Thourot v. Tanuvasa et al
ORDER (1) GRANTING IN PART AND DENYING DEFENDANTS ERIC TANUVASA AND CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS FIRST AMENDED COMPLAINT #39 ; AND (2) GRANTING DEFENDANT LOUIS M. KEALOHA'S MOTION TO DISMISS FIRST AMENDED COMPLAINT #46 . ~ Excerpt of Conclusion: "Tanuvasa and the City's Motion to Dismiss First Amended Complaint Filed August 12, 2011 is HEREBY GRANTED IN PART AND DENIED IN PART as follows: the 1983 claim against the city is DISMISSED WITH PREJUDICE; and the state law negligent training, supervision, and/or discipline claim against the City is DISMISSED WITHOUT PREJUDICE. The Tanuvasa Motion is DENIED in all other respects. Kealoha's Motion to Dismiss First Amended Complaint... is HEREBY GRANTED and the claims against Defendant Kealoha are dismissed WITH PREJUDICE. Plaintiff is GRANTED until March 15, 2012 to file a Second Amended Complaint, consistent with this Order...." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 2/13/2012. ~ Order follows hearing held 2/6/2012. Minutes: doc. no. #66 ~ (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
RICHARD A. THOUROT,
ERIC TANUVASA AND CITY AND
COUNTY OF HONOLULU,
CIVIL NO. 11-00032 LEK-KSC
ORDER (1) GRANTING IN PART AND DENYING DEFENDANTS
ERIC TANUVASA AND CITY AND COUNTY OF HONOLULU’S
MOTION TO DISMISS FIRST AMENDED COMPLAINT;
AND (2) GRANTING DEFENDANT LOUIS M. KEALOHA’S
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Before the Court are two motions filed by Defendants
Eric Tanuvasa (“Tanuvasa”), the City and County of Honolulu
(“City”), and Louis M. Kealoha (“Kealoha”) (collectively
“Defendants”): (1) Tanuvasa and the City’s Motion to Dismiss
First Amended Complaint Filed August 12, 2011 Pursuant to FRCP,
Rule 12(b)(6), filed September 2, 2011 (“Tanuvasa Motion”) [dkt.
no. 39]; and (2) Kealoha’s Motion to Dismiss First Amended
Complaint Filed August 12, 2011 Pursuant to FRCP, Rule 12(b)(6),
filed on November 1, 2011 (“Kealoha Motion”) [dkt. no. 46].
Plaintiff Richard A. Thourot (“Plaintiff”) filed his memorandum
in opposition on January 13, 2012, and Defendants filed their
reply on January 19, 2012.
February 6, 2012.
These matters came on for hearing on
Appearing on behalf of Plaintiff were
Della Bellati, Esq., and Eric Seitz, Esq., and appearing on
behalf of Defendants was Tracy Fukui, Esq.
consideration of the motions, supporting and opposing memoranda,
and the arguments of counsel, the Tanuvasa Motion is HEREBY
GRANTED IN PART AND DENIED IN PART, and the Kealoha Motion is
HEREBY GRANTED the for the reasons set forth below.
The Court previously granted in part several motions to
dismiss the Original Complaint.
Plaintiff filed his First
Amended Complaint on August 12, 2011, alleging that Tanuvasa, a
Honolulu Police Department (“HPD”) officer, assaulted him during
an investigation and arrest.
The First Amended Complaint states,
in pertinent part:
(10) On or about February 7, 2009, Plaintiff
was residing with his girlfriend at the Island
Colony Condominium/Hotel located in Waikiki,
(11) At approximately 6:00 am, Plaintiff was
awakened by a hotel security officer who knocked
on his unit’s door and asked whether Plaintiff and
his girlfriend were having problems because a
noise complaint had been made with hotel security.
(12) Plaintiff opened the door to his unit
to explain to the hotel security officer that the
noise was due to his girlfriend.
(13) Plaintiff apologized to the hotel
officer and proceeded to go to bed after the hotel
security officer left.
(14) Shortly thereafter, Plaintiff was
awakened by his girlfriend and Defendant Officer
Erick A. Tanuvasa who had been dispatched to the
Island Colony Condominium/Hotel because of the
noise complaint and who had been escorted to
Plaintiff’s unit by the hotel security officer.
(15) Being in a half-awake state on his bed,
Plaintiff walked to the door from his bedroom to
speak with Defendant Tanuvasa, inquire what was
going on, and ask why Defendant Tanuvasa was in
(16) As Plaintiff was talking to Defendant
Tanuvasa, for reasons unknown to Plaintiff,
Defendant Tanuvasa announced that Plaintiff was
under arrest, and Defendant Tanuvasa started
berating, pushing, grabbing, slapping, punching,
and kicking Plaintiff about his body and face.
(17) Plaintiff then was placed under arrest
by another officer who had arrived and was
transported to the Honolulu Police Department.
(18) Plaintiff did not at any time provoke,
invite, consent to, or otherwise allow or permit
Defendant Tanuvasa to assault and berate him.
(19) Plaintiff is informed and believes, and
thereupon alleges, that the above described
actions of Defendant Tanuvasa were without
reasonable, just, and/or probable cause.
(20) Plaintiff is informed and believes, and
thereupon alleges, that Defendant Tanuvasa has a
history of abusive and violent conduct that was
known to Defendant City and County of Honolulu and
(21) Plaintiff is informed and believes, and
thereupon alleges, that despite their prior
knowledge of Defendant Tanuvasa’s history of
abusive and violent conduct Defendants City and
County of Honolulu and Kealoha continued to
employ Defendant Tanuvasa as a Honolulu police
officer, failed to provide specialized or
additional training and supervision, and failed to
discipline him appropriately.
(22) As a direct and proximate result of the
foregoing Plaintiff has suffered serious and
permanent physical injuries, great physical and
mental pain, anguish and suffering, severe
emotional distress, anxiety, embarrassment,
humiliation, worry and anger.
(23) As a direct and proximate result of the
foregoing, Plaintiff was unable to work for
approximately six months due to the injuries he
Plaintiff alleges the following causes of action: (1) a
42 U.S.C. § 1983 claim based on violations of the Fourth
Amendment; (2) intentional infliction of emotional distress
(“IIED”); (3) a negligence claim against Tanuvasa; (4) a
negligence claim against Kealoha and the City; (5) negligent
training, supervision, and/or discipline against Kealoha and the
City; and (6) assault and battery against Tanuvasa.
sued in his official and individual capacities, and Kealoha is
sued in his official capacity.
[First Amended Complaint at ¶¶ 6-
The City and Tanuvasa move to dismiss the First Amended
Complaint on the ground that it fails to state a claim.
first ask the Court to dismiss the § 1983 claim against the City
based on upon a City custom, policy or procedure, because the
allegations are conclusory and devoid of specific facts.
is, they argue Plaintiff does not allege “non-conclusory” facts:
1) identifying an alleged City policy; 2) describing how the
policy was deficient; and/or 3) describing how the policy caused
injury to Plaintiff.
They contend that Plaintiff fails
to assert sufficient “nonconclusory” facts to state a “plausible”
as opposed to merely “possible” theory of liability.
Supp. of Tanuvasa Motion at 4-6.]
Next, they seek dismissal of Plaintiff’s § 1983 claim
for municipal liability based upon negligent training on the
grounds that Plaintiff fails to allege any training program, much
less a deficient training program, that resulted in a violation
his constitutional rights, and that Plaintiff fails to allege
facts that “plausibly” indicate deliberate indifference.
The City and Tanuvasa seek dismissal of the state law
negligent training and supervision claim because Plaintiff fails
to: (1) plead that the City had knowledge of any deficiency
related to Tanuvasa’s employment; (2) allege a deficiency in the
training or supervision of the officers; and (3) allege facts
that the officers were acting outside the scope of their
Plaintiff pleads only that he “is informed and
believes, and thereupon alleges, that Defendant Tanuvasa has a
history of abusive and violent conduct that was known to
Defendant City and County of Honolulu and Defendant Kealoha.”
[Id. at 8 (quoting First Amended Complaint at ¶ 20).]
that this allegation does not indicate whether such “abusive and
violent” conduct occurred on the job and/or related to conduct
applicable to Tanuvasa’s employment as a police officer, and that
without such reference, there is no indication that the City
would be on notice of a need to exercise greater control over
this particular employee with respect to his police work.
With respect to the negligent training and/or
supervision claim, they argue that Plaintiff did not correct the
deficiencies in the Original Complaint, which the Court found
failed to identify how the City failed in its supervision or any
actions in which discipline was necessary but not taken.
Plaintiff plead non-conclusory facts to support the allegation
that Tanuvasa was acting outside the course of his employment.
They argue that the legal conclusion to this effect in the First
Amended Complaint is insufficient and fails to allege any
nonconclusory facts in which it is “plausible” to infer that
Tanuvasa was acting outside the scope of his employment.
Kealoha moves to dismiss the First Amended Complaint
against him because (1) Plaintiff failed to obtain leave to add
him as a defendant as required by Fed. R. Civ. P. 15(a);
(2) Plaintiff’s claims against him in his official capacity are
redundant; and (3) Plaintiff fails to allege sufficient facts to
state either a § 1983 claim based on supervisor liability or a
state law negligence claim.
[Mem. in Supp. of Kealoha Motion at
Plaintiff’s Memorandum in Opposition
As to his § 1983 claim, Plaintiff states that the City
has misconstrued the cause of action; that is, he is not alleging
a § 1983 municipal liability claim against the City, per a March
14, 2011 stipulation with the City.
To the extent Tanuvasa
argues that the § 1983 claim against him is conclusory, Plaintiff
contends that the Court already determined that his Fourth
Amendment claim against Tanuvasa and “‘the allegations [in
support of this cause of action] are sufficient to satisfy
Federal Rule of Civil Procedure 8(a) and survive a motion under
[Mem. in Opp. at 8 (quoting Order Granting in
Part and Denying in Part Defendant Eric Tanuvasa’s Motion to
Dismiss Complaint, filed July 11, 2011).]
Plaintiff next argues that his state law claim for
negligent training, supervision, and/or discipline should not be
First, Plaintiff argues that his allegation that
“Defendant Tanuvasa has a history of abusive and violent conduct
that was known to Defendant City and County of Honolulu” is not
conclusory, and that it is plausible to suggest from the entire
content of Plaintiff’s First Amended Complaint that the core
problem underlying all of Plaintiff’s causes of action is
Tanuvasa’s abusive behavior in the exercise of his police powers
that his employer, the City, should have known about.
states that the allegation “is based on Plaintiff’s information
and belief and upon specific complaints that Plaintiff’s
counsel’s office has received about Officer Tanuvasa.”
10 (citing Declaration of Della A. Bellati (“Belatti Decl.”) at ¶
Counsel states: “The law office of Eric A. Seitz, AAL, ALC
has received at least two separate complaints about Officer Erick
Plaintiff argues that the allegation regarding
Tanuvasa’s abusive history and that the City had knowledge of
this history is sufficiently detailed such that Defendants can,
and already are, defending against the training, supervision, and
discipline state law claims “as demonstrated by the contentious
history of discovery to date.”
[Id. at 11.]
Plaintiff, in his First Request for Production of Documents, he
requested personnel files for Tanuvasa that include “any
complaints, disciplinary actions, internal affairs records, and
his training” and “files, records, complaints . . . of the
Honolulu Police Commission” relating to Tanuvasa.
(citing Belatti Decl. at ¶ 7).]
[Id. at 11
Similarly, in the partial
deposition that was conducted of Tanuvasa on October 19, 2011,
which Tanuvasa ended abruptly, specific questions were asked
about whether “anyone has ever made any complaint [about Officer
Tanuvasa] to the Police Commission” and whether these complaints
have “ever been . . . or had not been sustained.”
Belatti Decl. at ¶¶ 9-10).]
Plaintiff states that both the
request for production of documents and the deposition questions
were aimed at explicating in greater detail the specific
deficiencies in training, failed supervision, and lack of
discipline that Plaintiff has been informed about and believes to
A. Tanuvasa and his abusive behavior in his conduct as a police
officer.” [Belatti Decl. at ¶ 7.]
be true due to the complaints Plaintiff’s counsel’s office has
received about Tanuvasa’s performance as a police officer.
Plaintiff argues that Defendants’ counsel is vigorously
defending against Plaintiff having the right to confirm whether
complaints have or have not been made against Tanuvasa, which
demonstrates that Defendants have notice about and understand the
claims of negligent training, supervision, and discipline that
Plaintiff has raised in his First Amended Complaint.
that such notice to Defendants warrants denial of the Tanuvasa
Motion as to the negligent training, supervision, and discipline
claim until discovery can be conducted.
[Id. at 12.]
III. Defendants’ Reply
In their joint reply, Defendants state that, because
Plaintiff confirmed that he is not asserting § 1983 municipal
liability claims against the City and will be stipulating to
dismiss all claims against Kealoha, the only remaining issue is
Plaintiff’s state law negligent supervision, training, and
Defendants maintain that this claim should be
dismissed because Plaintiff fails to: (1) identify nonconclusory
facts that Tanuvasa acted outside the course and scope of
employment; (2) identify sufficient facts of notice to the City
of a need to control and/or supervise Tanuvasa; (3) address his
failure to allege a deficiency with the City’s training,
supervision, and discipline; and (4) allege facts causally
linking his alleged injuries to such deficiencies.
[Reply at 2-3
(citing Otani v. City & County of Haw., 126 F. Supp. 2d 1299,
With respect to Plaintiff’s statements regarding the
history of discovery in this case and the complaints received by
Plaintiff’s counsel regarding Tanuvasa, Defendants argue that
they are irrelevant to whether Plaintiff has sufficiently pled
his claim of negligent supervision and training.
[Id. at 5
(quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2010) (“When the legal sufficiency of a complaint is tested by a
motion under Rule 12(b)(6), review is limited to the
As to the claim against the City, Defendants argue that
to establish liability against the City, Plaintiff must establish
that the City’s negligent training, supervision, and/or
discipline caused Plaintiff’s injury.
They argue that here,
without sufficiently identifying a deficiency, Plaintiff is
unable to allege sufficient facts to “plausibly” establish that
the City’s deficient training, supervision, and/or hiring caused
Plaintiff’s injury, and thereby fails to state a claim for
negligent supervision, hiring, and detention.
Federal Rule of Civil Procedure 12(b)(6) permits a
motion to dismiss a claim for “failure to state a claim upon
which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).
tenet – that the court must accept as true all of the allegations
contained in the complaint – “is inapplicable to legal
Iqbal, 129 S. Ct. at 1949.
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citing Twombly, 550 U.S. at 555).
Rather, “[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.”
Twombly, 550 U.S. at 556).
Factual allegations that only permit
the court to infer “the mere possibility of misconduct” do not
show that the pleader is entitled to relief.
Id. at 1950.
“Dismissal without leave to amend is improper unless it
is clear that the complaint could not be saved by any amendment.”
Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)
(citation and quotation marks omitted).
“But courts have
discretion to deny leave to amend a complaint for futility[.]”
Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th Cir.
1987) (citation and quotation marks omitted).
Federal Constitutional Claim
Plaintiff represented that he is not alleging any
§ 1983 claims against the City.
To the extent the Tanuvasa
Motion seeks dismissal of such claims, the Tanuvasa Motion is
GRANTED and the § 1983 claim against the City is DISMISSED WITH
To the extent that Tanuvasa seeks dismissal of the
§ 1983 claim against him, the Court previously denied this
request, finding the allegations sufficient to survive a Rule
In his First Cause of Action, Plaintiff alleges
that he “was assaulted and suffered the loss of his liberty
without any probable, sufficient, just or reasonable cause in
violation of rights guaranteed to him by the Fourth Amendment. .
[First Amended Complaint at ¶ 20.]
Plaintiff also alleges
that Tanuvasa acted under color of state law when he assaulted
[Id. at ¶ 26.]
Under 42 U.S.C. § 1983:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage . . .
subjects, or causes to be subjected, any citizen
of the United States . . . 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. . . .
To state a § 1983 claim, a “plaintiff must demonstrate
a deprivation of a right secured by the Constitution or laws of
the United States, and that the defendant acted under color of
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.
2003) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Court FINDS that Plaintiff sufficiently alleged that Tanuvasa
acted under color of state law.
The Fourth Amendment states that:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend IV.
The § 1983 claims against Tanuvasa for violations of
the Fourth Amendment satisfy the pleading requirements set forth
in Twombly and Iqbal.
The allegations are more than “legal
conclusions” or a “recital of the elements of a cause of
action,” Iqbal, 129 S. Ct. at 1949-50, because the Complaint
alleges more than simply that Tanuvasa deprived Plaintiff of his
rights under the Fourth Amendment.
Plaintiff alleges the factual
circumstances under which the alleged seizure and/or excessive
force took place.
State Law Claims
The remaining issue with respect to the Tanuvasa Motion
is Plaintiff’s state law negligent training, supervision, and/or
discipline claim against the City.
Plaintiff’s Fifth Cause of
Action states, in pertinent part, as follows:
(36) Defendant Tanuvasa’s actions herein
were outside the scope of his employment as a
police officer with Defendant City and County of
(37) Defendants City and County of Honolulu,
Kealoha, and certain of the Doe Defendants owed
duties to Plaintiff to exercise the requisite
standard of care and skill ordinarily exercised by
similar institutions and agencies in the State of
Hawai‘i in training, supervising, and disciplining
its employees, and to take reasonable care to
control such employees to prevent them from
committing acts that injure third parties.
(38) Defendants City and County of Honolulu
and Kealoha knew or had reason to know that it was
responsible for the training, supervising, and
disciplining of Defendant Tanuvasa.
(39) By failing to properly train,
supervise, and discipline Defendant Tanuvasa,
Defendants City and County of Honolulu and Kealoha
breached their duties of reasonable care owed to
Plaintiff thereby proximately and directly causing
the injuries to Plaintiff complained of herein.
[First Amended Complaint at ¶¶ 36-39.]
To state a claim for negligent supervision or failure
to control under Hawai‘i law, a plaintiff must allege that the
employees who committed the wrongful acts were acting outside the
scope of their employment.
Pulawa v. GTE Hawaiian Tel, 112
Hawai‘i 3, 18, 143 P.3d 1205, 1220 (2006).
states that Tanuvasa’s actions herein were outside the scope of
his employment, he does not allege facts to support this legal
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
Rather, “[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
Id. (citing Twombly, 550 U.S. at 556).
Moreover, Plaintiff fails to plead additional facts
identifying how the City failed in its supervision, or any acts
in which discipline was necessary, but not taken.
To the extent
Plaintiff relies on extrinsic evidence of matters not set forth
in the First Amended Complaint – i.e., that Plaintiff’s counsel
has received other complaints about Tanuvasa’s abusive conduct –
such allegations may not be considered in ruling on the Tanuvasa
Motion brought pursuant to Rule 12(b)(6).
As a general rule, “a
district court may not consider any material beyond the pleadings
in ruling on a Rule 12(b)(6) motion.”
Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted).
The Court finds that none of the exceptions to this general rule
applies in the instant case.
See id. (discussing two exceptions;
first, that a court may consider material which is properly
submitted as part of the complaint, and if the documents are not
physically attached to the complaint, they may be considered if
their authenticity is not contested and the plaintiff’s complaint
necessarily relies on them; second, that a court may take
judicial notice of matters of public record.)
The Court therefore GRANTS the Tanuvasa Motion as to
the state law negligent training, supervision, and/or discipline
claim against the City; the claim is DISMISSED WITHOUT PREJUDICE.
Plaintiff is granted until March 15, 2012 to file a Second
Amended Complaint in order to cure the deficiencies in his state
law negligent training, supervision, and/or discipline claim
against the City.
The Court emphasizes that Plaintiff is not
granted leave to add new parties, claims or theories of
liability, and the Second Amended Complaint must address the
deficiencies noted in this Order.
III. Kealoha Motion
Plaintiff agreed to striking Kealoha from the First
Amended Complaint to the extent Kealoha has been named only in
his official capacity.
In light of ongoing discovery, Plaintiff
reserves the right under Fed. R. Civ. P. 15(a) to seek leave to
amend to add Kealoha if warranted.
The Kealoha Motion is
therefore GRANTED and the claims against Kealoha are DISMISSED
On the basis of the foregoing, Tanuvasa and the City’s
Motion to Dismiss First Amended Complaint Filed August 12, 2011
Pursuant to FRCP, Rule 12(b)(6), filed September 2, 2011, is
HEREBY GRANTED IN PART AND DENIED IN PART as follows: the § 1983
claim against the City is DISMISSED WITH PREJUDICE; and the state
law negligent training, supervision, and/or discipline claim
against the City is DISMISSED WITHOUT PREJUDICE.
Motion is DENIED in all other respects.
Kealoha’s Motion to
Dismiss First Amended Complaint Filed August 12, 2011 Pursuant to
FRCP, Rule 12(b)(6), filed on November 1, 2011, is HEREBY GRANTED
and the claims against Defendant Kealoha are dismissed WITH
Plaintiff is GRANTED until March 15, 2012 to file a
Second Amended Complaint, consistent with this Order.
may not allege additional causes of action, theories of
liability, or name additional parties.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 13, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD A. THOUROT V. ERIC TANUVASA, ET AL; CIVIL NO. 11-00032
LEK-KSC; ORDER (1) GRANTING IN PART AND DENYING DEFENDANTS ERIC
TANUVASA AND CITY AND COUNTY OF HONOLULU’S MOTION TO DISMISS
FIRST AMENDED COMPLAINT; AND (2) GRANTING DEFENDANT LOUIS M.
KEALOHA’S MOTION TO DISMISS FIRST AMENDED COMPLAINT
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