Dowkin et al v. Honolulu Police Department et al
Filing
382
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL OF THIRD AMENDED COMPLAINT re 237 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/23/12. -- "The court grants Defendants motion to dismiss the Fourth Cause of Action (neg ligent training, negligent retention, and failure to report and investigate) to the extent it is asserted against the individual Defendants (but not to the extent it is asserted against the City); the Seventh Cause of Action (§ 1985) in its enti rety; and the Eighth Cause of Action (civil conspiracy) in its entirety." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SERGEANT SHERMON DEAN DOWKIN,
OFFICER FEDERICO DELGADILLO
MARTINEZ, JR., AND OFFICER
CASSANDRA BENNETT-BAGORIO,
)
)
)
)
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Plaintiffs,
)
)
V.
)
)
THE HONOLULU POLICE
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DEPARTMENT, THE CITY AND
)
COUNTY OF HONOLULU, FORMER
)
CHIEF OF POLICE BOISSE CORREA, )
CURRENT CHIEF OF POLICE LOUIS )
)
KEALOHA, ASSISTANT CHIEF
MICHAEL TAMASHIRO, MAJOR
)
KENNETH SIMMONS, MAJOR JOHN
)
MCENTIRE, CAPTAIN NYLE DOLERA, )
LIEUTENANT MICHAEL SERRAO,
)
LIEUTENANT DAN KWON,
)
LIEUTENANT WILLIAM AXT,
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SERGEANT WAYNE FERNANDEZ,
)
SERGEANT RALSTON TANAKA,
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OFFICER KASHIMOTORO, PAT AH
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LOO AND Does 1-100,
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Defendants.
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CIVIL NO. 10-00087 SOM/RLP
ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL DISMISSAL
OF THIRD AMENDED COMPLAINT
ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL DISMISSAL OF THIRD AMENDED COMPLAINT
I.
INTRODUCTION.
On January 17, 2011, Plaintiffs Sergeant Shermon Dean
Dowkin, Officer Federico Delgadillo Martinez, Jr., and Officer
Cassandra Bennett-Bagorio of the Honolulu Police Department
(“HPD”) filed their Third Amended Complaint.
Third Amended
Compl. for Compensatory, Statutory, and Punitive Damages (“TAC”),
ECF No. 221.
Plaintiffs allege, among other things, race and sex
discrimination.
Defendants seek dismissal of portions of the TAC
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
II.
The court partially grants the motion.
FACTUAL AND PROCEDURAL BACKGROUND.
The parties are familiar with the background of this
case, and this court has set forth the underlying allegations in
previous orders.
See Order Partially Granting and
Partially Denying Defendants’ Motion for Partial Dismissal
Of First Amended Complaint (“FAC Order”), Nov. 30, 2010, ECF No.
43; Order Partially Granting and Partially Denying Defendants’
Motion for Dismissal of Second Amended Complaint (“SAC Order”),
Sept. 2, 2011, ECF No. 167.
The court includes here only the
background facts relevant to this motion.
Sergeant Shermon Dean Dowkin (“Dowkin”), Officer
Federico Delgadillo Martinez, Jr. (“Delgadillo”), and Officer
Cassandra Bennett-Bagorio (“Bennett-Bagorio”) were and are still
employed by HPD.
TAC ¶¶ 5-8.
Dowkin and Delgadillo are males
who serve in HPD’s Regional Patrol Bureau District 4, First
Watch.
Id.
In the First Watch of District 4, Dowkin is alleged
to be the only African-American supervisor and Delgadillo is
alleged to be the only Mexican-American officer.
Bennett-Bagorio is a Caucasian female.
Id. ¶ 5.
Id. ¶ 8.
From November 2003 to August 2008, Dowkin
supervised a Traffic Enforcement Team, also known as the Driving
2
Under the Influence Team (“DUI Team”).
a member of the DUI Team.
Id.
Id. ¶ 58.
Delgadillo was
The DUI Team was responsible for
enforcing traffic laws on the Windward Side of Oahu during the
First Watch hours of 10:00 p.m. to 7:00 a.m.
Id.
Plaintiffs
allege that the DUI Team makes more stops than other patrol
officers on a nightly basis.
Id. ¶ 59.
Plaintiffs allege that, between 2003 and 2008, Dowkin
and Delgadillo’s supervisors and fellow officers conspired not to
provide Dowkin and Delgadillo with protective “cover” or “backup”
when Dowkin and Delgadillo made DUI and other traffic stops and
arrests.
See id. ¶¶ 38, 43, 51, 54, 64.
Plaintiffs say that
Dowkin and Delgadillo’s supervisors also ordered others to refuse
to provide Dowkin and Delgadillo with backup.
See id.
HPD’s “standard operating procedure” allegedly
requires the dispatch of the nearest officer to provide backup to
any officer making a stop alone at night.
Id. ¶ 62.
Plaintiffs
allege that this requirement was “deliberately and/or recklessly
disregarded by the direct orders and conspiratorial misconduct of
Defendants.”
Id. ¶ 64.
Plaintiffs say that Defendants were
acting discriminatorily against Dowkin and Delgadillo because of
their race.
Id. ¶ 65.
Plaintiffs further allege that, after Dowkin made
several written and verbal complaints to his superior officer
about other officers’ failure to provide backup, id. ¶ 41,
3
Defendants retaliated against him and Delgadillo.
Id. ¶ 45.
Defendants allegedly permitted other officers to continue to fail
to provide backup, failed to investigate Dowkin’s discrimination
complaint, provided “tacit approval” of the discriminatory
failure to provide backup, and caused Dowkin and Delgadillo to
lose their seniority status.
Id. ¶¶ 45, 77.
On October 14, 2008, Bennett-Bagorio allegedly
provided HPD Human Resources with testimony supporting Dowkin and
Delgadillo’s race discrimination claims.
Id. ¶ 78.
Plaintiffs
say that, as a result of her testimony and because of her gender,
Defendants also retaliated against Bennett-Bagorio. Id. ¶ 80.
Defendants allegedly failed to provide her with backup, denied
her critical training, and humiliated and isolated her.
Id.
¶ 81.
Plaintiffs’ First Amended Complaint, filed on March
30, 2010, asserted fifteen causes of action.
This court dismissed many of those claims.
See ECF No. 5.
See FAC Order.
On June 24, 2011, Plaintiffs filed their Second
Amended Complaint, asserting nine causes of action.
No. 94.
See ECF
On September 2, 2011, this court dismissed some of
those claims.
See SAC Order at 34.
On reconsideration, this
court, revisiting the issue of Plaintiff’s civil conspiracy
claim, amended that order.
Amended Order Granting Alternative
Relief Sought in Motion to Reconsider Dismissal of Count Viii
4
(Civil Conspiracy), Oct. 27, 2011, ECF No. 186.
In its amended
order, the court did not reinstate the civil conspiracy claim,
but it gave Plaintiffs leave to amend their civil conspiracy
claim in a third amended complaint.
Id.
On January 13, 2012, Magistrate Judge Richard L.
Puglisi granted Plaintiffs leave to file the TAC.
Order Granting
Plaintiffs’ Motion for Leave to File a Third Amended Complaint,
Jan. 13, 2012, ECF No. 220.
Pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, Defendants now seek dismissal
of some of the claims asserted against the individual Defendants
in the TAC.1
II.
LEGAL STANDARD.
Rule 12(b)(6) of the Federal Rules of Civil Procedure
provides that a party “may assert the following defense[] by
motion: . . . (6) failure to state a claim upon which relief can
be granted[.]”
Dismissal under Rule 12(b)(6) may be based on either
(1) the lack of a cognizable legal theory, or (2) insufficient
facts to support a cognizable legal theory.
Balistreri v.
Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34
1
While Defendants’ motion was pending, Plaintiffs sought
leave to file a Fourth Amended Complaint. That motion was denied
by Magistrate Judge Richard Puglisi on July 5, 2012. See ECF No.
338.
5
(9th Cir. 1984)).
To state a claim, a pleading must contain a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
While Rule 8
does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On a Rule 12(b)(6) motion, the court takes all
allegations of material fact as true and construes them in the
light most favorable to the nonmoving party.
574 F.3d 1182, 1184 (9th Cir. 2009).
Marcus v. Holder,
To survive a motion to
dismiss, a complaint must contain sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Bell
“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.”
at 678.
Iqbal, 556 U.S.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 554).
Whether a complaint
states a plausible claim for relief is “context-specific,” and
such a determination “requires the reviewing court to draw on its
judicial experience and common sense.”
U.S. at 555).
6
Id. (citing Twombly, 550
III.
ANALYSIS.
The TAC asserts eight causes of action: (1) violations
of Title VII, 42 U.S.C. § 2000e-2, et seq.; (2) violations of
Title VI, 42 U.S.C. § 2000d, et seq.; (3) violations of Hawaii
Revised Statute § 378-2(3); (4) negligent training, retention,
and/or failure to report and investigate; (5) intentional
infliction of emotional distress; (6) negligent infliction of
emotional distress; (7) conspiracy to interfere with civil
rights, 42 U.S.C. § 1985; and (8) civil conspiracy.
Defendants
seek to dismiss the fourth, seventh, and eighth causes of action
as asserted against the individual Defendants.
A.
Fourth Cause of Action.
In the Fourth Cause of Action, Plaintiffs assert a
negligent training, negligent retention, and failure to report
and investigate claim.
The negligent training claim is asserted
by all Plaintiffs against Tanaka, Kwon, Fernandez, and the City.
The negligent retention and the failure to report and investigate
claims are asserted by all Plaintiffs against Kashimoto, Tanaka,
Kwon, Fernandez, and the City.
Defendants seek dismissal of the
Fourth Cause of Action to the extent it is asserted against any
individual Defendant.2
As Plaintiffs cite no federal law or
2
Defendants do not contest that the Fourth Cause of Action
may be asserted against the City.
7
constitutional provision, the Fourth Cause of Action appears to
be brought under Hawaii law.
With respect to negligent training and negligent
retention, Defendants argue that individuals who are not a
plaintiff’s employer may not be sued for negligent training or
negligent retention under Hawaii law.
Defendants.
The court agrees with
Although Tanaka, Kwon, and Fernandez allegedly
supervised Plaintiffs, they did not and do not employ Plaintiffs.
Plaintiffs are employed by the Honolulu Police Department of the
City and County of Honolulu.
Hawaii law has yet to establish the elements of a
negligent training and a negligent retention claim.
Other
jurisdictions, however, have held that an employer can be liable
for negligently training or retaining its employees.
See, e.g.,
Gutman v. Quest Diagnostics Clinical Laboratories, Inc.,
707 F. Supp. 2d 1327, 1331 (S.D. Fla. 2010) (negligent training);
In re Evans, 467 B.R. 399, 408 (Bankr. S.D. Miss. 2011)
(negligent retention); Delgado v. Trax Bar & Grill, 36 Cal. 4th
224, 240 n.21, 113 P.3d 1159, 1169 n.21 (Cal. 2005) (negligent
training); Magill v. Bartlett Towing, Inc., 35 So. 3d 1017, 1020
(Fla. Dist. Ct. App. 2010) (negligent retention); Zsigo v. Hurley
Med. Center, 475 Mich. 215, 227, 716 N.W.2d 220, 226 (Mich. 2006)
(negligent training).
See also 30 C.J.S. Employer-Employee § 205
(Westlaw through 2012) (“An employer is liable for injuries
8
resulting from negligent training.” (emphasis added)); id. § 200
(“An employer may be held liable in tort for negligent . . .
employment.” (emphasis added)).
Plaintiffs cite no authority stating that an
individual who is not a plaintiff’s employer can be held liable
for negligent training or negligent retention under Hawaii law.
The cases cited by Plaintiffs address federal constitutional
violations, not state law negligent training or negligent
retention claims.
See, e.g., Scheuer v. Rhodes, 416 U.S. 232
(1974) (holding that individuals may be liable for violations of
the United States Constitution); Slakan v. Porter, 737 F.2d 368
(4th Cir. 1984) (addressing prison guards’ alleged violations of
the Eighth Amendment of the United States Constitution); Loewe v.
Honolulu, Civ. No. 10-00368 DAE-KSC, 2010 WL 4642024 (D. Haw.
Nov. 3, 2010) (addressing alleged federal constitutional
violations by the City and County of Honolulu and the Honolulu
Police Department).
Plaintiffs do not allege any federal
constitutional violation in the Fourth Cause of Action, and the
TAC does not assert a claim under 42 U.S.C. § 1983, which permits
individuals to sue state officials acting under color of law for
violations of federal law or the United States Constitution.
Reading the Fourth Cause of Action as based on state law, the
court dismisses Plaintiffs’ negligent training and negligent
retention claims as to all Defendants except the City.
9
With respect to Plaintiffs’ “failure to report and
investigate” claim, Defendants argue that Hawaii law does not
recognize a duty on the part of individuals to report alleged
violations of a company’s internal discrimination policy.
The
court agrees.
To have a viable negligence claim, a defendant must
have owed a duty to the plaintiff.
See Pulawa v. GTE Hawaiian
Tel, 112 Haw. 3, 11, 143 P.3d 1205, 1213 (2006); Janssen v. Am.
Haw. Cruises, Inc., 69 Haw. 31, 34, 731 P.2d 163, 34 (1987).
“The general rule is that a person does not have a duty to act
affirmatively to protect another person from harm.
‘The fact
that the actor realized or should realize that action on his [or
her] part is necessary for another’s aid or protection does not
of itself impose upon him [or her] a duty to take such action.’”
Lee v. Corregedore, 83 Haw. 154, 159, 925 P.2d 324, 329 (Haw.
1996) (quoting Restatement (Second) of Torts § 314 (1965))
(alterations in original).
Plaintiffs do not establish that Kashimoto, Tanaka,
Kwon, or Fernandez had a legal duty to take affirmative action to
report or investigate Plaintiffs’ discrimination complaints.
Plaintiffs contend that the HPD Code of Conduct itself creates a
legal duty, because it allegedly requires officers to report
violations of law.
However, Plaintiffs provide no authority
establishing that a Code of Conduct, as opposed to a statute,
10
ordinance, or regulation, creates a legal duty.
Other
jurisdictions have held that a code of conduct does not create a
duty.
See Cox v. Ft. Worth, Tex. 762 F. Supp. 2d 926, 941 (N.D.
Tex. 2010) (“A company’s internal policies or procedures will not
create a negligence duty where none otherwise exists.” (quoting
Cleveland Reg’l Med. Ctr., L.P. v. Celtic Props., L.C., 323
S.W.3d 322, 351 (Tex. App. 2010)); Hall v. Toreros, II, Inc., 176
N.C. App. 309, 316, 626 S.E.2d 861, 866-867 (N.C. App. 2006)
(“Although recognizing that company policies ‘represent some
evidence of a reasonably prudent standard of care,’ this Court
has consistently held that ‘voluntary written policies and
procedures do not themselves establish a per se standard of due
care.’” (quoting Klassette v. Mecklenburg Cnty. Area Mental
Health, Mental Retardation and Substance Abuse Auth., 88 N.C.
App. 495, 501, 364 S.E.2d 179, 183 (N.C. Ct. App. 1988)).
In addition, neither Plaintiffs nor Defendants even
mention the Hawaii Supreme Court’s test for duty and the factors
it has identified as relevant to imposing a duty.
Under Hawaii
law, a defendant only owes a duty of care “to those who are
foreseeably endangered by the conduct and only with respect to
those risks or hazards whose likelihood made the conduct
unreasonably dangerous.”
Pulawa, 112 Haw. at 12, 143 P.2d at
1214 (quotation marks and citations omitted).
consider the following factors:
11
A court is to
Whether a special relationship exists, the
foreseeability of harm to the injured
party, the degree of certainty that the
injured party suffered injury, the
closeness of the connection between the
defendants’ conduct and the injury
suffered, the moral blame attached to the
defendants, the policy of preventing harm,
the extent of the burden to the defendants
and consequences to the community of
imposing a duty to exercise care with
resulting liability for breach, and the
availability, cost, and prevalence of
insurance for the risk involved.
Id. (quotations and citation omitted) (format altered).
It is Plaintiffs’ burden to establish all of the
elements of a negligence action, including the existence of a
duty.
Takayama v. Kaiser Found. Hosp., 82 Haw. 486, 498–99, 923
P.2d 903, 915–16 (1996).
Plaintiffs do not meet that burden with
respect to establishing that Kashimoto, Tanaka, Kwon, and
Fernandez had a legal duty to report or investigate the alleged
discrimination against Plaintiffs.
The Fourth Cause of Action is dismissed as to all
Defendants except the City.
B.
Seventh Cause of Action.
Defendants next challenge Plaintiffs’ Seventh Cause of
Action, which asserts that Defendants engaged in a conspiracy to
interfere with Plaintiffs’ civil rights in violation of 42 U.S.C.
§ 1985.
“[T]o state a claim for conspiracy under § 1985, a
plaintiff must first have a cognizable claim under § 1983.”
Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 930 (9th Cir.
12
2004) (citing Caldeira v. Kauai, 866 F.2d 1175, 1182 (9th Cir.
1989)).
Plaintiffs fail to demonstrate that they have a
cognizable § 1983 claim.
This court dismissed Plaintiffs’ § 1983 claim in the
Second Amended Complaint because Plaintiffs had failed to allege
facts supporting their assertions that Defendants had violated
the First Amendment and the Fourteenth Amendment of the United
States Constitution.3
SAC Order at 25-33.
The court said that
Plaintiffs’ § 1983 claim was extremely vague and confusing.
The
court also cautioned Plaintiffs regarding filing a Third Amended
Complaint:
If Plaintiffs move for leave to file a Third
Amended Complaint, Plaintiffs should avoid
the deficiencies in the Second Amended
Complaint. The Second Amended Complaint
often fails to distinguish among Defendants
as to alleged causes of action. Any further
Amended Complaint must clearly state how each
named Defendant has injured which Plaintiff.
In other words, Plaintiffs should explain, in
clear and concise allegations, what each
Defendant did and how those specific facts
create a plausible claim for relief. A
complaint that fails to explain which
allegations are relevant to which Defendant
is confusing. This, in turn, “impose[s]
unfair burdens on litigants and judges”
because it requires both to waste time
formulating their own best guesses of what
the Plaintiffs may or may not have meant to
assert, risking substantial confusion if
3
Plaintiffs also asserted a § 1983 claim in the First
Amended Complaint. This court dismissed that claim against the
City because Plaintiffs failed to allege facts supporting
municipal liability. FAC Order at 11.
13
their understanding is not equivalent to
Plaintiffs’.
Id. at 35-36 (citing McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th
Cir. 1996)).
Despite this court’s instruction, Plaintiffs again
fail in the TAC to connect any factual allegations to their
assertions that Defendants violated federal law.
There are only
two allegations that conceivably suggest a § 1983 claim in the
Seventh Cause of Action.
Plaintiffs state that Defendants
“committed the acts and/or omissions described above, with animus
. . . to deprive all Plaintiffs of their constitutional rights of
due process and equal protection of the laws of the United
States.”
TAC ¶ 185.
They also state:
The above-described acts and omissions of
the Defendants constitute a violation of
those rights by failing to prevent
disparate discriminatory mistreatment
against Plaintiffs, by permitting a hostile
work environment to exist for Plaintiffs,
by allowing illegal race and gender
discrimination against Plaintiffs to
interfere with the enforcement of workplace
rules and regulations, by failing to
prevent harassment against Plaintiffs in
the workplace and by failing to prevent
retaliation against Plaintiffs for making
protected complaints about discrimination,
all protections guaranteed to the
Plaintiffs by substantive equal protection
and due process provisions of the
Fourteenth Amendment to the Constitution of
the United States and of the Hawai’i
Constitution.
Id. ¶ 186.
14
Those allegations are conclusory and fail to identify
any specific actions that allegedly infringed on Plaintiffs’
constitutional rights.
Plaintiffs cannot merely refer to the
“above-described actions” or the “acts described above” and
expect the court to know which acts they are talking about,
especially when there are over 180 allegations in the “above”
paragraphs.
Although a § 1985 claim need not be pled with the
particularity required for a fraud claim, it clearly must provide
notice of what wrongdoing is being complained about.
Instead of
providing such notice, Plaintiffs invite Defendants and the court
to match allegations to claims, as if a complaint is a puzzle to
be solved.
See generally Prim Ltd. Liability Co. v.
Pace–O–Matic, Inc., Civil No. 10–00617 SOM–KSC, 2012 WL 263116,
at *5–6 (D. Haw. Jan. 30, 2012) (referring in the context of
fraud claims to “shotgun” and “puzzle” pleadings that require
opposing counsel and the court to incorporate numerous
allegations into subsequent claims for relief or to complete a
puzzle by matching up numerous allegations throughout a pleading)
(citing Wagner v. First Horizon Pharmaceutical, Corp., 464 F.3d
1273, 1279 (11th Cir. 2006)).
A claim that requires Defendants
and this court to review 60 pages of allegations is not the
“short and plain statement” required by Rule 8(a) of the Federal
Rules of Civil Procedure.
15
At the hearing on this motion, the court expressly
asked Plaintiffs to identify specific allegations demonstrating a
constitutional violation.
Plaintiffs pointed to paragraph 54,
which lists a number of allegedly “overt acts of misconduct” by
Defendants, such as “[d]ismantling the DUI team, thereby
depriving Plaintiffs Dowkin and Delgadillo of income and a
preferred work assignment,” “[d]epriving the Plaintiffs of equal
protection of the law by imposing and enforcing rules upon them
that were not equally applied to other personnel of like rank and
duty assignment,” and “[f]iling false, harassing and groundless
personnel complaints against Plaintiffs without proper or timely
completion of the complaint investigations.”
TAC ¶ 54.
Even if Plaintiffs may rely on those allegations,
which, except for a blanket incorporation of all preceding
allegations, are not stated in or specifically referred to in the
Seventh Cause of Action, Plaintiffs still do not state a
cognizable § 1983 claim.
The TAC continues to suffer from the
deficiencies this court identified in the Second Amended
Complaint.
It is unclear which constitutional right is addressed
by which allegation, how each allegation amounts to a
constitutional violation, and which Defendant is being sued for
which alleged constitutional violation.
See SAC Order at 31-32.
For example, Plaintiffs do not specify whether dismantling the
DUI Team interfered with Plaintiffs’ right to due process or
16
their right to equal protection.
Nor does paragraph 54 specify
which Defendants should be held liable for the alleged
dismantling of the DUI Team.
Because Plaintiffs fail to
demonstrate that they have a cognizable § 1983 claim, Plaintiffs
fail to state a claim for relief under § 1985.
The Seventh Cause
of Action is dismissed in its entirety.
C.
Eighth Cause of Action.
In the Eighth Cause of Action, Plaintiffs assert a
common law civil conspiracy claim against all Defendants.
Under
Hawaii law, “the accepted definition of a conspiracy is a
combination of two or more persons or entities by concerted
action to accomplish a criminal or unlawful purpose, or to
accomplish some purpose not in itself criminal or unlawful by
criminal or unlawful means.”
Robert’s Hawaii School Bus, Inc. v.
Laupahoehoe Transp. Co., 91 Haw. 224, 252 n.28, 982 P.2d 853, 881
n.28 (Haw. 1999), superseded by statute on other grounds as
stated in Hawaii Med. Ass’n v. Hawaii Med. Serv. Ass’n, 113 Haw.
77 , 148 P.3d 1179 (2006) (citations omitted).
This court has
therefore stated that “the common law tort of civil conspiracy
has three elements: (1) the formation of a conspiracy; (2)
wrongful conduct in furtherance of the conspiracy, i.e., an
actionable claim based upon deceit; and (3) damage.”
Young v.
Bishop Estate, Civ. No. 09-00403 SOM-BMK, 2009 WL 3763029, at *14
(D. Haw. Nov. 6, 2009).
A civil conspiracy arises out of two or
17
more defendants’ specific actionable conduct--it “does not alone
constitute a claim for relief.”
Siu v. Alwis,
Civ. No. 07-00386 BMK, 2010 WL 2017104, at *11 (D. Haw. June 18,
2009) (quoting Weinberg v. Mauch, 78 Haw. 40, 49, 890 P.2d 277,
286 (Haw. 1995)).
It is not clear what Plaintiffs are alleging
Defendants conspired to do.
Possibly they intended to allege
that Defendants conspired to deprive Plaintiffs of backup, to do
nothing in response to Plaintiffs’ discrimination complaints, and
to retaliate against Plaintiffs for complaining about
discrimination.
However, that is not actually alleged.
Instead,
the Eighth Cause of Action incorporates 229 preceding paragraphs
(contained in 72 pages) and states: “Each of the Defendants
conspired, and are continuing to conspire, with one or more of
the other Defendants to accomplish one or more of the violations
of law set forth herein in order to cause one or more of the
Plaintiffs to suffer harm. . . .”
TAC ¶ 231.
The Eighth Cause of Action goes on to allege that
Defendants conspired to deprive Plaintiffs of their “civil and
other rights” by committing “those overt acts and omissions
described in the Seventh Claim for Relief.”
Id. ¶ 232.
While
the court initially went through all of the allegations preceding
the Eighth Cause of Action (including the allegations in the
Seventh Cause of Action), checking on what each Defendant was
18
alleged to have done with respect to each Plaintiff, the court
concludes that the task is pointless if the object of the alleged
conspiracy is not articulated.
The court, having indicated at
the hearing that it was inclined to retain parts of the claim,
ultimately recognizes that the Eighth Cause of Action is not
sufficiently pled.
The court’s frustration about the state of the
pleadings is symbolized by Plaintiffs’ statement that this court
gave them permission to base their conspiracy claim on a “chain
of command” theory.
Plaintiffs are blatantly wrong.
This court,
in amending its order partially dismissing the Second Amended
Complaint, cautioned Plaintiffs:
The court is concerned [by] the argument in
the reconsideration motion that Plaintiffs
may believe that being in a chain of command
is sufficient to make someone liable for
civil conspiracy. That is not the law. The
essence of a conspiracy is an agreement.
Being in a chain of command is not, without
more, an agreement at all. It is not by
itself evidence that someone has knowingly
joined or agreed to be part of a conspiracy.
Nor can civil conspiracy rest on vicarious
liability. Any new civil conspiracy claim
should not assume that, if one or more
individuals commit some wrongful act, all
persons in the chain of command with
authority over the wrongful actors
necessarily must be conspirators.
Order Granting Alternative Relief Sought in Motion to Reconsider
Dismissal of Count VIII (Civil Conspiracy) at 5-6, Oct. 24, 2011,
ECF No. 185.
Plaintiffs were told that “any new civil conspiracy
19
claim should clearly allege what each Defendant named in the
claim did that makes that Defendant liable for civil conspiracy.”
Id. at 5.
Plaintiffs nonetheless allege that Defendants Correa,
Kealoha, Tamashiro, Simmons, McEntire, Dolera, Serrao, and Kwon
participated in a civil conspiracy by virtue of being in a “chain
of command.”
See, e.g., TAC ¶¶ 192-193, 203.
Those allegations
do not support a civil conspiracy claim.
Further emblematic of the problem with the Eighth
Cause of Action are the references to an alleged agreement by
Defendants not to separate Plaintiffs from those Defendants at
whose hands Plaintiffs were allegedly suffering discrimination or
retaliation.
Because the civil conspiracy is never sufficiently
described, one cannot tell if the conspiracy being complained
about was a conspiracy to keep Plaintiffs and Defendants
together, see, e.g., id. ¶¶ 203, 207, or a conspiracy to have
Defendants stay away from Plaintiffs when they asked Defendants
to come to their assistance, see, e.g., id. ¶ 183.
While a
conspirator need not have agreed to everything the conspiracy
does, and while there could conceivably be subconspiracies with
different members, Plaintiffs must, at a minimum, give Defendants
notice of what overarching conspiracy they allegedly joined.
Certain Defendants allegedly gave “tacit consent” to others’
alleged actions or failed to stop those actions, but Plaintiffs
provide no law providing that silence or inaction constitutes
agreement to join a conspiracy.
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In short, the nature of the conspiracy must be clearly
delineated so that each Defendant’s actual participation in the
alleged conspiracy, as opposed to mere knowledge of it, may be
examined.
Especially because not every Plaintiff was injured by
every Defendant, Plaintiffs must define the single conspiracy
that, in the Eighth Cause of Action, they say all Defendants
joined.
Because Plaintiffs do not do this, the Eighth Cause of
Action cannot be reconciled with Rule 8.
V.
CONCLUSION.
The court grants Defendants’ motion to dismiss the
Fourth Cause of Action (negligent training, negligent retention,
and failure to report and investigate) to the extent it is
asserted against the individual Defendants (but not to the extent
it is asserted against the City); the Seventh Cause of Action
(§ 1985) in its entirety; and the Eighth Cause of Action (civil
conspiracy) in its entirety.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 23, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Dowkin v. Honolulu Police Department, Civ. No. 10-00087 SOM/RLP; ORDER GRANTING
DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL OF THIRD AMENDED COMPLAINT.
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