Bracken v. Kyo-Ya Hotels and Resorts et al
Filing
96
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT KINCHUNG CHUNG'S MOTION TO DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT re 64 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/13/12. -- " For the foregoing reasons, the court grants Chung's motion to dismiss Counts 6 and 8. The court denies Chung's motion to dismiss Counts 3 and 5. Finally, the court dismisses the portion of Count 4 based on an alleged Eighth Amendment violation, leaving for further a djudication the portion of Count 4 based on alleged Fourth Amendment violations." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
KYO-YA HOTELS AND
RESORTS, LP; KINCHUNG
)
)
CHUNG; JOHN DOES 1-9;
DOE ENTITIES 1-5; and
)
)
AARON H. OKURA,
)
)
Defendants.
________________________ )
DILLON L. BRACKEN,
Civ. No. 11-00784 SOM/BMK
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
KINCHUNG CHUNG’S MOTION TO
DISMISS PLAINTIFF’S FOURTH
AMENDED COMPLAINT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
KINCHUNG CHUNG’S MOTION TO DISMISS
PLAINTIFF’S FOURTH AMENDED COMPLAINT
This action arises out of what Plaintiff Dillon Bracken
says was an attack on him by security personnel when he tried to
enter Rumfire, a Kyo-ya Hotels and Resorts (“Kyo-ya”) restaurant
in Hawaii, on New Year’s Eve in 2009.
Bracken is a California
resident alleging that Kyo-ya, its employees, and Honolulu Police
Department (“HPD”) Officer Kinchung Chung (collectively,
“Defendants”) violated his constitutional rights and committed
multiple torts in response to what they allegedly viewed as his
trespass.
Chung seeks dismissal of Bracken’s Fourth Amended
Complaint.1
The court grants Chung’s motion in part and denies
it in part.
I.
BACKGROUND.
On December 31, 2009, Defendant Chung was working at
Kyo-ya as a special duty police officer, meaning that, although
he was an HPD officer, he “work[ed] with and alongside” Kyo-ya’s
in-house security guards.
Fourth Am. Compl. ¶ 55, ECF No. 60.
Chung was “wearing clothing that identified him as an officer of
the Honolulu Police Department.”
Id. ¶ 38.
Bracken says he entered the RumFire restaurant “unaware
that it was supposedly closed to the public” for a private New
Year’s Eve celebration.
Id. ¶ 23.
Bracken alleges that, shortly
thereafter, Aaron Okura, a private plainclothes Kyo-ya security
guard, “abruptly grabbed [him] by his shoulder.”
Id. ¶ 24.
Thinking that Okura was an intoxicated RumFire patron “trying to
pick a fight,” Bracken says he “tried to avoid any altercation
1
Although Chung’s motion challenges what is called 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 the court
dismissed because it had been filed without leave of court.
Bracken 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.
2
with him.”
Id. ¶ 25.
Bracken claims his efforts to get away
from Okura were “thwarted” by Chung.
Id. ¶ 26.
Bracken 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.”
Id. ¶¶ 46, 47.
Bracken alleges that the reason Okura and Chung refused
to let him leave was that Kyo-ya had a “protracted procedure for
warning persons that they would be considered trespassers,” which
included detaining alleged trespassers and photographing them.
Id. ¶¶ 28-30.
Kyo-ya’s “standard operating procedure” was
allegedly to take and retain the alleged trespasser’s identifying
documents until the individual submitted to the procedure.
Id.
¶ 30.
Bracken alleges that, to carry out Kyo-ya’s procedure,
Okura, together with “additional security guards employed by
[Kyo-ya], including a person in a supervisory position,
participated in the attack on [Bracken], restrained [his]
freedom, abducted him and injured him.”
Id. ¶ 34.
Bracken alleges that Chung “had the opportunity to
intercede,” but failed to stop the Kyo-ya security guards from
assaulting him.
Id. ¶ 47.
Instead, Bracken alleges, Chung
“repeatedly demanded . . . [Bracken’s] identification even after
Defendant Okura had by force pinned [Bracken’s] left arm so that
3
he could not retrieve any identification.”
Id. ¶ 44.
Bracken
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 him.”
Id. ¶ 42.
Besides failing to “interfere with the assault” or “take any
steps to prevent it,” Chung allegedly failed to “confront the
perpetrators.”
Id. ¶ 43.
The day after the incident, Chung filed a written
report with HPD about the incident.
Id. ¶ 53.
Bracken alleges
that Chung’s report was “false” in that Chung “pretended not to
have seen the assault, even though he was right there and
actually saw what occurred.”
Id.
Bracken 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.
4
Id. ¶ 70.
Bracken’s Fourth Amended Complaint asserts eight causes
of action.
See Fourth Am. Compl.
The following five counts
pertain to Chung:
Count 3, “Assault, Battery, Intentional
Infliction of Emotional Distress, False
Imprisonment and Wrongful Detention,”
¶¶ 22-35;
Count 4, “Deprivation of Civil Rights In
Violation of 42 U.S.C. §§ 1983 et. seq.,”
¶¶ 36-40;
Count 5, “Failure to Intercede, Denial of
Civil Rights,” ¶¶ 41-51;
Count 6, “Potential Cover-Up Resulting in
Denial of Civil Rights,” ¶¶ 52-64; and
Count 8, “Claims Pursuant to 42 U.S.C. §§
1983 et seq. Actions Under Color of Law . . .
Damages,” ¶¶ 69-80.
The court grants Chung’s motion to dismiss Counts 6 and
8.
The court denies Chung’s motion to dismiss Counts 3 and 5.
Finally, the court grants in part and denies in part Chung’s
motion to dismiss Count 4.
II.
STANDARD.
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed'n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
5
to defeat a motion to dismiss.
Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Additionally, the
court need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint.
Id.
Dismissal under
Rule 12(b)(6) may be based on either: (1) lack of a cognizable
legal theory, or (2) insufficient facts under a cognizable legal
theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533–34 (9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must allege facts that raise a right to relief above
the speculative level, assuming all allegations in the complaint
are true even if doubtful in fact.
550 U.S. 544, 555 (2007).
Bell Atl. Corp. v. Twombly,
Accord Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”).
“While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
U.S. at 555 (internal citations omitted).
6
Twombly, 550
The complaint must
“state a claim to relief that is plausible on its face.”
570.
Id. at
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”
III.
Iqbal, 556 U.S. 678.
ANALYSIS.
A.
Count 3 Appears To Plead Chung’s Participation in
Tortious Behavior.
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.”2
4.
See Fourth Am. Compl. at
Although Bracken does not specifically allege every element
of each tort against Chung, Count 3, read in its totality,
appears to allege that Chung, at the very least, participated in
or supported Okura’s alleged commission of all the alleged torts.
Read liberally, Count 3 may be alleging that Chung is
civilly liable for having aided or abetted Okura.
Alternatively,
Bracken may be asserting a civil conspiracy, which the Hawaii
Supreme Court sees as “the combination of two or more persons or
entities by concerted action to accomplish a criminal or unlawful
2
Bracken confirmed at the hearing on the present motion
that his reference to “wrongful detention” relates to his
allegations that his liberty was interfered with, not to any
“wrongful detention” of property, as sometimes referred to in a
conversion claim. See Sung v. Hamilton, 710 F. Supp. 2d. 1036,
1043-44 (D. Haw. 2010).
7
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 Haw. 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)).
alone constitute a claim for relief.”
at 889 n. 44.
“Civil conspiracy does not
Id. at 260 n. 44, 982 P.2d
Rather, “[a] civil conspiracy claim must include
either that the alleged conspirators had a criminal or unlawful
purpose for their concerted action or that the alleged
conspirators used criminal or unlawful means to accomplish a
lawful objective.”
Miyashiro v. Roehrig, Roehrig, Wilson & Hara,
122 Haw. 461, 482, 228 P.3d 341, 363 (Haw. Ct. App. 2010)
(emphasis in original).
A defendant is subject to civil
conspiracy liability if he:
(a) does a tortious act in concert with the
other or pursuant to a common design with
him, or;
(b) knows that the other’s conduct
constitutes a breach of duty and gives
substantial assistance or encouragement to
the other so to conduct himself, or
(c) gives substantial assistance to the other
in accomplishing a tortious result and his
own conduct, separately considered,
constitutes a breach of duty to the third
person.
Restatement (Second) of Torts § 876.
Chung’s motion does not contemplate the possibility
that Count 3 is alleging concerted action between Chung and
Okura.
Yet, Count 3, when fairly read, does appear to this court
8
to allege concerted action.
At the hearing on this motion,
Chung’s counsel conceded that Count 3 was adequately pled in that
regard.
Whether Bracken can establish concerted action, Count 3
passes muster at this point.
B.
Only Some of the § 1983 Allegations Are
Sufficient.
Counts 4, 5, and 8 are premised on alleged
constitutional violations.
In Count 4, Bracken complains that
Chung deprived him “of his liberty and freedom, . . . cause[d]
him injuries . . . [and] impose[d] on him cruel and inhuman
punishment, in violation of rights guaranteed him under the
United States Constitution and other federal laws.”
Compl. ¶ 39.
Fourth Am.
In Count 5, “Failure to Intercede, Denial of Civil
Rights,” Bracken alleges that Chung violated his constitutional
right to be free from excessive state-imposed force.
51.
Id. at 41-
Finally, in Count 8, Bracken seeks damages for these alleged
violations.
Id. ¶¶ 69-80.
See also Bracken’s Opp. at 12 (“Count
8 is indeed a detailed statement of damages.”).
All of Bracken’s constitutional claims are asserted via
42 U.S.C. § 1983.
Section 1983 does not create any substantive
rights; it provides a cause of action against a person acting
under color of state law who deprives a plaintiff of rights
established by the Constitution or federal 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;
9
and (2) that the alleged violation was committed by a person
acting under color of law.
(1988).
West v. Atkins, 487 U.S. 42, 48
“A person deprives another 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 the plaintiff complains.”
Leer v. Murphy,
844 F.2d 628, 633 (9th Cir. 1988).
Bracken 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.”
Fourth Am. Compl. ¶ 38.
This allegation
provides the bases for Bracken’s assertion that Chung was acting
under color of law.
The court therefore turns to the remaining
issue of whether the allegations go to Chung’s deprivation of a
right Bracken had under the Constitution.
The court construes Bracken’s claims in Counts 4 and 5
as alleging two distinct violations of his Fourth Amendment
rights.
First, Bracken alleges that Chung deprived him of his
“liberty and freedom.”
Id. ¶ 39.
This appears to be an
allegation of unlawful “seizure” in violation of the Fourth
Amendment.
Second, Count 5 alleges that Chung breached a duty to
stop Okura from using excessive force.
See United States v.
Koon, 34 F.3d 1416, 1447 (9th Cir. 1994), rev'd on other grounds,
10
518 U.S. 81 (1996) (explaining that the constitutional right that
is violated when an officer fails to intercede is the Fourth
Amendment right to be free from excessive state-imposed force).
Bracken appears to also be asserting an Eighth
Amendment violation.
Thus, he claims that he was subjected to
“cruel and inhuman punishment.”
Fourth Am. Compl. ¶ 39.
The
court addresses the above § 1983 issues in turn.
1.
Bracken’s Fourth Amendment Claims Survive.
The Fourth Amendment to the Constitution protects the
right “to be secure . . . against unreasonable . . . seizures.”
U.S. CONST. amend. IV.
“It is quite plain that the Fourth
Amendment governs ‘seizures’ of the person,” even if they do not
result in an arrest “in traditional terminology.”
392 U.S. 1, 16 (1968).
Terry v. Ohio,
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).
While the “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
11
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.”
Graham,490
U.S. at 397.
Bracken appears to be asserting that a “reasonable”
officer on the scene would not have thought that Bracken was
trespassing on the night of the incident.
According to Bracken,
“there were numerous persons at RumFire who were functioning in a
manner that rendered the restaurant indistinguishable from being
open as usual to the public.”
Fourth Am. Compl. ¶ 15.
Bracken
also states that Chung “thwarted” his efforts to leave.
¶ 26.
Id.
According to Bracken, Chung acted “to deprive Plaintiff of
his liberty and freedom, to cause him injuries . . . and to
impose on him cruel and inhuman punishment.” Id. ¶ 39.
These
allegations adequately plead Fourth Amendment violations in the
forms of an unreasonable seizure and use of excessive force.
The
court therefore denies Chung’s motion to dismiss this portion of
Count 4.
In Count 5, Bracken also alleges that Chung’s failure
to intercede to stop Okura’s alleged actions violated Bracken’s
Fourth Amendment right to be free of excessive force.
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
12
exacerbated.”
Cir. 1986).
Escamilla v. City of Santa Ana, 796 F.2d 266 (9th
However, police officers do have “a duty to
intercede when their fellow officers violate the constitutional
rights of a suspect or other citizen.”
United States v. Koon, 34
F.3d 1416, 1447 (9th Cir. 1994), rev'd on other grounds, 518 U.S.
Accord Cunningham v. Gates, 229 F.3d 1271, 1289 (9th
81 (1996).
Cir. 2000).
To the extent Okura and Chung were acting in
concert, Chung may have had a duty to stop Okura.
Private
parties like Okura are sometimes deemed to be acting under color
of state law if engaged in joint activity with state officials.
See Price v. State of Hawaii, 939 F.2d 702, 708 (9th Cir. 1991).
Bracken says that Okura and other Kyo-ya officials
physically assaulted him.
Fourth Am. Compl. ¶ 31.
Bracken also
alleges that Chung “was instrumental in [his] being in jeopardy
of an attack by [Kyo-ya security guards], and had the opportunity
to intercede and prevent that from happening and to prevent its
continuing, but he failed to do so.”
¶¶ 49-51.
Id. ¶ 48; see also id.
Of course it may turn out that Bracken cannot
establish that both Chung and Okura were acting under color of
state law such that they could be said to have been “fellow
officers,” and such that Chung may have had a duty to stop Okura.
However, on the present motion, this court cannot say that Count
5 is inadequately pled in that regard.
motion to dismiss Count 5.
13
The court denies Chung’s
2.
Bracken’s Eighth Amendment Claim in Count 4
Fails.
To the extent part of Count 4 asserts an Eighth
Amendment violation, that portion of Count 4 is dismissed.
“Eighth Amendment scrutiny is appropriate only after the State
has complied with the constitutional guarantees traditionally
associated with criminal prosecutions.”
U.S. 651, 671 n. 40 (1977).
Ingraham v. Wright, 430
See also Pierce v. Multnomah Cnty.,
76 F.3d 1032, 1042 (9th Cir. 1996) (“[T]he Eighth Amendment’s
prohibition against the malicious or sadistic use of force does
not apply until after conviction and sentence.”) (internal
quotations and citations omitted).
Not having been convicted and
sentenced, Bracken may not assert an Eighth Amendment violation.
Any such claim is dismissed.
This does not mean that Bracken is precluded from
bringing a claim for the alleged use of excessive force.
It only
means that any such claim is cognizable under the Fourth
Amendment.
Pierce, 76 F.3d at 1043.
As noted above, the Fourth
Amendment claims are adequately pled.
3.
Count 8 is Dismissed as Duplicating Counts 4
and 5 and Bracken’s Prayer.
Count 8 is a request for damages flowing from the
violations alleged in Counts 4 and 5.
14
See Am. Compl. ¶¶ 69, 70,
80.3
Bracken himself acknowledges that Count 8 is merely a
“detailed statement of damages.”
Opp’n at 12, ECF No. 85.
He
nevertheless protested at the hearing that dismissing Count 8
could prejudice him at a later point in the litigation process.
The court sees no such prejudice.
Count 8 is unnecessary in
light of Counts 4 and 5, and the prayer for relief at the end of
the Fourth Amended Complaint.
The court therefore dismisses
Count 8 as superfluous.
C.
Count 6 is Dismissed as to Chung.
Count 6 alleges that Chung was part of a “potential
cover-up resulting in denial of civil rights.”
at 8.
Fourth Am. Compl.
The first portion of Count 6 asserts that Chung’s written
report to HPD about the incident was false.
Id. ¶ 53.
The
remainder of Count 6 alleges a wrongful partnership between the
HPD and Kyo-ya that, according to Bracken, proximately caused the
incident at issue.
Id. ¶¶ 54-64.
Nothing in the Fourth Amended Complaint suggests that
the allegedly false HPD report damaged Bracken in any way.
The
court therefore discerns no actual claim relating to that report.
The rest of Count 6 alleges a wrongful relationship
between HPD and Kyo-ya pursuant to which Chung was allowed to
work for private entities such as Kyo-ya.
3
Bracken does not
Count 8 contains only these three paragraphs; there are no
paragraphs numbered 71 to 79 in the Fourth Amended Complaint.
15
allege that Chung was responsible for that practice.
Working at
Kyo-ya as a special duty officer certainly did not render Chung
responsible for Kyo-ya’s practice of hiring special duty
officers.
There is no suggestion in the record that Chung had
any supervisory authority over HPD’s special duty program, and
presumably numerous officers participated in that program.
To
the extent Count 6 alleges actions by Chung himself, those
actions repeat the allegations of Count 4 and/or Count 5.
To the
extent Count 6 complains about an HPD or Kyo-ya practice or
program, Bracken does not plead facts supporting a claim against
Chung for creating or allowing that practice or program.
Finally, to the extent Count 6 alleges that Kyo-ya and Okura were
“emboldened” by that practice to violate Bracken’s rights,
nothing in Count 6 supports a claim against Chung in that regard
that is not already pled in other counts.
with respect to Chung.
//
//
//
//
//
//
//
//
16
Count 6 is dismissed
IV.
CONCLUSION.
For the foregoing reasons, the court grants Chung’s
motion to dismiss Counts 6 and 8. The court denies Chung’s motion
to dismiss Counts 3 and 5.
Finally, the court dismisses the
portion of Count 4 based on an alleged Eighth Amendment
violation, leaving for further adjudication the portion of Count
4 based on alleged Fourth Amendment violations.
IT IS SO ORDERED.
DATED: Honolulu, November 13, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District
Judge
Bracken v. Kyo-ya Hotels and Resorts et al., Civ No. 11-00784
SOM/BMK; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
KINCHUNG CHUNG’S MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED
COMPLAINT.
17
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