Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^* 

Anthony and Debra Naliielua appeal the district court's dismissal with prejudice of their 42 U.S.C. § 1983 complaint against Bekins Moving and Storage Company.¹  We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The allegations against Bekins are premised on the moving company's role in removing the appellants' property from the home that formerly belonged to Gregory Naliielua, Sr. The appellants filed this complaint against Bekins and the State defendants, alleging injuries resulting from the actions taken by the defendants under color of state law. Specifically, the complaint alleges that the actions taken to remove them from the home were unlawful because the Hawaiian Homes Commission Act ("the Act") violates the equal protection clause by conferring benefits on native Hawaiians based solely on racial considerations. In addition to the equal protection claim, the appellants named Bekins in counts alleging negligence, intentional and/or negligent infliction of emotional distress, and conspiracy.

The district court granted Bekins' motion for dismissal under Federal Rule of Civil Procedure 12(b). The Naliieluas filed this timely appeal. We review a dismissal for failure to state a claim de novo; a complaint should not be dismissed under Rule 12(b) (6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Jackson v. Southern Cal. Gas Co., 881 F.2d 638, 642-43 (9th Cir. 1989).

A plaintiff in a Sec. 1983 action must allege the deprivation of rights secured by the Constitution or federal statute through the actions of the defendant acting under color of state law. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). The Naliieluas contend that the Act violates equal protection because it awards benefits (i.e. homesteads and leaseholds) to native Hawaiians solely on the basis of race or ancestry.

"Standing for purposes of the Constitution is present when a plaintiff suffers actual or threatened ' personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.' " Fernandez v. Block, 840 F.2d 622, 625 (9th Cir. 1988) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). Among the prudential--as opposed to constitutional--limits imposed by the standing doctrine is the rule that, in general, a plaintiff "cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975); Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir. 1982).

The appellants lack standing to maintain an equal protection challenge to the Act. First, there is no connection between the allegedly unlawful aspect of the Act--i.e. governmental race-based preferences--and the particular harm of which the appellants complain. That is, the fact that the appellants were removed from Gregory's home resulted not from the fact that the Act awards benefits based on race, but rather from the Department's policy of permitting non-successor widows to remain in the homestead pending a more permanent disposition by the Department. The injury is not traceable to the allegedly unlawful condition of the Act.

In addition, the appellants' challenge to the Act is in fact a claim on behalf of third parties--i.e. non-Hawaiians--who are perfectly capable of raising such a challenge themselves. A plaintiff asserting third-party standing must show that there "exist [s] some hindrance to the third party's ability to protect his or her own interests." Powers v. Ohio, 111 S. Ct. 1364, 1370-71 (1991). These Hawaiian appellants, who are ostensibly among the Act's beneficiaries, have offered no reason why they should be permitted to assert this equal protection claim on behalf of the non-Hawaiians to whom the Act's benefits are unavailable. For these reasons, we hold that the appellants lack standing to raise this equal protection challenge to the Act.

Having concluded that the Naliieluas lack standing to challenge the constitutionality of the Act, we further conclude that the remaining counts of the complaint fail to state claims upon which relief can be granted. Those claims, including negligence, infliction of emotional distress, and conspiracy, are not cognizable Sec. 1983 actions in the absence of some violation of federal law. Because the appellants lack standing to challenge the constitutionality of the Act, the remaining counts do not allege any violation of federal law. Lacking such an allegations, the district court properly dismissed those claims as well.

The district court's judgment dismissing the action with prejudice is AFFIRMED.