Andrews et al v. County of Hawaii et al

Filing 39

ORDER: (1) DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS WITHOUT PREJUDICE 28 ; (2) DENYING PLAINTIFFS' MOTION FOR APPLICATION OF ENLARGEMENT OF TIME 32 ; AND (3) DISMISSING PLAINTIFFS' COMPLAINT WITHOUT PREJUDICE. Excerpt of Order: ~ "The Complaint is therefore DISMISSED WITHOUT PREJUDICE as against all Defendants in this action with leave to amend no later than forty-five (45) days from the filing of this Order. Failure to ame nd will result in the dismissal of this action with prejudice." ~ Signed by JUDGE DAVID ALAN EZRA on 9/20/2011. [Order follows hearing held 9/19/2011 on Motions, doc. nos. 28 , 32 . Minutes of hearing: doc. no. 38 ] (afc) 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
SCOTT L. ANDREWS, CLAUDIA )
J. ROHR,
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF HAWAII;
)
LAWRENCE K. MAHUNA;
)
SAMUEL THOMAS; GEORGE
)
MAKUA; ROMEO FUVIAVA;
)
BRIAN MILLER; BENNY
)
RUFFOLO; ANNETTE COLLINS; )
MIRIAM KANAEHOLO; DOE
)
DEFENDANTS 1–25,
)
)
Defendants.
)
_____________________________ )

CV. NO. 10-00749 DAE-KSC

ORDER: (1) DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS WITHOUT PREJUDICE; (2) DENYING PLAINTIFFS’ MOTION
FOR APPLICATION OF ENLARGEMENT OF TIME; AND (3) DISMISSING
PLAINTIFFS’ COMPLAINT WITHOUT PREJUDICE
On September 19, 2011, the Court heard Defendants County of
Hawaii, Lawrence K. Mahuna, Samuel Thomas, George Makua, Romeo Fuviava,
Brian Miller, Benny Ruffolo, and Annette Coolins’ (collectively “Defendants”)
Motion for Judgment on the Pleadings (“Defendants’ Motion”). The Court also
heard Plaintiffs Scott L. Andrews and Claudia J. Rohr’s (collectively “Plaintiffs”)
Motion for Application of Enlargement of Time (“Plaintiffs’ Motion”). Scott L.

Andrews and Claudia J. Rohr, pro se, appeared at the hearing on behalf of
themselves; Michael J. Udovic, Esq., appeared on behalf of Defendants. After
reviewing the motions and the supporting and opposing memoranda, the Court
DENIES WITHOUT PREJUDICE Defendants’ Motion (Doc. # 28), DENIES
Plaintiffs’ Motion (Doc. # 32), and DISMISSES WITHOUT PREJUDICE
Plaintiffs’ Complaint.
BACKGROUND
The factual predicate of Plaintiffs’ Complaint dates back to April 21,
2008. (“Compl.,” Doc. # 1, ¶ 26.) Plaintiffs claim that Plaintiff Scott Andrews
(“Andrews”) was confronted by a group of individuals and called the police for
help. (Id. ¶ 27.) While waiting for police Plaintiffs claim that Andrews was
attacked. (Id. ¶ 30.) Plaintiffs claim that Defendants, each of whom are members
of the Hawaii County Police Department, did not conduct an investigation into the
assault. (Id. ¶¶ 6–14; see id. ¶¶ 32–34.) Thereafter the named Defendants
allegedly failed to respond to Plaintiffs’ repeated requests for assistance across a
period of eight months. (See id. ¶¶ 34–52.) Plaintiffs claim that Defendants
ultimately arrested Andrews on Friday, December 12, 2008. (Id. ¶ 53.)
Once arrested, Andrews claims that he thought he was having a heart
attack, but no one took him to the hospital. (Id. ¶ 55.) Plaintiff Claudia Rohr
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(“Rohr”) repeatedly requested to see Andrews but was denied access to him. (Id.
¶ 56.) Plaintiffs claim that Andrews was eventually taken to the hospital and was
diagnosed with an abnormal electrocardiogram. (Id. ¶ 58.) Andrews claims to
have been incarcerated without bail for a total of forty-four hours “for no apparent
purpose.” (Id. ¶ 63.) An exhibit to Plaintiffs’ Opposition shows that Andrews was
released on December 14, 2008. (“Release Form,” Doc. # 30-3, at 2.)
As a result of Defendants’ conduct, Plaintiffs allege the following
causes of action:
•

Andrews “was falsely arrested and suffered the loss of his
liberty without any probable . . . cause in violation of rights
guaranteed to him by the Fourth, Fifth, Ninth and Fourteenth
Amendment to the United States Constitution.” (Compl. ¶ 71.)

•

Defendants “negligently failed and/or refused to properly train,
supervise, and/or discipline police officers and other employees
under their supervision and control . . . .” (Id. ¶ 73.)

•

Defendants “negligently caused Plaintiffs to suffer injuries,
pain, mental anguish, emotional distress, anxiety,
embarrassment, humiliation, worry, and anger . . . .” (Id. ¶ 75.)

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•

Defendants “acted herein knowingly, deliberately, intentionally,
and maliciously without regard for the rights, interests, and
well-being of Plaintiffs.” (Id. ¶ 77.)
Plaintiffs filed their Complaint on December 15, 2010. (See Doc.

# 1.) On May 27, 2011, Defendants filed their Motion. (“Ds’ Mot.,” Doc. # 28.)
On August 1, 2011, Plaintiffs filed their Opposition. (“Ps’ Opp’n,” Doc. # 30.) On
August 8, 2011, Defendants filed their Reply. (“Ds’ Reply,” Doc. # 31.)
On August 22, 2011, Plaintiffs filed their Motion for Application for
Enlargement of Time. (“Ps’ Mot.,” Doc. # 32.) On August 29, 2011, Defendants
filed their Opposition. (“Ds’ Opp’n,” Doc. # 34.) On September 12, 2011,
Plaintiffs filed their Reply. (“Ps’ Reply,” Doc. # 37.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure (“Rule”) 12(c) states, “[a]fter the
pleadings are closed-but early enough not to delay trial-a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). Judgment on the pleadings is
properly granted when the Court, accepting all the allegations in the pleadings as
true and construing them in the light most favorable to the nonmoving party,
concludes that the moving party is entitled to judgment as a matter of law.

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Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). No issue of material fact
may be in dispute. Id.
When Rule 12(c) is used to raise the defense of failure to state a claim
upon which relief can be granted, the standard governing the Rule 12(c) motion for
judgment on the pleadings is the same as that governing a Rule 12(b)(6) motion.
See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988); Luzon v.
Atlas Ins. Agency, Inc., 284 F. Supp. 2d 1261, 1262 (D. Haw. 2003). As a result, a
motion for judgment on the pleadings for failure to state a claim may be granted
“‘only if it is clear that no relief could be granted under any set of facts that could
be proven consistent with the allegations.’” McGlinchy, 845 F.2d at 810 (quoting
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Dworkin v. Hustler
Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (“The principal difference
between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing.
Because the motions are functionally identical, the same standard of review
applicable to a Rule 12(b) motion applies to its Rule 12(c) analog.”).
Thus, “[a] judgment on the pleadings is properly granted when, taking
all allegations in the pleading as true, the moving party is entitled to judgment as a
matter of law.” Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d
526, 528 (9th Cir. 1997) (citing McGann v. Ernst & Young, 102 F.3d 390, 392 (9th
5

Cir. 1996)). “Not only must the court accept all material allegations in the
complaint as true, but the complaint must be construed, and all doubts resolved, in
the light most favorable to the plaintiff.” McGlinchy, 845 F.2d at 810.
As noted, to withstand a motion to dismiss, a plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570. A claim has “facial plausibility” if the plaintiff pleads facts that allow
“the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1940. Although the court must accept all
well-pleaded factual allegations as true, “[t]hread-bare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. Nor
must the court “accept as true a legal conclusion couched as a factual allegation.”
Id. (quoting Twombly, 550 U.S. at 555).
A party may move for judgment on the pleadings after the pleadings
are closed. Fed. R. Civ. P. 12(c). The pleadings are closed once a complaint and
an answer have been filed, assuming that there is no counterclaim or cross-claim.
Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005).

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DISCUSSION
I.

Statute of Limitations
Defendants’ sole assertion in their Motion is that the statute of

limitations has expired on all of Plaintiffs’ claims. “‘For actions under 42 U.S.C.
§ 1983 . . . courts apply the forum state’s statute of limitations.’” Canatella v. Van
De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (quoting Jones v. Blanas, 393 F.3d
918, 927 (9th Cir. 2004)); see also Fink v. Shelder, 192 F.3d 911, 914 (9th Cir.
1999) (same). Although state law determines the statute of limitations, federal law
determines when the cause of action accrues. Pesnell, 543 F.3d at 1043 (citing
Papa, 2831 F.3d at 1009); see also Cederquist, 235 F.3d at 1156. In the Ninth
Circuit “a claim accrues under federal law when the plaintiff knows or has reason
to know of the actual injury.” Lukovsky v. San Francisco, 535 F.3d 1044, 1051
(9th Cir. 2008) (citing Inlandboatmens Union of Pac. v. Dutra Group, 279 F.3d
1075, 1081 (9th Cir. 2002)); cf. Wallace v. Kato, 549 U.S. 384, 384 (2007) ([T]he
accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.”). However, tolling provisions for § 1983
claims are borrowed from the forum state. Canatella, 486 F.3d at 1132.
In Hawaii the statute of limitations for personal injury is two years.
See H.R.S. § 657-7 (“Actions for the recovery of compensation for damage or
7

injury to persons or property shall be instituted within two years after the cause of
action accrued.”).
Plaintiffs filed the instant Complaint on December 15, 2010. (See
Doc. # 1.) The grand majority of Defendants’ alleged misconduct happened
between April 2008 and December 12, 2008, when Plaintiff was arrested. (Compl.
¶¶ 26–53.) The very last instance of alleged misconduct occurred on December 14,
2008, the day on which Plaintiff was released from custody. (Release Form at 2.)
Thus, at the latest, the claims alleged accrued on December 14, 2008, as Plaintiff
“kn[ew] or ha[d] reason to know of the actual injury” underlying his claims.
Lukovsky, 535 F.3d at 1051. Accordingly, the statute of limitations on Plaintiffs’
causes of action expired on December 14, 2010—one day before Plaintiffs filed
their Complaint. (See Doc. # 1.)
Plaintiffs attempt to avoid this result in multiple ways. First, Plaintiffs
point out that they are pro se and suggest this Court should “liberally construe”
their pleadings. (Opp’n at 4.) Liberal construction, however, cannot save
Plaintiffs’ Complaint. The alleged misconduct occurred more than two years prior
to the Complaint being filed. The statute of limitations has expired, irrespective of
the construction of Plaintiffs’ claims.

8

Plaintiffs also claim that they, in good faith, filed a notice of claim
with the County of Hawaii before the expiration of the statute of limitations on
November 30, 2010. (Opp’n at 7; Doc. # 32-3.) This does not help Plaintiffs
because “state notice of claim statutes have no applicability to § 1983 actions.”
See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). Plaintiffs have provided the
Court no case law to suggest that filing a notice of claim somehow obviates the
requirement that a plaintiff actually file a suit before a statute of limitations
expires.
Plaintiffs next claim that “the discovery rule” should apply. (Ps’
Opp’n at 7.) The Hawaii state discovery rule provides that “under the statute of
limitations currently codified in HRS § 657-7, a cause of action does not ‘accrue’
and the limitations period does not begin to run, until the plaintiff knew or should
have known of the defendant’s negligence.” Hays v. City and County of Honolulu,
917 P.2d 718, 720 (Haw. 1996). First, as discussed, when a claim accrues is a
question of federal law, not state law. Wallace, 549 U.S. at 384 ([T]he accrual date
of a § 1983 cause of action is a question of federal law that is not resolved by
reference to state law.”) In any event, Hawaii’s “discovery rule” is nearly identical
to the federal test for determining when a cause of action accrues. See Lukovsky,
535 F.3d at 1051 (noting “a claim accrues under federal law when the plaintiff
9

knows or has reason to know of the actual injury”). This Court concluded supra
that the latest Plaintiffs could have been aware they suffered an actual injury was
the last day he was incarcerated, December 14, 2008. Accordingly, Plaintiffs had
two years from that date to file a Complaint in this Court.
Plaintiffs next contend that Hawaii’s “fraudulent concealment” rule
should toll the statute of limitations. Hawaii Revised Statute § 657-20 provides:
If any person who is liable to any of the actions mentioned in this part
or section 663-3, fraudulently conceals the existence of the cause of
action or the identity of any person who is liable for the claim from
the knowledge of the person entitled to bring the action, the action
may be commenced at any time within six years after the person who
is entitled to bring the same discovers or should have discovered, the
existence of the cause of action or the identity of the person who is
liable for the claim, although the action would otherwise be barred by
the period of limitations.
Haw. Rev. Stat. § 657-20. It is unclear to the Court, nor do the Plaintiffs explain,
how precisely Defendants concealed anything from Plaintiffs. Andrews was
plainly incarcerated. His incarceration could hardly be said to have been concealed
from him or his wife. At that time Plaintiffs “kn[ew] or ha[d] reason to know of
the actual injury.” Lukovsky, 535 F.3d at 1051. There was no concealment. This
rule simply is not applicable here.
Plaintiffs finally state that “Plaintiffs neither knew nor could
reasonably have been expected to know of constitutional injuries and a cause of
10

action against Defendants . . . .” (Opp’n at 9.) It appears to the Court Plaintiffs are
making an equitable tolling argument. (See also id. at 3.) “Equitable relief for a
statute of limitations is not available to a [plaintiff] who fails to exercise due
diligence in pursuing a claim, absent conduct or representation(s) by the
[defendant] that could reasonably lead a [plaintiff] to believe that further action
would be forthcoming.” Jou v. Schmidt, 184 P.3d 817, 820 (Haw. App. 2008).
Plaintiffs have provided no evidence or argument on this point in their Opposition.
At the latest, Plaintiffs were on notice of actual injury on December 14, 2008.
Plaintiffs as of yet have proffered no justification for their failure to diligently
pursue this claim prior to the expiration of the statute of limitations. Moreover
there is no evidence suggesting that Defendants in anyway misled Plaintiffs about
their claim.
Perhaps realizing their claims would otherwise be time-barred,
Plaintiffs filed a Motion for Application for Enlargement of Time. Plaintiffs
request that the Court “use the mailing ‘service date’ of December 13, 2010 for the
statute of limitations purposes.” (Ps’ Mot. at 1.) Plaintiffs claim that they filed a
notice of claim with Defendants on November 30, 2010 but did not receive a
response until December 9, 2010 in which Defendants stated the notice of claim
would not toll the statute of limitations. (Id. at 4.) Plaintiffs then allegedly called
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the Clerk of Court in this District and spoke to an “unnamed female courtroom
manager . . . who advised that it was enough to mail in their Complaint and write
and ask the Court to use the mailing date on the mailing receipt.” (Id. at 4–5.)
Plaintiffs then argue that they were diligent in pursuing their claim because they
“discovered important facts” at the end of November 2010 and thereafter pursued
their claims. (Id. at 6.) Plaintiffs also claim that Defendants will suffer no
prejudice. (Id. at 6–7.)
Plaintiffs have not yet demonstrated they pursued their claims with
due diligence. Plaintiffs simply assert “important facts” came to light in November
2010. (Id. at 6.) Plaintiffs provide no detail or explanation as to what those facts
are and how they are important. Nor do Plaintiff proffer an explanation as to why
they were unable to discover these facts before November 2010. Most importantly,
Plaintiffs provide no evidence which suggests they were actively pursuing or
investigating their claim after Andrews was released from prison. Absent such a
showing, or a showing that Plaintiffs were anticipating some further action from
Defendants, Plaintiffs are not entitled to equitable tolling. Jou, 184 P.3d at 820
(“Equitable relief for a statute of limitations is not available to a [plaintiff] who
fails to exercise due diligence in pursuing a claim, absent conduct or

12

representation(s) by the [defendant] that could reasonably lead a [plaintiff] to
believe that further action would be forthcoming.”).
Nor does Plaintiffs’ assertion that a courtroom manager “advised”
them that the mailing date was sufficient entitle Plaintiffs to equitable tolling.
Plaintiffs rely on Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147 (1984), for
support that equitable tolling should apply “where the court has led [a] plaintiff to
believe that [he or she] had done everything required of her.” Id. at 151 (citing
Carlile v. S. Routt Sch. Dist. RE 3-J, 652 F.2d 928 (11th Cir. 1981)). The
Baldwin Court cited to an Eleventh Circuit decision in support of this proposition.
Id. There, the district court had issued an “unsolicited order extending the time in
which [plaintiff] could file a complaint.” Carlile, 652 F.2d at 986. In United
States v. Buckles, 647 F.3d 883 (9th Cir. 2011), the Ninth Circuit concluded a
petitioner in a habeas proceeding might have been entitled equitable tolling where
an individual in a clerk’s office unambiguously represented to the petitioner that he
had additional time to seek relief. Id. at 891–92. Conversely, the Ninth Circuit has
held that where a plaintiff has not been “affirmatively misled by the district court’s
instructions,” he or she is not entitled to equitable tolling. Brambles v. Duncan,
412 F.3d 1066, 1070–71 (9th Cir. 2005).

13

Plaintiffs’ arguments with respect to the courtroom manager are not
persuasive. The Court here has issued no order as in Carlile. Nor did the
courtroom manager unambiguously state the statute of limitations would be tolled.
The court room manager did not mislead Plaintiffs into believing that mailing the
document would suffice for statute of limitations purposes. Instead, she directed
Plaintiffs to mail the Complaint to the Court and to ask the Court to use the date on
the mailing receipt for the purposes of the statute of limitations. (See Ps’ Mot. at 5;
Ps’ Reply at 12.)
Moreover, Plaintiffs admit in their own briefing that they did not
comply with the courtroom manager’s direction. In Opposition, Plaintiffs allege
specifically that the courtroom manager stated “it was enough to mail in their
Complaint and write and ask the Court to use the mailing date on the mailing
receipt.” (Ps’ Mot. at 5 (emphasis added).) Plaintiffs proffered evidence that they
mailed the documents on December 13, 2010,1 but they did not contact the Court
and ask permission to use the mailing date for statute of limitations purposes.
Plaintiffs concede as much in their briefing, stating that after mailing the

1

There is some debate as to whether the document was mailed on December
13 or December 14. The mailing receipt provides that Plaintiffs’ request was
“processed” on December 13, 2010, but was not sent until December 14, 2010.
(Doc. # 32-5.) The Court assumes for instant purposes that it was sent, as Plaintiffs
suggest, on December 13, 2010.
14

Complaint, “Plaintiffs were then challenged by the task of determining how to
properly write and ask the Court to use the mailing date for statute of limitation
purposes of their action.” (Ps’ Mot. at 5.) In fact, Plaintiffs took no further action
at all. Instead, Plaintiffs waited an additional eight months and until after
Defendants filed their Motion for Judgment on the Pleadings to request an
enlargement of time. Under these circumstances, the Court cannot yet conclude
that Plaintiffs are entitled to equitable tolling. Cf. Buckles, 647 F.3d at 891
(finding a petitioner may be entitled equitable tolling in a habeas proceeding where
clerk’s office unambiguously stated Plaintiff had additional time to seek relief);
Brambles, 412 F.3d at 1070–71 (finding equitable tolling did not apply where a
plaintiff was not “affirmatively misled by the district court’s instructions.”).
II.

Dismissal without Prejudice
Pursuant to Rule 15(a)(2), courts should “freely give leave [to amend]

when justice so requires.” Further, “requests for leave should be granted with
extreme liberality.” Moss v. U.S. Secret Service, 572 F.3d 962, 792 (9th Cir.
2009). “Dismissal without leave to amend is improper unless it is clear . . . that the
complaint could not be saved by an amendment.” Id. “However, ‘liberality in
granting leave to amend is subject to several limitations.’” Cafasso, U.S. ex rel. v.
Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011) (quoting Ascon
15

Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). “Those
limitations include undue prejudice to the opposing party, bad faith by the movant,
futility, and undue delay.” Id. (citing Ascon Props, 866 F.2d at 1160). “Further,
‘[t]he district court’s discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.’” Id. (quoting Ascon Props, 866
F.2d at 1160).
Here it is beyond dispute that the statute of limitations on Plaintiffs’
claims expired before they filed their Complaint. As discussed at the Hearing,
however, the Court recognizes that it may be possible for Plaintiffs to plead
sufficiently that Defendants could be estopped from raising a statute of limitations
defense if provided the opportunity to amend their Complaint. See Jou, 184 P.3d
at 820 (“Equitable relief for a statute of limitations is not available to a [plaintiff]
who fails to exercise due diligence in pursuing a claim, absent conduct or
representation(s) by the [defendant] that could reasonably lead a [plaintiff] to
believe that further action would be forthcoming.”). The Complaint is therefore
DISMISSED WITHOUT PREJUDICE as against all Defendants in this action
with leave to amend no later than forty-five (45) days from the filing of this Order.
Failure to amend will result in dismissal of this action with prejudice.

16

CONCLUSION
For these reasons, the Court DENIES WITHOUT PREJUDICE
Defendants’ Motion (Doc. # 28), DENIES Plaintiffs’ Motion (Doc. # 32), and
DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 20, 2011.

_____________________________
David Alan Ezra
United States District Judge

Andrews, et. al v. County of Hawaii et al., Cv. No. 10-00749 DAE-KSC; ORDER:
(1) DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS WITHOUT PREJUDICE; (2) DENYING PLAINTIFFS’ MOTION
FOR APPLICATION OF ENLARGEMENT OF TIME; AND (3) DISMISSING
PLAINTIFFS’ COMPLAINT WITHOUT PREJUDICE

17