Young v. County of Hawaii et al

Filing 160

ORDER (1) GRANTING IN PART AND DECLINING IN PART DEFENDANTS COUNTY OF HAWAI'I, HAWAII ISLAND HUMANE SOCIETY S.P.C.A., DONNA WHITAKER, STARR K. YAMADA, AND MICHAEL OSTENDORP'S MOTIONS FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S SECOND AMENDE D COMPLAINT (2) DECLINING DEFENDANTS ROBERTA KAWENA YOUNG, CARROLL COX, AND DARLEEN DELA CRUZ'S MOTIONS FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S SECOND AMENDED COMPLAINT, AND (3) DECLINING CROSSCLAIM DEFENDANTS MICHAEL OSTENDORP, CARROLL COX , AND DARLEEN DELA CRUZ'S MOTIONS FOR SUMMARY JUDGMENT AS TO ROBERTA KAWENA YOUNG'S CROSSCLAIM re 98 , 102 , 103 , 104 , 105 . Signed by JUDGE ALAN C KAY on 05/22/2013. (eps)CERTIFICATE OF SERVICEPa rticipants 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 Hawai#i
)
)
)
Plaintiff, )
)
)
v.
)
)
COUNTY OF HAWAII, a municipal
)
corporation; HAWAII ISLAND
HUMANE SOCIETY S.P.C.A., a non- )
)
profit corporation; DONNA
)
WHITAKER, individually and in
)
her official capacity as
Executive Director of the Hawaii)
Island Humane Society S.P.C.A.; )
)
STARR K. YAMADA, individually
and in her official capacity as )
a Humane Officer; MICHAEL G.M. )
OSTENDORP; CARROLL COX; DARLEEN )
R.S. DELA CRUZ; ROBERTA KAWENA )
)
YOUNG; DOE DEFENDANTS 1-50,
)
Defendants. )
________________________________)
)
)
ROBERTA KAWENA YOUNG,
)
)
Cross Claimant,
)
)
v.
)
MICHAEL G.M. OSTENDORP, CARROLL )
COX, and DARLEEN R.S. DELA CRUZ,)
)
)
Cross Defendants.
)
WARNE KEAHI YOUNG,

Civ. No. 11-00580 ACK-RLP

ORDER (1) GRANTING IN PART AND DECLINING IN PART DEFENDANTS
COUNTY OF HAWAI#I, HAWAII ISLAND HUMANE SOCIETY S.P.C.A., DONNA
WHITAKER, STARR K. YAMADA, AND MICHAEL OSTENDORP’S MOTIONS FOR
SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED COMPLAINT (2)
-1-

DECLINING DEFENDANTS ROBERTA KAWENA YOUNG, CARROLL COX, AND
DARLEEN DELA CRUZ’S MOTIONS FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S SECOND AMENDED COMPLAINT, AND (3) DECLINING
CROSSCLAIM DEFENDANTS MICHAEL OSTENDORP, CARROLL COX, AND DARLEEN
DELA CRUZ’S MOTIONS FOR SUMMARY JUDGMENT AS TO ROBERTA KAWENA
YOUNG’S CROSSCLAIM
PROCEDURAL BACKGROUND
On September 23, 2011, Plaintiff Warne Keahi Young
(“Plaintiff”) filed a Complaint against Defendants County of
Hawai#i, the Hawaii Island Humane Society S.P.C.A. (“HIHS” or
“Humane Society”), Donna Whitaker (individually and in her
official capacity as Executive Director of HIHS), Starr K. Yamada
(individually and in her official capacity as a HIHS Officer),
Michael Ostendorp, Carroll Cox, Darleen Dela Cruz, and Roberta
Kawena Young.

(ECF No. 1).

On January 9, 2012, Plaintiff filed

a First Amended Complaint against all Defendants.

(ECF No. 8).

On March 30, 2012, Plaintiff filed a Second Amended Complaint
(“SAC”).1/

(ECF No. 44).
On September 24, 2012, Roberta Kawena Young (“Roberta

Young”) filed a Crossclaim against Defendants Ostendorp, Cox, and
Dela Cruz.

(ECF No. 76-1).
On December 28, 2012, Defendant Roberta Young filed a

“Motion for Summary Judgment” as to Plaintiff’s Second Amended

1/

Plaintiff filed a “Motion for Leave to File Second
Amended Complaint” on January 30, 2012 (ECF No. 17), which was
subsequently granted by Magistrate Judge Puglisi’s order on March
19, 2012. (ECF No. 39).
-2-

Complaint.

(ECF No. 102).

On January 8, 2013, Defendant Roberta

Young filed a Concise Statement of Facts in Support of her Motion
for Summary Judgment.

(ECF No. 108).

Plaintiff filed a

Memorandum in Opposition and a Concise Statement of Facts on
January 10, 2013.

(ECF No. 113, 114).

did not file a Reply.

Defendant Roberta Young

(See generally, ECF Docket).

On December 31, 2012, Defendants County of Hawai#i,
HIHS, Donna Whitaker, and Starr Yamada (collectively, “HIHS
Defendants”) filed a “Motion for Summary Judgment Against
Plaintiff Warne Keahi Young” (“HIHS MSJ”) and a Concise Statement
of Facts in support of their MSJ (“HIHS Defs.’ CSF”).
98 & 99).

(ECF Nos.

The HIHS Defendants also filed an additional exhibit

to their MSJ on January 2, 2013.

(ECF No. 101).

Plaintiff filed

his Opposition to the HIHS Defendants’ MSJ and a Concise
Statement of Facts (“Plntf.’s HIHS CSF”) on January 10, 2013.
(ECF No. 109, 114).

On February 21, 2013, the HIHS Defendants

filed their Reply in support of their MSJ.

(ECF No. 139).

The

HIHS Defendants also filed an errata to their Reply on February
22, 2013.

(ECF No. 140).

On March 5, 2013, Plaintiff filed an

Amended Concise Statement of Facts.2/

(ECF No. 145).

2/

This Court

The Court notes that Plaintiff’s Amended Concise
Statement of Facts was filed only two days before the March 7,
2013 hearing. (ECF No. 145). This filing is in clear violation
of Local Rule 7.4, which provides that Plaintiff was required to
file the CSF at least twenty-one days prior to March 7.
Furthermore, this filing is prejudicial because it did not
(continued...)
-3-

held a hearing on March 7, 2013 regarding the HIHS Defendants’
MSJ and Defendant Roberta Young’s MSJ.

(ECF No. 147).

Also on December 31, 2012, Defendants Ostendorp, Cox,
and Dela Cruz each filed a “Motion for Summary Judgment as to
Plaintiff’s Second Amended Complaint Filed on March 30, 2012 and
Crossclaim Plaintiff Roberta Young’s Crossclaim Filed on
September 24, 2012” (“Ostendorp’s MSJ,” “Cox’s MSJ,” and “Dela
Cruz’s MSJ” respectively).

(ECF No. 103, 104, 105).

Ostendorp,

Cox, and Dela Cruz also filed a Joint Separate Concise Statement
of Facts in support of their Motions for Summary Judgment
(“Ostendorp, Cox, and Dela Cruz’s JCSF”).

(ECF No. 106).

On

January 10, 2013, Plaintiff filed a Memorandum in Opposition to
Ostendorp’s MSJ, a Memorandum in Opposition to Cox’s MSJ, and a
Memorandum in Opposition to Dela Cruz’s MSJ.
112).

(ECF No. 110, 111,

Plaintiff also filed a Concise Statement of Facts in

response to Defendants’ Joint Statement of Facts (“Plntf.’s
JCSF”).

(ECF No. 114).

On January 23, 2013, Plaintiff untimely

filed a “Supplemental Concise Statement of Material Facts in
Opposition to Defendant[s] Ostendorp, Cox, and Dela Cruz[‘s]
Joint Separate Concise Statement of Facts in Support of Motion

2/

(...continued)
provide sufficient time for Defendants to respond in their reply.
Accordingly, Plaintiff’s Amended CSF “may be disregarded by the
court.” See Local Rule 7.4. Nevertheless, the Court has
considered Plaintiff’s Amended Concise Statement of Facts.
-4-

for Summary Judgment” (“Plntf.’s Supp. JCSF”).3/

(ECF No. 121).

On January 28, 2013, Ostendorp, Cox, and Dela Cruz filed a single
Reply Memorandum responding to Plaintiff’s Oppositions.

(ECF No.

124).
On January 29, 2013, eight days past the deadline for
opposition memorandums,4/ Crossclaim Plaintiff Roberta Young
filed an “Omnibus Memorandum in Opposition to Defendants Michael
G.M. Ostendorp, Carroll Cox, and Darleen R.S. Dela Cruz’[s]
Motion for Summary Judgment.”

(ECF No. 129).

Crossclaim

Plaintiff Roberta Young did not file a Concise Statement of
Facts.

See ECF Docket.

did not file a reply.

Defendants Ostendorp, Cox, and Dela Cruz

Id.

On February 11, 2013, this Court held

a hearing regarding Defendants Ostendorp, Cox, and Dela Cruz’s
Motions for Summary Judgment as to Plaintiff’s Second Amended
Complaint and Roberta Young’s Crossclaim.

(ECF No. 133).

In the February 11 and March 7, 2013 hearings, the
Court observed that Exhibit 4 of Plaintiff’s Supplemental Joint

3/

Local Rule 7.4 states that an opposition for a motion set
for hearing “shall be served and filed not less than twenty-one
(21) days prior to the date of the hearing.” Local R. of
Practice for the U.S. Dist. Court for the Dist. of Haw. 7.4.
Because the hearing date for these summary judgment motions was
set for February 11, 2013, Plaintiff’s documents should have been
filed by January 21, 2013. Nevertheless, the Court has examined
the documents during the course of considering this case.
4/

The Court notes that, according to Local Rule 7.4 as
explained supra in fn.3, Crossclaim Plaintiff Roberta Young’s
Oppositions were due by January 21, 2013.
-5-

Concise Statement of Facts (ECF No. 121) is a heavily redacted
report of the State of Hawaii Department of the Attorney
General’s (“AG”) investigation regarding an allegedly forged
general power of attorney dated September 12, 2009.

On April 3,

2013, this Court issued an Order Granting in Part and Denying in
Part Plaintiff’s Motion to Compel Discovery Response and directed
the Hawai#i AG to submit to this Court an unredacted version of
the report.

ECF No. 152. The Court received an unredacted copy

of the Hawaii AG’s report on April 23, 2013.
155).

(ECF No. 154 &

The Court subsequently allowed the parties to view the

unredacted version of the AG report and to submit supplemental
briefing regarding the report’s effect on Defendants’ MSJs.
No. 155).

(ECF

Plaintiff timely submitted a Supplemental Memorandum

in Opposition discussing the effect of the report on Defendant’s
(ECF No. 156).5/

MSJs.

FACTUAL BACKGROUND
This case arises from the seizure of seventeen dogs
(“Dogs”) from a residence in Hilo and the subsequent events that
resulted in the HIHS’s disposal of the Dogs by way of euthanasia
or offering the Dogs for adoption.

The parties agree on the

following basic outline of events, but they disagree regarding
the details.

5/

None of Defendants timely filed any supplemental
briefing regarding the Hawai#i AG report.
-6-

At some point in 2007, Plaintiff was charged with
Animal Cruelty in the 2nd Degree under Haw. Rev. Stat. § 7111109.6/
98.

See HIHS Defs.’ MSJ Ex. A at 4, Ex. F. at 92-93, ECF No.

After pleading guilty to the offense of animal neglect and

cruelty, Plaintiff subsequently was fined and placed on
probation.

HIHS Defs.’ MSJ Ex. F at 93-94, 106-107, ECF No. 98.

As a result of the charges in 2007, Plaintiff was only allowed to
have ten dogs at his house.

Id at 106-07.

On September 25, 2009, Yamada, an officer of HIHS,
applied for a search warrant in the District Court of the Third
Circuit of the State of Hawai#i to search Plaintiff’s residence
at 42 W. Kahaopea Street, District of South Hilo, HI
(“Residence”).7/
7, ECF No. 44.

See HIHS Defs.’ MSJ Ex. A, ECF No. 98; SAC at
According to the affidavit that Yamada submitted

as part of the application, Yamada had observed two of the Dogs
on June 30, August 17, September 18, and September 24, 2009.

Id.

6/

At the time of Plaintiff’s charge in 2007, H.R.S. § 7111109 stated, inter alia, that a person commits the offense of
cruelty to animals in the second degree if the person
intentionally, knowingly, or recklessly tortures an animal,
“deprives a pet animal of necessary sustenance,” or uses an
animal to fight other animals.” Under the statute, cruelty to
animals is classified as a misdemeanor. H.R.S. § 711-1109(4)
(1993 & Supp. 2007). The record is not clear as to why Plaintiff
was charged with Animal Cruelty in the 2nd Degree in 2007.
7/

During the time period when the events giving rise to
this claim occurred, Plaintiff actually resided at the Residence,
although at times he lived in his truck. (SAC at 8, HIHS Defs.’
MSJ Ex. F at 24, ECF No. 44).
-7-

She observed among other things that (1) the kennels of the two
Dogs had feces covering the bottoms of the cages, (2) the Dogs
did not have water in their bowls, and (3) one of the Dogs
appeared to have a skin infection.

Id.

The District Court of

the Third Circuit, State of Hawai#i subsequently granted Search
Warrant No. 09-001 on September 25, 2009 (“Search Warrant”) based
on the search warrant application.

Id.

The Search Warrant empowered HIHS officers to search
for and seize any abused animals at the Residence, as well as
documents establishing the identity of the person who owned or
controlled the Residence.

HIHS Defs.’ MSJ at 3, Ex. B, ECF No.

98.
On the morning of September 29, 2009,8/ Yamada executed
the search warrant at the Residence and seized the Dogs, pieces
of mail belonging to Plaintiff, and a court document in
Plaintiff’s name.

SAC at 8, ECF No. 44.

On that same morning of

September 29, 2009, Plaintiff traveled to Oahu; he was not at the
Residence when HIHS executed the search warrant.

Id.

On

September 30, 2009, a Return of Search Warrant No. 09-001 was
filed in the District Court of the Third Circuit, State of

8/

The SAC states the date of September 29, 2011, but the
Court assumes that Plaintiff meant September 29, 2009, which is
the year cited for events surrounding the date of the search and
seizure. At Plaintiff’s deposition dated November 16, 2012,
Plaintiff’s attorneys clarified that the correct date is
September 29, 2009. HIHS Defs.’ MSJ Ex. F at 58.
-8-

Hawai#i.

Id.

Yamada attached an inventory statement to the

Return of Search Warrant containing a list of the Dogs, pieces of
mail, and a court document seized from the Residence.

Id at 9.

Shortly thereafter, on or about October 1, 2009,
Plaintiff and Roberta Young9/ met with Defendant Ostendorp, an
attorney in private practice, in Honolulu at the Waikiki Yacht
Club.

Dec. of Ostendorp at 3, ECF No. 139; Plntf.’s Supp. JCSF

Ex. 4 at 000020, ECF Nos. 154 & 155.

Ostendorp agreed to help

Plaintiff and Roberta Young regarding the seizure of the Dogs on
September 29, 2009.

Id.

As a result of the agreement to help

Plaintiff and Roberta Young, Ostendorp flew with Defendant Cox
and Plaintiff to Hilo.

Id.

Subsequently, Ostendorp met with

HIHS Officer Yamada on October 5, 2009 regarding the status of
the Dogs.

Id.
During Ostendorp’s meeting with Officer Yamada on

October 5, 2009, Ostendorp told Yamada that he represented
Plaintiff, that Plaintiff was under suicide watch in a Honolulu
hospital, and informed her that he “wanted to work this out
because [Plaintiff] did not want to get into any more trouble
since he was still on probation.”

9/

Plntf.’s Supp. JCSF Ex. 4 at

Roberta Young is Plaintiff’s biological mother, but
Plaintiff refers to her as his sister. HIHS Defs.’ MSJ Ex. F at
39-40. At the hearing on February 11, 2013, Plaintiff’s counsel
clarified that Plaintiff at some point in time had been adopted
by his grandmother.
-9-

00016, ECF Nos. 154 & 155.10/

Yamada indicated that an owner

surrender of the dogs would be an ideal way to resolve the
situation.

Id.
At some point after the October 5 meeting, Defendant

Ostendorp drafted a general Power of Attorney dated September 12,
2009, (“POA”) purporting to appoint Roberta Young as Plaintiff’s
attorney-in-fact.
No. 139-6.

SAC at 16, Dec. of Ostendorp at 3 ¶ 6-7, ECF

On October 7, 2009, Ostendorp called Yamada and

stated that Roberta Young had a signed power of attorney from
Plaintiff, and that Roberta Young wanted to surrender the dogs to
HIHS.

Plntf.’s Supp. JCSF Ex. 4 at 00016, ECF Nos. 154 & 155.

Yamada told Ostendorp that she would need to speak with Roberta
Young.

Id.

A woman identifying herself as Roberta Young called

later that day, stated that she had a power of attorney from
Plaintiff, and indicated that she wanted to surrender the Dogs to
HIHS.

Id.

During the conversation, the woman told Yamada that

she was fearful of Plaintiff and did not want him to find out
that she had surrendered the Dogs.

10/

Id.

Using Plaintiff’s

Plaintiff submitted Exhibit 4, which is a redacted copy
of the Hawai#i AG report, as part of his exhibits opposing
Defendants’ MSJs. The Court cites to the Hawai#i AG report in
Plaintiff’s Supplemental Joint Concise Statement of Facts (ECF
No. 121-7) to acknowledge that Plaintiff submitted the document
into the record. An unredacted version of the Hawai#i AG report
is contained in the record at ECF Nos. 154 & 155. The Court
considers the unredacted version of the AG report in place of the
redacted Exhibit 4, and references to Exhibit 4 in this order
refer to the unredacted version.
-10-

general POA, Roberta Young completed an Animal Surrender Policy
Form surrendering “her dogs” to HIHS on October 7, 2009
(“Surrender Form”).
ECF No. 98.

SAC at 16; HIHS Defs.’ MSJ at Ex. C, D, & E,

She gave the Surrender Form to Ostendorp, who in

turn transmitted it to HIHS along with a letter asking Yamada not
to notify Plaintiff regarding the status of the Dogs because “he
is not the owner of the dogs.”

Id.

On October 13, 2009, Yamada sent an email requesting a
power of attorney from Ostendorp.
No. 121.

Plntf.’s Supp. JCSF Ex. 3, ECF

Ostendorp’s office sent the September 12, 2009 general

POA to Yamada.

Id.

Subsequently, HIHS euthanized nine of the

Dogs and placed eight of them for adoption.

HIHS Defs.’ MSJ at 6

n.3, ECF No. 98.
I.

Defendants’ Version of the Facts
Defendants state that Plaintiff informed attorney

Ostendorp that he was afraid of criminal prosecution for the
neglect of the Dogs that had been seized at the Residence and for
being accused of violating the terms of his probation from the
2007 animal neglect charges.

HIHS Defs.’ MSJ Reply, Dec. of

Ostendorp at 2, ECF No. 139-6.

When Ostendorp spoke with HIHS

regarding Plaintiff’s alleged violations of law, HIHS suggested
that if the Dogs were surrendered to HIHS, Plaintiff would not be
charged with violating state animal cruelty laws and thus his
probation would not be revoked.

Plntf.’s Supp. JCSF Ex. 4 at

-11-

000016, ECF Nos. 154 & 155.

As a result of the surrender of the

Dogs, HIHS never initiated proceedings to file charges against
Plaintiff for violating any animal cruelty law in 2009.
Defs.’ MSJ Ex. F at 104-105, ECF No. 98.

See HIHS

Additionally, Plaintiff

at some point threatened to commit suicide because of the
prospect of facing jail time as a result of the September 29,
2009 seizure of the neglected Dogs.11/
ECF No. 139-6.

Dec. of Ostendorp at 3,

Plaintiff and Roberta Young decided to pick the

date of September 12, 2009 on the general POA in order to
substantiate Plaintiff’s claim that Roberta Young was the true
owner of the Dogs during the time of the September 29, 2009
seizure.
II.

Id at 3.

Plaintiff’s Version of the Facts
Plaintiff claims that he never told Defendant Ostendorp

that he was afraid of criminal prosecution for neglecting the
Dogs.

Ostendorp, Cox, and Dela Cruz’s JCSF Ex. A at 104, ECF No.

11/

At the time the Dogs were seized on September 29, 2009,
H.R.S. § 711-1109 stated, inter alia, that a person commits the
offense of animal cruelty in the second degree by “intentionally,
knowingly, or recklessly” (1) depriving a pet animal of necessary
sustenance or (2) confining a pet animal in a kennel or cage in a
cruel or inhumane manner. H.R.S. § 711-1109 (1993 and Supp.
2009). Additionally, H.R.S. § 711-1109.6 in 2009 stated, inter
alia, that a person commits the offense of animal hoarding by
“intentionally, knowingly, or recklessly” (1) possessing more
than fifteen dogs (2) failing to provide necessary sustenance for
each dog, and (3) failing to correct the conditions under which
the dogs are living, where conditions injurious to the dogs’ or
owner’s health and well-being result from the person’s failure to
provide necessary sustenance. H.R.S. § 711-1109 (1993 and Supp.
2009) Animal hoarding is a misdemeanor. Id.
-12-

106.

He also claims that he never told Defendants Ostendorp and

Cox that he was in violation of the terms of his probation, that
he was afraid of going to jail, or that he would commit suicide
if he had to go to jail.12/

Id at 223.

Plaintiff states that he

12/

While the Court in articulating “Plaintiff’s Version of
the Facts” recites statements from Plaintiff’s deposition
testimony, the Court also notes that Plaintiff’s SAC, inter alia,
makes the following allegations:
(1) On or about October 1, 2009 on the Island of Oahu, Mr.
Young and Defendant [Roberta Young] consulted with Defendant
Ostendorp and Defendant Cox to obtain legal advice for Mr.
Young regarding Defendant HIHS’ illegal entry into Mr.
Young’s home and the illegal seizure of Mr. Young’s dogs,
and potential criminal charges against Mr. Young. SAC at 910 ¶ 31.
(2) On or about October 2, 2009, on the island of Oahu, Mr.
Young and Defendant [Roberta Young] again consulted with
Defendant Ostendorp and Defendant Cox to obtain legal advice
for Mr. Young regarding Defendant HIHS. Id at 10 ¶ 34.
(3) On or about October 5, 2009, Defendant Ostendorp and
Defendant Cox travelled with Mr. Young to Hawaii Island for
further consultation and to investigate his legal
difficulties with Defendant HIHS. Id at ¶ 36.
(4) During this October 5, 2009, trip to Hawaii Island,
Defendant Ostendorp met with Starr Yamada at the Hawaii
Island Humane Society to discuss the allegations against
Mr. Young for animal cruelty. Id at 11, ¶ 38.
(5) On or about October 7, 2009, Defendant Ostendorp and
Defendant [Roberta Young] signed a retainer agreement. The
scope of the agreement provided for “representing you in
protecting your financial assets, reducing your financial
liability and to help to keep Warne Keahi Young out of jail.
Id at ¶ 40.
(6) On or about October 8, 2009, Mr. Young met with
Defendant Ostendorp and Defendant Cox. During this meeting
Defendant Ostendorp advised Mr. Young that he could be
(continued...)
-13-

never signed the general POA transferring his rights to Roberta
Young or giving Roberta Young the legal right to transfer his
property.

HIHS Defs.’ MSJ Ex. F at 168, ECF No. 98.

He also

contends that the Surrender Form did not legally surrender his
dogs seized from his property.

Id at 172.

However, the Court notes that Plaintiff does admit to
(1) calling Ostendorp for legal assistance regarding seizure of
the Dogs, (2) meeting with Ostendorp, Cox, Dela Cruz, and Roberta
Young at the Waikiki Yacht Club on October 1 and October 8, (3)
learning that Roberta Young hired Ostendorp to keep Plaintiff out
of jail, and (4) signing a general power of attorney dated
October 8, 2009, that would give Roberta Young authority to

12/

(...continued)
incarcerated for twenty-seven (27) years. Defendant
Ostendorp conveyed a plan to Mr. Young. The plan was to
have Dr. Slomoff, a psychologist at Queen’s Medical Center,
declare Mr. Young unfit and have Mr. Young voluntarily
commit himself to a mental institution. Id at 12, ¶ 44.
(7) Mr. Young ultimately decided not to meet with Dr.
Slomoff or voluntarily commit himself. Id at ¶ 45.
(8) On or about October 12, 2009, Defendant Ostendorp met
again with Mr. Young and Defendant [Roberta Young] to
further discuss Mr. Young’s legal matters. Id at 13, ¶ 47.
(9) Using the forged Power of Attorney, Defendant [Roberta
Young] completed an HIHS animal surrender form certifying
that she was the rightful owner of the animal(s) seized from
Mr. Young’s residence. Id at 16, ¶ 66.
(10) Defendant [Roberta Young] completed the Animal
Surrender Policy form and returned the same to Defendant
Ostendorp, who in turn transmitted the forms to Defendant
HIHS. Id at ¶ 68.
-14-

exercise his legal rights in the event that Plaintiff was
declared “not mentally fit” by a psychiatrist.

Plntf.’s Supp.

JCSF Ex. 4 at 000020, ECF Nos. 154 & 155, Plntf.’s Supp. JCSF Ex.
6 at 1, ECF No. 121.

Additionally, Plaintiff’s Exhibit 4, a copy

of a Hawai#i AG report, indicates that Ostendorp told Yamada that
he was representing Plaintiff, that Plaintiff was under suicide
watch, and that Ostendorp as Plaintiff’s attorney wanted to “work
this out” to prevent Plaintiff from violating his probation.
Plntf.’s Supp. JCSF Ex. 4 at 000016, ECF Nos. 154 & 155.
Plaintiff’s Exhibit 4 also states that a woman purported to be
Roberta Young called Yamada and indicated that she had a signed
power of attorney signed by Plaintiff and desired to surrender
the Dogs.

Id; see Plntf.’s Supp. Opp. at 3, ECF No. 156.
STANDARD
A party may move for summary judgment on any claim or

defense - or part of a claim or defense - under Federal Rule of
Civil Procedure (“Rule”) 56.

Summary judgment “should be granted

‘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.’”

Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th

Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).

Under Rule 56, a

“party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” either by “citing to particular
parts of materials in the record” or by “showing that the

-15-

materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
The substantive law determines which facts are
material; “only disputes over facts that might affect the outcome
of the suit under the governing law properly preclude the entry
of summary judgment.”

Nat’l Ass’n of Optometrists & Opticians v.

Harris, 682 F.3d 1144, 1147 (9th Cir. 2012).

“The mere existence

of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact.”

Scott v. Harris, 550 U.S. 372, 380 (2007)

(citation omitted).
A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)).

Conversely, “[w]here the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.”

Scott, 550 U.S. at

380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact.

-16-

Avalos v.

Baca, 596 F.3d 583, 587 (9th Cir. 2010).13/

If the moving party

satisfies its burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.”
Cir. 2010).

Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th

The nonmoving party must present evidence of a

“genuine issue for trial,” Fed. R. Civ. P. 56(e), that is
“significantly probative or more than merely colorable.”14/

LVRC

Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citation omitted).

Summary judgment will be granted against a

party who fails to demonstrate facts sufficient to establish “an
element essential to that party’s case and on which that party
will bear the burden of proof at trial.”

Parth v. Pomona Valley

13/

When the party moving for summary judgment would bear the
burden of proof at trial, the movant must present evidence which
would entitle it to a directed verdict if the evidence were to go
uncontroverted at trial. Miller v. Glenn Miller Prods., 454 F.3d
975, 987 (9th Cir. 2006) (citation omitted). In contrast, when
the nonmoving party would bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by pointing
out the absence of evidence from the nonmoving party. Id.
(citation omitted).
14/

The Ninth Circuit has noted that “Legal memoranda and
oral argument, in the summary-judgment context, are not evidence,
and do not create issues of fact capable of defeating an
otherwise valid motion for summary judgment.” Flaherty v.
Warehousemen, Garage and Service Station Emp. Local Union No.
334, 574 F.2d 484, 486 n.2 (9th Cir. 1978), see also Barcamerica
Intern. USA Trust v. Tyfield Importers, 289 F.3d 589, 593 n.4
(9th Cir. 2002). Additionally, allegations in the plaintiff’s
complaint “do not create an issue against a motion for summary
judgment supported by affidavit.” Flaherty, 574 F.2d at 486 n.2.
-17-

Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010 (citation
omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.”

Scott v. Harris, 550 U.S. 372, 378 (2007).

The court

may not, however, weigh conflicting evidence or assess
credibility.

In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008).15/

Accordingly, if “reasonable minds could differ as to the import
of the evidence,” summary judgment will be denied.

Anderson, 477

U.S. at 250–51.
DISCUSSION
I. Whether This Court Should Grant the HIHS Defendants’ MSJ as to
Plaintiff’s 42 U.S.C. § 1983 Claims
Plaintiff’s SAC alleges, inter alia, that the HIHS
Defendants violated Plaintiff’s constitutional rights under the
Fourth, Fifth, and Fourteenth Amendments by seizing and disposing

15/

Nonetheless, a “conclusory, self-serving affidavit” that
lacks detailed facts and supporting evidence may not create a
genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d
1150, 1159 (9th Cir. 2010). Moreover, “[w]hen opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott,
550 U.S. at 380. “The general rule in the Ninth Circuit is that
a party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012).
-18-

of the Dogs.

SAC at 22-25.

under 42 U.S.C. § 1983.

Id.

Accordingly, Plaintiff seeks relief
To prevail on a § 1983 claim,

Plaintiff must prove two essential elements:

(1) “that a right

secured by the Constitution or laws of the United States was
violated,” and (2) “that the alleged violation was committed by a
person acting under the color of State law.”

Long v. Cnty. of

Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

The HIHS

Defendants do not contest that they were acting under the color
of state law.

See HIHS Defs.’ MSJ at 10-18, ECF No. 98.

The

HIHS Defendants only contest the first element by arguing that
they did not violate Plaintiff’s constitutional rights.
The Court also notes that Plaintiff’s § 1983 claims in
the SAC and the § 1983 discussion in his Opposition refer only to
the Dogs and do not discuss other property mentioned in the state
tort law claims of the SAC and the MSJ briefs.
IV and Plntf.’s HIHS MSJ Opp. at 4-13.

See SAC Counts I-

Accordingly, the Court

only examines the HIHS Defendants and Defendant Ostendorp’s
conduct regarding the Dogs when considering the § 1983 claims.
A. Whether the HIHS Defendants Violated Plaintiff’s
Constitutional Rights
1. Whether the HIHS Defendants Violated Plaintiff’s
Fourth Amendment Rights
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
-19-

against unreasonable searches and seizures.”
U.S. 696, 700 (1983).

U.S. v. Place, 462

A “seizure” of property occurs when “there

is some meaningful interference with an individual’s possessory
interests in that property.”
56, 68 (1992).

Soldal v. Cook Cnty, III, 506 U.S.

“In the ordinary case, the Court has viewed a

seizure of personal property as per se unreasonable within the
meaning of the Fourth Amendment unless it is accomplished
pursuant to a judicial warrant issued upon probable cause and
particularly describing the items to be seized.”

Id at 701.

Destruction of property originally obtained through a lawful
search and seizure may constitute a violation of the Fourth
Amendment.

See U.S. v. Jacobsen, 466 U.S. 109, 124-25 (1984)

(noting that a field test that destroyed a small quantity of
powder violated the owner’s possessory interest).
Plaintiff alleges that Officer Yamada violated his
Fourth Amendment rights because (1) she was not statutorily
authorized to apply for and execute the Search Warrant, and (2)
“the continued illegal seizure of [Plaintiff’s Dogs] . . .
effectively deprived [Plaintiff] of his 4th Amendment rights.”
Plntf.’s HIHS Opp. at 5-6.

The Court will address each argument

in turn.
Plaintiff argues that HIHS officers do not have
authority to apply for or execute search warrants under Hawai’i
statutory law.

Plntf.’s HIHS Opp. at 5.

-20-

Contrary to Plaintiff’s

erroneous interpretation of the statutory language, HIHS officers
may apply for and execute search warrants as officers of the
state.

According to Haw. Rev. Stat. § 711-1109.1 (1993 & Supp.

2009), a law enforcement officer who obtains a valid search
warrant may impound a pet animal, among other things.

The

statute defines “law enforcement officer” according to H.R.S. §
710-1000 (1993 & Supp. 2009), which provides the following
definition:
any public servant, whether employed by the State or
subdivisions thereof . . . vested by law with a duty to
maintain public order, to make arrests for offenses or
to enforce the criminal laws, whether that duty extends
to all offenses or is limited to a specific class of
offenses.
H.R.S. § 710-1000 defines a “public servant” as “any
officer or employee of any branch of government . . . and any
person participating as advisor, consultant, or otherwise, in
performing a governmental function.”

H.R.S. § 710-1000 (emphasis

added).
Plaintiff argues that Hawai#i County Ordinance § 4.9
states that HIHS officers shall not be viewed as an agent or
employee of the county; therefore, HIHS officers do not meet the
definition of “public servant” in H.R.S. § 710-1000.

Id.

Plaintiff’s interpretation completely disregards the second half
of the definition, which includes “any person . . . performing a
governmental function.”

H.R.S. § 710-1000.

In this case, the

County of Hawai#i signed a contract for HIHS to perform the
-21-

governmental function of enforcing animal control laws.

See HIHS

Defs.’ Reply Errata Ex. A at 2084, ECF No. 140.
Hawai#i law does not bar such an arrangement; in fact,
the statutory scheme demonstrates that the state legislature
intended to allow organizations like HIHS to perform government
functions to enforce animal control laws.

See H.R.S. § 711-1110

(providing that agents of a society formed or incorporated for
the prevention of cruelty to animals may arrest violators of
animal cruelty laws).

Accordingly, Defendant Yamada had

authority under state law to apply for and execute the Search
Warrant.

Plaintiff does not argue that the Search Warrant lacked

probable cause or is invalid on any other basis.16/
HIHS Opp. at 5-6.

See Plntf.’s

Accordingly, Officer Yamada’s search and

seizure of the Dogs on September 29, 2009 did not violate
Plaintiff’s Fourth Amendment rights because it was performed
under a valid search warrant.

16/

Although Plaintiff asserts in ¶ 95 and ¶ 103 in the SAC
that HIHS seized the Dogs without probable cause, neither his
Opposition nor his concise statements of facts contest the
validity of the Search Warrant. See generally, Plntf.’s Opp.,
ECF No. 109, Plntf.’s Amended HIHS CSF, ECF No. 145.
Accordingly, Plaintiff fails to raise a genuine issue of material
fact regarding the validity of the Search Warrant and whether
Yamada had probable cause to search his Residence and seize the
Dogs on September 29, 2009. See Flaherty, 574 F.2d at 486 n.2
(holding that allegations in the plaintiff’s complaint “do not
create an issue against a motion for summary judgment supported
by affidavit”).
-22-

Plaintiff’s next argument that Defendant Yamada
“seized” the Dogs by disposing of them after the legal seizure is
likewise without merit.

The Fourth Amendment does not protect

against all seizures by law enforcement officials - in order for
a violation to occur, the seizure must be “unreasonable.”
v. Cnty. of Inyo, 489 U.S. 593, 599 (1989).

Brower

The Fourth Amendment

is not violated when an individual consents to relinquish his
person or property.

See United States v. Mendenhall, 446 U.S.

544, 557-60 (1980) (plaintiff’s Fourth Amendment rights were not
violated when she gave voluntary consent to police search),
Hester v. United States, 265 U.S. 57, 58 (1924) (no Fourth
Amendment violation when police seized jug and bottle abandoned
by plaintiff), and Waters v. Howard Sommers Towing, Inc., Civ.
No. 10-5296 CAS (AJWx), 2011 WL 2601835 at *8 (C.D. Cal. 2011)
(no Fourth Amendment seizure when police retained drivers license
voluntarily given by plaintiff).
Officer Yamada received the Surrender Form signed by
Roberta Young and the general POA dated September 12, 2009
purportedly signed by Plaintiff conferring “broad and sweeping
powers” to Roberta Young to “exercise all of [Plaintiff’s] legal
rights and powers.”

HIHS Defs.’ MSJ at Ex. D & E, ECF No. 98.

The Surrender Form stated that the signer relinquished ownership
of the animals and that HIHS would become the new legal owner.
Id at Ex. E.

These documents were transmitted to Officer Yamada

-23-

and HIHS by Ostendorp, an attorney who represented to Yamada and
HIHS that he was acting on Roberta Young and Plaintiff’s behalf.
Id at Ex. C; Plntf.’s Supp. JCSF Ex. 4 at 000016, ECF Nos. 154 &
155.

Ostendorp specifically stated that Plaintiff was not the

owner of the Dogs.

HIHS Defs.’ MSJ at Ex. C, ECF No. 98.

Additionally, Yamada asked for verification - she requested that
Ostendorp tell the person with the general POA to call Yamada,
and the record reflects that Yamada did in fact receive a call
from a woman purported to be Roberta Young, who stated that she
had a general POA signed by Plaintiff.
at 000016, ECF Nos. 154 & 155.

Plntf.’s Supp. JCSF Ex. 4

Furthermore, Yamada asked

Ostendorp to submit a copy of the signed general POA before HIHS
would take action with respect to the Dogs, and she received a
copy of the general POA.

Plntf.’s Supp. JCSF Ex. 3, ECF No. 121.

Based on these uncontested facts, Officer Yamada concluded that
the Dogs were no longer Plaintiff’s property.17/
Although Plaintiff concedes that the general POA and
Surrender Form were in fact given to Officer Yamada, Plaintiff
argues that the general POA and Surrender Form were invalid
because of fraud and forgery.

Plntf.’s Opp. at 8, ECF No. 109;

17/

Plaintiff’s arguments that Yamada should be liable merely
because she was somehow involved in the loss of the Dogs
oversimplifies the constitutional law analysis. Plntf.’s Supp.
Opp. at 3. The crux of the matter is whether Yamada could
reasonably believe that Plaintiff’s purported agents could
surrender the Dogs; if so, then Yamada’s seizure was not
unreasonable under the Fourth Amendment.
-24-

HIHS Defs.’ MSJ Ex. F at 168, ECF No. 98.

Assuming Plaintiff’s

version of the facts as true - namely that the general POA and
Surrender Form were in fact invalid - Officer Yamada’s actions
did not violate the Fourth Amendment because her disposal of the
Dogs was based on a mistake of fact as to the validity of the
documents.

A mistake of fact does not automatically result in a

conclusion that an officer’s conduct constitutes an unreasonable
seizure.

See Hill v. California, 401 U.S. 797, 802-804 (1971)

(officer’s mistake of fact in arresting the wrong person did not
violate Fourth Amendment), Maryland v. Garrison, 480 U.S. 79, 8687 (1987) (officer’s mistake of fact in searching the wrong
premises did not violate Fourth Amendment), and Torres v. City of
Madera, 524 F.3d 1053, 1056-57 (9th Cir. 2008) (acknowledging
that officer conduct might not violate Fourth Amendment despite
mistake of fact).
Plaintiff then presents a barrage of arguments as to
why Yamada should have known that Plaintiff did not want to
surrender the Dogs - in other words, the crux of Plaintiff’s
argument is that Yamada’s conduct was unreasonable because she
should have detected the alleged fraud.

See Plntf.’s Supp. Opp.

at 2, ECF No. 156 (arguing that Yamada should have challenged the
authenticity of the POA).

For a reasonableness inquiry as to

whether the Fourth Amendment was violated, the Court examines
whether Yamada’s conduct was objectively unreasonable under the

-25-

circumstances.

See Hill v. California, 401 U.S. 797, 802-804

(1971),18/ Maryland v. Garrison, 480 U.S. 79, 87 n.11 (1987)(“the
mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability”) and Torres v. City
of Madera, 524 F.3d 1053, 1056-57 (9th Cir. 2008) (holding that
district court should make a finding as to whether officer’s
mistake in using a gun instead of a taser was objectively
unreasonable).

Additionally, the Court examines the perspective

of the officer when judging the reasonableness of the mistake and
should take into account the facts and circumstances confronting
him or her.

Torres, 524 F.3d at 1056.

Plaintiff’s contentions do not create a material issue
of fact that Yamada’s actions were objectively unreasonable.
Plaintiff argues that the HIHS Defendants should have known that
Roberta Young was not the rightful owner because (1) the animals
had been taken from Plaintiff’s Residence, (2) HIHS had numerous
contacts with Plaintiff regarding the care of his animals from
the time of his previous charge of animal cruelty in 2007, and
(3) the HIHS Defendants had interactions with Ostendorp regarding

18/

In Hill, the Supreme Court, in the context of an
officer’s mistaken arrest of the wrong person, held that
“sufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment and on the record
before us the officers’ mistake was understandable and the arrest
a reasonable response to the situation facing them at the time.”
Hill, 401 U.S. at 803-04.
-26-

the status of the animals.19/

Plntf.’s Opp. at 9, ECF No. 109.

Regarding the first two arguments, there is uncontested evidence
in the record that, viewing the situation from Yamada’s
perspective, Ostendorp and Roberta Young had authority to
surrender the Dogs in 2009.
Ostendorp “informed Yamada that he was [Plaintiff’s]
attorney20/ and that [Plaintiff] was currently under suicide watch
in a Honolulu hospital.”21/
ECF Nos. 154 & 155.

Plntf.’s Supp. JCSF Ex. 4 at 000016,

He also stated that “he wanted to work this

out because [Plaintiff] did not want to get into any more trouble

19/

The Court notes that Plaintiff fails to cite to any
exhibits, otherwise point to evidence in the record, or identify
evidence in Plaintiff’s Concise Statement of Facts to support
these assertions. See Plntf.’s Opp. at 9 and Plntf.’s JCSF at 810. Under FRCP 56(c)(1), the Court is not required to search for
Plaintiff’s evidence in the record. Furthermore, under L.R.
56.1(f), the court has no “independent duty to review exhibits in
their entirety,” but is only required to review “those portions
of the exhibits specifically identified in the concise
statements.” Nevertheless, the Court has considered the record
and the exhibits that appear to involve these arguments.
20/

The Court, by examining what Yamada could have known from
the evidence in the record, does not make a factual finding that
an attorney-client relationship actually existed between
Ostendorp and Plaintiff.
21/

The Court assumes that Ostendorp made these statements to
Yamada because Plaintiff does not contest the content of these
statements. Plntf.’s Supp. Opp. at 2-3, ECF No. 156. While the
Court construes the facts in Plaintiff’s favor and assumes that
Plaintiff never told Defendants Ostendorp and Cox that he was in
violation of the terms of his probation, that he was afraid of
going to jail, or that he would commit suicide if he had to go to
jail (see supra at 12-13); the Court uses Ostendorp’s statements
to Yamada to determine Yamada’s viewpoint because Plaintiff does
not contest what Ostendorp said to Yamada.
-27-

since he was still on probation.”

Id.

Ostendorp later told

Yamada that Roberta Young had a general POA signed by Plaintiff,
and that she wanted to surrender the Dogs based on her authority
to do so.

Id.

Plaintiff fails to identify a material issue of

fact that Yamada had reason to know that Ostendorp’s
representations were false and that Ostendorp’s request to “work
this out” did not reflect the actual position of Plaintiff or
those apparently authorized to act on Plaintiff’s behalf.

Even

if Plaintiff had past encounters with HIHS, Yamada’s conclusion
that Plaintiff’s purported agents had authority to change his
position with regard to the Dogs was not objectively
unreasonable.
The representations explained above also address
Plaintiff’s third argument that Yamada’s interactions with
Ostendorp should have alerted her as to any fraudulent activity.
The content of the conversations reveals that Yamada performed
her actions with the understanding that she was acting in
alignment with Plaintiff’s agents, not contrary to his interests.
In fact, the Court observes that, in one of the conversations
mentioned by Plaintiff, Yamada asked to speak with the woman who
allegedly had the general POA.
000016, ECF Nos. 154 & 155.

Plntf.’s Supp. JCSF Ex. 4 at

A woman identifying herself as

Roberta Young called Yamada on October 7, 2009 to verify that she
had a general POA signed by Plaintiff and wanted to surrender the

-28-

Dogs to HIHS.22/

Id at 000016-17.

Regarding the letter dated

October 7, 2009, Ostendorp specifically stated that Plaintiff “is
not the owner of the dogs and none of the information regarding
this matter should be released to him.”
C, ECF No. 98.23/

HIHS Defs.’ MSJ at Ex.

Accordingly, based on the explicit

representations of Ostendorp and Roberta Young, Yamada’s failure

22/

Plaintiff argues that the woman purporting to be Roberta
Young further stated during the conversation that “she was
fearful of [Plaintiff] and did not want him learning that she had
surrendered the dogs.” Plntf.’s Supp. JCSF Ex. 4 at 000017.
Accordingly, Plaintiff draws the inference that Yamada knew that
Plaintiff did not want to surrender the Dogs. Plntf.’s Supp.
Opp. at 3. However, even such an argument does not make Yamada
objectively unreasonable in believing that his agents had
authority to transfer the Dogs, especially given the
representation that Plaintiff was hospitalized following the
seizure of the Dogs. On October 5, two days before the general
POA was submitted to HIHS, Ostendorp told Yamada that Plaintiff
was “under suicide watch in a Honolulu hospital.” Plntf.’s Supp.
JCSF Ex. 4 at 000016. The record reflects that Yamada believed
this representation because during their October 7th telephone
conversation she asked Roberta Young as to Plaintiff’s status
regarding the suicide watch and was told he was fine. Id. In
light of Ostendorp’s representation to Yamada that Plaintiff was
under suicide watch at the hospital on October 5, 2009, Yamada
was not unreasonable in assuming that the general POA dated
September 12, 2009 and submitted to HIHS on October 7 served a
legitimate purpose as opposed to a fraudulent or invalid one.
Additionally, the fact that the general POA was dated September
12, 2009 did not give Yamada reason to question the validity of
the document because a general POA may be created for various
purposes, and the September 12, 2009 date indicated that the
document was executed and notarized weeks before the September
29, 2009 seizure of the Dogs.
23/

Plaintiff’s counsel in the supplemental opposition brief
even acknowledges that Ostendorp told Yamada that Plaintiff was
not the owner of the Dogs. Plntf.’s Supp. Opp. at 2, ECF No.
156.
-29-

to detect fraud regarding the general POA and the Surrender Form
is not objectively unreasonable.24/
As a result, the Court concludes that there has been no
Fourth Amendment violation under these circumstances because
Plaintiff’s evidence does not create a genuine issue of material
fact as to whether Yamada’s accepting the surrender of the Dogs
was objectively unreasonable.

Cf. Pennington v. Penner, 207 F.

Supp. 2d 1225, 1241 (D. Kan. 2002) (no § 1983 liability for
animal control officer who relied on surrender form to seize
animals).
2.

Whether the HIHS Defendants Violated Plaintiff’s

Fifth Amendment Rights
Plaintiff alleges that the HIHS Defendants violated
Plaintiff’s Fifth Amendment rights because “there was no
opportunity or any other means to have HIHS’ decision reviewed by
the operation of any administrative or judicial process.”

24/

Plaintiff also argues that Ostendorp and Dela Cruz used a
joint personal account instead of a business account to send
Yamada a check for $300.00 to cover the care of the Dogs, and
that the reason Ostendorp used a personal was to “hide the
transaction from an accounting.” Plntf.’s Supp. Opp. at 3, ECF
No. 156. The Hawai#i AG report does not state whether the bank
account is a personal account as opposed to a business account.
Plntf.’s Supp. JCSF Ex. 4 at 000017, ECF Nos. 154 & 155.
Assuming that Plaintiff’s assertion is true, the Court fails to
see how Yamada should have known that (1) Ostendorp was trying to
hide the transaction from an accounting or (2) Plaintiff’s
signature on the general POA was forged from the fact that
Ostendorp and Dela Cruz issued a check to HIHS from a joint
personal account.
-30-

Plntf.’s HIHS Opp. at 7, ECF No. 109.

Plaintiff complains that

he was not notified that (1) his ownership rights in the Dogs had
been terminated and (2) the Dogs would be killed or adopted out.
Id.
Regarding Plaintiff’s Fifth Amendment claim, this Court
grants the HIHS Defendants’ MSJ to the extent that Plaintiff
alleges a taking under the Takings Clause.
at 13, ECF No. 98.

See HIHS Defs.’ MSJ

The HIHS Defendants argue that there is no

genuine issue of material fact that the existence of the
Surrender Form and the general POA demonstrate that HIHS did not
unlawfully take Plaintiff’s property.

Id at 14, Ex. D, E.

Plaintiff fails to respond to this argument in his opposition.
See generally Plntf.’s HIHS Opposition, ECF No. 109.

Also,

Plaintiff fails to present a material issue of fact that the HIHS
Defendants had reason to know of the purported fraud, forgery, or
invalidity of the documents.

See supra at 25-30.

Under FRCP 56,

summary judgment is proper regarding this claim because Plaintiff
fails to identify a genuine issue of material fact for trial.
Moreover, “the Takings Clause is implicated only when
the taking in question is for a public use”; it does not apply
when the taking is for law enforcement purposes.

Scott v.

Jackson, 297 Fed. Appx. 623, 625-26 (9th Cir. 2008), see also
Bennis v. Michigan, 516 U.S. 442, 448 (1996).

Plaintiff neither

alleges in his SAC nor states in his opposition that the HIHS

-31-

Defendants acquired the Dogs for public use as opposed to law
enforcement purposes.

See generally SAC and Plntf.’s HIHS

Opposition, ECF No. 109.
The Court also grants the HIHS Defendants’ MSJ
regarding Plaintiff’s claims under the Due Process Clause of the
Fifth Amendment.

The Ninth Circuit has held that “[t]he Due

Process Clause of the Fifth Amendment and the equal protection
component thereof apply only to actions of the federal government
– not to those of state or local governments.”

Lee v. City of

Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001).

Plaintiff has

presented claims only against the County of Hawai#i and private
actors in his SAC; therefore, the Fifth Amendment Due Process
Clause does not apply.

See id and Souza v. Cnty. of Haw., 694 F.

Supp. 738, 750 (D. Haw. 1988).
3. Whether the HIHS Defendants Violated Plaintiff’s
Fourteenth Amendment Due Process Rights
The Fourteenth Amendment Due Process Clause provides
that the government may not “deprive any person of life, liberty,
or property, without due process of law.”
474 U.S. 327, 331 (1986).

Daniels v. Williams,

However, for both substantive and

procedural due process, “this guarantee of due process has been
applied to deliberate decisions of government officials to

-32-

deprive a person of life, liberty, or property.”25/

Id and Cnty.

of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

Souza v. Cnty.

of Haw., 694 F. Supp. 738, 746 (D. Haw. 1988).

Because the Due

Process Clause is concerned with protecting people from
government abuses of power, the Supreme Court has held that
negligent conduct by a state official that causes injury does not
constitute a Due Process deprivation.

Id.

The Ninth Circuit has held that people have a property
interest in pet animals.

San Jose Charter of Hells Angels

Motorcycle Club v. City of San Jose, 402 F.3d 962, 977 (9th Cir.
2005).

However, Plaintiff does not show that the HIHS Defendants

made a deliberate decision to deprive him of the Dogs.

As

mentioned above, Officer Yamada received (1) a general POA signed
by Plaintiff purporting to give Roberta Young broad authority to
exercise his legal rights and (2) a Surrender Form purporting to
transfer legal title to the Dogs from Roberta Young to HIHS.
HIHS Defs.’ MSJ at Ex. D. & E, ECF No. 98.
Even if this Court construes the facts in favor of
Plaintiff that the documents did not actually transfer legal
rights in the Dogs, the HIHS Defendants did not take conscious
action to deprive Plaintiff of his property in violation of his

25/

Plaintiff does not challenge the statutory procedures
available under state law or the procedures provided in the
municipal code. See generally SAC and Plntf.’s HIHS Opp., ECF
No. 109.
-33-

constitutional rights; rather, the HIHS Defendants passively
agreed to Plaintiff’s agents’ decision26/ to transfer the Dogs to
the HIHS Defendants through the general POA and Surrender Form.
Cf. Souza v. Cnty. of Haw., 694 F. Supp. 738, 747 (D. Haw. 1988)
(government decision to include condition on permit did not
constitute conscious decision to take plaintiff’s property).

The

HIHS Defendants’ conduct might at most constitute negligence or
mistake (although the Court by this statement does not make such
a ruling) rather than a deliberate decision to deprive Plaintiff
of his rights.27/

See Preven v. Cnty. of Los Angeles, Civ. No.

11-2340-R (RNB), 2011 WL 2882399 (C.D. Cal. 2011)(adopted as
order of the court by Preven v. Cnty. of Los Angeles, Civ. No.
11-2340-R (RNB), 2011 WL 2882853 (C.D. Cal. 2011)) (county
officials did not violate plaintiffs’ due process rights when
officials relied on plaintiffs’ signed agreement to restrain

26/

As explained above, the record reflects that Ostendorp,
purporting to act as Plaintiff’s attorney, asked Yamada “to work
this out because [Plaintiff] did not want to get into any more
trouble since he was still on probation.” Plntf.’s Supp. JCSF
Ex. 4 at 000016, ECF Nos. 154 & 155. The representations of
Ostendorp, whom Yamada did not have reason to know were false,
initiated the process of surrendering the Dogs. See supra at 2729.
27/

Furthermore, Yamada could not deliberately dispossess
Plaintiff of his interest because Ostendorp represented to Yamada
that Plaintiff was “not the owner of the dogs” and the Surrender
Form stated that Roberta Young was the owner; Plaintiff
identifies no evidence that Yamada had reason to disbelieve
Ostendorp. HIHS Defs.’ Ex. C, ECF No. 98; see supra at 27-29.
-34-

their dogs even though plaintiffs argued agreement was obtained
through duress from third party).
Regarding Plaintiff’s substantive due process claim,
the HIHS Defendants’ conduct does not meet the “shocks the
conscience” standard, which is a high standard to meet as
illustrated by the Supreme Court’s examples of executive abuse of
power.

The HIHS Defendants’ decision regarding whether or not to

honor a form submitted by Plaintiff’s purported agents is not the
type of “egregious official conduct” that is “arbitrary in the
constitutional sense.”

See Cnty. of Sacramento v. Lewis, 523

U.S. 833, 846 (1998)(providing example of stomach pumping as a
form of oppression and abuse of power barred by the due process
clause).

While Plaintiff perhaps may have an action in state

tort law against other Defendants for his alleged harm (although
the Court by making this statement does not make such a ruling);
the HIHS Defendants’ actions do not fall within the category of
“the large concerns of the governors and the governed” that due
process attempts to address.

See id at 848-54 (officer that

killed passenger in a high-speed car chase did not deprive
passenger of due process because intent was “to do his job as a
law enforcement officer, not to induce . . . lawlessness, or to
terrorize, cause harm, or kill.”)
Additionally, regarding Plaintiff’s procedural due
process claims, a violation of due process will not be found if

-35-

state law provides adequate postdeprivation procedures.
v. Taylor, 451 U.S. 527, 538-540 (1981).

Parratt

The Supreme Court has

noted that, “where only property rights are involved, mere
postponement of the judicial enquiry is not a denial of due
process, if the opportunity given for ultimate judicial
determination of liability is adequate.”

Id at 540 (citing

Phillips v. Commissioner, 283 U.S. 589, 596-97 (1931)).

The

Supreme Court has applied this principle to cases where (1) “the
loss is not a result of some established state procedure and the
[s]tate cannot predict precisely when the loss will occur” or (2)
“a predeprivation hearing is unduly burdensome in proportion to
the liberty interest at stake.”

Id at 541.

In this case, Plaintiff’s loss was not the result of
some established state procedure, and the HIHS Defendants could
not reasonably predict that fraud or forgery affected the
validity of the form transferring ownership of the Dogs.
Contrast Parratt, 451 U.S. 527, 536-37 (post-deprivation hearing
sufficient where prison officials’ loss of plaintiff’s package
considered unpredictable) with Zinermon v. Burch, 494 U.S. 113,
133-34 (1990) (predeprivation hearing required because mental
health hospital could forseeably predict that a person needing
mental health care might be incapable of making an informed,
voluntary decision).

-36-

Additionally, requiring a predeprivation hearing to
verify the validity of every form that purports to voluntarily
relinquish property rights would be unduly burdensome in light of
the low risk of fraudulent or forged forms.

Cf. Ingraham v.

Wright, 430 U.S. 651, 682 (1977) (No predeprivation hearing
required for corporal punishment because of “low incidence of
abuse . . . and the common-law safeguards that already exist.”).
The low risk of fraud and forgery combined with sufficient state
tort remedies to protect people’s interests in their pets merits
a conclusion that the Due Process Clause does not require a
predeprivation hearing in this type of case.

Id.

Moreover, Plaintiff acknowledges in his Opposition that
a tort action for monetary damages can redress Plaintiff’s injury
from the loss of the Dogs.
109.

Plntf.’s HIHS Opp. at 14, ECF No.

Accordingly, because state tort remedies may provide

adequate post-deprivation relief, the HIHS Defendants did not
violate Plaintiff’s procedural due process rights.28/

28/

See

Plaintiff also argues that the HIHS Defendants should
have entered the premises to provide food, water, and emergency
medical treatment to the Dogs instead of impounding them because
state law and the county code provide for alternative actions
instead of impoundment. Plntf.’s HIHS MSJ Opp. at 6. The Court
notes that H.R.S. § 711-1109.1 states that a law enforcement
officer may either “enter the premises . . . to provide the pet
animal . . . with food, water, and emergency medical treatment,
or to impound the pet animal.” (emphasis added). The discretion
granted by the word “or” does not mandate that a law enforcement
officer must take alternative actions before impoundment. In
this case, the HIHS Defendants would have had to expend
(continued...)
-37-

Parratt, 451 U.S. 543-44, Souza, 694 F. Supp. 738 (noting that
state court remedies were sufficient to meet hearing requirement
of due process clause), and Anderson v. Smith, Civ. No. 1:06-CV1795 OWW SMS, 2009 WL 2139311 at *19 (E.D. Cal. 2009) (plaintiff
who denied knowingly surrendering her interest in her animals
because she did not wear her glasses when she signed the form did
not suffer a due process violation because state remedies could
redress her injury).
4.

Whether the HIHS Defendants Violated Plaintiff’s

Fourteenth Amendment Right to Equal Protection
Plaintiff asserts that the HIHS Defendants
intentionally treated him differently from other similarly
situated individuals and that there is no rational basis for the
difference in treatment.

SAC at 26-27.

The HIHS Defendants

state that the Surrender Form and the general POA demonstrate
that the HIHS Defendants did not violate Plaintiff’s Fourteenth
Amendment right to equal protection.

HIHS Defs.’ MSJ at 2-3, ECF

No. 98.

28/

(...continued)
significant time and resources to feed, water, medically treat,
and remove feces from the kennels for all seventeen animals; the
HIHS Defendants’ decision to impound the Dogs is understandable
based on these circumstances. See HIHS Defs.’ MSJ Ex. A at 3-4,
ECF No. 98. Moreover, Plaintiff fails to cite any case law
stating that impounding pet animals instead of taking alternative
actions violates due process. Plntf.’s HIHS MSJ Opp. at 7, ECF
No. 109.
-38-

Plaintiff argues a “class-of-one” theory for his Equal
Protection Claim.

For the “class-of-one” doctrine, the court

determines whether a person has “been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.”

Engquist v.

Oregon Dep’t. Of Agriculture, 553 U.S. 591, 602 (2008).

However,

the Supreme Court noted that the cases applying the “class-ofone” doctrine involved “the existence of a clear standard against
which departures, even for a single plaintiff, could be readily
assessed.”

Id. at 602.

In this case, Plaintiff fails to raise a

genuine issue of material fact because Plaintiff has not
presented any evidence of a clear standard that the HIHS
Defendants deviated from when performing their duties.

SAC at

26-27, See generally Plntf.’s HIHS Opp., ECF No. 109.
Moreover, the Supreme Court noted that state actors
involved in discretionary decisions do not create a “class-ofone” claim because discretionary decisionmaking involves a “vast
array of subjective, individualized assessments,” precluding the
creation of a standard.

Id at 603.

The Supreme Court

specifically noted that officers enforcing laws like traffic laws
are considered to be operating in a discretionary function and
therefore do not violate the Equal Protection Clause by enforcing
the law against some people and not others.

Engquist v. Oregon

Dep’t. Of Agriculture, 553 U.S. 591, 602 (2008).

-39-

The HIHS Defendants’ actions as law enforcement
officials likewise do not violate the Equal Protection Clause
because the HIHS Defendants had discretion with regard to
enforcing animal control laws.
Accordingly, because Plaintiff fails to raise a genuine
issue of material fact regarding his Equal Protection Claim, this
Court grants summary judgment in favor of the HIHS Defendants.
See also, Dunham v. Kootenai Cnty., 690 F. Supp. 2d 1162, 1177
(D. Idaho 2010) (court denied equal protection claim involving
law officer’s seizure of plaintiff’s horses).
B. Whether Defendant Yamada’s Actions Are Protected by
Qualified Immunity
The Court concludes that the HIHS Defendants did not
violate Plaintiff’s constitutional rights, but as an alternative
basis for deciding the constitutional claims, the Court will
consider whether or not Officer Yamada is entitled to protection
under the doctrine of qualified immunity.

Officer Yamada raises

the defense of qualified immunity as to Plaintiff’s § 1983
Fourth, Fifth, and Fourteenth Amendment claims because the
actions forming the basis of this suit were performed in the
course of her official duties.
98, SAC at 23.

HIHS Defs.’ MSJ at 15-17, ECF No.

Because qualified immunity protects Officer

Yamada’s actions, this Court GRANTS summary judgment as to
Plaintiff’s federal claims against Officer Yamada.
-40-

The doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

“The

protection of qualified immunity applies regardless of whether
the government official’s error is “a mistake of law, a mistake
of fact, or a mistake based on mixed questions of law and fact.”
Id.
When examining a claim of qualified immunity, the court
may use a two part test by examining (1) “whether the facts that
a plaintiff has alleged make out a violation of a constitutional
right” and (2) “whether the right at issue was clearly
established at the time of [the] defendant’s alleged misconduct.”
Id at 232.

The Supreme Court has held that courts “may grant

qualified immunity on the ground that a purported right was not
“clearly established” by prior case law, without resolving the
more difficult question whether the purported right exists at
all.”

Reichle v. Howards, – U.S. –, 132 S. Ct. 2088, 2093

(2012)(citing Pearson, 555 U.S. at 236).

When examining whether

a right has been “clearly established,” the right allegedly
violated must be established “not as a broad general proposition,
but in a particularized sense so that the contours of the right

-41-

are clear to a reasonable official.”

Reichle v. Howards, 132 S.

Ct. at 2094.
In this case, the Court already examined the first
prong of the qualified immunity test in Section I.A. and
concluded that the HIHS Defendants did not violate Plaintiff’s
constitutional rights.

See supra at 19-39.

However, even if the

HIHS Defendants had committed a violation, Reichle indicates that
Officer Yamada would still be protected from liability if the
right was not “clearly established” during the time of the
violation.

See id.

Accordingly, the Court examines the second

prong of whether the constitutional rights identified by
Plaintiff were clearly established during the time of the alleged
violation.
1. Whether the Doctrine of Qualified Immunity Applies
to Hawaii Island Humane Society Officers
As an initial issue, Defendant Yamada is employed by
the Hawaii Island Humane Society, which is an independent
contractor hired by the County of Hawai#i to carry out the
“County’s animal control program” under Hawai#i County Code and
the Hawai#i Revised Statutes.
ECF No. 140.

HIHS Defs.’ Errata Ex. A at 2079,

The Supreme Court has held that private defendants

are not covered by immunity unless “firmly rooted tradition” and
“special policy concerns involved in suing government officials”
warrant immunity.

Richardson v. McKnight, 521 U.S. 399, 404
-42-

(1997).

In this case, Officer Yamada qualifies for qualified

immunity.
In Filarsky v. Delia, the Supreme Court noted that
historical tradition supports qualified immunity for “individuals
engaged in law enforcement activities, such as sheriffs and
constables.”

132 S. Ct. 1657, 1664 (2012).

“[A]t common law, a

special constable, duly appointed according to law, had all the
powers of a regular constable so far as may be necessary for the
proper discharge of the special duties intrusted to him, and in
the lawful discharge of those duties, was as fully protected as
any other officer.”

Id.

The Supreme Court also noted that

sheriffs executing warrants were allowed under common law to
enlist the aid of private individuals in order to do so.

Id.

Under common law, a private individual had the same authority of
the sheriff and was protected to the same extent.

Id.

In this case, state and county law demonstrates that
officers of HIHS like Defendant Yamada are duly appointed by law
to execute search warrants and perform law enforcement functions
like those of the police.
(4).

See Haw. Rev. Stat. § 711-1109.1(1) &

Hawai#i state law also directly provides that HIHS officers

may “make arrests and bring before any district judge thereof
offenders found violating the provisions of section 711-1109 to
be dealt with according to law.”

Haw. Rev. Stat. § 711-1110.

Additionally, the Humane Society’s contract with the Hawai#i

-43-

County Police Department (“HCPD”) provides, inter alia, (1) HIHS
requires agreement with HCPD before it may change facility hours
or patrol hours; (2) HIHS is required to respond to HCPD dispatch
requests and to make dispatch requests to HCPD when HIHS is
contacted by the public; (3) HIHS is to coordinate with HCPD
regarding after-hours responses by police officers to public
requests regarding animals; (4) HCPD will offer training,
including the attempt to “coordinate training with an ongoing
police recruit class”; (5) HIHS will submit quarterly reports of
activities, revenues, and expenses to the HCPD police chief; (6)
HIHS will keep a system of records regarding communications with
HCPD and the public; and (7) HIHS must submit its administrative
procedures regarding enforcement, investigation, and shelter
operations to HCPD for review and approval.
to MSJ Ex. A at 2085-2089, ECF No. 140.

HIHS Defs.’ Errata

The statutory

provisions, close collaboration between HIHS and the HCPD, and
HCPD’s power to review HIHS procedures merits a conclusion that
officers of HIHS are private actors enlisted by the police
department to exercise police powers to discharge special public
duties.

See id.

Accordingly, in this situation, the private

actors also enjoy the same protections afforded to law
enforcement officers.
Additionally, “special policy concerns” support
granting HIHS officers qualified immunity in this case.

-44-

Animal

control officers, like police officers, should be encouraged to
perform their public duties without “unwarranted timidity” that
may decrease their effectiveness in responding to public danger.
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (“[T]here is the
danger that fear of being sued will dampen the ardor of all but
the most resolute, or the most irresponsible public officials, in
the unflinching discharge of their duties.”).

This concern

particularly applies to the type of work required by the HIHS and
HCPD contract, which includes HCPD and fire department emergency
calls, animal attacks by uncontained animals, and public safety
situations.

See HIHS Defs.’ Errata to MSJ Ex. A at 2087, ECF No.

140.
In Filarsky, the Supreme Court also noted that private
individuals who work in close coordination with public employees
may face threatened legal action for the same conduct.
Ct. at 1666.

132 S.

While government employees would be protected by

some form of immunity; private individuals would face “full
liability for actions taken in conjunction with government
employees who enjoy immunity for the same activity.”

Id.

In

such cases, private individuals may be deterred from accepting
such assignments.

This special policy concern applies in this

case, where HIHS officers are required to accompany HCPD officers
upon request.

HIHS Defs.’ Errata to MSJ Ex. A at 2089, ECF No.

140.

-45-

Additionally, the Supreme Court noted that in
situations where private individuals work with government
employees, lawsuits filed against private individuals for conduct
performed in conjunction with government employees will likely
embroil government employees as well, distracting them from their
duties.

Filarsky, 132 S. Ct. at 1666 (noting that government

employees are likely to be called to testify in the private
individual’s lawsuit).

HCPD and HIHS are likely to face such

embroilment based on the collaboration required under the
contract as explained above.

See supra at 43-44.

In conclusion,

the nature of the relationship between HIHS and HCPD combined
with the historical background of private individuals employed by
law enforcement officers establishes that Officer Yamada is
protected by qualified immunity in this case.
While the Supreme Court held in Richardson v. McKnight
that private contractor prison guards are not covered by
qualified immunity; that case is distinguishable from Defendant
Yamada’s case because the Court found that “firmly rooted
tradition” did not support a finding of qualified immunity for
private contractor prison guards.

521 U.S. 399, 404 (1997).

Regarding the second prong of “special policy concerns,” the
Supreme Court noted that the prison had competitive market
pressures to provide incentives to avoid timid or fearful
performance.

Id at 409-410.

While HIHS as an independent

-46-

contractor may also have competitive market pressures; the Court
in Richardson noted that the prison performed its task
“independently, with relatively less ongoing direct state
supervision.”

Id at 409 (noting that the private prison was

exempted from monitoring or inspections).

Such freedom allowed

the private contractor prison to respond to market pressures to
adjust employee behavior.

See id at 410.

In this case, there is

close government collaboration and supervision that restricts
HIHS’s ability to respond as a private firm to market pressures.
See supra at 43-44.

Accordingly, the Court concludes that

Defendant Yamada is protected by qualified immunity because of
HCPD’s collaboration with HIHS and its supervision over HIHS’
work.
2. Whether the Doctrine of Qualified Immunity Protects
Officer Yamada as to Plaintiff’s Fourth Amendment
Claims
Plaintiff’s argument that Defendant Yamada violated
Plaintiff’s Fourth Amendment rights by disposing of the Dogs does
not overcome Officer Yamada’s protection under the doctrine of
qualified immunity.

See Plntf.’s HIHS Opp. at 6, ECF No. 109.

While the Fourth Amendment generally prevents “meaningful
interference with an individual’s possessory interests” in his
property (Soldal v. Cook Cnty, III, 506 U.S. 56, 68 (1992));
Officer Yamada argues that, at the time HIHS disposed of the
-47-

Dogs, she reasonably assumed that Plaintiff Young did not have a
possessory interest in the Dogs. HIHS Defs.’ MSJ at 6-7, ECF No.
98, HIHS Defs.’ Reply at 5-6, ECF No. 139.
As mentioned in Section I.A. above, the Court concludes
that Officer Yamada did not violate the Fourth Amendment because
a reasonable officer could have believed that Roberta Young had
the authority to execute a Surrender Form for the Dogs based on
the general POA.

See supra at 25-30.

However, even if Officer

Yamada’s actions constituted a violation of Plaintiff’s Fourth
Amendment rights, qualified immunity would apply because
Plaintiff’s Fourth Amendment rights were not “clearly
established” during the time of Officer Yamada’s actions.

See

Torres, 524 F.3d at 1057 n.5 (holding that, even if an officer
acted unreasonably, the officer may be entitled to qualified
immunity if it was not clearly established that the objective
unreasonableness of the conduct violated constitutional rights).
There is no clear statute or court precedent that an
animal control officer violates constitutional rights by relying
on facially valid forms consenting to the transfer of ownership
of property to the government.

See Pennington v. Penner, 207 F.

Supp. 2d 1225, 1241 (D. Kan. 2002) (qualified immunity protected
animal control officer who relied on plaintiff’s agreement to
relinquish horses even though plaintiff alleged agreement was
obtained under duress).

Accordingly, in the absence of explicit

-48-

statutory or case law, the contours of Plaintiff’s Fourth
Amendment rights in this case were not “sufficiently clear that a
reasonable official” would understand that accepting the validity
of the Surrender Form and the general POA would violate
Plaintiff’s constitutional rights.

See id; cf. James v.

Rowlands, 606 F.3d 646, 652 (9th Cir. 2010).29/
Plaintiff fails to identify a genuine issue of material
issue of fact as to whether Yamada violated a “clearly
established” right.
109.

See Plntf.’s HIHS MSJ Opp. at 9-10, ECF No.

If reasonably competent officials could disagree about

whether or not the Surrender Form and general POA legitimately
divested Plaintiff of his ownership in the Dogs, then qualified
immunity should be recognized.

KRL v. Moore, 384 F.3d 1105, 1115

(9th Cir. 2004) (“the relevant, dispositive inquiry . . . is
whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted”); Cf. Malley
v. Briggs, 475 U.S. 335, 341 (1986) (“Defendants will not be
immune if, on an objective basis, it is obvious that no
reasonably competent officer would have concluded that a warrant

29/

In James, the plaintiff father alleged that county
employees violated his substantive and procedural due process
rights by failing to notify him of an investigation regarding an
alleged molestation of his daughter. 606 F.3d at 648. The Ninth
Circuit found that the county employees were entitled to
qualified immunity because the plaintiff did not identify any
authority establishing that a parent had a right to be informed
when officials investigate allegations that a child has been
molested. Id at 652-53.
-49-

should issue; but if officers of reasonable competence could
disagree on this issue, immunity should be recognized.”).
While Plaintiff may contest what he actually stated to
Ostendorp (supra at 12-13), Plaintiff does not contest what
Ostendorp said to Yamada, which is a key factor in the inquiry
for determining the objective reasonableness of Yamada’s conduct.
See Anderson v. Creighton, 483 U.S. 635, 641 (1987) (holding that
an examination of objective reasonableness of an official’s
conduct will “often require examination of the information
possessed by the . . . officials”).

The conversations between

Yamada and Ostendorp presented in Plaintiff’s own exhibit
illustrate that Ostendorp, representing himself to be Plaintiff’s
attorney, indicated that the Dogs would willingly be surrendered
to prevent Plaintiff from getting into more trouble while on
probation.

Plntf.’s JCSF Ex. 4 at 000016, ECF Nos. 154 & 155.

Plaintiff does not refute the content of these conversations.
Plaintiff makes specific arguments about (1) comments
in a letter Yamada received from Ostendorp and (2) a conversation
between Yamada and a woman who called on October 7, 2009 and
represented herself to be Roberta.
ECF No. 156.

Plntf.’s Supp. Opp. at 2-3,

While the letter shows that Ostendorp asked Yamada

not to notify Plaintiff about the Dogs, Plaintiff ignores the
part of the letter where Ostendorp represents to Yamada that the
Dogs no longer belonged to Plaintiff.

-50-

HIHS Defs.’ MSJ Ex. C, ECF

No. 98.

As a result, this evidence fails to create a material

issue of fact as to whether Yamada violated a “clearly
established” constitutional right because reasonable officers
could certainly disagree as to whether Plaintiff had a possessory
interest under the Fourth Amendment.
In the October 7th phone call to Yamada, the woman
purported to be Roberta stated that she had a general POA signed
by Plaintiff and wanted to surrender the Dogs to HIHS.

During

the conversation, she also stated that “she was fearful of
[Plaintiff], and did not want him learning that she had
surrendered the dogs.”
154 & 155.

Plntf.’s Supp. JCSF Ex. 4 at 5, ECF Nos.

However, as mentioned previously, Yamada was not

objectively unreasonable in believing that Plaintiff’s purported
agents had authority to transfer the Dogs, especially given the
representation that Plaintiff was hospitalized following the
seizure of the Dogs.

On October 5, two days before the general

POA was submitted to HIHS, Ostendorp told Yamada that Plaintiff
was “under suicide watch in a Honolulu hospital.”
JCSF Ex. 4 at 000016, ECF Nos. 154 & 155.

Plntf.’s Supp.

The record reflects

that Yamada believed this representation because during the
October 7th telephone call, she asked Roberta Young as to
Plaintiff’s status regarding the suicide watch and was told he
was fine.

Id.

The fact that the general POA was dated September

12, 2009 did not give Yamada reason to question the validity of

-51-

the document because a general POA may be created for various
purposes; furthermore, the September 12, 2009 date indicated that
the document was executed and notarized some time before the
September 29, 2009 seizure of the Dogs.
In light of Ostendorp’s representation to Yamada that
Plaintiff was under suicide watch at the hospital on October 5,
2009, Yamada was not unreasonable in assuming that the general
POA dated September 12, 2009 and submitted to HIHS on October 7
served a legitimate purpose as opposed to a fraudulent or invalid
one.

Nor is the law clearly established that, under these

circumstances, Yamada erred by relying on the general POA.

C.f.

Olsen v. Spallone, 34 Fed. Appx. 800, 801 (2d Cir. 2002)
(daughter who held power of attorney for her father could consent
to police search of home); Mitchell v. Houston, No. 3:10-CV01803-G(BF), 2011 WL 5008399 at *5 (N.D. Tex. 2011) (person with
power of attorney executed before alleged illegal search validly
consented to police search of home).
Accordingly, Defendant Yamada is protected by qualified
immunity and is entitled to summary judgment on Plaintiff’s
Fourth Amendment claim.
3. Whether the Doctrine of Qualified Immunity Protects
Officer Yamada as to Plaintiff’s Fifth and Fourteenth
Amendment Due Process Claims

-52-

As mentioned above, the Court concludes that Defendant
Yamada did not violate Plaintiff’s due process rights.
Section I.A.2-I.A.3 at 32-38.

See supra

However, even if Defendant Yamada

had actually violated Plaintiff’s due process rights to notice,
qualified immunity still applies because Plaintiff’s rights were
not “clearly established” at the time of the violation.

The

Surrender Form and the general POA appeared to give Roberta Young
authority to surrender the Dogs to HIHS.
Ex. C, D, E, ECF No. 98.

See HIHS Defs.’ MSJ at

At that point, Yamada did not violate a

“clearly established” right because the Dogs no longer appeared
to belong to Plaintiff.

See id.

Plaintiff does not identify any

clear precedent or law that would provide notice to Defendant
Yamada that her failure to notify a person who apparently no
longer had rights to the Dogs was unlawful.

See Pennington v.

Penner, 207 F. Supp. 2d 1225, 1241 (D. Kan. 2002) (holding that
an animal control officer did not violate a “clearly established”
constitutional right by seizing a horse after the plaintiff
consented to surrendering the herd).
4.

Whether the Doctrine of Qualified Immunity Protects

Officer Yamada as to Plaintiff’s Fourteenth Amendment
Equal Protection Claims
As noted above in Section I.A.4., Plaintiff has not
raised a genuine issue of material fact as to whether the HIHS
Defendants violated his Fourteenth Amendment rights to equal
-53-

protection of the laws.

See supra at 38-39.

Plaintiff fails to

identify evidence that a clear standard existed, which is a
prerequisite to the inquiry of whether a deviation occurred from
that standard.

See Engquist v. Oregon Dep’t. Of Agriculture, 553

U.S. 591, 602 (2008) (noting that, for a class-of-one theory to
apply, a plaintiff must demonstrate the “existence of a clear
standard against which departures, even for a single plaintiff,
could be readily assessed”).

Without evidence of a clear

standard, Plaintiff cannot demonstrate that his right to Equal
Protection in this case was “clearly established.”

Cf. Dunham v.

Kootenai Cnty., 690 F. Supp. 2d 1162, 1177 (D. Idaho 2010) (court
denied equal protection claim involving law officer’s seizure of
plaintiff’s horses).

Accordingly, qualified immunity protects

Officer Yamada as to this claim.
C.

Whether This Court Should Grant Defendant Whitaker’s MSJ

as to Plaintiff’s 42 U.S.C. § 1983 Claims
Plaintiff alleges the Defendant Whitaker should be
liable because she is generally “responsible for the overall
operations” of HIHS shelters and generally “responsible for the
fulfillment of HIHS’s animal-related contract with the County.”
Even if the Court accepts these facts as true, Defendant Whitaker
is entitled to summary judgment because Plaintiff fails to raise
a genuine issue of material fact as to whether Whitaker

-54-

personally participated in any alleged constitutional rights
violation.
First, Plaintiff has not identified a genuine issue of
material fact as to whether his constitutional rights were
violated as discussed in Section I.A.

Supra Section I.A. at 19-

39.
Second, there is no respondeat superior liability under
§ 1983.

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).30/

“A supervisor is only liable for the constitutional violations of
. . . subordinates if the supervisor participated in or directed
the violations, or knew of the violations and failed to act to
prevent them.”

Id.

According to the Supreme Court, “a

plaintiff must plead that each [] defendant, through the
official’s own individual actions, has violated the
Constitution.”

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

In this case, Plaintiff presents no evidence that
Defendant Whitaker personally participated in, directed, or had
knowledge of Defendant Yamada’s search and subsequent acceptance

30/

While Defendant Whitaker is a supervisor at HIHS, a
private contractor; the Ninth Circuit extended the holding that
there is no respondeat superior liability under § 1983 to cases
involving private contractors acting under color of state law.
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir.
2012). Accordingly, the cases examining municipal liability in
the § 1983 context apply to this case involving a private
contractor acting under color of state law. See id at 1143-45
(using municipality cases to examine private contractor liability
under § 1983).
-55-

of the Surrender Form and the general POA.
Opp. at 11-12, ECF No. 109.

See Plntf.’s HIHS MSJ

Plaintiff also does not provide

evidence of deficient training procedures or supervisory actions.
Id.

Imposing liability on Defendant Whitaker merely because of

her responsibilities for operations and staff development is
equivalent to imposing liability because of her status as a
supervisor - a conclusion that is impermissible under Supreme
Court jurisprudence.

See Board of Cnty. Commissioners of Bryan

Cnty, Oklahoma v. Brown, 520 U.S. 397, 405 (1997) (official’s
mere responsibility for decision to hire tortfeasor, without
more, is insufficient for § 1983 liability), Taylor, 880 F.2d at
1045 (official’s status of lieutenant in charge of security unit
where plaintiff was housed did not meet requirements for
liability under § 1983).
Plaintiff argues that even if Defendant Whitaker “did
not make a deliberate choice to wrongfully deprive Mr. Young of
the rights to his animals, she certainly ratified that decision
when she took no steps to rectify the situation.”
MSJ Opp. at 12, ECF No. 109.

Plntf.’s HIHS

As an initial matter, Plaintiff

does not provide evidence that Whitaker is a policymaker with
“final decision making authority,” which is required for
liability under § 1983.

Plntf.’s HIHS MSJ Opp. at 11-12; See

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)
(“Municipal liability attaches only where the decisionmaker

-56-

possesses final authority to establish municipal policy with
respect to the action ordered.”).

Plaintiff’s recitation of

Whitaker’s general responsibilities as a director does not
establish that Whitaker is the final decisionmaker with respect
to consent form procedures.
Moreover, Plaintiff’s own cases explain that
ratification requires an entity policy maker to approve “the
decision and the basis for it.”

Fuller v. City of Oakland, Cal.,

47 F.3d 1522, 1534 (9th Cir. 1995), City of St. Louis v.
Praprotnik, 485 U.S. 112, 126 (1988) (“If the authorized
policymakers approve a subordinate’s decision and the basis for
it, their ratification would be chargeable to the municipality
because their decision is final.”), Hammond v. Cnty. of Madera,
859 F.2d 797, 802 (9th Cir. 1988)(overruled on other grounds by
Wood v. Ostrander, 851 F.2d 1212 (9th Cir. 1988)).

Contrary to

Plaintiff’s assertion, mere inaction does not form a basis for
ratification; there must be evidence of a deliberate choice or
approval of the decision at issue.

See Gillette v. Delmore, 979

F.2d 1342, 1348 (9th Cir. 1992) (noting that the official must
play some active participation or make a deliberate choice to
endorse both the decision and the basis for it).

Plaintiff has

not provided any evidence of an affirmative act on the part of
Whitaker that would subject her to liability.

-57-

Lastly, the doctrine of qualified immunity would
protect Defendant Whitaker for the same reasons Officer Yamada is
protected.

See Section I.B. supra at 40-54.

Even if Plaintiff

provided evidence of a specific act performed by Whitaker,
Plaintiff has not demonstrated that his constitutional rights
were “clearly established” at the time that Whitaker allegedly
violated his rights.

Id.

Accordingly, this Court grants

Whitaker’s MSJ for the § 1983 claims.
D. Whether this Court Should Grant Defendant HIHS’s MSJ as
to Plaintiff’s § 1983 Claims
Plaintiff alleges claims against HIHS for violating
Plaintiff’s constitutional rights under the Fourth, Fifth, and
Fourteenth Amendments.31/

First, the Court notes that Plaintiff

has not identified a genuine issue of material fact as to whether

31/

The Court views Plaintiff’s claims against Defendant
Whitaker “in her official capacity as Executive Director of the
Hawaii Island Humane Society” and Defendant Yamada “in her
official capacity as Humane Officer” as claims against HIHS.
This Court has previously held that “there is no longer a need to
bring official-capacity actions against local government
officials, for under Monell . . . local government units can be
sued directly for damages and injunctive or declaratory relief.”
Wong v. City and Cnty. of Honolulu, 333 F. Supp. 2d 942, 947 (D.
Haw. 2004) (citing Kentucky v. Graham, 473 U.S. 159, 166-67 n.14
(1985)); see also Monell v. Dep’t. of Social Serv., 436 U.S. 658,
690 n.55 (1978) (“official capacity suits generally represent
only another way of pleading an action against an entity of which
an officer is an agent”); cf. Will v. Michigan Dep’t. of State
Police, 491 U.S. 58, 71 (1989) (noting that “a suit against a
state official in his or her official capacity is not a suit
against the official but a suit against the official’s office.”).
-58-

his constitutional rights were violated as discussed in Section
I.A.

Supra Section I.A. at 19-39.
Second, Plaintiff only identifies a single act on the

part of HIHS that purportedly violated his constitutional rights
- consequently, Plaintiff’s evidence fails to meet the test for
holding an entity liable under Monell.

The Supreme Court stated

in Monell v. Dep’t of Social Services of New York that
municipalities are not liable through respondeat superior or
vicarious liability for § 1983 violations of their employees.
436 U.S. 658, 692 (1978).

Instead of relying upon employee

liability, a plaintiff must demonstrate that there is a municipal
policy or custom that caused the plaintiff’s injury.

Board of

Cnty. Commissioners of Bryan Cnty, Oklahoma v. Brown, 520 U.S.
397, 403 (1997) (citing Monell, 436 U.S. at 694)[hereinafter,
“Brown”].

Requiring plaintiffs to locate a “policy” ensures that

an entity is liable only for deprivations resulting from the
decisions of the policy-makers or officials; requiring plaintiffs
to locate a “custom” ensures that the entity acting under color
of state law is only liable for practices that are “so widespread
as to have the force of law.”

Id at 404.

Although HIHS is not a municipality, the Ninth Circuit
has held that the Monell analysis applies to private entities

-59-

acting under the color of state law.32/

Tsao v. Desert Palace,

Inc., 698 F.3d 1128, 1139 (9th Cir. 2012).

HIHS is a private

contractor acting under color of state law, so the Monell
analysis applies to its actions.
Plaintiff fails to identify a specific policy or custom
that deprived him of his constitutional rights.

See generally

SAC and Plntf.’s HIHS MSJ Opp. at 11-12, ECF No. 109.

Plaintiff

does not allege that the procedures applicable to the Surrender
Form or general POA violate federal law or deprive people of
federal rights; Plaintiff also does not provide evidence of
failure to train.

Plaintiff cannot merely point generically to

conduct “properly attributable to the municipality.”
520 U.S. at 404.

See Brown,

He “must also demonstrate that, through its

deliberate conduct, HIHS was the “moving force” behind the injury
alleged.”

Id.

HIHS’s acceptance of a facially valid form does

not demonstrate that HIHS deliberately deprived Plaintiff of his
constitutional rights through a policy or custom.
Additionally, Plaintiff’s specific allegations that his
rights were violated by Yamada’s acceptance of the Surrender Form
and the general POA only identifies a single incident of

32/

Because the rationale and analysis of Monell applies, the
Ninth Circuit used municipality cases in order to examine the §
1983 liability of a private contractor acting under color of
state law. See id at 1143-45 (using municipality cases to
examine private contractor liability under § 1983). Accordingly,
this Court likewise uses municipality cases to examine HIHS’
liability under § 1983.
-60-

purported wrongdoing on the part of HIHS.

The Supreme Court has

addressed such single incident cases as follows:
Where a claim of municipal liability rests on a single
decision, not itself representing a violation of
federal law and not directing such a violation, the
danger that a municipality will be held liable without
fault is high. Because the decision necessarily
governs a single case, there can be no notice to the
municipal decisionmaker, based on previous violations
of federally protected rights, that this approach is
inadequate. Nor will it be readily apparent that the
municipality’s action caused the injury in question,
because the plaintiff can point to no other incident
tending to make it more likely that the plaintiff’s own
injury flows from the municipality’s action, rather
than from some other intervening cause.
Brown, 520 U.S. at 411.
While a single action may create liability, Plaintiff
must identify evidence that HIHS was “deliberately indifferent”
to the specific risk “that a violation of a particular
constitutional or statutory right will follow the decision.”
at 411, Tsao, 698 F.3d at 1143.

Id

In a case where a sheriff

admitted that he failed to conduct further research on an
applicant’s record before hiring him, the Supreme Court found
that the “indifference” to the application was not the type of
“indifference” that results in § 1983 liability.
at 411.

Brown, 520 U.S.

Instead, the plaintiff had to prove that the official

was deliberately indifferent to the violation of the
constitutional right that was a “plainly obvious consequence” of
the act.

Id.

-61-

In this case, Plaintiff fails to produce evidence that
a HIHS policymaker was deliberately indifferent to a violation of
his constitutional rights.

Even if the Court assumes without

deciding that HIHS was indifferent to investigating the Surrender
Form and the general POA, such indifference does not meet the
legal standard to impose liability because it was not plainly
obvious that the forms were invalid and that accepting them would
violate Plaintiff’s constitutional rights.

See Pennington, 207

F. Supp. 2d at 1243 (D. Kan. 2002) (granting summary judgment
because plaintiff failed to show that deliberate municipal policy
or custom deprived plaintiff of his horses) and Anderson v.
Smith, Civ. No. 1:06-CV-1795 OWW SMS, 2009 WL 2139311 at *20-21
(E.D. Cal. 2009) (granting summary judgment because plaintiff
failed to produce evidence showing deliberate indifference).
For the foregoing reasons, the Court grants the HIHS
Defendants’ Motion for Summary Judgment as to Plaintiff’s § 1983
claims.
E. Whether this Court Should Grant Defendant County of
Hawai#i’s MSJ as to Plaintiff’s § 1983 Claims
Plaintiff also alleges that the County of Hawai#i
should be liable for any actions taken by HIHS, Whitaker, or
Yamada that violated Plaintiff’s constitutional rights.
22-28.

SAC at

The County argues that Plaintiff’s claims against the

County must fail because (1) they are “completely derivative of
-62-

his claims against HIHS, Whitaker, and Yamada” and (2) they are
solely based on the fact that a contract exists between the
County and HIHS.

HIHS Defs.’ MSJ at 2 n.2, ECF No. 98.

First, the Court found in Section I.A. that Plaintiff
did not meet his burden of showing a genuine issue of material
fact as to whether the HIHS Defendants violated his
constitutional rights.

See supra Section I.A. at 19-39.

Second,

because HIHS is not liable under § 1983 under Monell, there is no
basis for liability against the County of Hawai#i.

Third, even

if HIHS was in fact liable, the mere existence of a contract
between the County of Hawai#i and HIHS for animal control
services does not give rise to liability on the part of the
County.33/

See Monell, 436 U.S. at 692.

Plaintiff does not

provide any evidence of a specific policy or custom of the County
that would create § 1983 liability.

See supra 59-62 (analyzing

requirements for Monell liability).
II.

Whether this Court Should Grant Defendant Ostendorp’s MSJ as

to Plaintiff’s § 1983 Claims
In Count III of the Second Amended Complaint, Plaintiff
alleges that Defendant Ostendorp conspired with the HIHS
Defendants to deprive him of his constitutional rights under the

33/

The Court also notes that the contract between the County
and HIHS cannot by itself impose liability because Hawai#i County
Code § 4-9 states that HIHS or its employees are not viewed as
agents or employees of the County.
-63-

Fourth, Fifth, and Fourteenth Amendments.34/

First, the Court

notes that Defendant Ostendorp cannot be held liable under § 1983
because, as Section I.A. demonstrates, Plaintiff did not meet his
burden of identifying a genuine issue of material fact as to
whether the HIHS Defendants violated his constitutional rights.
See supra Section I.A. at 19-39.
Second, Plaintiff cannot demonstrate that Defendant
Ostendorp acted under color of state law in order to impose
liability on Ostendorp for an alleged violation of his
constitutional rights.

The Ninth Circuit follows a two-part

approach to determine if the deprivation of a constitutional
right by private actors is fairly attributable to the state:

(1)

“the deprivation must be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by
the state or by a person for whom the State is responsible, and
(2) “the party charged with the deprivation must be a person who
may fairly be said to be a state actor.”

Florer v. Congregation

Pidyon Shevuyim, 639 F.3d 916, 922 (9th Cir. 2011) (quoting West
v. Atkins, 487 U.S. 42, 49 (1988).

The Supreme Court has stated

that “state action may be found . . . only if[] there is such a
close nexus between the State and the challenged action that

34/

Plaintiff does not specifically mention Defendants Cox or
Dela Cruz in the § 1983 counts of his complaint. See SAC Count
III - 42 U.S.C. § 1983. The Court notes that the analysis in
Section III would also apply to Defendants Cox and Dela Cruz if
the § 1983 claims actually apply to these Defendants.
-64-

seemingly private behavior may be fairly treated as that of the
State itself.”

Florer, 639 F.3d at 924 (quoting Brentwood

Academy v. Tenn. Secondary School Athletic Ass’n, 531 U.S. 288,
295 (2001).
Regardless of whether Plaintiff satisfies the first
part of the two-part approach, Plaintiff fails to raise a genuine
issue of material fact regarding whether Defendant Ostendorp “may
fairly be said to be a state actor.”
922.

See Florer, 639 F.3d at

The Court starts with the presumption that private actor

conduct is not state action.

See Florer, 639 F.3d at 922.

Plaintiff admits that Defendant Ostendorp was operating as a
lawyer in private practice, and that such lawyers generally do
not act under color of state law.
Ostendorp MSJ at 4, ECF No. 110.

See Plntf.’s Opp. Memo to
However, Plaintiff attempts to

establish that Ostendorp is a state actor by alleging that
Ostendorp conspired with HIHS to deprive Plaintiff of the Dogs.
See id at 5.
While a private actor like Defendant Ostendorp may be
considered a state actor if he conspires with a state actor;
Plaintiff must identify evidence that an “agreement” or “meeting
of the minds” to violate constitutional rights occurred in order
to impose state actor status on a private actor for § 1983
liability.

See United Steelworkers of America v. Phelps Dodge

Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989).

-65-

Plaintiff has not done so here.

To support Plaintiff’s

claim of conspiracy, Plaintiff cites to (1) a letter from
Ostendorp to Yamada dated October 7, 2009 and (2) a copy of an
invoice statement from Ostendorp to Defendant Roberta Young dated
October 19, 2009 (“Invoice Statement”) reflecting that Defendant
Ostendorp called the Humane Society and exchanged emails with
agents of the Humane Society.

See Plntf.’s Opp. Memo to

Ostendorp MSJ at 4, ECF No. 110.

However, neither the letter nor

the content of the conversations between Ostendorp and HIHS
establish a meeting of the minds to violate Plaintiff’s
constitutional rights.
Even if the Court assumes without deciding that
Defendant Ostendorp knew that the Dogs were Plaintiff’s and
therefore violated Plaintiff’s constitutional rights, this
assertion cannot establish § 1983 liability because Ostendorp
himself is not a state actor.

The actual state actors, the HIHS

Defendants, did not have the requisite intention to violate
Plaintiff’s constitutional rights because (1) the Dogs apparently
were not Plaintiff’s property, and (2) as the Court discussed in
Section I.A. herein, the HIHS Defendants did not have reason to
know that the Surrender Form and the general POA were forged,

-66-

fraudulently obtained, or were otherwise invalid.35/

See supra at

27-29.
Under Plaintiff’s version of the facts, the October 7
letter at best demonstrates that Ostendorp tried to deceive the
HIHS Defendants into believing that the Dogs did not belong to
Plaintiff36/ - such deception is contrary to the idea that a
meeting of the minds occurred.

See Annan-Yartey v. Honolulu

Police Dep’t., 475 F. Supp. 2d 1041, 1047 (D. Haw. 2007) (noting
that, in cases where a defendant’s false statements to police
resulted in a plaintiff’s arrest, the fact that the defendant’s
statements were false has no bearing on his status as a state
actor).

Accordingly, the letter does not show that Ostendorp and

the HIHS Defendants agreed to violate Plaintiff’s constitutional
rights because the Defendants did not have a meeting of the minds
as to Plaintiff’s alleged ownership of the Dogs.

Id.

The Invoice Statement and the content of the meetings
mentioned therein also does not create a material issue of fact
regarding the existence of “an agreement or ‘meeting of the

35/

Even if the Court assumes without deciding that Defendant
Ostendorp committed fraud when he drafted the general POA and the
Animal Surrender Form, this fact does not create a conspiracy
with the state. See Annan-Yartey v. Honolulu Police Dep’t., 475
F. Supp. 2d 1041, 1047 (D. Haw. 2007).
36/

The content of the letter states, inter alia, that
Plaintiff “is not the owner of the dogs.” HIHS Defs.’ MSJ Ex. C,
ECF No. 98.
-67-

minds’ to violate constitutional rights.”37/

See United

Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539,
1545-46 (9th Cir. 1989) (noting that evidence of cooperation with
law enforcement agencies does not prove a conspiracy).
While Yamada replied to Ostendorp that an animal
surrender form could be submitted; this statement does not
indicate that Yamada formed an agreement to violate Plaintiff’s
constitutional rights.
Nos. 154 & 155.

Defs.’ Supp. CSF Ex. 4 at 000016, ECF

Assuming arguendo that Yamada and Ostendorp

shared a common purpose of transferring ownership of the Dogs,
this common purpose in itself does not create a conspiracy under
§ 1983 - instead, the meeting of the minds must specifically
relate to the violation of constitutional rights.

Annan-Yartey,

475 F. Supp. 2d at 1046 (holding that no conspiracy existed even
though police arrested plaintiff based on private actor complaint

37/

Plaintiff cannot rely on his conclusory allegations in
the Complaint or his pleadings to create a genuine issue of
material fact as to whether a conspiracy was formed between HIHS
and Defendant Ostendorp. See Burns v. Cnty. of King, 883 F.2d
819, 821 (9th Cir. 1989) (holding that summary judgment was
appropriate when plaintiff only made conclusory allegations that
social worker conspired with prosecutor to deprive plaintiff of
civil rights), Simmons v. Sacramento Cnty. Superior Court, 318
F.3d 1156, 1161 (9th Cir. 2003) (holding that summary judgment
was appropriate when plaintiff only provided conclusory
allegations that private counsel conspired with state officers to
deprive plaintiff of due process), cf. Coverdell v. Dep’t of
Social and Health Serv., 834 F.2d 758 (9th Cir. 1987) (affirming
district court’s grant of summary judgment because plaintiff
failed to produce specific evidence of discriminatory animus for
§ 1985 claim).
-68-

because no meeting of the minds to violate plaintiff’s
constitutional rights occurred).
While Plaintiff argues in his brief that Yamada
“assisted in orchestrating the fraudulent transfer”; Plaintiff
identifies no evidence that Yamada actually had knowledge of the
fraud.

See Annan-Yartey, 475 F. Supp. 2d at 1046 (holding that

plaintiff failed to allege § 1983 conspiracy because, inter alia,
there were no allegations that police officers knew that private
actor lied about the TRO used to falsely arrest the plaintiff).
Plaintiff’s allegations and arguments do not qualify as evidence
(see Coverdell, 834 F.2d at 762), and the uncontested evidence of
the contents of Yamada’s conversations with Ostendorp indicates
that Yamada acted based upon the belief that Ostendorp and
Roberta Young had authority to transfer the Dogs.
The Hawai#i AG Report reflects that Ostendorp
approached Yamada, told her that he represented Plaintiff, told
her that Plaintiff was under suicide watch at a hospital, and
attempted to negotiate a deal to prevent Plaintiff from getting
“into any more trouble since he was still on probation.”
Plntf.’s Supp. JCSF Ex. 4 at 000016, ECF Nos. 154 & 155.
Ostendorp represented to Yamada that Roberta Young had the
authority to transfer the Dogs to HIHS.

Id at 000016.

Yamada

did take action to check these representations by telling
Ostendorp that she would need to speak with the person who

-69-

actually had the general POA; on October 7, a woman purporting to
be Roberta subsequently called Yamada to verify that she had a
general POA and wanted to surrender the Dogs.

Id.

Additionally,

Yamada requested that Ostendorp send her a copy of the general
POA before HIHS would take action with respect to the Dogs.
Plntf.’s Supp. JCSF Ex. 3, ECF No. 121.
Yamada’s reliance on the general POA and Surrender Form
subsequently submitted by Ostendorp demonstrates that she agreed
to accept the surrender of the Dogs, but her reliance on the
forms does not constitute evidence of an agreement to violate
constitutional rights because the transfer was facially valid.
Even assuming without finding that Ostendorp committed fraud as
alleged by Plaintiff, the uncontroverted evidence demonstrates
that Yamada and Ostendorp had two different mindsets as far as
whether the transfer of the Dogs would violate Plaintiff’s
constitutional rights.
Plaintiff also argues that Ostendorp and Yamada had a
“meeting of the minds” when they agreed not to tell Plaintiff
about the surrender of the Dogs.

Plntf.’s Supp. Opp. at 3.

However, as articulated above, this “meeting of the minds” was
not an agreement to violate constitutional rights because Yamada
relied upon Plaintiff’s purported agents’ representations that
Plaintiff no longer had ownership rights in the Dogs.
Accordingly, Plaintiff fails to raise a genuine issue of material

-70-

fact regarding Ostendorp’s state actor status and § 1983
liability.
III. Whether this Court Should Exercise Supplemental Jurisdiction
Over the Remaining Tort Law Claims
Under 28 U.S.C. § 1367(c), a district court may decline
to exercise supplemental jurisdiction over state law claims if
“the district court has dismissed all claims over which it has
original jurisdiction.”

28 U.S.C. § 1367.

When determining

whether or not to remand the case to state court, this Court is
required to balance the values of “economy, convenience,
fairness, and comity.”
F.3d

at 1001.

See Acri v. Varian Associates, Inc., 114

However, the Supreme Court has stated that “in

the usual case in which all federal-law claims are eliminated
before trial, the balance of factors . . . will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”

Carnegie-Mellon v. Cohill, 484 U.S. 343, 350 n.7

(1988).
The Supreme Court has noted that states have an
interest in enforcing their laws.
at 352.

See Carnegie-Mellon, 484 U.S.

In this case, the remaining claims for Defendants

involve important matters of state tort law and attorney conduct.
See SAC at 27-35.

Additionally, the Court notes that all of the

Defendants with federal claims asserted against them in this
action requested the Court to decline to exercise supplemental
-71-

jurisdiction if the federal claims were dismissed.
Defs.’ MSJ at 20 and Def. Ostendorp MSJ at 19.

See HIHS

Plaintiff

provides no compelling argument for this Court to retain
jurisdiction – Plaintiff merely asserts that this Court has
jurisdiction based on the federal claims.

Because the federal

claims in this case have been eliminated before trial, the
balance of factors tips in favor of dismissal. See CarnegieMellon, 484 U.S. at 350.
Accordingly, because the Court declines to exercise
supplemental jurisdiction, the Court declines to rule on (1) the
state law claims in Defendants County of Hawai#i, HIHS, Whitaker,
and Yamada’s MSJ as to Plaintiff’s SAC, (2) Defendant Roberta
Young’s MSJ as to Plaintiff’s SAC, (3) Defendants Ostendorp, Cox,
and Dela Cruz’s state law claims in their MSJ as to Plaintiff’s
SAC, and (4) Defendants Ostendorp, Cox, and Dela Cruz’s MSJ as to
Roberta Young’s Crossclaims.
CONCLUSION
For the foregoing reasons, the Court: (1) GRANTS
Defendants County of Hawai#i, Hawai’i Island Humane Society,
Donna Whitaker, and Starr Yamada’s Motion for Summary Judgment as
to Plaintiff’s SAC for Count I - 42 U.S.C. § 1983 (violations of
the Fourth, Fifth, and Fourteenth Amendments); Count II - 42
U.S.C. § 1983 (violations of the Fourth, Fifth, and Fourteenth

-72-

Amendments);38/ Count IV - Violations of Equal Protection; and
Count VI - Negligent Training and/or Supervision to the extent
this claim relies upon federal constitutional law, (2) GRANTS
Defendant Ostendorp’s Motion for Summary Judgment as to
Plaintiff’s SAC for Count III - 42 U.S.C. § 1983, and (3)
DECLINES to exercise supplemental jurisdiction as to the state
law claims in Plaintiff’s SAC, Defendant Michael Ostendorp’s
Crossclaim, Defendant Carroll Cox’s Crossclaim, Defendant Darleen
Dela Cruz’s Crossclaim, Defendant Roberta Kawena Young’s
Crossclaim, and Defendants County of Hawai#i, Hawaii Island
Humane Society, Donna Whitaker, and Starr Yamada’s Crossclaim.
Accordingly, the Court DECLINES to consider the state law claims
in Defendants County of Hawai#i, Hawaii Island Humane Society,
Whitaker, and Yamada’s MSJ as to Plaintiff’s SAC, Defendant
Roberta Young’s MSJ as to Plaintiff’s SAC, Defendants Ostendorp,
Cox, and Dela Cruz’s MSJ as to Plaintiff’s SAC, and Defendants
Ostendorp, Cox, and Dela Cruz’s MSJ as to Roberta Young’s
Crossclaims.39/

38/

While Counts I and II both allege violations of
constitutional rights based on the execution of the Search
Warrant and seizure of the Dogs, Count II contains, inter alia,
additional allegations regarding municipal liability.
39/

The Court observes that, under 28 U.S.C. § 1367(d), the
period of limitations for state claims based on this Court’s
supplemental jurisdiction “shall be tolled while the claim is
pending and for a period of 30 days after it is dismissed unless
State law provides for a longer tolling period.” Jinks v.
(continued...)
-73-

In view of the foregoing rulings, the Clerk of the
Court is directed to (1) enter judgment in favor of Defendants
County of Hawai#i, Hawaii Island Humane Society, Donna Whitaker,
and Starr Yamada on Count I, Count II, Count IV, and Count VI (to
the extent that claim relies upon federal constitutional law) of
Plaintiff’s Second Amended Complaint, (2) enter judgment in favor
of Defendant Michael Ostendorp as to Count III of Plaintiff’s
Second Amended Complaint, and (3) close the case because the
Court declines to exercise supplemental jurisdiction as to the
state law claims in Plaintiff’s Second Amended Complaint and
Defendants’ crossclaims.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, May 22, 2013.

________________________________
Alan C. Kay
Sr. United States District Judge

Young v. Cnty. of Haw. et al., Civ. No. 11-00580 ACK-RLP: ORDER (1) GRANTING
IN PART AND DECLINING IN PART DEFENDANTS COUNTY OF HAWAI’I, HAWAII ISLAND
HUMANE SOCIETY S.P.C.A., DONNA WHITAKER, STARR K. YAMADA, AND MICHAEL
OSTENDORP’S MOTIONS FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND AMENDED
COMPLAINT (2) DECLINING DEFENDANTS ROBERTA KAWENA YOUNG, CARROLL COX, AND
DARLEEN DELA CRUZ’S MOTIONS FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND
AMENDED COMPLAINT, AND (3) DECLINING CROSSCLAIM DEFENDANTS MICHAEL OSTENDORP,
CARROLL COX, AND DARLEEN DELA CRUZ’S MOTIONS FOR SUMMARY JUDGMENT AS TO
ROBERTA KAWENA YOUNG’S CROSSCLAIM.

39/

(...continued)
Richland County, S.C., 538 U.S. 456, 462-63 (2003).
-74-