in an
opposition brief. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th
Cir. 1998) (“[I]n determining the propriety of a Rule 12(b)(6) dismissal, a court may
not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum
in opposition to a defendant’s motion to dismiss.” (emphasis omitted)).
Second, even if it did, Aguilera never identifies a specific provision within
Chapter 15, nor does he explain why or how that provision violated his rights. “To
satisfy Monell’s requirements, a plaintiff must identify a policy or custom, connect
the policy or custom to the city itself, and show that an injury was incurred because
of the execution of that policy or custom.” See Bejarano v. Lynch, No. 23-CV-1620
(WBS)(JDP)(P), 2025 WL 1400269, at *4 (E.D. Cal. May 14, 2025), report and
recommendation adopted, 2025 WL 2709544 (E.D. Cal. Sept. 23, 2025) (citing Long
v. Cnty. of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006)). Here, Aguilera baldly
states that “Chapter 15” includes the violating policy, but does not specify what that
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policy entailed, what portion of it was unconstitutional, or why. 	See Gutierrez v.
Yee, No. 16-CV-09509 (TJH)(PJWx), 2017 WL 11505980, at *2 (C.D. Cal. July 25,
2017) (“To state a Monell claim, post-Iqbal, based on an unconstitutional policy,
practice, or custom, a plaintiff must . . . explain how that policy, practice, or custom
was deficient[.]”). Nor does Aguilera claim that Chapter 15 was incorrectly applied
to him. Accordingly, the Court grants dismissal for failure to state a claim pursuant
to Monell.
III. 	Leave to Amend
When a complaint fails to state a plausible claim, leave to amend should be
given when “justice so requires.” Fed.R.Civ.P. 15(a)(2). Indeed, the Ninth Circuit
has made clear that “a district court should grant leave to amend even if no request
to amend the pleading was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000) (citations and quotation marks omitted). Nonetheless, justice
does not require leave to amend when (1) it would prejudice an opposing party, (2)
it is sought in bad faith, (3) it would produce an undue delay in litigation, (4) it would
be futile, or (5) there has been repeated failure to cure a deficiency. 	Abagninin v.
AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp.
v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
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Aguilera has already been given one opportunity to amend his pleadings. In
its prior order granting leave to amend, however, the Court focused primarily on the
ripeness of Aguilera’s claims, as opposed to the factual discrepancies or Monell
issues noted above. 	Dkt. No. 19. 	Given the opportunity, Aguilera “could
conceivably cure these deficiencies.” Jones v. Rising Phoenix Holdings Corp., 2025
WL 2802180, at *7 (D. Haw. Oct. 1, 2025). 	In light of this, and because of
Aguilera’s pro se status, this dismissal is without prejudice and with leave to amend.
Lopez, 203 F.3d at 1130.
Should Aguilera wish to pursue his Section 1983 claims against the County,
any amended pleading must contain plausible claims that meet the requirements of
Iqbal and Monell.
CONCLUSION
For the reasons set forth herein, the County’s Motion to Dismiss the
Complaint, Dkt. No. 21, is GRANTED, and the Complaint is DISMISSED
WITHOUT PREJUDICE. 	Should Plaintiff wish to amend his pleadings, he must
file an Amended Complaint that does not incorporate or rely on his previous filings
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no later than June 5, 2026. If no amended complaint is filed by that date, this action
will be dismissed and closed without further notice.
IT IS SO ORDERED.
DATED: May 15, 2026 at Honolulu, Hawai‘i.
Derek Aguilera v. Kauai County; CV 25-00485 DKW-RT; ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS
_______________________________
Derrick K. Watson
Chief United States District Judge
/s/ Derrick K. Watson
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