Ilae v. Tenn et al
Filing
26
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF' COMPLAINT 4 . Signed by JUDGE ALAN C KAY on 08/20/2013. (eps) -- The Court also GRANTS Plaintiff leave to file an amende d complaint within thirty (30) days of the date of this Court's written order to address the rulings set forth in this order. The Court CAUTIONS Plaintiff that, if he fails to timely file an amended complaint, the claims which this Court has dis missed without prejudice will be automatically dismissed with prejudice. Further, if the amended complaint fails to address the defects identified in this Order, the Court may dismiss such claims with prejudice. 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.
)
RODNEY TENN, LOUIS M. KEALOHA, )
)
CITY AND COUNTY OF HONOLULU,
)
JOHN DOES 1-25,
)
DefendantS. )
)
JOHN S. ILAE,
Civ. No. 12-00316 ACK-KSC
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ RULE
12(b)(6) MOTION TO DISMISS PLAINTIFF’S COMPLAINT
PROCEDURAL BACKGROUND
On June 1, 2012, Plaintiff John S. Ilae (“Plaintiff”)
filed a Complaint against Defendants Rodney Tenn, Louis M.
Kealoha, and the City and County of Honolulu (“County”)
(collectively, “Defendants”).
ECF No. 1.
contains the following allegations:
Plaintiff’s Complaint
Count I - violations of 42
U.S.C. § 1983, Count II - Negligent Training/Supervision, Count
III - Negligence, and Count IV - Negligent Infliction of
Emotional Distress.
Id.
On August 6, 2012, Defendants filed a
Motion to Dismiss Plaintiff’s Complaint.
ECF No. 4.
Upon
Defendants’ request, the Court stayed the Motion pending a
summary judgment order issued by Judge Kobayashi that potentially
-1-
could have affected Defendants’ Motion.1/
ECF No. 18.
On June
25, 2013, Defendants reactivated the Motion to Dismiss.
20.
Plaintiff filed his Opposition on July 5, 2013.
Defendants filed their Reply on July 15, 2013.
ECF No.
ECF No. 23.
ECF No. 24.
On
July 29, 2013, this Court held a hearing regarding this matter.
ECF No. 25.
FACTUAL BACKGROUND2/
According to the standard for deciding a Federal Rule
of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss, the Court
uses Plaintiff’s Complaint to establish the factual background to
decide this motion.
See Sateriale v. R.J. Reynolds Tobacco Co.,
697 F.3d 777, 783 (9th Cir. 2012).
On or about January 1, 2010, the Honolulu Police
Department (“HPD”) received allegations from certain individuals
that Plaintiff assaulted three persons in Waimanalo, Hawaii
earlier that morning.
Compl. at 5, ¶ 14, ECF No. 1.
Later that
same day, the police allegedly verified the existence of the
injuries suffered from one of the three complaining witnesses.
Id. at 5, ¶ 15.
On or about January 10, 2010, the assault case
1/
The order issued by Judge Kobayashi did not in fact
affect the issues presented in the instant Motion to Dismiss.
Smith v. Davidson et al., Civ. No. 11-00498 LEK-RLP, 2012 WL
996890 at *10-14 (D. Haw. 2013).
2/
The facts as recited in this Order are for the purpose
of disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
-2-
was assigned to Defendant Tenn for further investigation.
5-6 ¶ 16.
Id. at
In March of 2010, the three complaining witnesses
alleged that Plaintiff was the perpetrator of the assaults and
identified Plaintiff from photo line ups.
Id. at 6, ¶ 17.
On or
about April 1, 2010, the police confirmed the injuries suffered
by one of the complaining witnesses after the witness previously
told police that he had not sought medical treatment for his
injuries.
Id. at 6, ¶ 18.
On June 2, 2010, without first obtaining an arrest
warrant, Defendant Tenn instructed police officers to arrest
Plaintiff on three counts of assault in the second degree.
Compl. at 6, ¶ 19, ECF No. 1.
The following events occurred on June 9, 2010.
Around
7:30 a.m., the police arrested Plaintiff, transported him to the
Kailua station, and notified Defendant Tenn of Plaintiff’s
arrest.
Compl. at 6, ¶ 20, ECF No. 1.
Around 8:45 a.m., the
police administered an intoxilyzer test to Plaintiff.
21.
Id. at ¶
Defendant Tenn arrived at the Kailua police station around
11:30 a.m.
Id. at ¶ 22.
The police continued to detain
Plaintiff while Defendant Tenn waited for several other suspects
to turn themselves in at the Kailua station.
Id. at ¶ 23.
Around 1:40 p.m., Plaintiff was transferred to the
Honolulu police station.
Compl. at 7, ¶ 24.
Defendant Tenn
traveled from the Kailua station to the Honolulu station around
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2:20 p.m.
Id. at ¶ 25.
After Defendant Tenn and the arresting
officer submitted the appropriate paperwork, the Honolulu
District Court issued a probable cause determination for
Plaintiff’s warrantless arrest for assault in the second degree
around 4:30 p.m.
Id. at ¶ 26.
Defendant Tenn advised Plaintiff
of his constitutional rights around 10:30 p.m. and continued to
detain Plaintiff through the rest of the evening after Plaintiff
refused to make any statements.
Id. at ¶ 27.
On June 10, 2010, no later than 7:45 a.m., Defendant
Tenn was informed of the bail on the charges for which Plaintiff
had been arrested.
Compl. at 7, ¶ 28.
Defendant Tenn continued
Plaintiff’s detention and charged him by felony information
around 6:00 p.m.
Id. at ¶ 29.
Around 9:15 p.m., Plaintiff was
released on bail nearly thirty-eight hours after his initial
arrest.
Id. at ¶ 30.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes the
Court to dismiss a complaint that fails “to state a claim upon
which relief can be granted.”
The Court may dismiss a complaint
either because it lacks a cognizable legal theory or because it
lacks sufficient factual allegations to support a cognizable
legal theory.
Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir. 2011).
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For a Rule 12(b)(6) motion to dismiss, the Court
accepts all well-pleaded factual allegations as true and
construes them in the light most favorable to the nonmoving
party.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783
(9th Cir. 2012) (citation omitted).
The complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.”
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
However, “to be entitled to the presumption of truth, allegations
in a complaint or counterclaim may not simply recite the elements
of a cause of action.”
Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(holding that a “formulaic recitation of the elements of a cause
of action” will not defeat a motion to dismiss).
Instead, the
complaint “must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.”
Starr, 652 F.3d at 1216.
“The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted unlawfully.
Where a
complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”
556 U.S. at 678 (quoting Twombly, 550 U.S. at 556-57).
Iqbal,
However,
in considering a motion to dismiss, “the court is not deciding
-5-
whether a claimant will ultimately prevail but rather whether the
claimant is entitled to offer evidence to support the claims
asserted.”
Tedder v. Deutsche Bank Nat. Trust Co., 863 F. Supp.
2d 1020, 1030 (D. Haw. 2012) (citing Twombly, 550 U.S. at 563
n.8).
The Court should grant leave to amend “even if no
request to amend the pleading was made, unless it determines that
the pleading could not be cured by the allegation of other
facts.”
OSU Student Alliance v. Ray, 699 F.3d 1053, 1079 (9th
Cir. 2012).
Leave to amend “is properly denied, however, if
amendment would be futile.”
Carrico v. City & County of S.F.,
656 F.3d 1002, 1008 (9th Cir. 2011).
DISCUSSION
I.
Whether This Court Should Convert Defendants’ Motion to
Dismiss Into a Motion for Summary Judgment Under Rule 12(d)
Plaintiff attaches evidence to his Opposition in the
form of a County memorandum regarding the County’s alleged policy
and practice of detaining an arrestee for up to 48 hours after a
warrantless arrest (“48 Hour Rule”).
No. 23-2.
Plntf.’s Opp. Ex. 2, ECF
As a general rule, “a district court may not consider
any material beyond the pleadings in ruling on a Rule 12(b)(6)
motion.”
Lee v. City of Los Angeles, 250 F.3d 668, 668 (9th Cir.
2001); see also Smith v. Davidson, Civ. No. 11-00498 LEK-RLP,
2012 WL 996890 at *9 (D. Haw. 2011).
-6-
Under Rule 12(d), if
“matters outside the pleadings are presented to and not excluded
by the court,” a motion to dismiss must be converted into a
motion for summary judgment under Rule 56.
If the Court converts
a motion to dismiss into a motion for summary judgment, then
“[a]ll parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.”
Fed. R. Civ.
P. 12(d).
While there are exceptions to the general rule, none of
the exceptions apply to the instant case.
Plaintiff’s Exhibit 2
is not a document “whose contents are alleged in a complaint and
whose authenticity no party questions.”
See Davis v. HSBC Bank
Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012).
Exhibit 2
also does not fall within the judicial notice exception because
the document presents facts that are “subject to reasonable
dispute.”
2003).
See U.S. v. Ritchie, 342 F.3d 903, 909 (9th Cir.
In this case, Plaintiff attempts to use Exhibit 2 to
establish the County’s policy and practice of using the 48 Hour
Rule.
However, Plaintiff alleges that he was arrested and
detained on June 9, 2010, but the Court observes that Exhibit 2
is dated January 20, 2011.
2.
See Plntf.’s Opp. Ex. 2, ECF No. 23-
Thus, Exhibit 2 does not indicate that it represents the
policy in effect in 2010 when Plaintiff was detained.
Accordingly, the Court exercises its discretion and declines to
-7-
examine Plaintiff’s Exhibit 2 or convert Defendants’ Motion to
Dismiss into a motion for summary judgment.
II.
Whether Plaintiff’s First Cause of Action - 42 U.S.C. § 1983
States a Claim Upon Which Relief Can Be Granted
In his First Cause of Action, Plaintiff makes numerous
claims against various Defendants that his constitutional rights
were violated.
Although the Complaint is far from clear
regarding the specific constitutional rights that have been
violated, the Court will address the constitutional rights
discussed in the Complaint and the parties’ briefs.3/
A. Whether Plaintiff Sufficiently Pleads a Violation of a
Constitutional Right
1. The Alleged Delay Regarding Plaintiff’s Probable
Cause Determination
Defendants argue that Plaintiff fails to sufficiently
allege a claim under the Fourth Amendment because a probable
cause determination was made within 48 hours of Plaintiff’s
warrantless arrest.
Def.’s MTD at 4-7, ECF No. 4-1.
The Fourth Amendment requires “a judicial determination
of probable cause as a prerequisite to the extended restraint of
liberty following arrest.”
Gerstein v. Pugh, 420 U.S. 103, 114,
3/
In the event Plaintiff decides to file an amended
complaint to address the issues discussed in this order, the
Court instructs Plaintiff to clarify the specific federal and
state constitutional provisions at issue in this litigation.
-8-
95 S. Ct. 854, 863, 43 L. Ed. 2d 54 (1975).
As explained by the
Supreme Court, “warrantless arrests are permitted but persons
arrested without a warrant must promptly be brought before a
neutral magistrate for a judicial determination of probable
cause.”
Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 53, 111
S. Ct. 1661, 1668, 114 L. Ed. 2d 49 (1991) (citing Gerstein, 420
U.S. at 114, 95 S. Ct. at 863).
When examining the promptness
requirement, the Court stated that a jurisdiction that provides
“judicial determinations of probable cause within 48 hours of
arrest” generally complies with the requirement.
U.S. at 56, 111 S. Ct. at 1670.
McLaughlin, 500
As a result, “such jurisdictions
will be immune from systemic challenges.”
Id., 500 U.S. at 56,
111 S. Ct. at 1670.
Furthermore, the Court in McLaughlin specifically
acknowledged that “the Fourth Amendment does not compel an
immediate determination of probable cause upon completing the
administrative steps incident to arrest.”
at 53-54, 111 S. Ct. at 1668.
McLaughlin, 500 U.S.
There is flexibility in the rule
to encourage States to “experiment and adapt” regarding arrest
and processing procedures.
Id.
The Court specifically rejected
the Ninth Circuit’s interpretation that a probable cause
determination “be made as soon as the administrative steps
incident to arrest were completed.”
Ct. at 1669.
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Id., 500 U.S. at 54, 111 S.
However, the Court also held that, when examining an
individual’s case of unconstitutional detention, a delay of the
probable cause determination is not constitutionally permissible
merely because it was provided within 48 hours.
U.S. at 56-57, 111 S. Ct. at 1670.
McLaughlin, 500
A probable cause
determination conducted within the 48 hour time frame may still
violate the Constitution if the determination was delayed
unreasonably.
Id.
An individual who is provided a probable
cause determination within 48 hours has the burden of
establishing that any complained of delay was unreasonable.
McLaughlin, 500 U.S. at 57, 111 S. Ct. at 1670.
Regarding the
concept of unreasonable delay, the Court provides the following
guidance.
Examples of unreasonable delay are delays for the
purpose of gathering additional evidence to justify the
arrest, a delay motivated by ill will against the
arrested individual, or delay for delay's sake. In
evaluating whether the delay in a particular case is
unreasonable, however, courts must allow a substantial
degree of flexibility. Courts cannot ignore the often
unavoidable delays in transporting arrested persons
from one facility to another, handling late-night
bookings where no magistrate is readily available,
obtaining the presence of an arresting officer who may
be busy processing other suspects or securing the
premises of an arrest, and other practical realities.
Id., 500 U.S. at 56-57, 111 S. Ct. at 1670.
In this case, Plaintiff alleges that “the policy and/or
practice of permitting officers to arrest persons without a
warrant and unnecessarily detaining them for up to 48 hours
-10-
without formal charges and/or admission to bail is
constitutionally deficient.”
Compl. at 9, ¶ 35, ECF No. 1.
As
currently pled, Plaintiff cannot bring a systemic challenge to
the County’s Fourth Amendment probable cause procedures under
McLaughlin.
The County is permitted to make warrantless arrests,
and the 48-hour timeframe in the alleged policy (“48 Hour
Rule”)4/ generally complies with the promptness requirement.
See
McLaughlin, 500 U.S. at 56, 111 S. Ct. at 1670; Jones v. City of
Santa Monica, 382 F.3d 1052, 1055 (9th Cir. 2004); Jones v.
Lowndes Cnty., Miss., 678 F.3d 344, 350 (5th Cir. 2012).
Plaintiff cites to Taylor v. Keala, S.P. No. 3532 (Haw.
Cir. 1973), a case in which a Hawai#i circuit court held that the
48 Hour Rule is unconstitutional.
23.
Plntf.’s Opp. at 7, ECF No.
However, this case was issued decades before McLaughlin and
therefore is not controlling law as to the Fourth Amendment’s
requirements.
Likewise, Plaintiff’s reliance on Kanekoa v. City
and Cnty. of Honolulu, 879 F.2d 607, 612 (9th Cir. 1989) is
misplaced because Kanekoa was issued before the Supreme Court’s
McLaughlin decision.
Accordingly, the Court GRANTS Defendants’
4/
Plaintiff at various points in his brief appears to use
the term “48 Hour Rule” to allude to either the police practice
of using 48 hours as a benchmark or Haw. Rev. Stat. § 803-9.
H.R.S. § 803-9 states, inter alia, as follows:
“It shall be
unlawful in any case of arrest for examination . . . [t]o fail
within forty-eight hours of the arrest of a person on suspicion
of having committed a crime either to release or to charge the
arrested person with a crime and take the arrested person before
a qualified magistrate for examination.”
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Motion with respect to Plaintiff’s Fourth Amendment “unreasonable
seizure” claim based upon the County’s alleged systemic policy
composed of the 48 Hour Rule.
However, the Court grants
Plaintiff leave to amend because it is not clear that amendment
would be futile.
Regarding Plaintiff’s individual claim for the delays
specific to his detention, Plaintiff barely alleges sufficient
facts to present a plausible claim that Officer Tenn’s 9-hour
delay between Plaintiff’s arrest and the probable cause
determination was unreasonable.5/
Nonetheless, Plaintiff’s
individual challenge of his detention will not be dismissed
because he does allege that the detention was “improperly
prolonged.”
Compl. at 8, ¶ 31, 9, ¶ 35 & 37.
Accordingly, the
Court DENIES Defendant Tenn’s6/ Motion to Dismiss with respect to
5/
Plaintiff alleges no facts that Defendants delayed in
order to gather “additional evidence to justify the arrest,” were
motivated by “ill will against the arrested individual,” or that
the delay was “for delay's sake.” See McLaughlin, 500 U.S. at
56-57, 111 S. Ct. at 1670. Instead, Plaintiff’s allegations are
composed of administrative steps and permissible delays
(intoxilyzer test, transportation between facilities, processing
other suspects, probable cause paperwork). Compl. at 6-7 ¶¶ 2026, ECF No. 1; see McLaughlin, 500 U.S. at 56-57, 111 S. Ct. at
1670 (holding that “transporting arrested persons from one
facility to another” and “obtaining the presence of an arresting
officer who may be busy processing other suspects” may cause
permissible delays); see also U.S. v. Guthrie, 265 Fed. Appx.
478, 479-480 (9th Cir. 2008) (delay from processing other suspect
is permissible under McLaughlin).
6/
The Court will discuss the County’s and Kealoha’s
liability in Sections II.B and II.D. See infra at 23-27 and 28(continued...)
-12-
Plaintiff’s individual Fourth Amendment unreasonable seizure
claim.
2. The Alleged Delay Between Plaintiff’s Arrest and
Formal Charges
Plaintiff also alleges that Defendants violated his
constitutional rights by detaining Plaintiff without formal
charges.
Defendants argue that the proper time period to
evaluate is the probable cause determination, not the “formal
charge.”
Defs.’ MTD at 6, ECF No. 4.
The Court observes that
Plaintiff and Defendants appear to be referring to different
phases of the detention procedure.
While Defendants’ Ninth
Circuit case refers to a formal complaint filed with a judge for
a probable cause determination, Plaintiff’s Complaint appears to
refer to the government’s communication to him of the offense he
allegedly committed.
Compare U.S. v. Bueno-Vargas, 383 F.3d
1104, 1107 (9th Cir. 2004) with Compl. at 7 ¶ 29, ECF No. 1.
Plaintiff cites to Ginoza v. United States, which held
that the plaintiff arrestee should have been arraigned7/
6/
(...continued)
31, respectively.
7/
The Court observes that an arraignment is not the same as
a formal charge. An “arraignment” is defined as the “initial
step in a criminal prosecution whereby the defendant is brought
before the court to hear the charges and to enter a plea.”
Black’s Law Dictionary 123 (9th ed. 2009). Under the Hawai#i
Rules of Criminal Procedure, “a defendant charged with a felony
shall not be called upon to plead” but instead the defendant may
(continued...)
-13-
immediately after he was arrested and searched.
621 (9th Cir. 1960).
279 F.2d 616,
However, the Ninth Circuit in Ginoza
reached its holding by relying upon Federal Rule of Criminal
Procedure 5(a).
Id. at 620.
In U.S. v. Alvarez-Sanchez, the
Supreme Court held, inter alia, that the “delay” standard under
Fed. R. Crim. Proc. 5(a) applied to federal offenses, not state
crimes.
511 U.S. 350, 358 (1994).
In this case, Ginoza is not
applicable because Plaintiff was arrested for a state crime.
See
Compl. at 7 ¶ 26, ECF No. 1.
Due in part to Plaintiff’s failure to articulate the
specific constitutional right violated, the Court assumes that
Plaintiff’s claim of delay of formal charges should be analyzed
under the Sixth Amendment speedy trial clause instead of a due
process claim.
See Graham v. Connor, 490 U.S. 386, 395 (1989)
(holding that “substantive due process” should not be used if
there is an “explicit textual source of constitutional
protection”).
The Sixth Amendment appears “to guarantee to a criminal
defendant that the Government will move with the dispatch that is
appropriate to assure him an early and proper disposition of the
charges against him.”
U.S. v. Marion, 404 U.S. 307, 320, 92 S.
Ct. 455, 460, 30 L.Ed.2d 468 (1971).
In Marion, the Supreme
7/
(...continued)
be “indicted or charged by information.”
5(c).
-14-
Haw. R. Crim. Proc.
Court held that “it is either a formal indictment or information
or else the actual restraints imposed by arrest and holding to
answer a criminal charge that engage the particular protections
of the speedy trial provision of the Sixth Amendment.”
307, 320 (1971).
404 U.S.
Accordingly, delays after arrest but before
formal charges are filed have been analyzed under the Sixth
Amendment.
See U.S. v. Traylor, 578 F.2d 108, 109 (5th Cir.
1978) (holding that Sixth Amendment applies to post-arrest, preindictment delay); U.S. v. Hillegas, 578 F.2d 453, 460 (2d Cir.
1978); Quinn v. Roach, 326 Fed. Appx. 280, 290 (5th Cir. 2009).
For a Sixth Amendment speedy-trial claim, the Court
first examines if the length of the delay is “presumptively
prejudicial”; if the delay does not meet this requirement, then
“there is no necessity for inquiry into the other factors that go
into the balance.”
Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct.
2182, 33 L.Ed.2d 101 (1972).
The delay alleged in this case,
namely the time between Plaintiff’s arrest and formal charge,
consisted of around 35 hours.
Compl.
6-7, ¶¶ 20, 29, ECF No. 1.
Plaintiff does not allege when the charges were dismissed.8/
generally, Compl., Plntf.’s Opp. at 5, ECF No. 23.
See
The delay
alleged in this case is not presumptively prejudicial, as the
8/
Plaintiff in his Opposition states that he “plead [sic]
“no contest” to reduced misdemeanor charges and his pleas were
deferred after which the charges ultimately were dismissed
altogether.” Plntf.’s Opp. at 5, ECF No. 23.
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Supreme Court and other courts of appeals have held that a delay
of less than one year will “rarely qualify as “presumptively
prejudicial” for purposes of triggering the Barker inquiry.”
Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir. 1994) (citing
Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S. Ct.
2686, 2691 n. 1, 120 L.Ed.2d 520 (1992)), U.S. v. Reynolds, 231
Fed. Appx. 629, 630 (9th Cir. 2007) (“Courts have generally found
postaccusation delay ‘presumptively prejudicial’ at least as it
approaches one year.”).
Accordingly, Plaintiff fails to state a
Sixth Amendment speedy-trial claim.9/
Although the Court concludes that Plaintiff’s claim of
delay after his arrest should be analyzed under the Sixth
Amendment, the Court also analyzes one other due process theory
used in the Ninth Circuit.
In Oviatt, the Ninth Circuit found
that state law may create a liberty interest protected by the
Fourteenth Amendment.
954 F.2d 1470, 1474 (9th Cir. 1992).
The
plaintiff in that case had been arrested, but due to a defect in
pretrial procedures, he remained incarcerated for 114 days before
being arraigned.
Id. at 1473.
The Ninth Circuit found that an
9/
The Court notes that, while Plaintiff complains of a
prolonged detention of several hours, he does not contest the
probable cause determination of the Honolulu District Court. See
generally, Compl., ECF No. 1. To the extent that Plaintiff
attempts to allege a due process violation for his detention, the
Supreme Court has stated that “a detention of three days” did not
amount to a deprivation of due process when the government had
probable cause for the arrest. Baker v. McCollan, 443 U.S. 137,
145, 99 S. Ct. 2689, 2695 (1979).
-16-
Oregon statute created a liberty interest by mandating that a
defendant’s arraignment “shall be held during the first 36 hours
of custody.”10/
Id. at 1475.
When examining whether a state law creates a liberty
interest, the courts must examine if the laws place “substantive
limitations on official discretion.”
Oviatt, 954 F.2d at 1474.
“The state statutes in question must do more than merely channel
administrative discretion; they must be ‘explicitly mandatory.’”
Id.
In the present case, the applicable Hawai#i statute
provides that “It shall be unlawful in any case of arrest for
examination . . . To fail within forty-eight hours of the arrest
of a person on suspicion of having committed a crime either to
release or to charge the arrested person with a crime and take
the arrested person before a qualified magistrate for
examination.”
H.R.S. § 803-9.
The Court need not determine
whether the statute actually creates a liberty interest because
assuming arguendo that it does, Plaintiff has not alleged facts
demonstrating a violation of the statute.
In this case,
Plaintiff was released within 48 hours in accordance with the
statute’s requirements.
Compl. at 7, ¶ 30, ECF No. 1.
10/
While the facts in the Oviatt case involved the time
frame before arraignment; the general holding that states may
create liberty interests protected by the Fourteenth Amendment is
applicable to the case before this Court.
-17-
Additionally, the Court notes that the purported liberty interest
provided by the state does not mandate a formal charge within 48
hours.
Plaintiff does not present any cases indicating that the
state’s statute is unconstitutional.
Accordingly, because the
delay in presenting formal charges as alleged by Plaintiff does
not appear to violate the due process clause, the Court GRANTS
Defendants’ Motion with respect to Plaintiff’s § 1983 claim
regarding the delay in bringing formal charges.
However, the
Court grants Plaintiff leave to amend because at this point in
time the Court does not conclude that amendment would be futile.
3. The Alleged Delay in Plaintiff’s Admission to Bail
Regarding bail, the Eighth Amendment provides that
“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments be inflicted.”
Const. amend. VIII.
U.S.
To prevail on a federal claim of excessive
bail, Plaintiff must show that the conditions set on his bail
were excessive in relation to the “valid state interests bail is
intended to serve.”
Galen v. Cnty. of Los Angeles, 477 F.3d 652,
660 (9th Cir. 2007).
Plaintiff has not alleged that his bail was
excessive, only that his admission to bail was delayed by a few
hours.
Compl. at 7, ¶ 30.
Several courts of appeals cases state
that there is no federal constitutional right to post bail
-18-
immediately after arrest.11/
See Fields v. Henry County, Tenn.,
701 F.3d 180, 185 (6th Cir. 2012) (“There is no constitutional
right to speedy bail.”); Woods v. City of Michigan City, Ind.,
940 F.2d 275, 283 (7th Cir. 1991) (Will, J., concurring) (holding
that plaintiff’s constitutional rights were not violated by his
arrest and overnight detention because the Eighth and Fourteenth
Amendments do not guarantee “instant release for misdemeanors or
any other offense”); Cf. Collins v. Ainsworth, 382 F.3d 529, 545
(5th Cir. 2004) (“There is no right to post bail within 24 hours
of arrest.”).
Other courts of appeals hold that a Fourteenth
Amendment liberty interest arises once bail has been set, and
that a delay may violate the due process clause.
Dodds v.
Richardson, 614 F.3d 1185, 1190 (10th Cir. 2010); see Campbell v.
Johnson, 586 F.3d 835, 840 (11th Cir. 2009) (holding in the
context of bail release that there is a “right to be free from
continued detention after it was or should have been known that
the detainee was entitled to release”).
Thus, it appears that
while there is no Eighth Amendment right, Plaintiff has a
“cognizable legal theory” to support his claim that the delay in
11/
It appears that the Ninth Circuit has not yet addressed
the issue of whether or not the federal constitution provides for
a right to speedy admission to bail. See Farrow v. Lipetzky, No.
12-cv-06495-JCS, 2013 WL 1915700 at *22 (N.D. Cal. 2013)
(dismissing plaintiff’s alleged Fourteenth Amendment claim
regarding a five to thirteen day delay between his arrest and
bail hearing for failure to state a claim).
-19-
his admission to bail after bail was set violates the due process
clause of the Fourteenth Amendment.
Regarding any alleged delay between Plaintiff’s arrest
and the setting of his bail, Plaintiff does not cite any cases
indicating that a delay of less than 48 hours between an arrest
and the setting of bail violates the federal constitution.
Plntf.’s Opp. at 6, ECF No. 23.
See
There are several cases
indicating that the federal constitution does not require an
immediate determination of bail.
See Farrow v. Lipetzky, No. 12-
cv-06495-JCS, 2013 WL 1915700 at *22 (N.D. Cal. 2013) (dismissing
plaintiff’s alleged Fourteenth Amendment claim regarding a five
to thirteen day delay between his arrest and bail hearing for
failure to state a claim), Holder v. Town of Newton, et al., 2010
WL 432357 at *10-11 (D. N.H. 2010) (noting that a
right to an
immediate bail hearing did not exist), Tate v. Hartsville/
Trousdale County, No. 3:09-0201, 2010 WL 4054141 at *8 (M.D.
Tenn. 2010) (holding that a bail hearing held within 48 hours of
arrest is presumptively constitutional).
However, as mentioned above, the Ninth Circuit in
Oviatt v. Pearce held that a liberty interest protected by the
Fourteenth Amendment may arise from the law of a state.
at 1474.
954 F.2d
In this case, the Court must examine whether Hawai#i
law regarding the admission to bail creates a “significant
substantive reduction in decision-making” for officials or
-20-
“create[s] an imperative that mandates action unless certain
clearly-defined exceptions are found to apply.”
Chaney v.
Stewart, 156 F.3d 921, 925 (9th Cir. 1998).
Under Hawai#i law, an arrestee may be “admitted to bail
before conviction as a matter of right” provided that bail is
allowable.12/
Haw. Rev. Stat. § 804-4.
In Plaintiff’s case, he
could be admitted to bail because his charge was for assault in
the second degree, a class C felony that is not considered a
serious crime.
H.R.S. § 804-3(a).
Hawai#i Rule of Penal Procedure 5(a)(1) states that “An
officer making an arrest under a warrant shall take the arrested
person without unnecessary delay before the court having
jurisdiction, or, for the purpose of admission to bail, before
any judge or officer authorized by law to admit the accused
person to bail.”13/
(2010).
Hawai#i Rules of Penal Procedure 5(a)(1)
The Hawai#i Supreme Court has held that a person who
could be admitted to bail has “a right to release without
unnecessary delay upon payment of bail.”
12/
State v. Perez, 111
Bail may be denied where the charge
crime. H.R.S. § 804-3 (b). The definition
is “murder or attempted murder in the first
attempted murder in the second degree, or a
with a few exceptions that are not relevant
Haw. Rev. Stat. § 804-3.
13/
is for a serious
of a “serious crime”
degree, murder or
class A or B felony,”
to the present case.
The Hawai#i Rule of Penal Procedure 5(a)(1) has remained
substantively the same throughout the events giving rise to this
lawsuit. Hawai#i Rules of Penal Procedure 5(a)(1) (2010).
-21-
Hawai#i 392 (2006) (citing Hawaii Rules of Penal Procedure Rule
5(a)(1)).
“What constitutes ‘unnecessary delay’ requires the
consideration of all the facts and circumstances at the time.”
Id. at 396.14/
The Court concludes that Hawai#i law regarding the
right to admission to bail creates an imperative that mandates
officers to admit an accused person to bail without unnecessary
delay, provided that the person qualifies for bail.
See Oviatt,
954 F.2d at 1475 (holding that a statute created a “liberty
interest in freedom from incarceration without speedy pretrial
procedures” by stating “Except for good cause shown . . . if the
defendant is in custody, the arraignment shall be held during the
first 36 hours of custody”).
The law does not confer discretion
on the officers to decide whether to admit the accused to bail,
nor do the officers have unfettered discretion to decide when to
do so.15/
As a result, if bail is available, the accused has a
legitimate expectation of being released on bail after a speedy
14/
The Hawai#i Supreme Court also held that, while the
probable cause determination for a warrantless arrestee should be
made “as soon as practicable,” the admission to bail must be made
“without unnecessary delay.” Perez, 111 Hawai#i at 396 n.4.
Accordingly, it appears that the standard used to determine
unconstitutional delay for admission to bail possibly differs
from the probable cause determination standard.
15/
While the term “unnecessary delay” is not clearly
defined, the Court observes that the statute in Oviatt used
similar language, i.e. “[e]xcept for good cause shown,” to modify
the timeframe to complete the action mandated. Oviatt, 954 F.2d
at 1474.
-22-
bail procedure.
Accordingly, the Court concludes that Plaintiff
may have a plausible claim that Defendants violated his federal
Fourteenth Amendment due process rights for delay in admission to
bail.
However, for the reasons discussed in Sections II.B, II.C,
II.D, and III, the Court dismisses Plaintiff’s federal Fourteenth
Amendment due process claim.
See infra at 23-36.
B. Whether Plaintiff Alleges a Monell Claim Against the
County
Under Monell, a plaintiff must plead that a county has
a “deliberate policy, custom, or practice that was the “moving
force” behind the constitutional violation.”
Galen v. Cnty. of
Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007).
A plaintiff may
allege municipal liability in the following three ways.
“First,
the plaintiff may prove that a city employee committed the
alleged constitutional violation pursuant to a formal government
policy or a “longstanding practice or custom which constitutes
the ‘standard operating procedure’ of the local governmental
entity.””
1992).
Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.
“Second, the plaintiff may establish that the individual
who committed the constitutional tort was an official with “final
policy-making authority” and that the challenged action itself
thus constituted an act of official governmental policy.”
Id.
“Third, the plaintiff may prove that an official with final
-23-
policy-making authority ratified a subordinate’s unconstitutional
decision or action and the basis for it.”
Id.
In this case, Plaintiff alleges that the County has a
“policy and/or practice” of “permitting officers to arrest
persons without a warrant and unnecessarily detaining them for up
to 48 hours without formal charges and/or admission to bail.”
Compl. at 9 ¶ 35, ECF No. 1.
Such allegations appear to refer to
the first theory of liability noted above.
However, Plaintiff
does not allege any facts indicating that the policy is a formal
policy.
See Compl. at 9, ¶ 31-36, ECF No. 1.
Neither does
Plaintiff sufficiently allege the existence of an “informal
policy” or practice because Plaintiff has not alleged facts
regarding “widespread practices” or “repeated constitutional
violations.”
See Hunter v. Cnty. of Sacramento, 652 F.3d 1225,
1234 (9th Cir. 2011).
Plaintiff only alleges a single violation
that Officer Tenn delayed Plaintiff’s detention (see Compl. at 57, ECF No. 1.), which is not sufficient to establish an informal
policy or practice.
See Trevino v. Gates, 99 F.3d 911, 918 (9th
Cir. 1996) (holding that liability for a practice or custom may
not be based on “isolated or sporadic incidents”).
Plaintiff’s allegations also do not fall within the
second or third theories of liability.
Regarding the second
theory, the Complaint does not contain allegations that Officer
Tenn, the individual alleged to be responsible for violating
-24-
Plaintiff’s rights, had final policy-making authority.
See
generally, Compl., ECF No. 1; Gillette, 979 F.2d at 1346.
For
the third theory, although Plaintiff argues in his Opposition
that Defendant Kealoha had final policy-making authority, the
Complaint does not contain allegations that Kealoha knew, let
alone ratified, the decision by Officer Tenn to detain Plaintiff.
Id.; see Gillette, 979 F.2d at 1346.
Accordingly, Plaintiff has
not sufficiently pled the existence of a municipal policy,
practice, or custom that is responsible for the alleged
violations of his constitutional rights.
See also AE ex rel.
Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)
(affirming dismissal of a § 1983 Monell claim when plaintiff
alleged that the government “maintained or permitted an official
policy, custom, or practice of knowingly permitting the
occurrence of the types of wrongs” related to “the custody, care
and protection of dependent minors”).16/
16/
The Ninth Circuit also retired the pleading rule that,
for Monell claims, a plaintiff could “set forth no more than a
bare allegation that government officials’ conduct conformed to
some unidentified government policy or custom.” AE ex rel.
Hernandez, 666 F.3d at 636. Instead, the Ninth Circuit
instituted the rule in Starr v. Baca, which requires as follows:
(1) “to be entitled to the presumption of truth, allegations in a
complaint or counterclaim may not simply recite the elements of a
cause of action, but must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively,” and (2) “the factual
allegations that are taken as true must plausibly suggest an
entitlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense or discovery and
(continued...)
-25-
Defendant County also argues that Plaintiff fails to
state a claim for failure to properly train its police officers.
The County may be found liable under a “failure to train” theory
when the “failure to train amounts to deliberate indifference to
the rights of persons” who come into contact with the police.
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
Plaintiff must allege the following elements to state a claim
against a county:
(1) “an inadequate training program,” (2)
“deliberate indifference on the part of the County in adequately
training its law enforcement officers,” and (3) “the inadequate
training ‘actually caused’ a deprivation of [Plaintiff’s]
constitutional rights.”
Merritt v. Cnty. of Los Angeles, 875
F.2d 765, 770 (9th Cir. 1989).
To prevail on a failure to train
claim, Plaintiff must “demonstrate a conscious or deliberate
choice on the part of a municipality.”
962, 973 (9th Cir. 2008).
Price v. Sery, 513 F.3d
A plaintiff may allege “‘constructive’
notice where the risk was ‘obvious’”, but there must be “some
evidence that tends to show a conscious choice.”
Id. at 973.
To
allege deliberate indifference, Plaintiff may allege, inter alia,
facts demonstrating that the County was aware of the alleged
unconstitutional acts or by alleging “prior incidents of the same
character that would have made [County] officials aware of the
16/
(...continued)
continued litigation.”
652 F.3d 1202, 1216 (9th Cir. 2011).
-26-
situation.”
Mueller v. Auker, 700 F.3d 1180, 1194 (9th Cir.
2012) and Merritt, 875 F.2d at 771 n. 10.
In this case, Plaintiff fails to allege facts to
support his bare legal conclusions that the County acted with
deliberate indifference.
See Compl. at 10 ¶ 37, ECF No. 1.
Plaintiff’s allegation that the 48 Hour Rule is “obviously
deficient” is a legal conclusion that is not entitled to a
presumption of truth when deciding a motion to dismiss.
Starr v. Baca, 652 F.3d at 1216.17/
See
Accordingly, the Court DENIES
the County’s Motion with respect to Plaintiff’s claim that the
County’s policy violates his Fourteenth Amendment due process
rights, but GRANTS the County’s Motion with respect to
Plaintiff’s failure to train claim.
However, the Court grants
leave to amend because Plaintiff may be able to allege additional
facts to support such a claim.
C. Whether Plaintiff’s 28 U.S.C. § 1983 Official Capacity
Claims Against Defendant Kealoha and Defendant Tenn Should
Be Dismissed
Plaintiff sued Defendant Kealoha and Defendant Tenn
both individually and in their official capacities.
17/
However, the
The Court observes that Plaintiff’s counsel argued in his
Opposition and at the July 29 hearing that the County had notice
of the unconstitutionality of the 48 Hour Rule for years by means
of other court decisions and incidents. See Plntf.’s Opp. at 1314. However, the Complaint itself does not contain these alleged
facts presented by Plaintiff’s counsel in his Opposition and at
the hearing.
-27-
Supreme Court has held that “there is no longer a need to bring
official-capacity actions against local government officials . .
. local government units can be sued directly for damages and
injunctive or declaratory relief.”
Kentucky v. Graham, 473 U.S.
159, 166-67 n. 14 (1985); see also Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 n. 55 (1978).
“Any relief sought in an
official-capacity suit, either monetary or injunctive, is
provided directly by the county and not the officer.”
Coconut
Beach Development LLC v. Baptiste, Civ. No. 08-00036 SOM-KSC,
2008 WL 1867933 at *3 (D. Haw. 2008), Bilan v. City and Cnty. of
Honolulu, Civ. No. 05-00690 ACK-KSC, 2006 WL 3201874 at *5 (D.
Haw. 2006) (citing Graham, 473 U.S. at 167 n. 14) (“As local
government units may be sued directly for damages and injunctive
or declaratory relief, there is no need to also sue the
individual.”).
Accordingly, because the official-capacity claims
against Kealoha and Tenn are duplicative of the claims asserted
against the County, the Court DISMISSES without prejudice
Plaintiff’s federal claims against Kealoha and Tenn in their
official capacities.
See Smith v. Davidson, Civ. No. 11-00498
LEK-RLP, 2012 WL 996890 at *5 (D. Haw. 2012).
D. Whether Plaintiff’s 28 U.S.C. § 1983 Claims Against
Defendant Kealoha in His Individual Capacity Should Be
Dismissed
-28-
Defendant Kealoha also argues that Plaintiff fails to
state a claim for supervisor liability under § 1983.
at 18, ECF No. 4-1.
Defs.’ MTD
According to the Ninth Circuit, there is no
respondeat superior liability under § 1983.
F.2d 1040, 1045 (9th Cir. 1989).
Taylor v. List, 880
Instead, “a plaintiff must
plead that each Government-official defendant, through the
official’s own individual actions, has violated the
Constitution.”
2012).
Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir.
In this case, Plaintiff fails to allege sufficient facts
to plausibly establish Kealoha’s “knowledge of” and “acquiescence
in” the specific unconstitutional conduct allegedly committed by
his subordinates.
See Hydrick, 669 F.3d at 942; see generally,
Compl., ECF No. 1.
Plaintiff argues that Defendant Kealoha may be held
liable for implementing a policy.
23.
Plntf.’s Opp. at 17, ECF No.
The Ninth Circuit has held that supervisor liability may
exist if “supervisory officials implement a policy so deficient
that the policy itself is a repudiation of constitutional
rights.”
Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th
Cir. 1991) (abrogated on other grounds by Farmer v. Brennan, 511
U.S. 825, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994)); see Dodds v.
Richards, 614 F.3d 1185, 1199 (10th Cir. 2010).
Plaintiff cites to the Revised Charter of Honolulu §§
6-1601 and 6-1604 (2001) to argue that Kealoha as Chief of Police
-29-
is responsible for the 48 Hour Rule.
The Revised Charter § 6-
1604(d) states that the Chief of Police shall “[p]romulgate rules
and regulations necessary for the organization and internal
administration of the department.”
However, as noted above in
Section II.B., Plaintiff has not alleged sufficient facts to
support the inference that the 48 Hour Rule is a policy, custom,
or practice of the County.
See Section II.B., supra at 23-27.
As a result, Plaintiff fails to state a supervisory claim against
Defendant Kealoha based upon the implementation of a policy.
Plaintiff also argues that Kealoha may be held liable
for “setting in motion a series of acts by others which the
supervisor knows or reasonably should know would result in
injury.”
Plntf.’s Opp. at 17 (citing Castro v. Melchor, 760 F.
Supp. 2d 970, 993 (D. Haw. 2010)).
However, the Complaint’s
allegations contain no factual statements as to what acts Kealoha
himself committed to set into motion his subordinates’ conduct.
See generally, Compl., ECF No. 1.
Regarding the failure to train, Plaintiff must allege
facts to support an inference that the “failure to train amounts
to deliberate indifference to the rights of persons the police
have contact with.”
Smith v. Davidson, Civ. No. 11-00498 LEK-
RLP, 2012 WL 996890 at *6 (D. Haw. 2012) (citing City of Canton
v. Harris, 489 U.S. 378, 388 (1989)).
“Deliberate indifference
may be found where a training program is obviously deficient, and
-30-
the inadequacy of the program is likely to result in the
violation of citizens’ constitutional rights.”
of Canton, 489 U.S. at 390).
Id. (citing City
While Plaintiff alleges conclusions
regarding deliberate indifference, conclusory allegations are not
sufficient to survive a motion to dismiss.
at 941.
See Hydrick, 669 F.3d
As a result, the Court GRANTS Defendant Kealoha’s Motion
to Dismiss with respect to Plaintiff’s supervisor liability claim
and failure to train claim.
However, the Court also grants
Plaintiff leave to amend.
III. Whether Defendants Kealoha and Tenn are Entitled to
Qualified Immunity
Regarding Plaintiff’s federal § 1983 claims,
“[q]ualified immunity shields federal and state officials from
money damages unless a plaintiff pleads facts showing (1) that
the official violated a statutory or constitutional right, and
(2) that the right was “clearly established” at the time of the
challenged conduct.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080,
179 L.Ed.2d 1149 (2011).
The Supreme Court has held that
district 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).
-31-
With respect to Defendant Kealoha, the Court DENIES
Kealoha’s Motion to Dismiss on the basis of qualified immunity as
moot because the Court concludes that Plaintiff has failed to
state a claim against Kealoha.
See Section II.D., supra at 28-
31.
While Defendant Tenn argues that he complied with the
48 Hour Rule with respect to Plaintiff’s individual Fourth
Amendment claim, the Court observes that McLaughlin provides
examples of delays that are considered unreasonable even if a
probable cause determination was issued within 48 hours.
McLaughlin, 500 U.S. at 56-57, 111 S. Ct. at 1670.
At this point
in time, the Court cannot determine if the alleged delay violates
a clearly established right because there are factual issues
regarding the promptness and nature of the delay.
With respect to the Fourteenth Amendment due process
claim regarding Plaintiff’s admission to bail, it appears that a
federal Fourteenth Amendment due process right to admission to
bail is not “clearly established law” as evidenced by the
differing opinions throughout the circuits.
Compare Fields v.
Henry County, Tenn., 701 F.3d 180, 185 (6th Cir. 2012) (holding
in the context of posting bail that “There is no constitutional
right to speedy bail.”), Woods v. City of Michigan City, Ind.,
940 F.2d 275, 283 (7th Cir. 1991) (Will, J., concurring) (holding
that plaintiff’s constitutional rights were not violated by his
-32-
arrest and overnight detention because the Eight Amendment does
not guarantee “instant release for misdemeanors or any other
offense”), and Collins v. Ainsworth, 382 F.3d 529, 545 (5th Cir.
2004) (“There is no right to post bail within 24 hours of
arrest.”) with Dodds v. Richardson, 614 F.3d 1185, 1190 (10th
Cir. 2010) (holding that a Fourteenth Amendment liberty interest
arises once bail has been set, and that a delay may violate the
due process clause) and Campbell v. Johnson, 586 F.3d 835, 840
(11th Cir. 2009) (holding in the context of admission to bail
that there is a “right to be free from continued detention after
it was or should have been known that the detainee was entitled
to release.”).18/
Regarding Plaintiff’s Fourteenth Amendment due process
claim based on Hawai#i law, the Court recognizes that state law
does not automatically constitute clearly established law for
purposes of analyzing federal qualified immunity.
v. Burt, 141 F.3d 927, 930 (9th Cir. 1998).
See Campbell
However, the Ninth
Circuit recognizes that state law may constitute clearly
18/
As noted previously, it appears that the Ninth Circuit
has not addressed the issue of a Fourteenth Amendment right to
speedy bail, although a district court in the Ninth Circuit has
examined the question. See Farrow v. Lipetzky, No. 12-cv-06495JCS, 2013 WL 1915700 at *22 (N.D. Cal. 2013) (dismissing
plaintiff’s alleged Fourteenth Amendment claim regarding a five
to thirteen day delay between his arrest and bail hearing for
failure to state a claim).
-33-
established law if the state law “provides the basis for the
cause of action sued upon.”
Id.
In this case, as discussed above, Hawai#i law regarding
Plaintiff’s admission to bail forms the cause of action under the
federal Fourteenth Amendment due process clause.
Therefore,
Hawai#i laws governing an arrestee’s right to admission to bail
may constitute clearly established law regarding federal due
process rights.
See Carlo v. City of Chino, 105 F.3d 493, 502
(9th Cir. 1997) (holding that state statute permitting prisoners
to make three telephone calls immediately after arrest clearly
established a liberty interest and defeated a claim of qualified
immunity).
However, it is not apparent that Hawai#i’s right to
admission to bail was clearly established at the time of Officer
Tenn’s conduct.
According to the Supreme Court, “[a] Government
official’s conduct violates clearly established law when, at the
time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”
131 S. Ct. at 2083.
Ashcroft,
In this case, it is not clear that every
reasonable official in Defendant Tenn’s position would have known
that he was violating Plaintiff’s right to admission to bail
without unnecessary delay.
-34-
Plaintiff alleges that Defendant Tenn was notified of
Plaintiff’s bail by 7:45 a.m. on June 10, 2010, but Plaintiff was
not released on bail until 9:15 p.m. that same day.
¶ 28-29, ECF No. 1.
Compl. at 7
However, there is no clearly established law
indicating that this time frame violated Plaintiff’s rights.
In
Perez, the Hawai#i Supreme Court stated that “[w]hat constitutes
‘unnecessary delay’ requires the consideration of all the facts
and circumstances at the time.”
111 Hawai#i at 396.
Plaintiff
does not identify a Hawai#i case indicating that Defendant Tenn’s
conduct constituted unnecessary delay.
While the Court
acknowledges that Plaintiff need not identify a case “directly on
point,” the precedent must “place[] the statutory or
constitutional question beyond debate.”
Ashcroft, 131 S. Ct. at
2083.
There is no Hawai#i case that places the statutory or
constitutional question of the meaning of “unnecessary delay”
beyond debate in this case.
While the Hawai#i Supreme Court in
Perez concluded that a one hour delay after a one hour processing
of a shoplifting arrest was unnecessary; Perez itself does not
set a timeframe for Plaintiff’s case because the Hawai#i Supreme
Court adopted a finding of fact that processing for shoplifting
arrests usually takes around one hour.
111 Hawai#i at 397.
noted above, the Hawai#i Supreme Court acknowledged that the
standard for “unnecessary delay” may change depending on the
-35-
As
nature of the case.
Id. at 396.
Accordingly, the Perez case
does not define “unnecessary delay” for Plaintiff’s case because
Plaintiff was arrested for assault in the second degree, not
shoplifting.
Plaintiff has not identified, and the Court has not
found, a case placing the question of the meaning of “unnecessary
delay” beyond debate for the arrest procedures identified in this
case.
Thus, because there is no clearly established law that
defines Plaintiff’s right to be admitted to bail “without
unnecessary delay,” the Court GRANTS Defendant Tenn’s Motion to
Dismiss on the basis of qualified immunity with respect to
Plaintiff’s federal admission to bail claim under the Fourteenth
Amendment.
IV. Whether Plaintiff’s Complaint Alleges Sufficient Facts for
Injunctive and Declaratory Relief
A. Injunctive Relief
Defendants argue that Plaintiff lacks standing to sue
for injunctive relief.19/
Defs.’ MTD at 16, ECF No. 4-1.
While
Plaintiff was detained for around 38 hours from June 9 - 10,
2010; Plaintiff did not file his Complaint until June 1, 2012.
See generally, Compl., ECF No. 1.
In City of Los Angeles v. Lyons, the Supreme Court held
that, in order to having standing for injunctive relief, a
19/
Plaintiff in his Opposition does not address Defendants’
arguments regarding the requirement of standing for injunctive
relief.
-36-
plaintiff must show that (1) he “has sustained or is immediately
in danger of sustaining some direct injury as a result of the
challenged official conduct,” and (2) “the injury or threat of
injury must be both “real and immediate,” not “conjectural” or
“hypothetical.”
461 U.S. 95, 102 (1983).
In Lyons, the
plaintiff who suffered a choke hold from the Los Angeles police
lacked standing to bring a claim for an injunction to bar the use
of choke holds by the police.
Id. at 105-108.
The Court found
that Plaintiff’s harm ceased months before he filed his
complaint, and he failed to show that the threat of suffering
another choke hold was “real and immediate.”
Id.
In this case, Plaintiff’s alleged unconstitutional
delay during his 38 hour detention was incurred over a year
before he filed his Complaint against Defendants.
Compl., ECF No. 1.
See generally,
While Plaintiff’s damages claim remains
viable, his allegations do not show that the threat of suffering
another alleged unconstitutional detention is “real and
immediate.”
See Lyons, 461 U.S. at 102.
Similar to Lyons, any argument by Plaintiff that he
would suffer an unconstitutional detention in the future is
speculative at best.
In order for Plaintiff to suffer a repeat
of the conduct alleged in the Complaint, Plaintiff in the future
would need to perform some act resulting in the police concluding
that there is probable cause of a crime, the police would need to
-37-
arrest him for the suspected criminal act, the police would then
need to choose to detain him, and in the process of that
detention the police would need to again create the alleged
unreasonable delays.
Such a scenario is “hypothetical” instead
of “real and immediate.”
See Lyons, 461 U.S. at 105-108.
While the Supreme Court in McLaughlin stated that the
plaintiffs had standing to bring an injunction against the county
for unreasonable delays in probable cause determinations, the
Court stated that the plaintiffs were being held in custody at
the time the complaint was filed.
McLaughlin, 500 U.S. at 51.
Because the plaintiffs in that case had filed a class action, the
“the termination of a class representative’s claim does not moot
the claims of the unnamed members of the class.”
Id.
However,
the case before this Court is distinguishable because Plaintiff
did not file his claim while he was in custody; instead, he filed
his claims well after he was released from custody and the harm
ceased.
See generally, Compl., ECF No. 1.
Thus, at the time
that he filed his Complaint, Plaintiff did not have standing to
sue for injunctive relief.
Additionally, the Court observes that
Plaintiff has not obtained class certification in this case.
Even if Plaintiff obtained class certification, he cannot use
other members of the class to establish standing because
“[s]tanding is a jurisdictional element that must be satisfied
prior to class certification.”
Lee v. State of Oregon, 107 F.3d
-38-
1382, 1391 (9th Cir. 1997).
“If the litigant fails to establish
standing, he may not ‘seek relief on behalf of himself or any
other member of the class.’”
Id.
In this case, because
Plaintiff’s Complaint does not contain allegations supporting a
conclusion that he has standing, neither he nor the class alleged
in the Complaint may present a claim for injunctive relief.
The Ninth Circuit has stated that a plaintiff may show
standing if there was either (1) “at the time of the injury, a
written policy, and that the injury ‘stems from’ that policy” or
(2) “the harm is part of a ‘pattern of officially sanctioned . .
. behavior, violative of the plaintiffs’ federal rights.’”
Melendres v. Arpaio, 695 F.3d 990, 998 (9th Cir. 2012).
Plaintiff has not alleged a written policy in his Complaint,20/
nor is it apparent that the delays are part of a “pattern of
officially sanctioned behavior.”
Even if Plaintiff alleges the
existence of a written policy in an amended complaint, the Ninth
Circuit recognizes an exception that standing should not be found
20/
The Complaint itself does not contain allegations that
the alleged 48 Hour Rule is a written policy as opposed to an
informal custom or practice. See generally, Compl., ECF No. 1.
While Plaintiff attached a written document to his Opposition
entitled “Limitations of the ‘48 Hour Rule’”; the Court in
Section I concluded that this document should not be considered
for a motion to dismiss. See Section I, supra at 6-8.
Furthermore, the Ninth Circuit has noted that the focus of a Rule
12(b)(6) motion to dismiss is the complaint; therefore, this
Court may not consider new allegations contained in a memorandum
in opposition to a defendant’s motion to dismiss. Schneider v.
California Dep't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.
1998).
-39-
if the future injury could be inflicted only in the event of
future illegal conduct.
Melendres, 695 F.3d at 998 (citing
Armstrong v. Davis, 275 F.3d 849, 865 (9th Cir. 2001) (abrogated
on other grounds) (“standing is inappropriate where the future
injury could be inflicted only in the event of future illegal
conduct by the plaintiff”)).
In this case, as noted above,
Plaintiff would need to commit some act giving police probable
cause to arrest, charge, and admit Plaintiff to bail.
Therefore,
the exception articulated in Melendres and Armstrong applies to
Plaintiff’s case.
Accordingly, Defendants’ Motion to Dismiss with respect
to Plaintiff’s request for a preliminary and permanent injunction
restraining Defendants from implementing the 48 Hour Rule is
GRANTED, although the Court gives Plaintiff leave to amend the
Complaint.
B. Declaratory Relief
In Hodgers-Durgin v. de la Vina, the Ninth Circuit
noted that equitable relief, including declaratory relief, should
be denied if the plaintiff cannot show a threat of “immediate and
irreparable harm.”
banc).
199 F.3d 1037, 1042 (9th Cir. 1999) (en
The plaintiffs in Hodgers sought a declaratory judgment
that “the roving patrol operations of the Border Patrol involve
systemic violations of the Fourth Amendment to the United States
Constitution.”
199 F.3d 1037, 1039 (9th Cir. 1999).
-40-
Plaintiff
in this case seeks a similar ruling that the HPD’s policy or
practice of “arresting persons without a warrant and then
unnecessarily detaining them for up to 48 hours without charges
and/or admission to bail violates the constitutional and
statutory rights of Plaintiff and the Plaintiff class.”
Compl.
at 12 ¶ 1, ECF No. 1.
In Hodgers, the Ninth Circuit stated that, independent
of the “case and controversy” issue, an “equitable remedy is
unavailable absent a showing of irreparable injury, a requirement
that cannot be met where there is no showing of any real or
immediate threat that the plaintiffs will be wronged again.”
F.3d 1037, 1042 (9th Cir. 1999).
199
The court of appeals observed
that, based on federalism concerns, “[t]he Supreme Court has
repeatedly cautioned that, absent a threat of immediate and
irreparable harm, the federal courts should not enjoin a state to
conduct its business in a particular way.”
Id. at 1042.
As a
result, the Ninth Circuit denied injunctive and declaratory
relief in Hodgers because the plaintiffs’ argument that they were
likely to be stopped again by Border Patrol was “too speculative
to warrant an equitable judicial remedy . . . that would require,
or provide a basis for requiring, that the Border Patrol change
its practices.”
Id. at 1044.
In this case, Plaintiff’s Complaint does not allege
facts demonstrating a real or immediate threat that Plaintiff
-41-
would be detained again under the 48 Hour Rule.
Accordingly, the
Court DISMISSES Plaintiff’s request for declaratory judgment, but
grants leave to amend.
V. Plaintiff’s Claims Under the Hawai#i Constitution
Plaintiff’s Complaint does not contain a separate cause
of action for violations of the Hawai#i Constitution.
Within
Plaintiff’s First Cause of Action - 42 U.S.C. § 1983, Plaintiff
alleges that “Plaintiff and other persons similarly situated have
been subjected to an unreasonable seizure and/or denied due
process of law in violation of rights guaranteed to them by . . .
the Constitution and laws of the State of Hawai#i.”
Compl. at 8
¶ 34, ECF No. 1.
The Court observes that Section 1983 only provides a
remedy for violations of certain federal rights.
Alston v. Read,
678 F. Supp. 2d 1061, 1074 (D. Haw. 2010) (reversed on other
grounds by Alston v. Read, 663 F.3d 1094 (9th Cir. 2011)).
Violations of state constitutions “are not cognizable under
Section 1983.”
Id.; see Oyama v. Univ. of Haw., Civ. No. 12-
00137 HG-BMK, 2013 WL 1767710 at *13 (D. Haw. 2013).
Additionally, Hawai#i does not have a statute or other
case-law equivalent to 42 U.S.C. § 1983.
Alston v. Read, 678 F.
Supp. 2d 1061, 1074 (D. Haw. 2010) (citing Mow by Mow v.
Cheeseborough, 696 F. Supp. 1360, 1365 (D. Haw. 1988)).
The
Hawai#i courts thus far have declined to recognize a private
-42-
cause of action for damages for violations of rights guaranteed
under the state constitution.
Galario v. Adewundmi, Civ. No. 07-
00159 DAE-KSC, 2009 WL 1227874 at *11 (D. Haw. 2009) (reversed on
other grounds by Galario v. Adewundmi, 2013 WL 3157511 (9th Cir.
2013)) (citing Makanui v. Dep’t. of Educ., 6 Haw. App. 397, 403
(1986)).
Plaintiff does not cite to any legal authority in
support of such a claim, and this Court declines to infer that
such a cause of action exists under the Hawai#i Constitution.
See also Gonzalez v. Okagawa, Civ. No. 12-00368 RLP, 2013 WL
2423219 at *10 (D. Haw. 2013).
Neither does Plaintiff qualify for declaratory relief
under Hawai#i Revised Statutes § 632-1, which states as follows:
Relief by declaratory judgment may be granted in civil
cases where an actual controversy exists between
contending parties, or where the court is satisfied
that antagonistic claims are present between the
parties involved which indicate imminent and inevitable
litigation, or where in any such case the court is
satisfied that a party asserts a legal relation,
status, right, or privilege in which the party has a
concrete interest and that there is a challenge or
denial of the asserted relation, status, right, or
privilege by an adversary party who also has or asserts
a concrete interest therein, and the court is satisfied
also that a declaratory judgment will serve to
terminate the uncertainty or controversy giving rise to
the proceeding.
In this case, the declaratory relief sought by
Plaintiff will not “terminate the uncertainty or controversy
giving rise to the proceeding.”
H.R.S. § 632-1.
The crux of
Plaintiff’s claim is that he was detained for an unreasonable
-43-
period of time; a declaration regarding the 48 Hour Rule would
not resolve the controversy of whether Plaintiff’s detention of
approximately 38 hours was reasonable or unreasonable.
For
example, assuming arguendo that the Court granted Plaintiff’s
request for a declaratory judgment that the 48 Hour Rule is
unconstitutional under the Hawai#i Constitution, such a ruling
does not determine whether the policy or practice caused the
alleged unreasonable detention or if the detention itself was
even unreasonable.
See F.K. ex rel. A.K. v. Dep’t of Educ., Civ.
No. 12-00136 ACK-RLP, 2012 WL 5438989 at *5 (D. Haw. 2012)
(holding that declaratory relief was inappropriate because the
“declaration would merely decide one element of [defendant’s]
negligence claim” against a third party).
Regarding injunctive relief, the Court previously
determined in Section IV.A. that Plaintiff does not have Article
III standing for such relief in federal court.
40.
See supra at 36-
Federal law, not state law, determines whether a plaintiff
has standing to sue for injunctive relief in a federal court.
See Hollingsworth v. Perry, – U.S. –, 133 S. Ct. 2652, 2667
(2013) (holding that standing in federal court is determined by
federal law instead of state law).
Thus, because Plaintiff filed
his state law claims in federal court, federal rules of standing
govern Plaintiff’s state law claims for injunctive relief.
Id.
As a result, the state law claims for injunctive relief must be
-44-
dismissed because according to federal law, Plaintiff lacks
standing to obtain injunctive relief.
See Section IV.A., supra
at 36-40.
Accordingly, the Court DISMISSES WITHOUT PREJUDICE
Plaintiff’s claims regarding the alleged violations of the
Hawai#i Constitution because Plaintiff does not have a remedy for
such claims in federal court.
VI. Plaintiff’s State Law Tort Claims
A.
Whether Plaintiff Fails to Allege a State Law Claim
Because of the Qualified or Conditional Privilege Doctrine
Defendants Kealoha and Tenn argue that Plaintiff’s
state law claims should be dismissed because Plaintiff fails to
properly plead the malice requirement to overcome the conditional
or qualified privilege defense.21/
Under the doctrine of
conditional or qualified privilege, nonjudicial government
officials are shielded from liability for their tortious actions
committed during the performance of their public duties.
See
Long v. Yomes, Civ. No. 11-00136, 2011 WL 4412847 at *6 (D. Haw.
2011).
In order for a plaintiff to prevail in a state tort
action against a nonjudicial government official, the plaintiff
must “allege and demonstrate by clear and convincing proof that
the official was motivated by malice and not by an otherwise
21/
Plaintiff in his Opposition does not address Defendants’
arguments regarding this claim.
-45-
proper purpose.”
Id. (quoting Edenfield v. Estate of Willets,
Civ. No. 05-00418, 2006 WL 1041724 at *11-12 (D. Haw. 2006).
The
Hawai#i Supreme Court defines “malice” as “the intent, without
justification or excuse, to commit a wrongful act, reckless
disregard of the law or of a person’s legal rights, and ill will;
wickedness of heart.”
Id. (quoting Awakuni v. Awana, 165 P.3d
1027, 1041 (Haw. 2007)) (internal quotation marks omitted).
In this case, Plaintiff merely alleges a conclusory
statement that “Defendants acted with malice.”22/
45, and 12, ¶ 48.
Compl. at 11, ¶
However, Plaintiff’s factual allegations
providing a timeline of events to illustrate delay do not provide
a factual basis to support his legal conclusion that Defendants
Kealoha and Tenn acted with malice.
See Compl. at 5-8.
In
Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009), the Supreme Court
found that the plaintiff’s general allegations of discriminatory
intent did not satisfy the requirements of Rule 8.23/
Thus,
22/
The Court notes that, at the hearing on July 29, 2013,
Plaintiff’s counsel argued that the officers had knowledge of
repeated constitutional violations from the 48 Hour Rule, and
that this “knowledge” demonstrated malice regarding Plaintiff’s
detention. While the Court makes no determination as to whether
malice would exist under the facts presented by Plaintiff’s
counsel; the Court observes that, in any event, these facts were
not alleged within the Complaint itself.
23/
The Supreme Court also found that Rule 9, which allows
plaintiffs to allege “malice, intent, knowledge, and other
conditions of a person’s mind” generally in fraud or mistake
cases, did not allow plaintiffs to make “conclusory statements
without reference to its factual context.” Iqbal, 556 U.S. at
(continued...)
-46-
Plaintiff’s allegation of malice as currently pled is not
sufficient, and the state law claims, namely his second, third,
and fourth causes of action, are DISMISSED without prejudice as
to all Defendants.24/
However, because Plaintiff may be able to
provide further allegations to address this defect, the Court
grants leave to amend.
Notwithstanding the above conclusion, the Court
examines each state law claim in turn to provide guidance for any
future amended complaint submitted by Plaintiff.
B.
Whether Plaintiff States a Claim for Negligent
Supervision and Training Against Defendant Kealoha and the
County
23/
(...continued)
686.
24/
Under Hawai#i law, the County may be liable for the torts
of its employees under the theory of respondeat superior. See
Silva v. City and Cnty. of Honolulu, at *13 (D. Haw. 2013)
(citing Wong-Leong v. Hawaiian Independent Refinery, Inc., 76
Hawai#i 433, 879 P.2d 538, 543 (Haw. 1994)). Because Plaintiff’s
allegations in the Complaint are based upon specific acts
allegedly committed by Defendant Tenn (See Compl. at 2-8, ¶¶ 131), the Court assumes that Plaintiff attempts to establish
County liability under the theory of respondeat superior.
Accordingly, dismissal of the state tort law claims against
Defendants Kealoha and Tenn also means that the state tort law
claims against the County should be dismissed. See Silva v. City
and Cnty. of Honolulu, Civ. No. 11-00561 LEK-RLP, 2013 WL 2420902
at *20 (D. Haw. 2013) (granting summary judgment to the County
because the County’s police officer employee was protected by
conditional privilege); Dawkins v. City and Cnty. of Honolulu,
Civ. No. 10-00086 HG-KSC, 2011 WL 1598788 at *19 (D. Haw. 2011)
(citing Reed v. City and Cnty. of Honolulu, 873 P.2d 98, 107
(Haw. 1982)) (“If a government employee is immune from suit, the
governmental employer is also immune from suit.”).
-47-
Under Hawai#i law, the tort of negligent supervision
has been explained as follows:
A master is under a duty to exercise reasonable care so
to control his servant while acting outside the scope
of his employment as to prevent him from intentionally
harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the
master or upon which the servant is
privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(B) the master
(i) knows or has reason to know that he has
the ability to control his servant, and
(ii) knows or should know of the necessity
and opportunity for exercising such control.
Dairy Road Partners v. Island Ins. Co., Ltd., 92
Hawai#i 398, 427, 992 P.2d 93, 122 (2000).
Defendants argue that Plaintiff fails to allege facts
indicating that Defendant Tenn acted outside the scope of his
employment.25/
Defs.’ MTD at 10, ECF No. 4.
The Court agrees
that Plaintiff’s negligent supervision claim as currently stated
fails to meet the pleading standard under Iqbal because there are
no factual allegations that would support Plaintiff’s legal
conclusion.
556 U.S. at 678-80; see also Thourot v. Tanuvasa,
25/
Plaintiff in his Opposition does not address Defendants’
arguments regarding this claim.
-48-
Civ. No. 11-00032, 2012 WL 474150 at (D. Haw. 2012) (court
dismissed negligent supervision claim because of plaintiff’s
failure to present factual allegations that defendants acted
outside the scope of employment).
Additionally, Plaintiff also fails to allege facts
supporting his bare legal conclusion that Defendant Kealoha or
the County “knew or should have known about the necessity and
opportunity to exercise control” over the officers.
Compl. at 11
¶ 41, ECF No. 1; see Otani v. City and Cnty. Of Haw., 126 F.
Supp. 2d 1299, 1308 (D. Haw. 1998).
These defects should be
addressed if Plaintiff decides to file an amended complaint.
C. Whether Plaintiff States a Claim for Negligence Against
All the Defendants
Under Hawai#i law, the elements for negligence are as
follows: (1) “A duty or obligation, recognized by the law,
requiring the defendant to conform to a certain standard of
conduct, for the protection of others against unreasonable
risks;” (2) “A failure on the defendant’s part to conform to the
standard required: a breach of duty;” (3) “A reasonably close
causal connection between the conduct and the resulting injury;”
and (4) “Actual loss or damage resulting to the interests of
another.”
Tseu ex rel. Hobbs v. Jeyte, 88 Hawaii 85, 91 (1998).
Defendants argue that Plaintiff fails to allege the
elements of duty and damages with sufficient particularity.
-49-
See
Compl. at 11, ¶ 43-45, ECF No. 1.
While the Court acknowledges
that Plaintiff’s Complaint barely meets the plausibility pleading
standard under Iqbal; the Hawai#i Supreme Court has “repeatedly
recognized a duty owed by all persons to refrain from taking
actions that might forseeably cause harm to others.”
Taylor-Rice
v. State, 979 P.2d 1086, 1097 (1999); see also Long v. Yomes,
Civ. No. 11-00136 ACK-KSC, 2011 WL 4412847 at *7 (D. Haw. 2011).
In this case, Plaintiff alleges specific acts committed
by Defendant Tenn that allegedly caused Plaintiff harm by
delaying his release.
Compl. at 2-8, ¶¶ 1-31, ECF No. 1.
Because the County and Defendant Kealoha’s liability is premised
on Defendant Tenn’s actions, it appears that Plaintiff attempts
to hold them responsible via the doctrine of respondeat superior.
As a result, the Court concludes that Plaintiff barely alleges a
negligence claim against Defendant Tenn, and in turn Defendants
Kealoha and the County.26/
However, while the negligence allegations barely meet
the pleading requirements under Iqbal, the Court dismisses the
negligence claim against Defendant Tenn on the basis of
conditional or qualified privilege as discussed above (supra at
45-47).
As a result, the negligence claim is also dismissed with
26/
The Court instructs Plaintiff that the negligence claim
should be amended to clarify the basis for relief. The claim is
vague, bordering on dismissal pursuant to Twombly and Iqbal, and
the Complaint must be amended for other purposes in any event.
-50-
respect to Defendants Kealoha and the County because they cannot
be held vicariously liable if Defendant Tenn is not liable.
See
Silva v. City and Cnty. of Honolulu, Civ. No. 11-00561 LEK-RLP,
2013 WL 2420902 at *20 (D. Haw. 2013) (granting summary judgment
to the City because the City’s police officer employee was
protected by conditional privilege); Dawkins v. City and Cnty. of
Honolulu, Civ. No. 10-00086 HG-KSC, 2011 WL 1598788 at *19 (D.
Haw. 2011) (citing Reed v. City and Cnty. of Honolulu, 873 P.2d
98, 107 (Haw. 1982)) (“If a government employee is immune from
suit, the governmental employer is also immune from suit.”).
D. Whether Plaintiff States a Claim for Negligent Infliction
of Emotional Distress (“NIED”)
The Hawai#i Supreme Court has stated that a NIED claim
that fails to allege physical injury as part of a plaintiff’s
damage is “nothing more than a negligence claim in which the
alleged actual injury is wholly psychic and is analyzed
“utilizing ordinary negligence principles.”
Doe Parents No. 1 v.
State of Haw., Dep’t. Of Educ., 100 Haw. 34, 69, 58 P.3d 545, 580
(2002).
However, in order to state a claim for NIED under
Hawai#i law, Plaintiff must allege “some predicate injury either
to property or to another person in order [for] himself or
herself to recover for negligently inflicted emotional distress.”
Id., 100 Haw. at 69-70, 58 P.3d at 580-81.
Thus, “an NIED
claimant must establish, incident to his or her burden of proving
-51-
actual injury (i.e., the fourth element of a generic negligence
claim), that someone was physically injured by the defendant’s
conduct, be it the plaintiff . . . or someone else.”27/
Id.
The Hawai#i Supreme Court has recognized exceptions to
the general rule that a claimant must establish physical injury
to a person or property; such exceptions are granted in cases
where the “circumstances . . . guarantee the genuineness and
seriousness of the claim.”
Doe Parents No. 1, 100 Haw. at 70, 58
P.3d at 581 (listing the following exceptions:
(1) “actual
exposure to HIV-positive blood,” (2) “mishandling of corpses,”
(3) “placing a child in an environment where he or she is left
unsupervised with an accused child molester”); see also
Kaho#ohanohano v. Dep’t of Human Servs., 117 Hawai#i 262, 288-89,
178 P.3d 538, 564-65 (2008) (recognizing NIED claim for father
and grandfather who witnessed child’s physical suffering after
department failed to protect child from abuse).
However, these
cases all involve “some kind of physical touching, harm, injury,
or future threat thereof.”
Galario v. Adewundmi, Civ. No. 07-
00159 DAE-KSC, 2009 WL 1227874 at *10 (D. Haw. 2009) (reversed on
other grounds by Galario v. Adewundmi, 2013 WL 3157511 (9th Cir.
2013)).
27/
Plaintiff in his Opposition does not address Defendants’
arguments regarding this claim.
-52-
In this case, Plaintiff’s NIED count in the Complaint
does not allege that any person or property was physically
injured by Defendants’ conduct.
See Compl. at 12, ¶¶ 46-48.
Nor
does the Complaint allege facts where the Court could infer that
one of the exceptions provided by the Hawai#i Supreme Court would
apply to the present case.
Id.
While the Court dismisses
Plaintiff’s Fourth Cause of Action for Negligent Infliction of
Emotional Distress based upon the conditional and qualified
privilege analysis explained above; these defects should also be
addressed if Plaintiff decides to file an amended complaint.
See
Tseu ex rel. Hobbs v. Jeyte, 88 Hawaii 85, 91 (1998) (dismissing
NIED claim for failure to allege physical injury).
CONCLUSION
For the foregoing reasons, the Court
(1) GRANTS Defendants’ Motion to Dismiss with respect
to Plaintiff’s § 1983 Fourth Amendment systemic claims against
the County, Kealoha, and Tenn regarding the alleged policy of the
48 Hour Rule and dismisses the claims WITHOUT PREJUDICE, GRANTS
Defendant County and Kealoha’s Motion to Dismiss with respect to
Plaintiff’s individual Fourth Amendment claim regarding the
alleged delay in Plaintiff’s probable cause determination and
dismisses the claims WITHOUT PREJUDICE, but DENIES Defendant
Tenn’s Motion to Dismiss with respect to Plaintiff’s individual
Fourth Amendment claim against Defendant Tenn in his individual
-53-
capacity regarding the alleged delay in Plaintiff’s probable
cause determination because Plaintiff states a claim and the
allegations in the Complaint do not indicate that Defendant Tenn
is entitled to qualified immunity at this stage in the
proceedings;
(2) GRANTS Defendants’ Motion to Dismiss with respect
to Plaintiff’s Sixth Amendment and Fourteenth Amendment Due
Process claims against all Defendants regarding the alleged delay
between Plaintiff’s arrest and formal charges and dismisses the
claims WITHOUT PREJUDICE;
(3) GRANTS Defendants’ Motion to Dismiss with respect
to Plaintiff’s Eighth Amendment claims against all Defendants
regarding an alleged delay in his admission to bail and dismisses
the claims WITH PREJUDICE;
(4) GRANTS Defendant Tenn’s Motion to Dismiss with
respect to Plaintiff’s § 1983 Fourteenth Amendment due process
claim regarding his admission to bail on the basis of qualified
immunity and dismisses the claim WITHOUT PREJUDICE.
(5) GRANTS Defendant County’s Motion to Dismiss
Plaintiff’s Fourteenth Amendment due process claim regarding his
admission to bail on the basis of failure to allege a Monell
claim and dismisses the claim WITHOUT PREJUDICE;
(6) GRANTS Defendant Kealoha’s Motion to Dismiss
Plaintiff’s Fourteenth Amendment due process claim regarding his
-54-
admission to bail on the basis of failure to allege a supervisor
liability or failure to train claim, and dismisses these claims
WITHOUT PREJUDICE.
(7) GRANTS Defendant County’s Motion to Dismiss
Plaintiff’s § 1983 Monell claims with respect to the policy,
practice, or custom claim and failure to train claim and
dismisses the claims WITHOUT PREJUDICE;
(8) GRANTS Defendants Kealoha’s and Tenn’s Motion to
Dismiss Plaintiff’s § 1983 claims against them in their official
capacities and dismisses the claims WITHOUT PREJUDICE;
(9) GRANTS Defendant Kealoha’s Motion to Dismiss
Plaintiff’s § 1983 claims regarding supervisor liability and
failure to train and dismisses the claims WITHOUT PREJUDICE;
(10) DENIES as moot Defendant Kealoha’s Motion to
Dismiss Plaintiff’s § 1983 claims against him in his individual
capacity on the basis of qualified immunity;
(11) GRANTS Defendants’ Motion to Dismiss Plaintiff’s
request for injunctive and declaratory relief under § 1983 and
Hawai#i law and dismisses the claims WITHOUT PREJUDICE;
(12) GRANTS Defendants’ Motion to Dismiss Plaintiff’s
claims under the Hawai#i Constitution and dismisses the claims
WITHOUT PREJUDICE;28/
28/
As noted in Semtek Intern. Inc. v. Lockheed Martin Corp.,
531 U.S. 497, 505-06, 121 S. Ct. 1021, 1027 (2001), the fact that
(continued...)
-55-
(13) GRANTS Defendants’ Motion to Dismiss with respect
to Plaintiff’s Second Cause of Action regarding Negligent
Training/Supervision and dismisses the claims WITHOUT PREJUDICE;
(14) GRANTS Defendants’ Motion to Dismiss with respect
to Plaintiff’s Third Cause of Action regarding Negligence and
dismisses the claims WITHOUT PREJUDICE; and
(15) GRANTS Defendants’ Motion to Dismiss with respect
to Plaintiff’s Fourth Cause of Action regarding Negligent
Infliction of Emotional Distress and dismisses the claims WITHOUT
PREJUDICE.
The Court also GRANTS Plaintiff leave to file an
amended complaint within thirty (30) days of the date of this
Court’s written order to address the rulings set forth in this
order.
The Court CAUTIONS Plaintiff that, if he fails to timely
file an amended complaint, the claims which this Court has
dismissed without prejudice will be automatically dismissed with
prejudice.
Further, if the amended complaint fails to address
the defects identified in this Order, the Court may dismiss such
claims with prejudice.
28/
(...continued)
this Court dismisses the state constitutional law claims has no
bearing as to whether Plaintiff may file such claims in state
court.
-56-
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, August 20, 2013.
________________________________
Alan C. Kay
Sr. United States District Judge
Ilae v. Tenn et al., Civ. No. 12-00316 ACK-KSC: ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S
COMPLAINT.
-57-
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