NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JUL 03 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

EILEEN SHAVELSON, No. 15-16525

Plaintiff-Appellant, DC No. CV 15-55 LEK

v.

MEMORANDUM*

HAWAII CIVIL RIGHTS

COMMISSION, (HCRC) the investigators, supervisors, director and co- director, in their individual professional capacity at HCRC; CONSTANCE DeMARTINO; WILLIAM D. HOSHIJO;

MARCUS KAWATACHI,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted June 11, 2018 Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff-Appellant Eileen Shavelson (“Shavelson”) appeals the district

court’s dismissal of her civil rights complaint against Defendants-Appellees the

Hawaii Civil Rights Commission (“HCRC”) and individual HCRC employees

Constance DeMartino, William Hoshijo, and Marcus Kawatachi.1 We affirm in

part, reverse in part, and remand.

1. Shavelson first contends that the district court erred in dismissing her

Sixth Amendment claim. However, the protections of the Sixth Amendment apply

only to criminal prosecutions. United States v. Hall, 419 F.3d 980, 985–86 (9th

Cir. 2005). The district court thus properly dismissed Shavelson’s Sixth

Amendment claim.

2. Shavelson next contends that she stated a Fourteenth Amendment

procedural due process claim against the HCRC employees. To have a property

interest protected by the Fourteenth Amendment, Shavelson must have a

“legitimate claim of entitlement” to a government benefit, which entitlement is

created “by existing rules or understandings that stem from an independent source

such as state law. . . .” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972). “[A] benefit is not a protected entitlement if government officials may

1 After briefing was complete, the court appointed pro bono counsel for Shavelson, and the parties submitted supplemental opening, answering, and reply briefs. 2 grant or deny it in their discretion.” Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th

Cir. 2013) (quoting Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)).

“A reasonable expectation of entitlement is determined largely by the language of

the statute and the extent to which the entitlement is couched in mandatory terms.”

Wedges/Ledges of Cal., Inc. v. City of Phx., 24 F.3d 56, 62 (9th Cir. 1994) (internal

quotation marks and citations omitted).

Shavelson contends that she has a property interest in “an HCRC

investigation that comports with due process.” However, the government benefit

Shavelson desires is the HCRC’s reasonable cause determination and resulting

assistance. A reasonable cause determination is one potential outcome of a HCRC

investigation, but whether to grant such a determination is discretionary, Haw.

Rev. Stat. § 368-13, and a plaintiff may sue (as Shavelson did) without receiving a

reasonable cause determination. Haw. Rev. Stat. § 515-9. Because “[n]o

constitutionally protected property interest can exist in the outcome of a decision

‘unmistakably committed . . . to the discretion of the [public entity],” Ulrich v. City

& Cty. of S.F., 308 F.3d 968, 976 (9th Cir. 2002) (all but first alteration in original)

(citing Parks v. Watson, 716 F.2d 646, 657 (9th Cir. 1983)), Shavelson cannot state

a procedural due process claim. Therefore, the court did not err in dismissing with

prejudice Shavelson’s due process claim.

3 3. Finally, Shavelson contends that the district court erred in dismissing

with prejudice her Fourteenth Amendment claim. The district court did not

address whether Shavelson had stated an equal protection claim; with respect to the

Fourteenth Amendment, the court addressed only whether Shavelson stated a

procedural due process claim, as discussed in Part 2, above. To state a Fourteenth

Amendment equal protection claim, a plaintiff must allege “that the defendants

acted with an intent or purpose to discriminate against the plaintiff based upon

membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th

Cir. 1998); see Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir. 2011) (“[A]llegations

in a complaint or counterclaim . . . must contain sufficient allegations of underlying

facts to give fair notice and to enable the opposing party to defend itself

effectively.”). Shavelson’s complaint is deficient in several respects. For example,

she does not allege that she was a member of a protected class, nor does she clearly

allege how each HCRC employee acted with discriminatory animus.

However, the district court should have granted Shavelson leave to amend to

state an equal protection claim. When a plaintiff is pro se, the district court is

“required to explain the deficiencies” in a complaint, and only dismiss with

prejudice if it is “absolutely clear that [Shavelson] could not cure the deficiencies

by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). A court

4 may consider “[f]acts raised for the first time in a plaintiff’s opposition papers”

when deciding whether leave to amend is warranted. Broam v. Bogan, 320 F.3d

1023, 1026 n.2 (9th Cir. 2003); see Byrd v. Phx. Police Dep’t, 885 F.3d 639, 643

(9th Cir. 2018) (“This rule relieves pro se litigants from the strict application of

procedural rules and demands that courts not hold missing or inaccurate legal

terminology or muddled draftsmanship against them.” (quoting Blaisdell v.

Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013))). Shavelson’s complaint,

opposition, and motion for reconsideration all put the district court on notice that

Shavelson was trying to allege that the HCRC’s investigation was plagued by

racial favoritism. Therefore, the district court should have granted Shavelson leave

to amend to attempt to assert an equal protection claim.2

• ! •

The judgment of the district court is AFFIRMED in part, REVERSED in

part, and REMANDED with instructions for the district court to grant Shavelson

leave to amend her complaint to state a Fourteenth Amendment equal protection

2 We do not separately discuss the claims argued in Shavelson’s pro se briefs because they are either barred as due process claims, as discussed in Part 2, or are subsumed as part of her equal protection claims, as to which she has been granted leave to amend on remand. 5 claim against the HCRC employees. Each party shall bear her, his, or its own costs

on appeal.

6