THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Primo v. Pohnpei Transp. Auth.,
9 FSM Intrm. 407 (App. 2000)

[9 FSM Intrm 407]

MAKULADA PRIMO, acting as Administrator
of the Estate of BRIGIT PRIMO,
Appellant,

vs.

POHNPEI TRANSPORTATION AUTHORITY
and POHNPEI STATE GOVERNMENT,
Appellees.

APPEAL CASE NO. P3-1999

OPINION

Argued:  April 11, 2000
Decided:  May 30, 2000

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court*

*Acting Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:
For the Appellant:      Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Appellees:     James P. Woodruff, Esq.
                                     Pohnpei Department of Justice
                                     P.O. Box 1555
                                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure ) Pleadings
     A plaintiff may amend a complaint once without leave of court anytime before a responsive pleading is filed and a Rule 12 motion to dismiss is not a responsive pleading.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 410 (App. 2000).

Appeal and Certiorari ) Standard of Review
     Motions that the trial court decided as a matter of law are issues of law, which an appellate court reviews de novo.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 410-11 (App. 2000).

[9 FSM Intrm. 408]

Appeal and Certiorari ) Standard of Review
     Whether a trial court erred in dismissing a complaint for failure to state a claim is an issue of law, which an appellate court reviews de novo.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 2000).

Appeal and Certiorari ) Standard of Review
     Whether a trial court erred in denying leave to amend a complaint, is usually reviewed on an abuse of discretion standard, but when the denial is based on a legal conclusion, the review is de novo.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 2000).

Civil Rights
     It is a crime, under 11 F.S.M.C. 701(1), to willfully, whether or not acting under color of law, deprive another of, or injure, oppress, threaten, or to intimidate another in his free exercise or enjoyment of any right, privilege, or immunity secured to him by the FSM's Constitution or laws.  A person who deprives another of any right or privilege protected under 11 F.S.M.C. 701 is civilly liable to the party injured.  The element of willfulness is not required for the civil liability.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 2000).

Constitutional Law ) Due Process
     Cases involving either prisoners or someone confronted with or being arrested by a police officer ) someone in custody or being taken into custody ) or cases involving intentional acts, are inapplicable to claims that other state actions that are either negligence, gross negligence or reckless disregard constitute a civil rights or due process violation.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411-12 (App. 2000).

Criminal Law and Procedure ) Prisons and Prisoners
     A prisoner, incarcerated as the result of his conviction for a national crime, is in the national government's custody although incarcerated in a state jail.  The state is merely acting as the national government's agent in keeping the prisoner in custody.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 (App. 2000).

Constitutional Law ) Declaration of Rights; Constitutional Law ) Interpretation
     When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understand its meaning.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000).

Constitutional Law ) Due Process
     Historically, the guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.  Mere negligence did not raise a constitutional violation.  The Due Process Clause does not purport to supplant traditional tort law and does not transform every tort by a state actor into a constitutional violation.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 (App. 2000).

Constitutional Law ) Due Process
     Neither the state defendants' alleged deliberate indifference to the dredging site's neighbors' safety nor their failure to warn those neighbors of any known risks can properly be characterized as a constitutional violation that would take the case out of the realm of ordinary tort law.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 (App. 2000).

Constitutional Law ) Due Process; Jurisdiction ) National Law
     When an amended complaint's deliberate indifference or negligence allegations do not rise to the

[9 FSM Intrm. 409]

level of a constitutional due process claim, it does not state a claim upon which the FSM Supreme Court can grant relief and the trial court's dismissal of the amended complaint will therefore be affirmed.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 (App. 2000).

Civil Procedure ) Pleadings
     Generally, leave to amend a complaint ought to be freely given.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000).

Civil Procedure ) Pleadings
     In the absence of any apparent or declared reason, such as undue delay, bad faith or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the amendment's allowance, or futility of amendment, leave to amend should, as the rules require, be "freely given."  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000).

Civil Procedure
     When an FSM Civil Procedure Rule is nearly identical to a U.S. Federal Rule of Civil Procedure the FSM Supreme Court may look to the U.S. federal courts for guidance in interpreting the rule.Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000).

Civil Procedure ) Pleadings
     It is an abuse of discretion for a trial court to deny leave to amend pleadings without stating its reasons on the record because outright refusal to grant leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion.Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000).

Civil Procedure ) Pleadings
     It is not an abuse of discretion to deny a motion to amend when the amendment would not cure a complaint's defects, and when the reasons are readily apparent that the amendment will obviously not cure a defective complaint, a trial court does not abuse its discretion by denying the amendment without declared reasons.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000).

Civil Procedure ) Pleadings
     Although when the reasons are readily apparent it is not a per se abuse of discretion to omit them, the better practice is for the trial court to state on the record its reasons for denying a motion to amend.  Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000).

Civil Procedure ) Pleadings
     Although a court should exercise its discretion liberally to allow amended pleadings, when a proposed amendment to a complaint would be futile because it still would not state a claim upon which the FSM Supreme Court could grant relief, the court may deny the motion to amend.Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This appeal arises from the trial court's order of March 12, 1999, dismissing the plaintiff's amended complaint for failure to state a claim and denying the plaintiff's motion to file a second

[9 FSM Intrm. 410]

amended complaint.  These constitute the issues.  We hold that the trial court properly dismissed the first amended complaint for failure to state a claim upon which the FSM Supreme Court could grant relief because the allegations did not state a constitutional claim and that, although no reasons were stated, it was not reversible error under the circumstances for the trial court to deny leave to file a second amended complaint.  We affirm the trial court and dismiss the appeal. Our reasons follow.

I.  Background
     On October 28, 1998, Makulada Primo, on behalf of her deceased child, Brigit Primo, filed a complaint in the FSM Supreme Court, asserting jurisdiction under the FSM wrongful death statute, 6 F.S.M.C. 501-503, that alleged that the Pohnpei Transportation Authority and Pohnpei state government had wrongfully caused Brigit's drowning death because they negligently constructed berms and dikes and failed to take reasonable care to warn of the unreasonably dangerous conditions thus created.  The defendants moved to dismiss for lack of jurisdiction on the ground that the wrongful death statutes are state, not national law.  Primo then amended her complaint to assert jurisdiction under the FSM Constitution's Due Process Clause and the FSM Civil Rights Statute, 11 F.S.M.C. 701-702. Primo alleged that the defendants had acted in reckless disregard and/or deliberate indifference to children's safety and thus were grossly negligent and thereby violated Brigit's civil and due process rights.  The trial court, by order dated January 4, 1999, acknowledged that this amendment was made by right, because a plaintiff may amend a complaint once without leave of court anytime before a responsive pleading is filed, FSM Civ. R. 15(a), and a Rule 12 motion to dismiss is not a responsive pleading, see FSM Civ. R. 7(a).

     On January 22, 1999, the defendants again moved to dismiss for lack of jurisdiction on the ground that a state actor's negligent or reckless acts do not raise a tort to a constitutional violation.  Primo opposed and moved to amend the amended complaint, attaching a proposed second amended complaint that asserted the same grounds for jurisdiction, but offered a more detailed description of the facts that allegedly gave rise to her cause of action.1  The defendants replied to the opposition and opposed leave to file a second amended complaint.  Primo filed an opposition to the defendants' motion to dismiss the second amended complaint.

     On March 12, 1999, the trial court denied Primo's motion to file a second amended complaint and granted the defendants' motion to dismiss the amended complaint.  The trial court held that an intentional infliction of injury or some other governmental action that arbitrarily violates Constitutional rights must be alleged in order to transform a tort claim into a civil rights violation and that Primo had not alleged such facts, but at the most had alleged gross negligence which it held was not actionable as a civil rights claim.  Order at 3, Civ. No. 1998-074 (Mar. 12, 1999). Primo then appealed.

II.  Appellant's Issues on Appeal
     Primo raises two issues on appeal.  The first is whether the trial court erred in dismissing the complaint for failure to state a claim, and the second is whether the trial court erred in denying Primo's motion to file a second amended complaint.

III.  Standard of Review
     Motions that the trial court decided as a matter of law are issues of law, which an appellate court

[9 FSM Intrm. 411]

reviews de novo.  Weno v. Stinnett, 9 FSM Intrm. 200, 206 (App. 1999); FSM v. Falcam, 9 FSM Intrm. 1, 4 (App. 1999); Damarlane v. United States, 8 FSM Intrm. 45, 52 (App. 1997); Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).  We therefore review de novo the first issue, failure to state a claim.  The second issue, the denial of leave to amend a complaint, is usually reviewed on an abuse of discretion standard, but when the denial is based on a legal conclusion, the review is de novo.  LRL Properties v. Portage Metro Housing Auth., 55 F.3d 1097, 1104 (6th Cir. 1995).

IV.  Analysis
     When it issued its March 12, 1999 order, the trial court had before it both the Defendants' Motion to Dismiss Amended Complaint and Primo's Alternative Motion to Amend Existing Complaint with her Second Proposed Amended Complaint.  The trial court's analysis of whether the plaintiff had stated a claim mentioned only the second amended complaint.  It started with, "[t]he issue before the Court is whether plaintiff's Second Amended Complaint alleges facts sufficient to state a cause of action," Order at 2, Civ. No. 1998-074 (Mar. 12, 1999), and ended with, "Plaintiff's Second Amended Complaint does not state facts sufficient [to] establish jurisdiction based on the FSM Civil Rights Statute," id. at 3.  Primo contends that because the subject of the motion to dismiss was the first amended complaint, the trial court's analysis should have determined only whether the first amended complaint failed to state a claim, and that after disposing of that motion, it should then have considered the motion for leave to file the second amended complaint, giving reasons under Civil Procedure Rule 15(a) if it denied the motion.  We agree.

A.  Whether the First Amended Complaint Stated a Claim
     Primo contends that the state is liable for Brigit Primo's death because the state dredged berms and created deep pits in the water on the reef directly in front of her home and thus created a foreseeable risk that Brigit would drown in one of those pits.  Primo contends that this states a claim actionable under the FSM Civil Rights Act, 11 F.S.M.C. 701-702 and under the FSM Constitution's Due Process Clause, FSM Const. art. IV, 3.

     The state contends that neither of the amended complaints stated a claim upon which the FSM Supreme Court could grant relief because this is a simple tort case, not actionable under the FSM civil rights statute, and that therefore, since diversity of citizenship between the parties is lacking (Makulada and Brigit Primo and the state defendants are all Pohnpei citizens), the FSM Supreme Court has no jurisdiction to hear this case.

     The statute, 11 F.S.M.C. 701(1), makes it a crime to "willfully, whether or not acting under color of law," deprive another of, or injure, oppress, threaten, or intimidate another in his free exercise or enjoyment of "any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia."  Subsection 701(3) makes "[a] person who deprives another of any right or privilege protected under this section . . . civilly liable to the party injured . . . ." 11 F.S.M.C. 701(3).  The element of willfulness does not appear in the civil liability section.

     Primo claims that the state defendants deprived Brigit Primo of her life without due process of law.  The FSM Constitution provides that "[a]" person may not be deprived of life, liberty, or property without due process of law."  FSM Const. art. IV, 3.  Primo cites a number of FSM and U.S. cases in support of her claim that the state's actions, either negligence, gross negligence or reckless disregard, constituted a due process violation and a violation of the civil rights statute.  The FSM cases cited, Plais v. Panuelo, 5 FSM Intrm. 179 (Pon. 1991); Alaphen v. Municipality of Moen, 2 FSM Intrm. 279 (Truk 1986); Moses v. Municipality of Polle, 2 FSM Intrm. 270 (Truk 1986); Tolenoa v. Alokoa, 2 FSM Intrm. 247 (Kos. 1986), all involve either prisoners or someone confronted with or being

[9 FSM Intrm. 412]

arrested by a police officer ) someone in custody or being taken into custody ) and involved intentional acts. At oral argument, counsel contended that Plais was not a custodial case because the national government was held liable although Plais was a prisoner held in the Pohnpei state jail.  Counsel overlooks the fact that Plais was a national prisoner, incarcerated as the result of his conviction for what was then a national crime, and that Plais was therefore in the national government's custody. The state was merely acting as the national government's agent in keeping Plais in custody.  Plais, 5 FSM Intrm. at 209-10.  Primo also cites U.S. cases that involve negligence claims instead of intentional torts, but they involve only prisoners and those in a custodial setting.  As such they are not applicable to this case.

     The United States Supreme Court2 has concluded that "[h]istorically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property."  Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662, 668 (1986) (emphasis in original).  The Daniels court concluded that mere negligence did not raise a constitutional violation.  Id. at 333, 106 S. Ct. at 666, 88 L. Ed. 2d at 669 ("injuries inflicted by governmental negligence are not addressed by the . . . Constitution").  It held that the U.S. Constitution's Due Process Clause "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society."  Id. at 332, 106 S. Ct. at 665, 88 L. Ed. 2d at 669. "[T]he Due Process Clause . . . does not transform every tort by a state actor into a constitutional violation."  DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 202, 109 S. Ct. 998, 1006, 103 L. Ed. 2d 249, 263 (1989).

     The United States Supreme Court later ruled that a city's "deliberate indifference" to a safe working environment for its employees did not support a constitutional due process claim.  Collins v. City of Harker Heights, 503 U.S. 115, 125-26, 112 S. Ct. 1061, 1069, 117 L. Ed. 2d 261, 273-74 (1992).  The Collins court noted that the case was "quite different from the constitutional claim" in cases where the state owed "a duty to take care of those who have already been deprived of their liberty," id. at 127, 112 S. Ct. at 1069, 117 L. Ed. 2d at 274, where due process claims for failure to satisfy certain custodial minimum standards had been allowed, id. at 127-28, 112 S. Ct. at 1070, 117 L. Ed. 2d at 274-75.  The Collins court was "not persuaded that the city's alleged failure to train its employees or to warn them about known risks of harm, was an omission that c[ould] properly be characterized as arbitrary, or conscience shocking, in a constitutional sense."  Id. at 128, 112 S. Ct. at 1070, 117 L. Ed. 2d at 275.

     We are persuaded that these U.S. Supreme Court cases construing the scope of the U.S. Constitution's Due Process Clause accurately reflect the meaning of the FSM Constitution's Due Process Clause.  Like the Collins court, we do not conclude that either of the state defendants' alleged deliberate indifference to the dredging site's neighbors' safety or their failure to warn those neighbors of any known risks can properly be characterized as a constitutional violation that would take this case out of the realm of ordinary tort law.  Since the amended complaint's allegations do not rise to the level of a constitutional due process claim it does not state a claim upon which the FSM Supreme Court can grant relief.  The trial court's dismissal of the first amended complaint is therefore affirmed.

[9 FSM Intrm. 413]

B.  Denial of Motion to File Second Amended Complaint
     Primo contends that the trial court erred when it denied her motion to file a second amended complaint because leave to amend should be liberally granted when justice so requires and that the trial court abused its discretion by not giving any reasons for its denial.  Primo contends that because the trial court failed to distinguish the two amended complaints and failed to address Civil Rule 15(a)'s application to the Second Amended Complaint, the trial court abused its discretion, and therefore the case should be remanded for the trial court to consider whether the second amended complaint should supersede the amended complaint.

     Generally, leave to amend a complaint ought to be freely given.  Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999).

In the absence of any apparent or declared reason)such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.)the leave sought should, as the rules require, be "freely given."

Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222, 226 (1962) (construing U.S. Fed. R. Civ. P. 15(a)3.  And it is an abuse of discretion for a trial court to deny leave to amend pleadings without stating its reasons on the record because "outright refusal to grant leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion."  Id.

     It, however, is not an abuse of discretion to deny a motion to amend when the amendment would not cure a complaint's defects.  Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995); Fuller v. Secretary of Defense, 30 F.3d 86, 89 (8th Cir. 1994).  And when the reasons are readily apparent that the amendment will obviously not cure a defective complaint, a trial court does not abuse its discretion by denying the amendment without declared reasons.  Hurn v. Retirement Trust Fund of Plumbing, Heating & Piping Indus., 648 F.2d 1252, 1254 (9th Cir. 1981) ("denial without stated reasons, where the reasons are not readily apparent, constitutes an abuse of discretion"); Long v. United States, 972 F.2d 1174, 1183 (10th Cir. 1992) (court's failure to give reasons on the record for denial of motion to amend complaint is harmless when apparent that amendment unable to cure defect in pleadings).  But, although when the reasons are readily apparent, it is not a per se abuse of discretion to omit them, the better practice is for the trial court to state on the record its reasons for denying a motion to amend.  Troxel v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir. 1973) (citing Foman).

     The Second Proposed Amended Complaint does not cure the amended complaint's defects.  The only changes proposed were to delete the word negligent and to add detail to the allegations already made.  For the same reasons that the amended complaint did not state a claim the proposed allegations do not raise a constitutional violation, but, at most, only allege a state law tort.  The amendment would thus be futile because it still would not state a claim upon which the FSM Supreme Court could grant relief.  "Although a court should exercise its discretion liberally to allow amended pleadings, a motion to amend a complaint may be denied if it is futile."  Tom, 9 FSM Intrm. at 87.

[9 FSM Intrm. 414]

     Therefore, because it was readily apparent on the record that the amendment that Primo sought was futile, the trial court did not abuse its discretion in denying leave to file the Second Amended Complaint.

V.  Conclusion
     Accordingly, the trial court's denial of the motion to amend and its dismissal for failure to state a claim are affirmed.  The proper place for Primo to have brought her claims was the Pohnpei Supreme Court.
 
 
Footnotes:
 
1.  Strangely, none of the three complaints include an exact or approximate date for Brigit Primo's tragic death.

2.  When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understand its meaning. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 n.8 (App. 1996) (citing Alaphonso v. FSM, 1 FSM Intrm. 209, 214-15 (App. 1982)).

3.  When an FSM Civil Procedure Rule is nearly identical to a U.S. Federal Rule of Civil Procedure the FSM Supreme Court may look to the U.S. federal courts for guidance in interpreting the rule. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).
 
                                                                                                                                                                                                                                                                                                           
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