Dowkin et al v. Honolulu Police Department et al

Filing 711

ORDER: 1) GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS SERGEANT SHERMON DEAN DOWKIN, OFFICER FEDERICO DELGADILLO MARTINEZ, JR., AND OFFICER CASSANDRA BENNETT HUIHUI ON PUNITIVE DAMAGES; 2) GRANTING MOTION FOR PARTIAL SUMMARY JUDGME NT ON THE FOURTH CAUSE OF ACTION OF THE THIRD AMENDED COMPLAINT (NEGLIGENT TRAINING, NEGLIGENT RETENTION, FAILURE TO REPORT AND INVESTIGATE); AND 3) GRANTING PARTIAL SUMMARY JUDGMENT AGAINST DOWKIN ON THE SIXTH CAUSE OF ACTION (NEGLIGENT INFLICTION O F EMOTIONAL DISTRESS) re 576 Motion for Partial Summary Judgment re 578 Motion for Partial Summary Judgment re 580 Motion for Partial Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 07/10/2015. (ep s )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 HUIHUI,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
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,
)
SERGEANT WAYNE FERNANDEZ,
)
SERGEANT RALSTAN TANAKA,
)
OFFICER COLBY KASHIMOTO,
)
PAT AH LOO,
)
)
Defendants.
_____________________________ )

CIVIL 10-00087 LEK-RLP

ORDER: 1) GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
AGAINST PLAINTIFFS SERGEANT SHERMON DEAN DOWKIN, OFFICER
FEDERICO DELGADILLO MARTINEZ, JR., AND OFFICER CASSANDRA
BENNETT HUIHUI ON PUNITIVE DAMAGES; 2) GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT ON THE FOURTH CAUSE OF ACTION OF
THE THIRD AMENDED COMPLAINT (NEGLIGENT TRAINING, NEGLIGENT
RETENTION, FAILURE TO REPORT AND INVESTIGATE); AND 3) GRANTING
PARTIAL SUMMARY JUDGMENT AGAINST DOWKIN ON THE SIXTH CAUSE
OF ACTION (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)
Before the Court are the following motions, all filed
on April 8, 2015: 1) Defendant City & County of Honolulu’s (“the

City”) Motion for Partial Summary Judgment Re: Punitive Damages
(“Punitive Damages Motion”); 2) the City’s Motion for Partial
Summary Judgment Re: Fourth Cause of Action of Third Amended
Complaint (Negligent Training, Negligent Retention, Failure to
Report and Investigate) (“Count IV Motion”); and 3) the City’s
Motion for Partial Summary Judgment Against Plaintiff Sergeant
Shermon Dean Dowkin Re: Sixth Cause of Action of Third Amended
Complaint (Negligent Infliction of Emotional Distress) (“NIED
Motion”).

[Dkt. nos. 576, 578, 580.]
On May 18, 2015, Plaintiffs Sergeant Shermon Dean

Dowkin (“Dowkin”), Frederico Delgadillo Martinez, Jr.
(“Delgadillo”), and Cassandra Bennett Huihui1 (“Bennett Huihui,”
“Plaintiffs”) filed their memorandum in opposition to the Count
IV Motion (“Count IV Opposition”), and Dowkin filed his
memorandum in opposition to the NIED Motion (“NIED Opposition”).2
[Dkt. nos. 650, 646.]

On May 22, 2015, the City filed replies in

support of its Count IV Motion (“Count IV Reply”) and NIED Motion
(“NIED Reply”).

[Dkt nos. 658, 659.]

1

Prior to November 7, 2014, Bennett Huihui was referred to
in the case as Cassandra Bennett-Bagorio. [Dkt. no. 483.]
2

Plaintiffs did not file a response to the Punitive Damages
Motion.
2

These matters came on for hearing on June 8, 2015.
Plaintiffs filed additional exhibits with regard to their
Count IV Opposition on June 24, 2015.3

[Dkt. no. 699.]

After

careful consideration of the motions, supporting and opposing
memoranda, and the arguments of counsel, the City’s Count IV
Motion, Punitive Damages Motion, and NIED Motion are HEREBY
GRANTED for the reasons set forth below.
BACKGROUND
The general factual and procedural background of this
case is set forth in this Court’s May 1, 2015 order addressing
four previous defense motions for summary judgment (“5/1/15
Summary Judgment Order”).

[Dkt. no. 615.]

Thus, this Court will

only discuss the events and issues that are relevant to the
instant Motion.
I.

Count IV Motion
In Count IV, Plaintiffs allege work-related claims for

negligent training against Sergeant Ralstan Tanaka (“Tanaka”),
Lieutenant Dan Kwon (“Kwon”), Lieutenant Wayne Fernandez
(“Fernandez”) and the City, and negligent retention and failure
to report and investigate against Officer Colby Kashimoto
(“Kashimoto”), Tanaka, Kwon, Fernandez, and the City.

3

[Third

On July 8, 2015, Exhibits 4 and 7 were sealed. [Order
Granting in Part and Denying in Part Defendant the City and
County of Honolulu’s Motion for Leave to File Plaintiffs’ [699]
Exhibits 1-7 Under Seal, filed 07/08/15 (dkt. no. 709).]
3

Amended Complaint for Compensatory, Statutory and Punitive
Damages (“Third Amended Complaint”), filed 1/17/12 (dkt no. 221),
at pg. 54.]

Chief United States District Judge Susan Oki

Mollway, who previously presided over this case, dismissed
Count IV as to Tanaka, Kwon, Fernandez, and Kashimoto.4

[Order

Granting Defendants’ Motion for Partial Dismissal of Third
Amended Complaint, filed 7/23/12 (dkt. no. 382) (“7/23/12
Dismissal Order”), at 7-12.5]
Plaintiffs allege that, pursuant to the doctrine of
respondeat superior, the City is liable for the other Defendants’
failure to: (1) establish anti-discrimination and antiretaliation policies and procedures in accordance with federal
and state law; (2) train and supervise Honolulu Police Department
(“HPD”) employees regarding those policies and procedures; (3)
train and supervise HPD employees regarding policies and
procedures necessary to insure patrol officer safety through,
inter alia, back-up cover; (4) investigate all complaints,
including Plaintiffs’, of alleged discrimination, retaliation,
and violations of HPD policies; (5) terminate or discipline
offenders accordingly; and (6) take effective steps to protect
Plaintiffs from harm, which amounted to tacit ratification of all

4

Plaintiffs do not allege a claim against the City for
failure to report. [Third Amended Complaint at ¶ 160.]
5

The 7/23/12 Dismissal Order is also available at 2012 WL
3012643.
4

or some of the other Defendants’ illegal misconduct.

In

addition, Plaintiffs argue that the City is directly liable for
its failure to conduct proper investigations in light of
Plaintiffs’ evidence, which falls below the requisite standard of
care and evidences negligence.

[Third Amended Complaint at

¶¶ 82-83, 160-62.]
In its Count IV Motion, the City argues that it is
entitled to summary judgment on Plaintiffs’ Count IV claims
because negligence claims, including negligent training,
negligent retention, and failure to investigate, are barred by
the exclusive remedy provisions of Hawaii’s workers’ compensation
law, Haw. Rev. Stat. § 386-5.

Further, the City argues that,

because the Third Amended Complaint alleges that Tanaka, Kwon and
Fernandez acted within, rather than outside, the scope of their
employment, Plaintiffs fail to state a claim against the City for
negligent training.
II.

Punitive Damages Motion
Plaintiffs allege that Defendants’ discriminatory

behavior was “extreme, cruel, malicious and outrageous,” and that
the Court should therefore award Plaintiffs punitive damages.
[Third Amended Complaint at ¶ 236.]
In its Punitive Damages Motion, the City argues that it
cannot be held liable for punitive damages.

Specifically, the

City contends that, under Hawai`i law, municipalities cannot be

5

held liable for punitive damages because doing so shifts the
burden onto innocent taxpayers.

[Mem. in Supp. of Punitive

Damages Motion at 4 (citing Lauer v. YMCA, 557 P.2d 1134
(1976)).]
III. NIED Motion
In Count VI, Dowkin alleges a NIED claim against the
City, Kwon, and Fernandez, and Bennett Huihui alleges a NIED
claim against the City and Tanaka.
pg. 59.]

[Third Amended Complaint at

In the 5/1/15 Summary Judgment Order, this Court

granted summary judgment in favor of the City and Tanaka as to
Bennett Huihui’s claim on the grounds that her “NIED claim is
subject to the general rule that Chapter 386 is the exclusive
remedy for work-related injuries that are not related to sexual
harassment or sexual assault.”
26.]

[5/1/15 Summary Judgment Order at

The City now seeks summary judgment as to Dowkin’s NIED

claim.
Count VI alleges that, “[b]y committing the acts
described above, Defendant[] City & County . . . inflicted
emotional distress on Plaintiff Dowkin resulting in physical
injury to Plaintiff Dowkin.”

[Third Amended Complaint at ¶ 172.]

Regarding Dowkin’s injuries, the Third Amended Complaint alleges:
131. . . . The stress inflicted upon Sgt.
Dowkin by the Defendants in connection with [his
order to rewrite Delgadillo’s performance rating],
in addition to the accumulation of the events
described above perpetrated by the Defendants,
caused Sgt. Dowkin to be hospitalized for a heart
6

ailment for the first time in his life. . . .
[Id. at ¶ 131.]
In its NIED Motion, the City claims that it is entitled
to summary judgment because Dowkin’s Count VI claims are barred
by the exclusive remedy provisions of § 386-5.

The City argues

that Dowkin’s NIED claim is based upon a “work injury,” which
arose out of alleged activity that occurred within the scope of
his employment, and does not fall under § 386-5’s narrow sexual
harassment exception.
DISCUSSION
I.

Count IV Motion
The City argues that § 386-5 bars Plaintiffs’ claims

against their employer for negligent training, negligent
retention, and failure to investigate.

The general rule is that,

“[t]he Hawaii Workers’ Compensation law provides the exclusive
remedy for an employee to recover for a work injury against his
or her employer, except for claims arising from sexual harassment
or sexual assault and emotional distress or invasion of privacy
related thereto.”

Wilson v. Fresenius Med. Care Oahu, LLC, No.

CV 13-00223 HG-RLP, 2014 WL 3529775, at *7 (D. Hawai`i July 15,
2014) (citation omitted).

This district court has noted that one

of the key purposes of Hawaii’s workers’ compensation scheme is
to eliminate suits based on workplace negligence.

Id. (citing

Iddings v. Mee-Lee, 82 Hawai`i 1, 919 P.2d 263, 269-70 (Haw.
7

1996)).

Accordingly, the court “consistently reject[s]

challenges to the exclusivity provision . . . .”

Antoku v.

Hawaiian Elec. Co., 266 F. Supp. 2d 1233, 1236 (D. Hawai`i 2003)
(citations omitted).
Insofar as the alleged events occurred while all
parties were acting within their respective professional roles,
this Court finds that all of the Count IV claims are based on
“work-injuries” for purposes of § 386-5.

This Court also finds

that each of Plaintiffs’ claims in Count IV is “negligence
based.”

See Antoku, 266 F. Supp. 2d at 1236-37.

Thus, they are

precisely the types of claims that the Hawai`i State Legislature,
in enacting § 386-5, intended to limit to the workers’
compensation scheme.

See Wilson, 2014 WL 3529775 at *7; see also

Clemmons v. Hawaii Med. Servs. Ass’n, 273 F.R.D. 653, 659 (D.
Hawai`i 2011) (Ҥ 386-5 bars common law negligent employment
claims arising out of allegations of discrimination”) (citations
omitted).
In an attempt to circumvent the § 386-5 issue,
Plaintiffs argue that based on the Supremacy Clause of the United
States Constitution, Art. VI, cl. 2, § 386-5 is preempted by
Title VII of the Civil Rights Act of 1964, and that their
Count IV claims therefore remain actionable.

However,

interpreting Count IV as alleging Title VII claims would be
repetitive, insofar as Count I already asserts Title VII claims

8

for “Discrimination in Terms and Conditions of Employment Because
of Race and Gender.”

[Third Amended Complaint at pg. 48.]

The

Court also notes that Count IV does not cite or refer to
Title VII.

The Court therefore does not interpret Count IV to

allege Title VII claims.

Accord Black v. City & Cnty. of

Honolulu, 112 F. Supp. 2d 1041, 1047-56, 1049 (D. Hawai`i 2000)
(analyzing Title VII and common law claims, such as negligence,
separately); Hughes v. Mayoral, 721 F. Supp. 2d 947, 957-67 (D.
Hawai`i 2010) (same).
Plaintiffs argue that the 7/23/12 Dismissal Order
constitutes the law of the case, and that Chief Judge Mollway’s
Count IV dismissal therefore controls the instant Motion.6
Court disagrees.

This

The Count IV Motion differs from the motion at

issue in the 7/23/12 Dismissal Order in regards to both the type
of motion as well as the identity of the moving Defendant.

The

prior motion sought dismissal of Count IV “to the extent it [was]
asserted against any individual Defendant,” 7/23/12 Dismissal
Order, 2012 WL 3012643, at *3, whereas the instant Motion
requests summary judgment against the City.

6

Further, in the

This district court has stated that, “[u]nder the law of
the case doctrine, a court is ‘generally precluded from
reconsidering an issue previously decided by the same court’ if
‘the issue in question [was] decided explicitly or by necessary
implication in [the] previous disposition.’” U.S. E.E.O.C. v.
Global Horizons, Inc., 904 F. Supp. 2d 1074, 1091 (D. Hawai`i
2012) (some alterations in Global Horizons) (quoting United
States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000)).
9

prior motion, Defendants did not argue that the Count IV claims
against the City were barred because of the exclusive remedy
provision of § 386-5 nor did they raise the issue of whether the
Third Amended Complaint fails to state a claim against the City
for negligent training.

Id. at *3-5.

Accordingly, the 7/23/12

Dismissal Order does not control the disposition of the Count IV
Motion.
This Court FINDS that there are no genuine issues of
material fact regarding Plaintiffs’ Count IV claims and CONCLUDES
that the City is entitled to summary judgment as to Count IV
because, as a matter of law, Plaintiffs’ claims are barred by
§ 386-5.

See Fed. R. Civ. P. 56(a) (stating that a party is

entitled to summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law”).

The City’s Count IV

Motion is therefore GRANTED.
II.

Punitive Damages Motion
Under Hawai`i law, an award of punitive damages is only

permissible when “the egregious nature of the defendant’s
conduct” makes punishment and deterrence of that behavior
appropriate.

Masaki v. Gen. Motors Corp., 71 Haw. 1, 6, 780 P.2d

566, 570 (1989).

As to the municipality exception argued by the

City, the Hawai`i Supreme Court has stated:
Public policy dictates the conclusion that the
City, as a municipal corporation, should not be
10

held liable for punitive damages. The innocent
taxpayers, the intended beneficiary from the
public example which the punishment makes of the
wrongdoer, should not be made to suffer. The
deterrent or retributive effect of punitive
damages must be placed squarely on the shoulders
of the wrongdoer. . . .
Lauer, 57 Haw. at 403, 557 P.2d at 1342.
This district court has followed the state court
standard announced in Lauer, concluding that, “[m]unicipalities
such as [the City] cannot be held liable for punitive damages.”
Siu v. De Alwis, Civ. No. 07-00386 DAE-LEK, 2009 WL 1789319, at
*11 (D. Hawai`i June 18, 2009) (citations omitted).

This Court

FINDS that there are no genuine issues of material fact regarding
Plaintiffs’ request for punitive damages against the City and
CONCLUDES that the City is entitled to summary judgment as a
matter of law.

The City’s Punitive Damages Motion is therefore

GRANTED.
III. NIED Motion
In the NIED Motion, the City raises the same arguments that
Kwon and Fernandez raised in a similar motion.

See Motion for

Partial Summary Judgment Against Plaintiff Sergeant Shermon Dean
Dowkin on the Sixth Cause of Action of the Third Amended
Complaint (Negligent Infliction of Emotional Distress), filed
3/9/15 (dkt. no. 539).

This Court, inter alia, granted Kwon and

Fernandez’s motion in an order issued on June 18, 2015 (“6/18/15

11

Summary Judgment Order”).

[Dkt. no. 692.7]

For the same reasons

set forth in the 6/18/15 Summary Judgment Order, 2015 WL 3822282,
at *3, this Court FINDS that there are no genuine issues of
material fact regarding Dowkin’s NIED claim against the City and
CONCLUDES that they City is entitled to summary judgment as to
that claim.

The City’s NIED Motion is therefore GRANTED.
CONCLUSION

On the basis of the foregoing, the following motions,
all filed by Defendant City and County of Honolulu on April 8,
2015, are HEREBY GRANTED:
-Motion for Partial Summary Judgment Re: Punitive Damages;
-Motion for Partial Summary Judgment Re: Fourth Cause of Action
of Third Amended Complaint (Negligent Training, Negligent
Retention, Failure to Report and Investigate); and
-Motion for Partial Summary Judgment Against Plaintiff Sergeant
Shermon Dean Dowkin Re: Sixth Cause of Action of Third
Amended Complaint (Negligent Infliction of Emotional
Distress)
IT IS SO ORDERED.

7

The 6/18/15 Summary Judgment Order is also available at
2015 WL 3822282.
12

DATED AT HONOLULU, HAWAII, JULY 10, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

SERGEANT SHERMON DEAN DOWKIN, ET AL. VS. THE CITY AND COUNTY OF
HONOLULU, ET AL; CV 10-00087 LEK-RLP; ORDER: 1) GRANTING MOTION
FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS SERGEANT SHERMAN
DEAN DOWKIN, OFFICER FEDERICO DELGADILLO MARTINEZ, JR., AND
OFFICER CASSANDRA BENNETT HUIHUI ON PUNITIVE DAMAGES; 2) GRANTING
MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE FOURTH CAUSE OF ACTION
OF THE THIRD AMENDED COMPLAINT (NEGLIGENT TRAINING, NEGLIGENT
RETENTION, FAILURE TO REPORT AND INVESTIGATE); AND 3) GRANTING
PARTIAL SUMMARY JUDGMENT AGAINST DOWKIN ON THE SIXTH CAUSE OF
ACTION (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)

13