Aguilera v. Kauai County

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DEREK AGUILERA,
Plaintiff,
vs.
COUNTY OF KAUAI,
Defendant.
Case No. 25-cv-00485-DKW-RT
ORDER GRANTING
DEFENDANT COUNTY OF
KAUAI’S MOTION TO DISMISS1
On June 29, 2026, Defendant County of Kauai (“County”) moved to dismiss
pro se Plaintiff Derek Aguilera’s Second Amended Complaint (“SAC”), Dkt. No.
30, asserting that Aguilera had—once again—failed to state a claim, Dkt. No. 31.
Having reviewed the SAC, the parties’ briefs, and relevant authority, the Court
agrees that dismissal is appropriate. 	Accordingly, the motion to dismiss is
GRANTED without leave to amend, as explained below.
FACTUAL & PROCEDURAL BACKGROUND
I. 	The SAC
Aguilera’s claims concern real property located at 5691-A Hauaala Road,
Kapaa, HI 96746 (“Property”), a residence containing an upper and lower unit. Dkt.
1 Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing.
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No. 30 ¶ 1. 	The Property was constructed in or around 2007, and County records
show a flood elevation certificate was issued for the Property at that time.2 Id. ¶ 16.
On or about July 2, 2015, County inspectors noted that the Property’s flood elevation
certificate had been “waived.” 	Id. ¶ 18. 	On July 8, 2015, the County issued a
Certificate of Occupancy for the Property, based on a final approval by inspectors
who determined that the Property was in full compliance with all building and
zoning regulations (including flood certificate compliance). 	Id. ¶ 19. 	On August
26, 2015, however, the County “reversed” the Certificate of Occupancy because of
the erroneous belief that “no elevation certificate was on file.” Id. ¶ 20.
On February 28, 2023, the County issued a certificate stating that the Property
had no variances, outstanding nonconforming uses or structures, or violations of
County building or zoning regulations. 	Id. ¶ 22. 	On October 6, 2023, Aguilera
purchased the Property in reliance on the County’s representation of its compliance.
Id. ¶ 23.
In November 2023, the County received an anonymous complaint regarding
the Property. 	Id. ¶ 25. 	In response, on December 11, 2023, County inspectors
investigated the Property and informed Aguilera that the presence of “kitchen/wet
bar 	components, 	cabinets 	countertops, 	bar 	sink, 	plumbing 	fixtures, 	electrical
2 Aguilera claims that “[e]levation certificates do not expire,” which the Court accepts as true for
purposes of this Rule 12 motion. Dkt. No. 30 ¶ 16.
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components, and related improvements” in the lower unit violated County flood
regulations. Id. ¶ 27. To obtain the County’s approval and avoid penalties, Aguilera
removed the lower unit’s “kitchen/wet-bar components.” 	Id. ¶ 28. Despite this, in
April and November 2024, the County issued Notices of Apparent Violation
concerning the Property, which stated that the 2015 Certificate of Occupancy had
been issued in error and identified further renovations needed to avoid penalties. Id.
¶¶ 30–32. Aguilera “attempted to resolve the County’s claimed compliance issues
through County officials, architects, engineers, surveyors, public records requests,
and communications with County departments.” 	Id. ¶ 36. 	A county official
identified as an “Engineering Tech Support III” responded via email that because
the Property had an outstanding violation and was “not afforded a variance,” and
that the proper course of action was to “rectify the violation to conform with County
Ordinance.” Id. ¶ 37; see also Dkt. No. 30-10.
II. 	Procedural History
On November 17, 2025, Aguilera initiated this action. Dkt. No. 1. On January
28, 2026, the Court granted the County’s motion to dismiss, Dkt. No. 9-1, with leave
to amend. Dkt. No. 19. Aguilera filed his First Amended Complaint, Dkt. No. 20,
which the County also moved to dismiss, Dkt. No. 21. On May 15, 2026, the Court
granted the motion to dismiss, again with leave to amend. Dkt. No. 27.
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On June 5, 2026, Aguilera filed his SAC, asserting (1) a Fifth Amendment
regulatory takings claim under 42 U.S.C. § 1983; (2) violation of his procedural and
substantive due process rights under Section 1983; (3) violation of his Fourteenth
Amendment equal protection rights under Section 1983; (4) a takings claim under
the Hawai‘i Constitution3; (5) municipal liability pursuant to Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978); (6) negligent misrepresentation; and (7) negligence.
Dkt. No. 30 ¶¶ 42–71. Aguilera attached to the SAC a “Notice of Tort Claim”, dated
June 5, 2026, pursuant to Hawaii Revised Statutes (“HRS”) § 46-72. Dkt. No. 30-
12.
On June 19, 2026, the County moved to dismiss the SAC, arguing that
Aguilera’s claims were impermissibly vague or unripe, he failed to adequately plead
Monell claims, and his negligence and negligent misrepresentation claims were
untimely.4 Dkt. Nos. 31, 31-1. On July 2, 2026, Aguilera responded in opposition,
arguing that his claims are ripe, adequately pleaded, and timely. Dkt. No. 34. 	On
August 18, 2026, the County replied, substantially repeating its arguments for
dismissal. Dkt. No. 36.
3 Article I, § 20 of the Hawai‘i Constitution provides: “Private property shall not be taken or
damaged for public use without just compensation.”
4 The County further argued that Aguilera’s non-Monell claims were deficient as pleaded and the
Court should decline supplemental jurisdiction over his state-law claims. Dkt. No. 31-1 at 15–25.
The Court does not address these arguments because, as provided below, it grants dismissal on
other grounds.
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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
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.”)
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(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
The County moves to dismiss on several grounds, Dkt. No. 31, which the
Court addresses below.
I. 	Vagueness and Ripeness
The County first argues that Aguilera’s claims are both impermissibly vague
and unripe. Dkt. No. 31-1 at 5–11.
Regarding vagueness, the County asserts that the SAC leaves out details that
are key to Aguilera’s claims. For example, the SAC alleges that Aguilera removed
the lower-unit kitchen/wet bar fixtures in response to demands by County officials,
Dkt. No. 30 ¶ 28, but does not specify which officials made the demands, what
penalties Aguilera was attempting to avoid, or why Aguilera removed only those
components 	and 	not 	the 	remaining 	improvements 	in 	the 	lower-unit 	(which
improvements, according to Aguilera, had also been deemed in violation of County
regulations). Dkt. No. 31-1 at 6.
Aguilera’s allegations, however, are not so vague as to justify dismissal. The
thrust of Aguilera’s claims is clear: he purchased the Property in reliance on the
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County’s assurance that there were no building or zoning violations and, shortly after
doing so, he was forced to make costly changes to the Property to avoid penalties
that substantially devalued his purchase. 	See generally Dkt. No. 30. 	The facts as
presented in the SAC may lend themselves to further questions and might be
meritless for other reasons, but that is not the same as being impermissibly vague.
See Abaxis, Inc. v. Cepheid, 2011 WL 3298613, at *12 (N.D. Cal. July 22, 2011)
(“While the claim might have been more clearly drafted, lack of absolute clarity is
not sufficient grounds for finding a claim indefinite.”).
As for ripeness, the County argues that Counts I–IV of the SAC should be
dismissed because Aguilera never sought a variance from the County that might have
relieved him from the demands he claims an unidentified County inspector placed
on him. Dkt. No. 31-1 at 7–11. The Court agrees.
“Constitutional challenges to local land use regulations are not considered by
federal courts until the posture of the challenges makes them ‘ripe’ for federal
adjudication.” 	S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th
Cir. 1990). 	This ripeness requirement applies to each of Aguilera’s claims under
Counts I–IV and demands that he demonstrate that a final decision has been made
by a governmental body charged with evaluating a properly-made application for a
variance. 	See Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985) (holding that a regulatory takings claim is not ripe “until
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the government entity charged with implementing the regulations has reached a final
decision regarding the application of the regulations to the property at issue”); S.
Pac. Transp. Co., 922 F.2d at 503 (noting that the Williamson rule means that a
plaintiff must “meaningful[ly]” request and be denied a variance before a regulatory
takings claim is ripe); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1455 (9th Cir.
1987), amended, 830 F.2d 968 (9th Cir. 1987) (holding that substantive due process,
procedural due process, and equal protection claims were not ripe “until planning
authorities and state review entities make a final determination on the status of the
property”); Leone v. Cnty. of Maui, 284 P.3d 956, 965 (Haw. Ct. App. 2012) (holding
that a regulatory takings claim under Hawai‘i law becomes ripe only after “a final,
definitive[] decision by the initial land-use decision-maker regarding how it will
apply the regulations at issue to the subject property, which inflicts an actual,
concrete injury”).
On the current record, Aguilera’s claims are not ripe. The Kauai County Code
(“KCC”) § 15-1.4(c) provides that flood-management decisions for proposed or
existing structures are made by the County Engineer and his or her authorized
representatives. Section 15-1.7(a) states that:
A variance . . . may be issued by the County Engineer only upon an
application meeting the following standards: (1) There is a good and
sufficient cause for requesting a variance; (2) The applicant will suffer
exceptional hardship should the variance be denied; (3) A variance is
the minimum necessary, considering the flood hazard, to afford relief;
and 	(4) 	A 	variance 	will 	not 	increase 	base 	flood 	heights, 	create
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additional threats to public safety, create extraordinary public expense,
create nuisances, cause fraud on or victimization of the public, or
conflict with existing local laws or ordinances.
Section 15-1.7(e) further states that applications for variances are submitted to the
County Engineer, “signed and stamped by a registered professional engineer or
architect,” and must include further documentation such as the property plans, flood
studies, and evaluations for a variance.
Aguilera alleges in the SAC that he “attempted to resolve” his Property issues
“through County officials, architects, engineers, surveyors, public records requests,
and communications with County departments.” 	Dkt. No. 30 ¶ 36. 	At no point,
however, does he allege that he applied for a variance in the manner specified by the
County Code. 	Nor does Aguilera state that a final decision was ever made
concerning a variance on his Property, likely because he never applied for one.
In both his SAC and his opposition brief, Aguilera points to an email sent to
him by a county official that explained the Property had an outstanding violation and
was “not afforded a variance.” 	Dkt. Nos. 30-10, 34 at 6–7. 	This email is more
damning than helpful to Aguilera for several reasons. First, it is not clear under what
circumstances the email was sent, given that—as already mentioned—Aguilera does
not allege ever having made a formal variance application. 	Second, the official
sending the email identifies himself as an “Engineering Tech Support III,” without
any indication that his tech support position authorized him to speak for the County,
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pursuant to KCC Section 15-1.4(c). 	Dkt. No. 30-10. 	Aguilera offers no similar
message from any governmental body. And third, the email states only that Aguilera
was “not afforded a variance.” 	Id. 	This language leaves ambiguous whether the
author purports to be denying a variance, as Aguilera appears to imply, as opposed
to merely acknowledging that a variance does not exist. As is the case elsewhere,
the email does not recognize that a variance application has even been submitted.
Aside from this email, Aguilera offers nothing to suggest that he has made a
meaningful application for a variance in compliance with the format prescribed by
County Code, much less that a final decision on such an application has been issued.
S. Pac. Transp. Co., 922 F.2d at 503. Accordingly, the Court agrees with the County
that Counts I, II, III, and IV are not ripe and must consequently be dismissed.
II. 	Monell Claims
As he has done before, Aguilera attempts to bring several municipal liability
claims pursuant to Monell. 	Dkt. No. 30 ¶¶ 58–61. 	And once again, these claims
must be dismissed.
In Monell, the Supreme Court determined that a municipality could be “sued
directly under § 1983 for monetary, declaratory, or injunctive relief where, as here,
the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by
that body’s officers” or is “visited pursuant to governmental ‘custom’ even though
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such a custom has not received formal approval through the body’s official
decisionmaking channels.” Monell, 436 U.S. at 690-691. In addition, a municipality
can be liable under Section 1983 for a “failure to train” when “the failure to train
amounts to deliberate indifference to the rights of persons with whom the police
come into contact.” 	City of Canton v. Harris, 489 U.S. 378, 388 (1989). 	A
municipality cannot be held liable under Section 1983 “solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on
a respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis in original).
As a result, a plaintiff may allege municipal liability under Section 1983 in
one of three ways. First, a municipality can be liable when it or a person with final
policymaking authority within the municipality expressly enacts or authorizes a
policy respecting a challenged action. Id. at 690; Pembaur v. City of Cincinnati, 475
U.S. 469, 481–483 (1986) (“The official must also be responsible for establishing
final government policy respecting such activity before the municipality can be held
liable.”). In this regard, a municipality can also be liable when a final policymaker
“ratifie[s]” a subordinate’s conduct and the basis for it. 	Ellins v. City of Sierra
Madre, 710 F.3d 1049, 1066–67 (9th Cir. 2013). 	Second, a municipality 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 municipality can be liable for a failure to train its
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employees when such failure amounts to deliberate indifference towards the rights
of its inhabitants. Canton, 489 U.S. at 388. In addition, a plaintiff must allege that
a policy, custom, or failure to train actually caused a municipality’s employees to
commit the constitutional deprivation. Id. at 391; Monell, 436 U.S. at 694.
a. 	Failure to Train
Aguilera briefly states in his SAC that the County “failed to adequately train,
supervise, or correct its officials” to prevent violations of “owner’s due process
rights, takings rights, and reliance interests based on prior County approvals.” 	Id.
¶ 61. This single statement is the extent of Aguilera’s allegations concerning failure-
to-train: he does not provide any allegations or examples of the training the County
provides or fails to provide its employees, or how that training or lack thereof
actually caused a constitutional deprivation. Aguilera’s opposition brief does not
remedy these omissions. 	See generally Dkt. No. 34. 	Because Aguilera’s mere
mention of a failure-to-train Monell claim is not enough, the County’s motion to
dismiss it is granted. 	Ashcroft, 556 U.S. at 678; see Hawkes v. Alconcel, 2025 WL
3527019, at *4 (D. Haw. Dec. 9, 2025) (granting dismissal where plaintiff gave “no
indication as to how training was lacking, how additional training would matter, or
what measures [municipal defendant] failed to take in training”).
b. 	Kauai County Code
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Pursuant 	to 	Monell, 	Aguilera 	also 	alleges 	that 	the 	violations 	of 	his
constitutional rights “were caused by the County’s official policies, decisions,
customs, and practices, including but not limited to . . . [KCC] §§ 15-1.4, 15-
1.5(a)(3), 15-1.5(b)(3), and 15-1.9, as interpreted and applied by County officials.”
Dkt. No. 30 ¶ 59. 	Aguilera claims that these sections of the KCC were used “to
retroactively rescind prior approvals and force deconversion of long-recognized
living units without pre-deprivation process or compensation.” Id.
“To allege an unconstitutional policy or practice [under Monell], a plaintiff
must: (1) identify the challenged policy/custom; (2) explain how the policy/custom
is deficient; (3) explain how the policy/custom caused the plaintiff harm; and (4)
reflect how the policy/custom amounted to deliberate indifference.” 	Lococo v. Los
Angeles City, 2024 WL 5275509, at *4 (C.D. Cal. July 11, 2024) (internal quotation
marks omitted). 	Here, Aguilera identifies the portions of the KCC he challenges,
Dkt. No. 30 ¶ 59, but fails to explain how or why those cited ordinances are
unconstitutional, how each specifically caused the harm in question, or how their
application constituted deliberate indifference. Aguilera appears to have challenged
these regulations because they were cited in the Notices of Apparent Violation issued
by the County, see Dkt. Nos. 30-6 & 30-7, but merely listing parts of a municipal
code and calling them “unconstitutional” is not enough to state a Monell claim. See
Gutierrez v. Yee, 2017 WL 11505980, at *2 (C.D. Cal. July 25, 2017) (dismissing
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Monell claim where plaintiff “failed to allege how any of the policies, practices, or
customs was deficient”).
III. 	Negligence and Negligent Misrepresentation
The County argues that Aguilera’s remaining state-law claims for negligence
and negligent misrepresentation should be dismissed as untimely. Dkt. No. 31-1 at
24–25. The Court agrees.
The 	timeliness 	of 	Hawai‘i 	state-law 	negligence 	and 	negligent
misrepresentation claims is governed by HRS § 657-7, which provides that
“[a]ctions for the recovery of compensation for damage or injury to persons or
property shall be instituted within two years after the cause of action accrued.” See
also Dural v. City & Cnty. of Honolulu, 658 F. Supp. 3d 855, 877 (D. Haw. 2023)
(applying Section 657-7 to state-law negligence claim). In addition, HRS § 46-72
states that:
Before the county shall be liable for damages to any person for injuries
to person or property . . . on account of any negligence of any official
or employee of the county, the person injured, or the owner or person
entitled to the possession, occupation, or use of the property injured, or
someone on the person’s behalf, within two years after the injuries
accrued shall give the individual identified in the respective county’s
charter, or if none is specified, the chairperson of the council of the
county or the clerk of the county in which the injuries occurred, notice
in writing of the injuries and the specific damages resulting, stating
fully when, where, and how the injuries or damage occurred, the extent
of the injuries or damages, and the amount claimed.
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“Under Hawaii law, a claim does not ‘accrue and the statute of limitations in § 657-
7 does not begin to run, until the plaintiff knew or should have known of the
defendant’s negligence,” meaning that it accrues “the moment plaintiff discovers or
should have discovered the negligent act, the damage, and the causal connection
between the former and the latter.” Mansha Consulting LLC v. Alakai, 236 F. Supp.
3d 1267, 1272 (D. Haw. 2017) (internal quotation marks omitted).
Here, Aguilera alleges that he was damaged when he was forced to remove
improvements from the lower-level unit of the Property in response to the County’s
demands. 	Dkt. No. 30 ¶¶ 27–28. 	Aguilera does not allege the exact date of the
removal, but states that it was done between the County’s inspection on December
11, 2023 and the subsequent Notice of Apparent Violation issued on April 30, 2024.
Id. ¶¶ 27–30. 	Aguilera did not serve notice of his negligence and negligent
misrepresentation claims, however, until June 5, 2026, more than two years later.
Dkt. No. 30-12.
In his opposition brief, Aguilera argues that his claims are nevertheless timely
because of “later-accruing negligence and negligent misrepresentations” by the
County, including the November 2024 Notice of Apparent Violation and the January
28, 2026 email that stated Aguilera was “not afforded a variance.” Dkt. No. 34 at
19–20. Aguilera’s argument rests upon a misunderstanding: the relevant date under
Section 46-72 is when his injury occurred as a result of the County’s negligent acts,
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not when the County committed what Aguilera considers to be additional negligent
acts. 	See Bernhardt v. Cnty. of Hawai’i, 2019 WL 4308533, at *3 (D. Haw. Sept.
11, 2019) (“Plaintiff assumes that Section 46-72 provides for a notice period that
runs from the date a claim accrues. Instead, the express text of Section 46-72
provides for a notice period that runs from the date an injury accrues.” (emphasis in
original)). Indeed, even if the Court assumed that the cited post-June 2024 events
were relevant to the limitations period, it would not change the fact that the removal
of lower unit improvements prior to April 2024 was the moment damages occurred,
at which time Aguilera’s tort causes of action were 	complete and the statute of
limitations triggered. His Notice of Tort Claim, filed more than two years later on
June 5, 2026, then rendered these tort claims as untimely. See Bernhardt, 2019 WL
4308533, at *3 (dismissing negligence claims as untimely for failure to provide
notice pursuant to Section 46-72 within two years of injury).
IV. 	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). However, 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.
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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).
Here, Aguilera has already had multiple opportunities to amend his pleadings.
In its prior orders, the Court informed Aguilera of the deficiencies in his pleadings
and how to address them, including regarding the very claims he attempts to once
again assert in the SAC. See Dkt. Nos. 19 (addressing ripeness of Aguilera’s takings
and due process claims) & 27 (addressing plausibility and Monell). Despite multiple
attempts, issues still remain, requiring the Court to dismiss yet again. Because the
SAC represents Aguilera’s third attempt, the Court declines to grant leave again.5
See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“[T]he
district court’s discretion to deny leave to amend is particularly broad where plaintiff
has previously amended the complaint.”); see also Logan, 2018 WL 1535487, at *3
(dismissing without leave to amend because the court “previously advised [plaintiff]
of the deficiencies with his claims . . . and, rather than addressing those deficiencies,
[plaintiff] chose to simply repeat the same allegations”). 	The SAC is therefore
dismissed without leave to amend.
5 While the Court has not previously addressed the statute of limitations in relation to the new tort
claims Aguilera asserts in the SAC, allowing amendment would be futile for the reasons explained
above.
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CONCLUSION
For the reasons set forth herein, Defendant’s Motion to Dismiss the SAC, Dkt.
No. 31, is GRANTED, and the SAC is DISMISSED WITH PREJUDICE and
WITHOUT LEAVE TO AMEND.
The Clerk is instructed to enter Judgment pursuant to this Order in favor of
the County and to then close this case.
IT IS SO ORDERED.
DATED: September 10, 2026 at Honolulu, Hawai‘i.
___________________________
Derrick K. Watson
Chief United States District Judge
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