McCormack v. City and County of Honolulu et al
Filing
83
ORDER GRANTING IN PART, DENYING IN PART DEFENDANT CITY AND COUNTY'S MOTION FOR SUMMARY JUDGMENT 68 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/26/11. (" Summary judgment is granted in the City's favor on all claims except the respondeat superior claim. The claims against the individual officer Defendants were not the subject of this motion and also remain for further adjudication. All original nine counts from the Complaint remain against individually named Def endants Andy Lazano and Preston Pacheco.") (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
MICHAEL S. McCORMACK,
)
)
Plaintiff,
)
)
vs.
)
)
CITY AND COUNTY OF HONOLULU, )
ANDY LAZANO,
)
PRESTON PACHECO,
)
JOHN DOES 1-10,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00293 SOM/KSC
ORDER GRANTING IN PART,
DENYING IN PART DEFENDANT
CITY AND COUNTY’S MOTION FOR
SUMMARY JUDGMENT
ORDER GRANTING IN PART, DENYING IN PART
DEFENDANT CITY AND COUNTY’S MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
Plaintiff Michael S. McCormack (“McCormack”) alleges
that Defendants City and County of Honolulu (the “City”),
Honolulu Police Department Officers Andy Lazano and Preston
Pacheco are liable for violations of constitutional rights
pursuant to 42 U.S.C. § 1983.
McCormack claims that Officers
Lazano and Pacheco used excessive force against him.
McCormack
also states that the City is liable for deliberate indifference
in the training and supervision of various police officers
including Officers Lazano and Pacheco.
The City has moved for
summary judgment with respect to all remaining claims against it.
McCormack fails to present evidence regarding alleged
inadequate police training and supervision, and fails to address
other claims asserted against the City.
The court grants the
City’s motion for summary judgment with respect to all claims
except the respondeat superior claim.
II.
BACKGROUND FACTS.
Officer Preston Pacheco has been with the Honolulu
Police Department (“HPD”) for the City and County of Honolulu
since September 1, 2005.
See Declaration of Preston Pacheco
(“Pacheco Decl.”) ¶ 1, ECF No. 69, Ex. 2.
The incident that is
the subject of this action occurred in the afternoon of May 18,
2008.
At approximately 12:13 p.m., Officer Pacheco responded
to a report of an Unauthorized Entry into Motor Vehicle (“UEMV”)
in the parking lot of the Island Pacific Academy on 909 Haumea
Street.
See Pacheco Decl. ¶ 3.
At approximately 12:28 p.m.,
Officer Pacheco spoke with Aileen Hershey (“Hershey”), who said
that her purse had been stolen from her unlocked vehicle.
See id. ¶ 4.
Hershey had walked 50 yards from her car to pick up
her children and had not been watching her vehicle for two
minutes.
See id.
When she returned, Hershey discovered that her
purse was missing from the front seat where she had left it and
concluded that it had likely been stolen.
described her purse as large and bulky.
See id.
Hershey
See id. ¶ 5.
Officer Pacheco received a dispatch from Oahu Transit
Services (“OTS”), which operates Honolulu’s bus system, stating
that a possible suspect was on a bus on Haumea Street.
See Pacheco Decl. ¶ 5.
Pacheco met Hershey at the bus stop
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nearest that area.
Hershey said that someone had seen an adult
male wearing a black top and blue jeans walking in the area where
the incident had occurred, and that this male might be the
suspect.
See id.
Hershey added that she had approached the bus
stop and had seen a man wearing a black top and blue jeans
looking into a white “KB Toy Store” plastic bag.
See id.
She
stated that, as she walked in his direction, the man appeared to
hesitate, rolled the plastic bag closed, stood up, and got on the
next OTS bus.
See id.
McCormack and his friend Joseph Diaz (“Diaz”) had
gotten on the bus to go home.
See Declaration of Michael
McCormack (“McCormack Decl.”) ¶ 7, ECF No. 73, Ex. A.
McCormack
suffers from epilepsy, see id. ¶ 3, and has been “determined to
be totally and permanently disabled by Social Security
administration.”
See ECF No. 74, Ex. 5.
On the day of the
incident, McCormack was using a cane for support and had his left
leg in an air cast.
See McCormack Decl. ¶ 21.
After speaking with Hershey, Officer Pacheco got on the
bus and saw McCormack, noting that he was wearing a black jacket
and blue jeans and had a “KB Toy Store” plastic bag.
Decl. ¶ 6.
See Pacheco
Officer Pacheco went up to McCormack and thought he
looked worried.
See id.
Officer Pacheco explained to McCormack
why he was being questioned and told him that he matched the
description of a possible suspect.
3
See id.
Officer Pacheco
claims that he did not touch McCormack but did pick up
McCormack’s plastic bag to see if anything was inside.
See id.
Officer Pacheco found only empty plastic bottles and aluminum
cans inside.
See id.
HPD Officer Brian Soderman (“Officer Soderman”) arrived
at the scene and talked with Sergeant Kyle Yonemura and Officer
Pacheco inside the OTS bus.
See Declaration of Brian Soderman
(“Soderman Decl.”) ¶ 4, ECF No. 69, Ex. 3.
When Officer Pacheco
pointed to McCormack, Officer Soderman noticed a large bulge
protruding from under McCormack’s jacket around his waistline.
See id. ¶ 5.
Officer Soderman went over to McCormack and told
the circumstances of the UEMV case.
See id.
Officer Soderman
frisked McCormack for possible weapons or fruits of the crime.
See id. ¶ 6.
Officer Soderman did not find weapons or anything
indicating that McCormack had Hershey’s purse.
See id.
McCormack and the officer Defendants offer conflicting
stories about the force that was used on McCormack.
While
unclear, McCormack appears to be claiming that Officer Andy
Lazano hit him in the chest and squeezed his nipple area.
See McCormack Decl. ¶ 12.
Both McCormack and Diaz claim that an
officer told McCormack that the officer was going to handcuff and
arrest him for shoplifting.
See id.; Declaration of Joseph Diaz
(“Diaz Decl.”) ¶¶ 15-16, ECF No. 73-3.
McCormack adds that the
“officers were twisting me around trying to handcuff me in the
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small space and severely bruised my chest in doing so.”
¶ 14.
Id.
McCormack states that the officers “tried to pull me out
of my seat” and only released him when they realized he had
“started having an epileptic seizure.”
See McCormack Decl. ¶ 13.
By contrast, Officer Soderman and Officer Pacheco claim that they
never used unnecessary or excessive force on McCormack.
See
Soderman Decl. ¶¶ 8-10; Pacheco Decl. ¶¶ 8-9, 11.
When the officers realized they had the wrong suspect,
they left, and Officer Yonemura allegedly “grabbed” McCormack’s
plastic bag and “threw it 5-6 feet away . . . as he was walking
out of the bus door.”
¶ 21.
McCormack Decl. ¶ 16; see also Diaz Decl.
Diaz adds that the white KB Toy Store bag was in a black
plastic bag, that Officer Yonemura took the KB Toy Store bag out
of the black bag, and that he emptied the KB Toy Store bag on the
floor.
See Diaz Decl. ¶ 19.
Officer Soderman claims that
Officer Yonemura never touched McCormack’s bag.
Decl. ¶ 7.
See Soderman
Diaz says that the officers did not apologize for
having grabbed McCormack.
See Diaz Decl. ¶ 20.
According to
Diaz, McCormack “was shaking and crying when the officers left
the bus and Officer Yonemura was teasing him about scaring him so
badly.”
Diaz Decl. ¶ 25.
Officer Soderman’s version is that he
thanked McCormack for his cooperation and left.
See Soderman
Decl. ¶ 7.
The following day, McCormack allegedly “started feeling
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pain in [his] left upper chest area where officer Lazano had
grabbed [him].”
McCormack Decl. ¶ 18.
McCormack says he
continues to have pain in his left chest area and has sought
medical treatment.
III.
See id. ¶ 23; ECF No. 74, Exs. 5, 6, 7.
PROCEDURAL HISTORY.
On May 18, 2010, McCormack filed this action. See ECF
No. 1.
On September 27, 2010, Magistrate Judge Kevin S.C. Chang
issued a Rule 16 Scheduling Order, which provided that “[a]ll
motions . . . to amend the pleadings shall be filed by April 15,
2011.”
See ECF No. 18.
On January 25, 2011, this court issued
an Order Partially Granting and Partially Denying Defendant City
and County’s Motion to Dismiss.
See ECF No. 31.
The court
granted McCormack leave to amend his Complaint by February 15,
2011, to cure the defects noted in the Order.
See id.
McCormack
failed to amended the Complaint by the deadline.
On April 14, 2011, McCormack filed a Motion to Amend
Complaint only to name additional defendants.
See ECF No. 43.
Magistrate Judge Chang denied the motion to amend as futile
because McCormack had made no attempts to cure the defects
identified in this court’s previous order.
See ECF No. 53.
However, in the Order, Magistrate Judge Chang gave McCormack
another opportunity to amend his Complaint by June 3, 2011.
id.
See
McCormack again failed to file an Amended Complaint by the
deadline.
Plaintiff’s counsel states that “[n]o mention of
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further leave to amend by June 3, 2011 was heard by Plaintiff’s
counsel at the May 20, 2011 hearing.”
75.
See Opp’n at 6, ECF No.
Even if this were true, the June 3, 2011, extension was
clearly laid out in Magistrate Judge Chang’s Order Denying
Plaintiff’s Motion to Amend Complaint.
See Order at 9
(“Plaintiff is permitted one more opportunity to file a motion to
amend as a matter of course.
He must do so by June 3, 2011.”)
On June 15, 2011, the City filed the present Motion for
Summary Judgment.
See ECF No. 68.
Opposition on July 6, 2011.
McCormack filed an untimely
McCormack also filed his concise
statements of facts with accompanying exhibits and declarations,
but failed to include the required tabs in these filings.
See
Local Rule 7.7 (“Courtesy copies must comply with all Local Rule
requirements, including the tabbing of exhibits and declarations
or affidavits.”); Local Rule 10.2(d) (“Original documents and
courtesy copies of exhibits, declarations, and/or affidavits
shall have appropriately labeled tabs.”).
McCormack’s counsel
also failed to give the court courtesy copies of the Opposition
even after being called by court staff.
The following claims remain against the City: (1) a
§ 1983 claim alleging deliberate indifference in violation of the
Fourteenth Amendment (Count IV); (2) false arrest (Count V); (3)
respondeat superior (Count VIII); and (4) punitive damages (Count
IX).
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IV.
STANDARD OF REVIEW.
Summary judgment shall be granted when “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.”
R. Civ. P. 56(a).
Fed.
A moving party has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
“A fact is
material if it could affect the outcome of the suit under the
governing substantive law.”
Miller, 454 F.3d at 987.
When the
moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
entitle it to a directed verdict if the evidence were to go
uncontroverted at trial.
Id. (quoting C.A.R. Transp. Brokerage
Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th
Cir. 2000)).
By contrast, when the nonmoving party bears the
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burden of proof on one or more issues at trial, the party moving
for summary judgment may satisfy its burden with respect to those
issues by pointing out to the court an absence of evidence from
the nonmoving party.
Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a
summary judgment motion, the “burden then shifts to the nonmoving
party to establish, beyond the pleadings, that there is a genuine
issue for trial.”
Id.
The court must not weigh the evidence or
determine the truth of the matter but only determine whether
there is a genuine issue for trial.
180 F.3d 1047, 1054 (9th Cir. 1999).
See Balint v. Carson City,
On a summary judgment
motion, “the nonmoving party's evidence is to be believed, and
all justifiable inferences are to be drawn in that party's
favor.”
Miller, 454 F.3d at 988 (quotations and brackets
omitted).
Summary judgment may also be appropriate when a mixed
question of fact and law involves undisputed underlying facts.
See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio
v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).
V.
ANALYSIS.
A.
Counts I (Fourth Amendment under 42 U.S.C.
§ 1983), VI (Wanton and Reckless Conduct), and VII
(Assault & Battery)
The City asks the court to dismiss Counts I, VI, and
VII with prejudice.
This court had dismissed these counts in its
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previous Order, but gave McCormack leave to amend them.
See
McCormack v. City & Cnty. of Honolulu, 762 F. Supp. 2d 1246, 1251
(D. Haw. 2011).
McCormack has failed to amend after two
opportunities and does not oppose the City’s motion with respect
to these claims.
Accordingly, the court dismisses Counts I, VI,
and VII.
B.
Count IV (§ 1983 - Deliberate Indifference by City
in Violation of Fourteenth Amendment)
In Count IV, McCormack’s surviving 42 U.S.C. § 1983
claim against the City is based on the City’s deliberate
indifference in the supervision, training, and control of its
police officers in violation of the Fourteenth Amendment.
See
Compl. ¶ 27.
Section 1983 provides, in part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress.
42 U.S.C. § 1983.
The Supreme Court has held that a municipality cannot
be held liable pursuant to § 1983 under a theory of respondeat
superior liability.
Monell v. Dep’t of Social Servs., 436 U.S.
658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); see also City
10
of Canton, Ohio v. Harris (“City of Canton”), 489 U.S. 378, 385,
109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) (“Respondeat superior
or vicarious liability will not attach under § 1983.”).
Instead,
for a municipality to be found liable for a § 1983 claim, a
plaintiff must prove
that (1) the constitutional tort was the
result of a ‘longstanding practice or custom
which constitutes the standard operating
procedure of the local government entity;’
(2) the tortfeasor was an official whose acts
fairly represent official policy such that
the challenged action constituted official
policy; or (3) an official with final
policy-making authority ‘delegated that
authority to, or ratified the decision of, a
subordinate.’
Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (internal
citation omitted).
In other words, municipal liability under
§ 1983 may be premised upon an officially promulgated policy; a
custom or persistent practice; deliberately indifferent training
that is the proximate cause of the violation of the plaintiff’s
federally protected rights; or a single decision by an official
with final decision-making authority.
See City of Canton, 489
U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412; St. Louis v.
Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107
(1988); Pembaur v. Cincinnati, 475 U.S. 469, 478, 106 S. Ct.
1292, 89 L. Ed. 2d 452 (1986); Monell, 436 U.S. at 695.
In
addition, a claim based on a custom or policy must be based on a
custom or policy that is the “moving force behind the
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constitutional violation.”
Dietrich v. John Ascuaga’s Nugget,
548 F.3d 892, 900 (9th Cir. 2008) (quoting Monell, 436 U.S. at
694); see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)
(“Liability for improper custom may not be predicated on isolated
or sporadic incidents; it must be founded upon practices of
sufficient duration, frequency and consistency that the conduct
has become a traditional method of carrying out policy.”).
McCormack alleges that the City violated 42 U.S.C.
§ 1983 by failing and refusing to properly train, supervise,
and/or control the officers.
The City argues that McCormack has
no evidence that HPD training or supervision was in fact
deficient.
This court agrees.
McCormack is unable to identify
or produce evidence of a specific deficiency in HPD’s training
program or supervision of its officers.
See Mot. at 10.
“[T]he inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons with
whom the police come into contact.”
388.
City of Canton, 489 U.S. at
In response to McCormack’s allegation of inadequate police
training, the City has come forward with evidence establishing
that HPD officers undergo training on the use of force, and that
Officers Pacheco and Soderman are aware of HPD policies on the
use of excessive force.
See Pacheco Decl. ¶ 12; Soderman Decl.
¶ 13.
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The City submits the Declaration of Richard H. Weitzel,
a certified instructor for the Honolulu Police Academy who has
worked with the Training Division of HPD since 2007.
See
Declaration of Richard H. Weitzel (“Weitzel Decl.”) ¶ 3, ECF No.
69-1.
According to Weitzel, every HPD officer must complete
recruit training at the Honolulu Police Academy that consists of
training in the laws of arrest and in what constitutes probable
cause.
See id. ¶¶ 4-5.
Every officer must also take a Control
and Arrest Tactics Course, which involves the study of the use of
force and the application of reasonable force in varying
circumstances.
See id. ¶¶ 7-8.
Moreover, HPD officers are
trained to use force only as a means to control a suspect or
arrestee, or in self-defense, and are admonished never to employ
force as a means of punishment or for any other purpose.
¶ 14.
See id.
Furthermore, HPD policy forbids unreasonable or excessive
force, and officers can be disciplined or prosecuted if in
violation of this policy.
See id. ¶ 12.
In opposition, McCormack has failed to come forward
with evidence regarding inadequate training of HPD officers.
McCormack claims that the Declarations of McCormack and Diaz
along with eye witness statements from Brandon Moniz and John
Shigemasu establish evidence of a lack of training.
7.
See Opp’n at
But none of those declarations or statements indicates that
the officers’ training was inadequate.
13
To support his “deliberate indifference” claim,
McCormack offers only conclusory statements without supporting
evidence.
McCormack also argues that the numerous lawsuits
against the City demonstrate that the written policy against
unreasonable force was not being enforced.
See Opp’n at 9.
“A
list of complaints against police officers, without more, is
insufficient to create an issue of fact regarding the City’s
policy of inadequately investigating or disciplining its police
officers.”
Bartolome v. City & Cnty. of Honolulu, Civ. No. 06-
00176 SOM/LEK, 2008 WL 2736016, at *9 (D. Haw. July 14, 2008).
McCormack alleges that the City knows its officers use excessive
force, yet has failed to train or discipline officers using
excessive force on citizens.
See Opp’n at 10.
McCormack
complains that the only training given to officers is when they
are first hired as part of the training recruit program.
See Opp’n at 11.
Weitzel, however, states that HPD officers are
frequently given in-service training on laws and other officer
safety issues.
See Weitzel Decl. ¶ 9.
Furthermore, all HPD
officers are required to be familiar with the laws governing the
use of force and are periodically apprised of, and trained in,
developments in this area of the law.
See id. ¶ 10.
McCormack has no evidence that any purported deficiency
amounts to “deliberate indifference” on the City’s part, or that
such deficiency was the “moving force” behind the alleged
14
constitutional violation.
See id.
While McCormack does
highlight a question of fact as to whether the officers used
excessive force on him, he does not demonstrate that the alleged
officer conduct resulted from deliberate indifference regarding
police training.
The Supreme Court has stated,
That a particular officer may be
unsatisfactorily trained will not alone
suffice to fasten liability on the city, for
the officer’s shortcomings may have resulted
from factors other than a faulty training
program. . . . Neither will it suffice to
prove that an injury or accident could have
been avoided if an officer had had better
training. . . . Such a claim could be made
about almost any encounter resulting in
injury, yet not condemn the adequacy of the
program. . . . And plainly, adequately
trained officers occasionally make mistakes;
the fact that they do says little about the
training program. . . .
Moreover, for liability to attach . . .
[the plaintiff] must still prove that the . .
. injury [would] have been avoided had the
employee been trained under a program that
was not deficient in the identified
respect[.]
City of Canton, 489 U.S. at 390-92, 109 S. Ct. at 1206 (1989).
Many of the McCormack’s allegations are unsupported by
the admissible evidence required by Rule 56(e)(2) of the Federal
Rules of Civil Procedure.
Moreover, many of McCormack’s
allegations are not probative of whether or not HPD’s allegedly
inadequate training was the moving force behind the alleged
constitutional violations.
To defeat summary judgment, a
nonmoving party must set forth “significant probative evidence”
15
in support of its position.
T.W. Elec. Serv., 809 F.2d at 630.
McCormack has not come forward with probative evidence
demonstrating inadequate training.
As a result, the court grants
summary judgment in favor of the City with respect to this
allegation.
C.
Count V (False Arrest)
The essential elements for false arrest are (1) the
detention or restraint of one against his or her own will, and
(2) the unlawfulness of such detention or restraint.”
Reed v.
City & Cnty. of Honolulu, 76 Haw. 219, 230, 873 P.2d 98, 109
(1994) (internal quotation marks and brackets omitted).
However, “where an arrest or detention is effected
without a warrant, the existence of probable cause to arrest is
an affirmative defense to an action for false imprisonment.”
Towse v. State, 64 Haw. 624, 635, 647 P.2d 696, 704 (1982).
McCormack does not even address the false arrest claim
in his Opposition.
Even if McCormack satisfied the elements for
false arrest, the officers had probable cause to believe that
McCormack was a possible suspect in the theft of Hershey’s
property.
See Mot. at 13.
In his declaration, Officer Soderman
states that he patted McCormack down because McCormack was
wearing a jacket with a large visible bulge and Officer Soderman
was concerned that McCormack might have a weapon.
Decl. ¶¶ 5-6.
See Soderman
McCormack does not oppose the City’s motion with
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respect to the false arrest claim.
Accordingly, the court grants
summary judgment to the City with respect to Count V.
D.
Count VIII (Respondeat Superior)
As stated in this court’s previous Order, McCormack
appears to base his respondeat superior claim on Officer Lazano’s
allegedly malicious assault and battery.
Under Hawaii law, a
municipality can have respondeat superior liability for torts
maliciously committed by an employee acting within the scope of
his authority.
Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76
Haw. 433, 439, 879 P.2d 538, 543 (Haw. 1994); Lane v. Yamamoto, 2
Haw. App. 176, 178, 628 P.2d 634, 636 (Haw. Ct. App. 1981).
McCormack states that officers “twist[ed]” him around
while “trying to handcuff” him, resulting in “severe[] bruises”
to his chest.
See McCormack Decl. ¶ 14.
Diaz claims that the
officer “pull[ed]” McCormack off his seat while trying to
handcuff him.
See Diaz Decl. ¶ 17.
Officer Lazano allegedly
“hit” McCormack’s chest with the palm of his hands and “squeezed”
McCormack’s nipple area.
See id. ¶¶ 12, 18.
The City has not
offered any declaration or affidavit from Officer Lazano,
although Officers Pacheco and Soderman claim that they never
“pulled Plaintiff” or “threaten[ed] him in any manner.”
See Pacheco Decl. ¶ 8; Soderman Decl. ¶ 8.
A question of fact
remains as to whether an officer assaulted and battered
McCormack.
Accordingly, the court DENIES the City’s motion for
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summary judgment with respect to the respondeat superior claim.
E.
Count IX (Punitive Damages)
The City is not liable for punitive damages arising out
of a § 1983 claim.
See Jefferson v. City of Tarrant, 522 U.S.
75, 75 (1997) (“this Court has ruled that § 1983 plaintiffs may
not recover punitive damages against a municipality”); Kentucky
v. Graham, 473 U.S. 159, 167 n.13 (1985) (“punitive damages are
not available under § 1983 from a municipality”).
Although § 1983 does not permit punitive damages
against a municipality, punitive damages are available against an
official individually.
See Kentucky, 473 U.S. at 167 n.13.
Thus, this court GRANTS summary judgment for punitive damages
against the City.
VI.
CONCLUSION.
For the foregoing reasons, the City’s motion for
summary judgment is granted in part and denied in part.
Summary
judgment is granted in the City’s favor on all claims except the
respondeat superior claim.
The claims against the individual
officer Defendants were not the subject of this motion and also
remain for further adjudication.
All original nine counts from
the Complaint remain against individually named Defendants Andy
Lazano and Preston Pacheco.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 26, 2011
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
McCormack v. City & County of Honolulu, Civ. No. 10-00293 SOM/KSC; ORDER
GRANTING IN PART, DENYING IN PART DEFENDANT CITY AND COUNTY’S MOTION FOR
SUMMARY JUDGMENT.
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