Bracken v. Kyo-Ya Hotels and Resorts et al
ORDER (1) GRANTING DEFENDANT AND COUNTERCLAIM PLAINTIFF KYO-YA AND DEFENDANT AARON OKURA'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF'S CLAIMS UNDER 42 U.S.C. § 1983 103 , (2) GRANTING DEFENDANT KINCHUNG CHUNG'S MOTION FOR SUMMARY JUDGMENT 104 , AND (3) DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT 107 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/24/2013. [Order follows hearing held 6/10/2013. Minutes: 154 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
AARON H. OKURA; KINCHUNG
CHUNG; JOHN DOES 1-9; and DOE )
KYO-YA HOTELS AND RESORTS,
L.P., a foreign Limited
DILLON L. BRACKEN,
CIVIL NO. 11-00784 LEK-BMK
ORDER (1) GRANTING DEFENDANT AND COUNTERCLAIM
PLAINTIFF KYO-YA AND DEFENDANT AARON OKURA’S
MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S
CLAIMS UNDER 42 U.S.C. § 1983, (2) GRANTING
DEFENDANT KINCHUNG CHUNG’S MOTION FOR
SUMMARY JUDGMENT, AND (3) DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court are: (1) Defendant/Counterclaim
Plaintiff Kyo-ya Hotels and Resorts, L.P. (“Kyo-ya”), and
Defendant Aaron Okura’s (“Okura”)1 Motion for Partial Summary
Kyo-ya and Okura are referred to together as the “Kyo-ya
Defendants” throughout. Chung and the Kyo-ya Defendants are
collectively referred to as “Defendants.”
Judgment on Plaintiff’s Claims Under 42 U.S.C. § 1983, filed
December 18, 2012 (“1983 Motion”), [dkt. no. 103;] (2) Defendant
Kinchung Chung’s (“Chung”) Motion for Summary Judgment, filed
December 18, 2012 (“Chung’s Motion”), [dkt. no. 104;] and (3)
Plaintiff Dillon L. Bracken’s (“Plaintiff”) Motion for Partial
Summary Judgment, filed December 18, 2012 (“Plaintiff’s Motion”),
[dkt. no. 107].
The Kyo-ya Defendants filed their memorandum in
opposition to Plaintiff’s Motion on May 14, 2013.
Plaintiff filed his memorandum in opposition to the 1983
Motion on May 21, 2013, [dkt. no. 149,] and to Chung’s Motion on
May 20, 2013, [dkt. no. 148].
May 25, 2013.
[Dkt. no. 150.]
Plaintiff filed his reply on
The Kyo-ya Defendants filed their
reply on May 28, 2013, [dkt. no. 151,] and Chung filed his reply
on the same day, [dkt. no. 152].
These matters came on for hearing on June 10, 2013.
Appearing on behalf of Plaintiff was Charles S. Lotsof, Esq.,
appearing on behalf of the Kyo-ya Defendants was Adrian Y. Chang,
Esq., and appearing on behalf of Chung was D. Scott Dodd, Esq.
After careful consideration of the motions, supporting and
opposing memoranda, the arguments of counsel, and the relevant
legal authority, the 1983 Motion is HEREBY GRANTED, Chung’s
Motion is HEREBY GRANTED, and Plaintiff’s Motion is HEREBY
This action arises out of what Plaintiff alleges was an
attack on him by security personnel when he tried to enter
Rumfire, a Kyo-ya restaurant in Honolulu, on New Year’s Eve in
Plaintiff alleges that Chung was working at Rumfire as a
special duty police officer, meaning that, although he was a
Honolulu Police Department (“HPD”) officer, he “work[ed] with and
alongside” Kyo-ya’s in-house security guards.
Complaint, filed 7/13/12 (dkt. no. 60), at ¶ 55.]
“wearing clothing that identified him as an officer of the
Honolulu Police Department.”
[Id. at ¶ 38.]
Plaintiff alleges that he entered RumFire “unaware that
it was supposedly closed to the public” for a private New Year’s
[Id. at ¶ 23.]
Plaintiff states that Okura, a
private plainclothes Kyo-ya security guard “abruptly grabbed
[him] by his shoulder.”
[Id. at ¶ 24.]
Thinking that Okura was
an intoxicated RumFire patron “trying to pick a fight,” Plaintiff
says he “tried to avoid any altercation with him.”
Plaintiff claims his efforts to get away from Okura were
“thwarted” by Chung.
[Id. at ¶ 26.]
Plaintiff asserts that he
“repeatedly stated that he was trying to leave the premises and
implored Defendants Okura and Chung to stop preventing him from
leaving,” but that Okura and Chung “blocked [his] egress.”
at ¶¶ 46, 47.]
Plaintiff alleges that Okura, together with “additional
security guards employed by [Kyo-ya], including a person in a
supervisory position, participated in the attack on [Plaintiff],
restrained [his] freedom, abducted him and injured him.”
Plaintiff further alleges that Chung “had the opportunity
to intercede,” but failed to stop the Kyo-ya security guards from
[Id. at ¶ 47.]
Instead, Plaintiff alleges,
Chung “repeatedly demanded [Plaintiff’s] identification even
after Defendant Okura had by force pinned [Plaintiff’s] left arm
so that he could not retrieve any identification.”
Plaintiff complains that “Chung exhibited hostility”
toward him, and “engaged in making demands” on him, “all the
while ignoring the fact that others were illegally attacking
[Id. at ¶ 42.]
Besides failing to “interfere with the
assault” or “take any steps to prevent it,” Chung allegedly
failed to “confront the perpetrators.”
[Id. at ¶ 43.]
Plaintiff asserts that he suffered the following
injuries from the New Year’s Eve incident:
(a) deprivation of freedom and liberty during the
time he was being attacked and pinned on the
ground by agents and employees of Defendant Kyo-ya
Hotels and Resorts, as well as during the time his
movement away from Defendants and their premises
was restrained; (b) loss of consciousness;
(c) larynx and vocal cord injury, causing pain,
and inconvenience; (d) bruising of his wrists;
(e) physical pain; (f) temporary inability to
speak above a hoarse raspy whisper; (g) emotional
distress and depression; (h) interference with the
right to be secure in his person[;]
(i) deprivation of the right of equal protection
of law secured to him by the Fifth and Fourteenth
Amendments to the United States Constitution[;]
(j) deprivation of the rights and privileges
secured to other citizens[;] and (k) incurring
medical and allied expenses.
[Id. at ¶ 70.]
Plaintiff’s Fourth Amended Complaint2 asserts eight
causes of action: (1) “Negligence in Operating Public
Accommodation and Premises Liability” against Kyo-ya (Count 1);
(2) “Negligence in Employing and Training” against Kyo-ya (Count
2); (3) “Assault, Battery, Intentional Infliction of Emotional
Distress, False Imprisonment, and Wrongful Detention” against
Kyo-ya, Okura, and Chung (Count 3); (4) “Deprivation of Civil
Rights in Violation of 42 U.S.C. § 1983” against Kyo-ya, Okura,
and Chung (Count 4); (5) “Failure to Intercede, Denial of Civil
Rights” against Kyo-ya and Chung (Count 5); (6) “Potential CoverUp Resulting in Denial of Civil Rights” against Kyo-ya and Chung
(Count 6); (7) “Common Law Torts: Exercising Excessive Force”
against Okura and Kyo-ya (Count 7); and (8) “Claims Pursuant to
Although the instant motions address what is referred to
as the “Fourth Amended Complaint,” that document actually
operates as a First Amended Complaint. A different document
bearing the title “First Amended Complaint” was filed after the
period for amendments as of right under Rule 15(a) of the Federal
Rules of Civil Procedure and without leave of court. That
document was then superseded by a “Second Amended Complaint,”
which this district court dismissed because it had been filed
without leave of court. Plaintiff then moved for leave to file a
“Third Amended Complaint,” only to withdraw that motion and
substitute a motion seeking leave to file the present “Fourth
Amended Complaint.” That motion was granted. [Dkt. no. 57.]
42 U.S.C. §§ 1983 et seq. Actions Under Color of Law” against all
defendants (Count 8).
In a November, 13, 2012 Order Granting in Part and
Denying in Part Defendant Kinchung Chung’s Motion to Dismiss
Fourth Amended Complaint (“11/13/12 Order”), this district court3
dismissed as against Defendant Chung Counts 6 and 8.
Kyo-ya Hotels & Resorts, LP, Civ. No. 11-00784 SOM/BMK, 2012 WL
5493997 (D. Hawai`i Nov. 13, 2012).4
In the 1983 Motion, the Kyo-Ya Defendants argue that
Bracken’s § 1983 claims against them should be dismissed because
they did not engage in state action.
The Kyo-ya Defendants note
that the Ninth Circuit has stated that private parties are not
generally acting under color of state law.
[Mem. in Supp. of
19823Motion at 4 (citing Price v. State of Hawaii, 939 F.2d 702,
208 (9th Cir. 1991)).]
The Kyo-ya Defendants emphasize that
individuals and private entities are normally not liable for
alleged constitutional violations, and that the ultimate issue in
determining whether a person is subject to suit under § 1983 is
This case was reassigned to this Court on March 27, 2013.
[Dkt. no. 127.]
This district court also issued an Order Denying Bracken’s
Motion for Summary Judgment Regarding Counterclaim on January 25,
2013. Bracken v. Kyo-ya Hotels & Resorts, LP, Civ. No. 11-00784
SOM/BMK, 2013 WL 314752 (D. Hawai`i Jan. 25, 2013).
whether the alleged infringement of a federal right is fairly
attributable to the government.
Here, the Kyo-ya Defendants argue, it is undisputed
that Kyo-Ya and Okura are not, and have never been, governmental
actors or entities for purposes of § 1983.
The Kyo-ya Defendants
acknowledge that there is an exception to the general rule of
non-liability of private actors under § 1983: if a private party
conspires with state officials to violate constitutional rights,
that private party may then qualify as a state actor.
however, the Kyo-ya Defendants argue, no facts support a claim
that a conspiracy existed between the Kyo-ya Defendants and
Officer Chung or some other state official to deprive Plaintiff
of his constitutional rights.
[Id. at 6-7.]
As such, the Kyo-ya Defendants urge the Court to grant
summary judgment in their favor with respect to Bracken’s § 1983
claims against them.
In his memorandum in opposition to the 1983 Motion,
Plaintiff argues that his § 1983 claims against Kyo-ya and Okura
may go forward, notwithstanding the fact that they are private
actors, because a private party becomes a state actor for
purposes of § 1983 when it engages in activity in which a police
[Mem. in Opp. to 1983 Motion at 2 (citing
Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003)).]
asserts that, where there is police participation creating an
appearance that the police sanction a private activity, there is
[Id. at 2-3.]
Further, Plaintiff argues that
determining the “overall effect of the presence of a uniformed
policeman requires a case-by-case analysis,” and summary judgment
is therefore inappropriate.
[Id. at 4.]
Here, the Fourth
Amended Complaint alleges that Chung held Plaintiff back,
“thwarting” his efforts at escape, and detaining Plaintiff on
behalf of Okura and Kyo-ya.
Complaint at ¶¶ 26, 42-50).]
[Id. at 4 (citing Fourth Am.
As such, Plaintiff argues, Chung
was “instrumental in Plaintiff’s being in jeopardy of an attack
[Id. at 5.]
Plaintiff further argues that the Kyo-ya Defendants are
responsible as co-participants with Chung in the alleged civil
Plaintiff asserts that Chung’s involvement
was “inextricably intertwined” with the Kyo-ya employees’ actions
and, thus, all are jointly and severally liable.
argues that he has presented evidence that, had Chung not been
present, the Kyo-ya security guards would have followed their
normal protocol for dealing with a person who refuses to provide
identification but states that he will leave of his own accord,
[Id. at 7.]
and would have let Plaintiff go.
Plaintiff argues that Chung “set the example” for the
Kyo-ya employees and acted in concert with them, and therefore
Plaintiff has sufficiently alleged his § 1983 claim against the
[Id. at 7-8.]
Plaintiff therefore urges the
Court to deny the 1983 Motion.
In their reply, the Kyo-ya Defendants argue that
Plaintiff fails to cite any facts supporting his allegations that
Chung exerted control over Plaintiff or that, as a result of
Chung’s actions, the Kyo-ya employees were “emboldened” in their
[Reply to Mem. in Opp. to 1983 Motion at 2.]
ya Defendants argue that Plaintiff cannot overcome summary
judgment on mere assertions, absent factual evidence supporting
his claim of state action.
Chung moves for summary judgment on all of Plaintiff’s
remaining claims against him: state law claims for assault,
battery, intentional infliction of emotional distress (“IIED”),
false imprisonment, and wrongful detention (Count 3); deprivation
of civil rights in violation of 42 U.S.C. § 1983 (Count 4); and
failure to intercede, denial of civil rights (Count 5).
First, Chung argues that he is entitled to summary
judgment because Plaintiff has produced no evidence that Chung
took any affirmative actions against Plaintiff, breached any
duties he owed Plaintiff, or otherwise committed any tort against
[Mem. in Supp. of Chung’s Motion at 8.]
asserts that he did not touch Plaintiff in any manner, nor did he
detain or seize him.
Further, Chung emphasizes, there is no
allegation that he acted with malice or an otherwise improper
purpose toward Plaintiff.
[Id. at 8-9.]
Second, Chung argues that probable cause existed for
the initial detention of Plaintiff and, therefore, no
constitutional rights were violated.
[Id. at 10-11 (citing
Chung’s Separate and Concise Statement of Facts in Support of
Motion for Summary Judgment (“Chung’s CSF”), Declaration of
Kinchung Chung (“Chung Decl.”), at ¶¶ 3-5).]
Third, Chung argues that Plaintiff’s § 1983 claims for
unreasonable seizure and use of excessive force must fail because
Plaintiff has failed to demonstrate any “state action.”
assuming Plaintiff was improperly seized or inappropriate force
was used, Chung argues, the facts do not suggest that Okura was a
“state actor” or that Okura and Chung could be said to be “fellow
officers” such that state action exists.
[Id. at 14-15.]
Further, Chung argues, Plaintiff has failed to set forth any
evidence demonstrating that a conspiracy existed among Chung and
the Kyo-ya Defendants.
[Id. at 12.]
Fourth, Chung argues that, even if the Court determines
that there was state action and that Chung did participate in any
alleged torts, Chung is nevertheless shielded from liability by
[Id. at 19.]
Fifth, Chung argues that he is entitled to the defense
of conditional privilege with respect to Plaintiff’s state law
Chung notes that, under Hawai`i law, for a tort action
to lie against a nonjudicial government official, the injured
party must allege and demonstrate by clear and convincing
evidence that the official was motivated by malice and not by an
otherwise proper purpose.
to do so.
Chung argues that Plaintiff has failed
[Id. at 21.]
Finally, Chung argues that Plaintiff is not entitled to
punitive damages against Chung, as Plaintiff has not demonstrated
by clear and convincing evidence that Chung acted wantonly,
oppressively, or maliciously.
[Id. at 21-22.]
asks the Court to grant his motion as to all claims against him.
In his memorandum in opposition, Plaintiff argues that
Chung’s assertion regarding probable cause is incorrect and that
Plaintiff disputes Chung’s version of the facts.
[Mem. in Opp.
to Chung’s Motion at 2.]
Plaintiff argues that Chung’s involvement in the
confrontation made Plaintiff feel he was unable to leave, and
that Chung knew the situation was escalating but did not
intercede, thereby “embolden[ing]” the other security guards.
[Id. at 3-4.]
Plaintiff emphasizes that the Defendants were not
authorized to use force to detain him in order to issue a written
trespass violation, and argues that merely getting into an
argument with a police officer or failing to cooperate is not
illegal or grounds for detention.
[Id. at 4-5.]
argues that the evidence demonstrates that, because there was a
police officer present, he was treated differently than other
[Id. at 6.]
Plaintiff further argues that, contrary to Chung’s
assertions, there is evidence demonstrating that Okura and other
security guards did physically injure him and carry him forcibly
to the basement security office.
[Id. at 7-8 (citing Stipulation
Admitting Video-recording into Evidence, Exh. A (video
recording), filed 12/19/12 (dkt. no. 110), at 2:47-4:50; 8:159:25).]
Plaintiff asserts that the video clearly shows that
Chung was blocking his exit and standing very close to him.
Plaintiff argues further that the video establishes that
Chung participated in the “abduction,” and “condoned the
[Id. at 8-10.]
In his reply, Chung argues that, in order to prevail on
Count 3 (the state law claims), Plaintiff must establish that
Chung aided and abetted Okura, or engaged in a conspiracy in
which Okura and Chung had a criminal or unlawful purpose and used
criminal or unlawful means to accomplish the objective.
to Mem. in Opp. to Chung’s Motion at 4-5.]
Chung argues that
Plaintiff has failed to produce any evidence that he either aided
and abetted Okura, or that he conspired with Okura.
emphasizes that the video indicates only that Chung was present
when Plaintiff was stopped and that he asked Plaintiff for
[Id. at 5.]
As to Count 4 (the § 1983 unlawful seizure claim),
Chung argues that Plaintiff’s actions would have provided a
reasonable officer on the scene probable cause to believe that
Plaintiff was trespassing.
[Id. at 6-7.]
Chung argues that,
once he reasonably believed Plaintiff had committed a trespass,
probable cause existed, and Chung was permitted to stop him and
ask for identification.
Chung further argues that he was
not “fundamentally involved in the alleged violation of
Plaintiff’s constitutional rights” and therefore cannot be held
[Id. at 9-10 (quoting Monteilh v. Cnty. of Los Angeles,
820 F. Supp. 2d 1081, 1088-89 (C.D. Cal. 2011)).]
As to Count 5 (the § 1983 failure to intercede claim),
Chung argues that he cannot be liable for failing to intercede
because Okura was a private security officer, not a law
[Id. at 11-12.]
Further, Chung argues,
Plaintiff has failed to produce any evidence that Okura and Chung
were somehow acting in concert.
[Id. at 13.]
III. Plaintiff’s Motion
Plaintiff seeks summary judgment as to Count 3 (the
state law claims of “Assault, Battery, Intentional Infliction of
Emotional Distress, False Imprisonment, and Wrongful Detention”)
against the Kyo-ya Defendants.
Plaintiff argues that neither his
failure to provide identification, nor the Kyo-ya Defendants’
purpose of issuing an unofficial trespass warning, constituted a
justification for the “offensive touching” of his person.
[Plaintiff’s Motion at 1-2.]
Plaintiff notes that the defense of
justification is available only where the actor believes his
conduct is necessary to avoid imminent harm, and even then only
if the harm the actor would cause is outweighed by the harm the
victim will immanently commit.
[Id. at 2.]
that Okura and the other Kyo-ya guards cannot reasonably argue
that the harm they allegedly inflicted on him is outweighed by
potential harm to others.
Plaintiff argues that he has clearly established that
“Okura initiated an offensive physical contact against
[Id. at 3.]
He states that the video
indicates that Okura stood very close behind him and that, after
the video camera was dropped, the sounds of the video that follow
indicate that Plaintiff was physically taken away by Kyo-ya
Further, Plaintiff states that a photograph
taken by Paul L. Klink, a restaurant patron who saw and
photographed the altercation, clearly shows Okura pinching
Plaintiff’s face as Plaintiff lies on the ground with Okura on
top of him.
[Id. (citing Plaintiff’s Motion, Exh. C
As such, Plaintiff argues that he has clearly
established that he was assaulted, that the use of force was out
of proportion, and that he was forcibly taken to the security
office without his consent.
[Id. at 4.]
Kyo-ya Defendants’ Memorandum in Opposition
In their memorandum in opposition, the Kyo-ya
Defendants argue that the material facts concerning the incident
remain in dispute and that, therefore, summary judgment should be
The Kyo-ya Defendants note that Plaintiff’s friend,
Paul Klink, testified that, on the night in question, Rumfire,
which is usually accessible from a public walkway, was “buttoned
up pretty tight,” and that there were security guards and
“stanchions across the entrance.”
[Mem. in Opp. to Plaintiff’s
Motion at 3-4 (quoting id., Exh. C (Depo. of Paul Klink (“Klink
Depo.”)), at 32-33).]
Further, the Kyo-ya Defendants assert,
according to Okura and Chung, Plaintiff ran away from Okura when
he first stopped him, and was combative and uncooperative when he
was stopped the second time.
[Id. at 4 (citing id., Exh. B
(Depo. of Aaron H. Okura (“Okura Depo.”)), at 45-46, 51-52).]
According to the Kyo-ya Defendants, because Plaintiff was being
uncooperative and was trespassing, Kyo-ya security guards decided
to escort him to the security office; however, Plaintiff became
aggressive and began swinging his arms and legs wildly.
5 (citing Okura Depo. at 55-56; Klink Depo. at 58-59).]
ya Defendants state that, “[f]earing for his safety, as well as
for the safety of others around him, Okura secured Plaintiff’s
left arm and wrestled him to the ground,” after which Plaintiff
was handcuffed, brought to his feet, and taken to the security
[Id. (citing Okura Depo. at 63, 68-69).]
Defendants note that Klink testified that he never saw any of the
security guards kick or punch Plaintiff.
[Id. at 6 (citing Klink
Depo. at 56).]
In light of these disputed facts, the Kyo-ya Defendants
argue that the Court should not grant Plaintiff’s Motion.
In his reply, Plaintiff argues that, even if the Kyo-ya
Defendants’ version of the events is true, they were still not
justified in touching him and forcibly taking him into the
[Reply to Mem. in Opp. to Plaintiff’s Motion at
Further, Plaintiff argues that, if he did flail his arms
and legs, “he had an absolute right to do so[, as he] was being
illegally attacked and abducted.”
[Id. at 3.]
that he had the right to do whatever he could to try to escape,
and that, “as the instigator of the offensive touching, Okura
cannot claim self-defense.”
[Id. at 4.]
Plaintiff argues that
Okura had no justification for holding his arm and not letting
him leave the premises.
Plaintiff therefore asks the Court to
grant his motion.
Pursuant to Federal Rule of Civil Procedure 56(a), a
party is entitled to summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Section 1983: Under Color of Law
To state a claim under § 1983, a plaintiff must allege:
(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 color of law.
The Kyo-ya Defendants argue that they are not state
actors and therefore cannot be held liable under § 1983.
Ninth Circuit has stated, “private parties are not generally
acting under color of state law, and . . . ‘[c]onclusionary
allegations, unsupported by facts, [will be] rejected as
insufficient to state a claim under the Civil Rights Act.’”
Price v. State of Hawai`i, 939 F.2d 702, 708 (9th Cir. 1991)
(some alterations in Price) (citing Jones v. Cmty. Redev. Agency,
733 F.2d 646, 649 (9th Cir. 1984) (citation omitted)).
Individuals and private entities are not normally liable for
violations of most rights secured by the United States
Lugar v. Edmondson Oil Co., 457 U.S. 922, 936
The ultimate issue in determining whether a person is
subject to suit under § 1983 is whether the alleged infringement
of federal rights is fairly attributable to the government.
Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th
Cir. 1999) (quoting Rendell–Baker v. Kohn, 457 U.S. 830, 838
The Ninth Circuit recognizes a two-part test for
determining whether an act is “fairly attributable” to the
First, the deprivation must result from a
governmental policy, or “must be caused by the exercise of some
right or privilege created by the [government] or a rule of
conduct imposed by the [government].”
see also Sutton, 192 F.3d at 835.
Lugar, 457 U.S. at 937;
Second, “the party charged
with the deprivation must be a person who may fairly be said to
be a [governmental] actor.”
Lugar, 457 U.S. at 937.
Circuit has emphasized that “§ 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrong.”
Sutton, 192 F.3d at 835 (quoting American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 119 S.Ct. 977, 985 (1999) (citation and
internal quotation marks omitted)).
When addressing whether a private party acted under
color of law, the court therefore starts with the presumption
that private conduct does not constitute governmental action.
Id.; Price, 939 F.2d at 707–08.
In order for private conduct to
constitute governmental action, “something more” must be present.
See Lugar, 457 U.S. at 939 (“Action by a private party pursuant
to this statute, without something more, was not sufficient to
justify a characterization of that party as a ‘state actor.’”).
Courts have used a number of different tests to
identify what constitutes this “something more,” without settling
on a single standard.
See id.; Howerton v. Gabica, 708 F.2d 380,
383 (9th Cir. 1983) (citing cases).
Instead, courts “stress the
necessity of a close nexus between the state and the challenged
conduct rather than application of a mechanistic formula.”
Wagner v. Metro. Nashville Airport Auth., 772 F.2d 227, 229 (6th
Cir. 1985); see also Grijalva v. Shalala, 152 F.3d 1115, 1119
(9th Cir. 1998) (“In order to show that a private action is in
fact state action, the plaintiff must show that there is a
sufficiently close nexus between the State and the challenged
action of the regulated entity so that the action of the latter
may be fairly treated as that of the State itself.” (citation and
internal quotation marks omitted)), vacated on other grounds by
526 U.S. 1096 (1999).
It is clear that a private person may become a state
actor, and thus liable under § 1983, by conspiring with state
officials, engaging in joint activity with state officials, or
becoming so closely related to the state that his actions can be
said to be those of the state itself.
Price, 939 F.2d at 708;
see also Lugar, 457 U.S. at 941 (“Private persons, jointly
engaged with state officials in [a] prohibited action, are acting
‘under color’ of law for purposes of [§ 1983].
To act ‘under
color’ of law does not require that the accused be an officer of
It is enough that he is a willful participant in
joint activity with the State or its agents.” (quoting Adickes v.
S. H. Kress & Co., 398 U.S. 144, 152 (1970))).
however,] requires a substantial degree of cooperative action.”
Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989).
Here, it is clear that Officer Chung was acting under
color of state law, and thus a state actor, during the incident.
Chung was employed as a Honolulu police officer, and working in a
special duty capacity at the Kyo-ya property at the time of the
[Chung Decl. at ¶ 3.]
Plaintiff alleges that “Chung
was wearing clothing that identified him as an officer of the
Honolulu Police Department and was in possession of equipment
issued to him by the Honolulu Police Department.”
The Court notes that, after the hearing on the instant
motions, Plaintiff submitted Additional Exhibits demonstrating
that Chung was paid by Kyo-ya for his services as a special duty
officer on the night in question. [Dkt. no. 155.] For purposes
of the instant motions, however, the Additional Exhibits do not
alter the Court’s analysis regarding Chung’s status as a state
actor, or the degree of cooperation between Chung and the Kyo-ya
Complaint at ¶ 38.]
When Chung approached Plaintiff and Okura
during the initial stop of Plaintiff, he was acting in the
performance of his police duties, investigating what appeared to
be Plaintiff’s unauthorized entry onto the premises and attempt
to avoid Okura thereafter.
[Chung Decl. at ¶¶ 4-5.]
As such, it
is clear that Officer Chung was acting in his official capacity
as a Honolulu police officer at the point of Plaintiff’s initial
stop, and was therefore a state actor for purposes of § 1983.
See West v. Atkins, 487 U.S. 42, 49-50 (1988) (“[G]enerally, a
public employee acts under color of state law while acting in his
official capacity or while exercising his responsibilities
pursuant to state law.”).
Because Officer Chung was a state actor, Plaintiff may
bring his § 1983 suit against the Kyo-ya Defendants as state
actors if he can demonstrate that they conspired with Officer
Chung, or otherwise cooperated and engaged in a joint activity
Price, 939 F.2d at 708.
The Court finds, however,
that Plaintiff has failed to demonstrate the requisite degree of
cooperation between the Kyo-ya Defendants and Chung to transform
the private actors into state actors for purposes of § 1983
Plaintiff does not allege that Chung himself
inflicted any physical harm on Plaintiff, but, rather, that his
presence converted the episode into one of state action.
support of his argument that the Kyo-ya Defendants and Officer
Chung acted jointly, Plaintiff alleges that Chung stood in front
of Plaintiff and “thwarted” his efforts to get away from Okura,
that Chung “exhibited hostility toward Plaintiff,” “engaged in
making demands on Plaintiff,” and that he failed to intercede,
thus emboldening the Kyo-ya Defendants and “tacitly g[iving his]
approval” of their actions.
[Fourth Am. Complaint at ¶¶ 26, 42-
51; Mem. in Opp. to 1983 Motion at 4-6.]
The Court finds, however, that Plaintiff’s conclusory
allegation that the Kyo-ya Defendants were somehow “emboldened”
by Officer Chung’s presence, while imaginative, is simply
Plaintiff does not allege any facts suggesting
that Officer Chung and the Kyo-ya Defendants conspired to act in
concert, or were otherwise in a relationship that could properly
be considered so “symbiotic” that the actions of the Kyo-ya
Defendants could “be said to be those of the State itself.”
Price, 939 F.2d at 708 (citing Burton v. Wilmington Parking
Auth., 365 U.S. 715, 725 (1961); Vincent v. Trend W. Technical
Corp., 828 F.2d 563, 569 (9th Cir. 1987)).
On the night of the
incident, Chung was serving as a special duty officer assigned to
the Kyo-ya property by HPD.
Even when viewed in the light most
favorable to Plaintiff, there is no evidence that the Kyo-ya
Defendants had control over HPD’s selection of Chung for the
assignment to the Kyo-ya property, nor is there any evidence that
the Kyo-ya Defendants and Chung had any discussions prior to
Plaintiff’s detention regarding a plan or conspiracy to violate
While Plaintiff asserts a number of times that Officer
Chung was “instrumental in Plaintiff’s being in jeopardy of an
attack by others,” [Mem. in Opp. to 1983 Motion at 5,] Plaintiff
fails to set forth specific facts to support this allegation.
such, the Court finds that Plaintiff has failed to demonstrate
that the Kyo-ya Defendants were acting as state actors for
purposes of § 1983 liability.
The Court therefore GRANTS the 1983 Motion and
DISMISSES Plaintiff’s § 1983 claims as against the Kyo-ya
Chung asks the Court to dismiss the remaining counts in
the Fourth Amended Complaint against him (Counts 3 (state law
claims for assault, battery, IIED, false imprisonment, and
wrongful detention), 4 (§ 1983 deprivation of liberty claim), and
5 (§ 1983 failure to intercede claim)).
Count 3 (State Law Tort Claims)
Count 3 alleges the common law torts of “assault,
battery, intentional infliction of emotional distress, false
imprisonment, and wrongful detention against Defendants Kyo-ya
Resorts and Hotels, Okura and Chung.”
[Fourth Am. Complaint at
Plaintiff does not, however, allege that Officer Chung
himself took any physical action against Plaintiff.
As such, as
this district court stated in its 11/13/12 Order, to prevail as
to Count 3, Plaintiff must demonstrate that Chung aided or
abetted Okura, or that he engaged in a civil conspiracy with
Bracken, 2012 WL 5493997, at *3-4.
In order for
Plaintiff to establish a civil conspiracy, he must demonstrate
that Okura and Chung undertook “concerted action to accomplish a
criminal or unlawful purpose, or to accomplish some purpose not
in itself criminal or unlawful by criminal or unlawful means.”
Robert’s Haw. Sch. Bus, Inc. v. Laupahoehoe Transp. Co., 91
Hawai`i 224, 252 n.28, 982 P.2d 853, 991 n.28 (1999) (quoting
Duplex Printing Press Co. v. Deering, 254 U .S. 443, 466 (1921)).
Plaintiff alleges that Chung “thwarted Plaintiff’s
effort to get away from Defendant Okura,” [Fourth Am. Complaint
at ¶ 26,] that his repeated requests for identification “set the
stage for the attack,” and that Chung’s actions and demeanor
“emboldened” the Kyo-ya Defendants, encouraging them to commit
the alleged state law violations.
[Mem. in Opp. to Chung’s
Motion at 3-4.]
The Court finds that these conclusory allegations,
absent more, are insufficient to support a finding that Chung was
engaged in a civil conspiracy with Okura, or that Chung otherwise
aided and abetted the Kyo-ya Defendants.
Plaintiff has put
forward no specific facts establishing the existence of an
agreement between the parties to act in concert with respect to
their treatment of Plaintiff, or establishing the purpose or
object of the alleged conspiracy.
Plaintiff’s allegations that
Officer Chung participated in the initial stop, “thwarting”
Plaintiff’s escape and asking Plaintiff for identification, are
simply not enough to demonstrate that Chung and Okura were acting
together pursuant to a plan the purpose of which was to violate
Further, Plaintiff’s allegation that Chung’s
presence encouraged or emboldened the Kyo-ya Defendants similarly
does not demonstrate that any conspiracy existed.
As such, Count
3 must fail as against Officer Chung.
The Court therefore GRANTS Chung’s Motion as to Count 3.
Count 4 (§ 1983 Unlawful Seizure)
As to Plaintiff’s § 1983 claims against Officer Chung,
“[t]he court construes [Plaintiff’s] claims in Counts 4 and 5 as
alleging two distinct violations of his Fourth Amendment rights.
First, [Plaintiff] alleges that Chung deprived him of his
‘liberty and freedom.’
This appears to be an allegation of
unlawful ‘seizure’ in violation of the Fourth Amendment.
Count 5 alleges that Chung breached a duty to stop Okura from
using excessive force.”
Bracken, 2012 WL 5493997, at *5 (citing
Fourth Am. Complaint at ¶¶ 39, 41-51).
As to Count 4, Chung argues that he is entitled to
summary judgment because he did not participate in the alleged
violations of Plaintiff’s constitutional rights, and Plaintiff
makes no allegation that Chung took any affirmative action
against him or personally caused him injury.
The Ninth Circuit has made clear that “[a] person
subjects another to the deprivation of a constitutional right,
within the meaning of section 1983, if he does an affirmative
act, participates in another’s affirmative acts, or omits to
perform an act which he is legally required to do that causes the
deprivation of which complaint is made.”
Preschooler II v. Clark
Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007)
(internal quotation marks omitted) (quoting Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978)).
As such, a police officer who is
merely a bystander to his colleagues’ conduct cannot be found to
have caused any injury.
Hopkins v. Bonvicino, 573 F.3d 752, 770
(9th Cir. 2009); see also Chuman v. Wright, 76 F.3d 292, 295 (9th
Cir. 1996) (rejecting a jury instruction that allowed the jury to
“lump all the defendants together, rather than require it to base
each individual’s liability on his own conduct”).
plaintiff must “establish the ‘integral participation’ of the
officers in the alleged constitutional violation.”
Williams, 297 F.3d 930, 935 (9th Cir. 2002); see also Torres v.
City of Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008).
Officers who are “integral participants” in a
constitutional violation are potentially liable under § 1983,
even if they did not directly engage in the unconstitutional
Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th
Officers are not, however, integral participants
simply by the virtue of being present at the scene of an alleged
Jones, 297 F.3d at 936.
participation requires some fundamental involvement in the
conduct that allegedly caused the violation.
Officers are fundamentally involved in an alleged
violation when they provide some affirmative physical support at
the scene of the alleged violation, and they are aware of the
plan to commit the alleged violation or have reason to know of
such a plan, but do not object.
Boyd, 374 F.3d at 780; see also
Monteilh v. Cnty. of Los Angeles, 820 F. Supp. 2d 1081, 1090
(C.D. Cal. 2011) (finding that “the Officers’ presence . . . is
insufficient to establish integral participation if the Officers
have no knowledge of or reason to know of an unlawful act”).
Additionally, officers may be integral participants even if they
have no knowledge of a plan to commit the alleged violation if
their physical participation in the alleged violation was part of
a closely related series of physical acts leading to the
Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12
(9th Cir. 2007) (holding that officers who tackled and handcuffed
a plaintiff were integral participants in the use of hobbling
restraints, which were applied by one officer after the initial
tackling and handcuffing occurred).
Here, Plaintiff argues that Officer Chung was an
“integral participant” in the alleged violations of his
Specifically, Plaintiff asserts that
Officer Chung “thwarted” Plaintiff’s ability to retreat from
Okura during the initial stop, and then was “instrumental” in the
alleged subsequent “takedown” and assaults by the Kyo-ya security
The Court addresses each of the two stages of the
incident in turn.
The Initial Stop
Plaintiff alleges that Chung violated his Fourth
Amendment rights by assisting Okura in unlawfully detaining him,
specifically, by “thwarting” Plaintiff’s ability to get away from
Okura, and by repeatedly demanding that Plaintiff provide some
form of identification.
[Fourth Am. Complaint at ¶¶ 26-27, 44.]
Plaintiff asserts that Chung was thus an integral participant in
Plaintiff’s initial stop and allegedly unlawful detention.
admits that he approached Okura and Plaintiff, that he was told
by Okura that Plaintiff had not paid the admission fee and was to
be issued a trespass warning, and that he asked Plaintiff to
produce his identification.
[Chung’s CSF at ¶ 3; Chung Decl. at
The video recording of the incident taken by Plaintiff
confirms that Officer Chung was present and standing in front of
Plaintiff during the initial stop, and that he requested
identification from Plaintiff, demonstrating that Officer Chung
was clearly a knowing participant in the stop.
Admitting Video-recording into Evidence, Exh. A (video
recording), filed 12/19/12 (dkt. no. 110).]
In light of these
facts, the Court FINDS that Officer Okura was an “integral
participant” in the initial stop of Plaintiff and, thus, may be
subject to liability under § 1983 for any alleged constitutional
violations that occurred during the stop.
The Subsequent “Takedown” and Assaults
Plaintiff alleges that, after the initial stop, Okura
and other Kyo-ya security guards “attacked and assaulted”
Plaintiff, “hurled Plaintiff to the ground,” “pinched Plaintiff
in the face,” “restrained Plaintiff’s freedom, abducted him and
injured him,” and “dragg[ed] him considerable distance to [the
Kyo-ya security] office.”
[Fourth Am. Complaint at ¶¶ 31-35.]
Plaintiff does not allege that Officer Chung physically
participated in the alleged takedown or assaults, or in the Kyoya Defendants’ actions in dragging Plaintiff to the Kyo-ya
Plaintiff nevertheless argues that Chung’s
presence “was instrumental in Plaintiff’s being in jeopardy of an
attack by others,” and encouraged the Kyo-ya security guards to
[Id. at ¶¶ 43, 47; Mem. in Opp. to Chung’s
Motion at 4.]
Plaintiff’s argument that Officer Chung’s mere presence
encouraged the Kyo-ya Defendants to assault Plaintiff, absent
more, is simply insufficient for a finding that Officer Chung was
an integral participant in the alleged takedown and assaults.
discussed above, in order for Officer Chung to be deemed an
integral participant, he must (1) have “provide[d] some
affirmative physical support at the scene of the alleged
violation,” and been “aware of the plan to commit the alleged
violation or have reason to know of such a plan, but [did] not
See Monteilh, 820 F. Supp. 2d at 1089 (citing Boyd, 374
F.3d at 780).
Plaintiff does not allege that Officer Chung
physically participated in the assaults in any manner.
he clearly did not provide any “affirmative physical support” for
the alleged violation.
Further, Plaintiff has not
provided sufficient evidence demonstrating that Chung knew or had
reason to know that the Kyo-ya Defendants were planning to
Plaintiff’s conclusory allegations that Chung
“saw that Defendant Okura was going to assault him,” and that
Chung “tacitly gave approval to the others to go through with the
assault,” [Fourth Am. Complaint at ¶¶ 48-49,] are simply
insufficient to demonstrate that Chung had specific knowledge
going into the encounter that the Kyo-ya Defendants planned to
take down, assault, drag, and unlawfully detain Plaintiff.
As such, the Court FINDS that Chung was not an
“integral participant” in the alleged takedown and subsequent
assaults such that he may be subject to § 1983 liability for
those acts of the Kyo-ya Defendants.
Chung argues that, even if he is subject to § 1983
liability for some or all of the alleged unlawful acts, he is
shielded from liability by qualified immunity.
immunity entitles [police officers] not to stand trial or face
the other burdens of litigation’ on [a constitutional] claim,
provided their conduct did not violate a clearly established
Brooks v. City of Seattle, 599 F.3d 1018, 1022
(9th Cir.), reh’g en banc granted, 623 F.3d 911 (9th Cir. 2010),
and on reh’g en banc sub nom. Mattos v. Agarano, 661 F.3d 433
(9th Cir. 2011).
In determining whether an officer is entitled to the
defense of qualified immunity, the Court asks two questions: (1)
was there a violation of a constitutional right, and (2) was the
right at issue “clearly established” such that it would have been
clear to a reasonable officer that his conduct was unlawful in
See Saucier v. Katz, 533 U.S. 194, 201-02 (2001)
(allowing courts the discretion to decide which step to consider
If an officer’s action does not amount to a
constitutional violation, or the right violated was not clearly
established, or the officer’s action reflected a reasonable
mistake about what the law requires, the officer is entitled to
See Blankenhorn v. City of Orange, 485 F.3d
463, 471 (9th Cir. 2007).
Here, as discussed above, Chung may be subject to
§ 1983 liability for the initial stop of Plaintiff and, as such,
the constitutional right in question is Plaintiff’s Fourth
Amendment right to be free from unreasonable seizure.
quite plain that the Fourth Amendment governs ‘seizures’ of the
person,” even if they do not result in an arrest “in traditional
Terry v. Ohio, 392 U.S. 1, 16 (1968).
Nonetheless, the protections of the Fourth Amendment only extend
to unreasonable seizures.
Determining whether “a particular seizure is reasonable
under the Fourth Amendment requires a careful balancing of ‘the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing governmental
interests at stake.”
Graham v. Connor, 490 U.S. 386, 396 (1989)
(some internal quotation marks omitted).
“reasonableness” inquiry “must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight,” the inquiry is always an objective one:
“the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.”
Id. at 397.
Here, the issue is whether Officer Chung’s actions
during Okura’s initial stop of Plaintiff were reasonable.
discussed above, Plaintiff asserts that Chung “thwarted” his
ability to retreat from Okura, and that Chung repeatedly asked
him for his identification.
[Fourth Am. Complaint at ¶¶ 26, 42-
Such allegations, absent specific facts indicating some
abusive or otherwise unreasonable conduct, are insufficient to
demonstrate that Chung acted unreasonably under the
Chung has stated that he approached Plaintiff and
Okura after seeing Plaintiff appear to hop over a rope and enter
the private event without permission, and attempt to evade Okura
[Chung Decl. at ¶¶ 4-5.]
Chung was then
told by Okura that Plaintiff had entered the premises without
permission, that he did not have a wristband indicating that he
had paid the admission fee, and that Okura wished to issue
Plaintiff a trespass warning.
[Id. at ¶ 5.]
In light of these
facts, the Court cannot conclude that Chung acted unreasonably
when he detained Plaintiff and asked him for identification.
See, e.g., Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified
immunity protects “all but the plainly incompetent or those who
knowingly violate the law”); Mitchell v. Forsyth, 472 U.S. 511,
528 (1985) (officials are immune unless “the law clearly
proscribed the actions” they took).
The Court therefore FINDS that Chung is entitled to
As such, the Court GRANTS Chung’s Motion as
to Count 4.
Count 5 (§ 1983 Failure to Intercede)
As discussed above, Plaintiff alleges that, after the
initial stop, Okura and other Kyo-ya security guards “attacked
and assaulted” Plaintiff, “hurled Plaintiff to the ground,”
“pinched Plaintiff in the face,” “restrained Plaintiff’s freedom,
abducted him and injured him,” and “dragg[ed] him considerable
distance to [the Kyo-ya security] office.”
at ¶¶ 31-35.]
[Fourth Am. Complaint
In Count 5, Plaintiff further alleges that Chung’s
failure to intercede to stop these alleged violations violated
Plaintiff’s Fourth Amendment right to be free from the use of
[Id. at ¶¶ 41-51.]
This Court recognizes that “government officials
generally are not liable under section 1983 for their failure to
protect citizens from dangerous situations which state officials
neither created nor exacerbated.”
Ana, 796 F.2d 266 (9th Cir. 1986).
Escamilla v. City of Santa
Police officers do, however,
have “a duty to intercede when their fellow officers violate the
constitutional rights of a suspect or other citizen.”
States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994) (citing
O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Byrd v.
Clark, 783 F.2d 1002, 1007 (11th Cir. 1986); Bruner v. Dunaway,
684 F.2d 422, 425–26 (6th Cir. 1982), cert. denied, 459 U.S. 1171
(1983); Putnam v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981);
Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972)), rev’d on other
grounds, 518 U.S. 81 (1996).
Thus, to the extent Okura may be
considered Chung’s “fellow officer,” Chung may have had a duty to
As discussed above, however, Plaintiff has failed to
set forth facts sufficient to demonstrate the kind of cooperation
and/or conspiracy necessary for a finding that the Okura, a
private party, may be considered a state actor for purposes of §
As such, it is clear that Okura cannot fairly be
characterized as Chung’s “fellow officer.”
to intercede claim must therefore fail as well.
therefore GRANTS Chung’s Motion as to Count 5.
Under Hawai`i law, punitive damages may be awarded only
upon a showing that a defendant has acted wantonly, oppressively,
Quedding v. Arisumi Bros., Inc., 66 Haw. 335,
340, 661 P.2d 706, 710 (1983); Kang v. Harrington, 59 Haw. 652,
660, 61, 587 P.2d 285 (1978).
Plaintiff has the burden of
proving his claim for punitive damages by clear and convincing
Masaki v. Gen. Motors Corp., 71 Haw. 1, 16-17, 780
P.2d 566, 575 (1989).
Here, Plaintiff has not put forth any evidence
suggesting that Chung’s actions rose to the level of
“outrageousness” on the night in question, or that Chung was
motivated by malice or an otherwise improper purpose.
seeing Plaintiff at the private event and suspecting that he was
unauthorized to be there, Chung approached Plaintiff and Okura.
After Okura confirmed Chung’s suspicion that Plaintiff was
trespassing, Chung stood in front of Plaintiff and asked him for
[Chung’s CSF at ¶ 3; Chung Decl. at ¶ 5.]
Chung’s actions in “thwarting” Plaintiff’s ability to leave and
repeatedly asked him for identification simply do not constitute
the type of wanton, oppressive, or malicious conduct necessary
for an award of punitive damages.
As such, the Court GRANTS Chung’s Motion as to
Plaintiff’s claim for punitive damages.
III. Plaintiff’s Motion
Plaintiff seeks partial summary judgment on his state
law claims of assault, battery, and abduction against the Kyo-ya
Defendants (Count 3).
The Kyo-ya Defendants argue that
Plaintiff’s Motion must be denied because questions of fact exist
as to what exactly happened on the night in question.
While Plaintiff claims that he was unaware that Rumfire
was not open to the public on December 31, 2009, and that he
unwittingly walked onto the property with no intention of
trespassing, [Fourth Am. Complaint at ¶¶ 14-17,] the Kyo-ya
Defendants claim that it was clear that Rumfire was closed to the
public, and that Plaintiff purposefully entered the premises
without authorization by hopping over a rope barrier, [Okura
Depo. at 34; Klink Depo. at 32-33].
As such, there is clearly a
disputed issue of fact as to whether Plaintiff intentionally
trespassed or merely accidentally stumbled onto the Kyo-ya
Further, the Kyo-ya Defendants argue that Plaintiff
“caused a scene,” was uncooperative, and “became aggressive and
began swinging his arms wildly in a backwards motion,” such that
Okura felt that he had to “wrestle him to the ground” for
[Kyo-ya Defendants’ Mem. in Opp. to Plaintiff’s
Motion at 5 (citing Okura Depo. at 55-56, 63, 68-69).]
asserts, however, that he was not resisting or being aggressive,
but that, rather, he was imploring the Kyo-ya Defendants to let
him leave the premises of his own accord.
Statement in Supp. of Plaintiff’s Motion at ¶ 1.]
As such, there
is clearly a factual dispute as to what immediately preceded
Officer Chung’s “takedown” of Plaintiff.
Taking just these two examples of factual disputes into
account, it is clear that the parties have two very different
accounts of what happened between them.
video recording cannot resolve the factual disputes, as it does
not capture the beginning of the encounter between the parties,
and it goes black after a little less than two minutes of
footage; the rest of the thirty-seven minute video is simply an
In light of the existence of significant
factual disputes as to Plaintiff’s state law claims against the
Kyo-ya Defendants in Count 3 of the Fourth Amended Complaint, the
Court concludes that summary judgment on those claims is
inappropriate at this time.
The Court therefore DENIES Plaintiff’s Motion.
On the basis of the foregoing, the Court (1) GRANTS the
Kyo-ya Defendants’ Motion for Partial Summary Judgment on
Plaintiff’s Claims Under 42 U.S.C. § 1983, filed December 18,
2012, [dkt. no. 103;] (2) GRANTS Defendant Chung’s Motion for
Summary Judgment, filed December 18, 2012, [dkt. no. 104;] and
(3) DENIES Plaintiff’s Motion for Partial Summary Judgment, filed
December 18, 2012, [dkt. no. 107].
As such, the Court GRANTS summary judgment as to all
claims in the Amended Complaint against Defendant Chung, and
GRANTS summary judgment as to the § 1983 claims against the Kyoya Defendants.
Plaintiff’s state law claims against the Kyo-ya
Defendants remain before the Court.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 24, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
DILLON BRACKEN V. KYO-YA HOTELS AND RESORTS, ET AL; CIVIL NO. 1100784 LEK-BMK; ORDER (1) GRANTING DEFENDANT AND COUNTERCLAIM
PLAINTIFF KYO-YA AND DEFENDANT AARON OKURA’S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON PLAINTIFF’S CLAIMS UNDER 42 U.S.C. § 1983,
(2) GRANTING DEFENDANT KINCHUNG CHUNG’S MOTION FOR SUMMARY
JUDGMENT, AND (3) DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
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