Gonzalez v. Okagawa et al
Filing
137
MEMORANDUM OPINION AND ORDER (1) GRANTING CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT 113 ; (2) GRANTING JENSEN OKAGAWA AND ROBERTO CADIZ'S MOTION FOR SUMMARY JUDGMENT 123 ; AND (3) DENYING PLAINTIFF'S AMENDED MOTION FO R SUMMARY JUDGMENT 126 . Signed by JUDGE RICHARD L. PUGLISI on 6/3/2013. ~ "The Court GRANTS summary judgment in favor of Defendants on all counts and directs the Clerk of Court to close this case." ~ [Order follows hearing held May 31, 2013. Minutes: 136 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANTONIO D. GONZALEZ, JR.,
)
)
Plaintiff,
)
)
vs.
)
)
JENSEN OKAGAWA; ROBERTO CADIZ; )
CITY AND COUNTY OF HONOLULU,
)
)
Defendants.
)
)
______________________________ )
CIVIL NO. 12-00368 RLP
MEMORANDUM OPINION AND ORDER
(1) GRANTING CITY AND COUNTY
OF HONOLULU’S MOTION FOR
SUMMARY JUDGMENT; (2) GRANTING
JENSEN OKAGAWA AND ROBERTO
CADIZ’S MOTION FOR SUMMARY
JUDGMENT; AND (3) DENYING
PLAINTIFF’S AMENDED MOTION FOR
SUMMARY JUDGMENT
MEMORANDUM OPINION AND ORDER (1) GRANTING CITY AND COUNTY OF
HONOLULU’S MOTION FOR SUMMARY JUDGMENT; (2) GRANTING JENSEN
OKAGAWA AND ROBERTO CADIZ’S MOTION FOR SUMMARY JUDGMENT; AND
(3) DENYING PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT
The following motions came on for hearing on May 31,
2013, at 11:00 a.m.:
(1) Defendant City and County of Honolulu’s CounterMotion For Summary Judgment (“City’s Motion”);
(2) Defendants Jensen Okagawa and Roberto Cadiz’s
Motion for Summary Judgment (“Officer Defendants’ Motion”); and
(3) Plaintiff Antonio Diaz Gonzalez, Jr.’s Amended
Motion of Summary Judgment on Any and All Claims Asserted by
Plaintiff in the Complaint filed 6/27/12 (“Plaintiff’s Motion”).
Plaintiff Antonio D. Gonzalez, Jr. appeared pro se.
Curtis Sherwood, Esq. and Marguerite Nozaki, Esq. appeared on
behalf of the City, Defendant Okagawa, and Defendant Cadiz.
After careful consideration of the Motions, the supporting and
opposing memoranda, the concise statements of fact, declarations,
and exhibits attached thereto, and the record established in this
action, the Court GRANTS the City’s Motion, GRANTS the Officer
Defendants’ Motion and DENIES Plaintiff’s Motion.
PROCEDURAL HISTORY
Plaintiff alleges that he was arrested by officers of
the Honolulu Police Department (“HPD”) without probable cause for
criminal property damage in the third degree on the evening of
October 20, 2011, when Plaintiff went to a Wal-Mart store on Oahu
(the “Store”).
See Amended Compl., ECF No. 96.
The criminal
charge against Plaintiff was eventually dismissed with prejudice.
Id. ¶ 33.
Plaintiff filed his initial Complaint on June 27, 2012.
ECF No. 1.
No. 39.
The City moved for dismissal of the Complaint.
ECF
Before the court issued a decision on the City’s motion
to dismiss, Plaintiff filed a “Motion of Summary Judgment on any
and all claims asserted by Plaintiff in the Complaint filed
06/27/12.”
See ECF No. 93.
On the next day, the court granted
in part and denied in part the City’s motion to dismiss and gave
Plaintiff leave to file an amended complaint.
ECF No. 94.
Plaintiff filed an Amended Complaint for Damages on January 3,
2013.
Amended Compl., ECF No. 96.
On March 11, 2013, the City
Defendants filed a Counter Motion for Summary Judgment.
Mot., ECF No. 113.
City’s
The Officer Defendants filed their Motion for
Summary Judgment on April 12, 2013.
2
Officer Defs.’ Mot., ECF No.
123.
On April 26, 2013, Plaintiff filed an “Amended Motion of
Summary Judgment on Any and All Claims Asserted by Plaintiff in
the Complaint Filed 06/27/12.”
Pl.’s Mot., ECF No. 126.
Based
on the filing of the Amended Motion, the Court dismissed as moot
Plaintiff’s initial motion for summary judgment.
ECF No. 128.
All three pending motions for summary judgment came on for
hearing on May 31, 2013.
BACKGROUND FACTS
The parties’ different descriptions of the incident are
detailed below.
I.
Defendants’ Account of the Events
In support of their Motions, Defendants submitted
declarations from Defendant Cadiz and Defendant Okagawa, and an
affidavit from Jonathan Querido.
See City’s Separate and Concise
Counter-Statement of Facts in Support of its Counter-Motion for
Summary Judgment (ECF No. 112); Officer Defendants’ Separate and
Concise Statement of Facts in Support of Their Motion for Summary
Judgment (ECF No. 124); and Defendants’ Separate and Concise
Counter-Statement of Facts in Opposition to Plaintiff’s Motion
(ECF No. 133).
On the evening in question, Jonathan Querido drove his
car to the Store.
¶ 3.
Affidavit of Jonathan Querido (“Querido Aff.”)
After Mr. Querido parked his car in the parking lot, he
observed a white truck slow and stop behind his parked vehicle.
3
Querido Aff. ¶ 6.
Mr. Querido noticed that the window of the
white truck was rolled down and the driver was staring at Mr.
Querido.
Querido Aff. ¶ 6.
Mr. Querido waited at the entrance
of the Store to watch his vehicle.
Querido Aff. ¶ 8.
Mr.
Querido observed the same white truck that had stopped behind his
car park a couple of stalls away.
Querido Aff. ¶ 8.
Mr. Querido
observed a man exit the white truck and walk along the driver’s
side of Mr. Querido’s car.
Querido Aff. ¶ 9.
As the man walked
passed the front end of Mr. Querido’s car, Mr. Querido observed
the man extend his arm over the hood.
Querido Aff. ¶ 10.
Mr.
Querido checked his car and found a deep scratch on the driver’s
side door and hood of his vehicle.
Querido Aff. ¶ 11.
Querido called the police to report the incident.
Mr.
Querido Aff.
¶ 13.
Defendant Cadiz responded to the call at approximately
9:15 p.m.
Declaration of Roberto Cadiz (“Cadiz Decl.”) ¶ 6.
Shortly after he arrived, Defendant Cadiz met with and
interviewed Mr. Querido.
Cadiz Decl. ¶ 7.
Mr. Querido told
Defendant Cadiz what he had earlier observed.
12; Querido Aff. ¶ 14.
Cadiz Decl. ¶¶ 8-
Mr. Querido told Defendant Cadiz that his
car did not have the scratch marks prior to driving to the Store,
that he did not give anyone permission to damage his car, and
that he estimated the damage to his car was approximately $1000.
Querido Aff. ¶ 12; Cadiz Decl. ¶ 13.
4
Mr. Querido identified the
white truck with license plate PTR 107 as the truck he saw the
man exit from.
Querido Aff. ¶ 2; Cadiz Decl. ¶ 16.
Mr. Querido
described the man who exited the white truck as a tall older bald
man wearing a white shirt.
Querido Aff. ¶ 2; Cadiz Decl. ¶ 16.
Defendant Okagawa arrived at the scene shortly after
Defendant Cadiz, but did not call into dispatch that he was at
the location.
Declaration of Jensen Okagawa, dated April 12,
2013 (“Okagawa Decl. I”) ¶ 9.
Defendant Okagawa stated that he
did not typically respond to misdemeanor calls, but he decided to
respond to this particular call because he felt that there was a
potential risk to officer safety because the suspect was still in
the area.
Okagawa Decl. I ¶ 7-8.
Defendant Okagawa stated that
he did not call into dispatch upon his arrival because he “did
not want to be seen as micro-managing the officers” in his
sector.
Okagawa Decl. I ¶ 10.
After Defendant Okagawa arrived
on scene, he went over to Mr. Querido’s vehicle and observed two
large scratches along the driver’s side and on the hood of the
vehicle.
Okagawa Decl. I ¶¶ 14-16.
Defendant Okagawa believed
that the scratches were recently made because he could see a
hanging thread of paint at the end of one of the scratches.
Okagawa Decl. I ¶ 17.
Approximately ten minutes after Defendant Cadiz arrived
on scene he called into dispatch to request that dispatch run the
license plate of the white truck.
5
Cadiz Decl. ¶ 30; Declaration
of Jensen Okagawa, dated May 8, 2013 (“Okagawa Decl. II”) ¶ 11;
Ex. J to Defs.’ Counter-Statement, ECF No. 133-15 (recordings of
radio transmission on the night of the incident).
Dispatch
responded almost immediately that the white truck was registered
to “Antonio Gonzalez.”
Cadiz Decl. ¶ 31; Okagawa Decl. II ¶ 14.
Defendant Cadiz went into the Store to look for a
person matching the description provided by Mr. Querido.
Decl. ¶ 17.
Cadiz
Defendant Cadiz located a person who fit Mr.
Querido’s description of the suspect and escorted that person
outside the Store.
conducted.
Cadiz Decl. ¶¶ 17-18.
Cadiz Decl. ¶ 17.
A field show-up was
Mr. Querido said that the person
was not the individual that damaged his vehicle.
Cadiz Decl.
¶ 19.
Defendant Okagawa spoke with the Store security and
learned that the Store had a video system in the parking lot area
that likely captured the incident.
Okagawa Decl. I ¶ 21.
Defendant Okagawa then went with Store security personnel and
reviewed the video captured of the parking lot that evening.
Okagawa Decl. I ¶ 22.
Defendant Okagawa observed on the video a
man exit from a white truck, walk next to Mr. Querido’s vehicle,
extend his arm over the hood of Mr. Querido’s car, and then walk
toward the Store entrance.
Okagawa Decl. I ¶ 23.
A copy of the
video that Defendant Okagawa viewed at the Store was later
obtained by HPD and was attached as an exhibit to Defendant
6
Okagawa’s Declaration.
Okagawa Decl. I ¶ 24.
Ex. A to Okagawa Decl. I, ECF No. 116;
After viewing the video, Defendant Okagawa
met with the other officers outside the Store.
Okagawa Decl. I
¶ 25.
Defendant Cadiz went into the Store again and contacted
the Store’s personnel to ask if the intercom system could be used
to summon the driver of the white truck to come to the customer
service counter.
Cadiz Decl. ¶ 23.
A request was made over the
Store’s intercom, but no one responded.
Cadiz Decl. ¶ 23.
Defendant Cadiz then went back outside the store and spoke with
Defendant Okagawa who told Defendant Cadiz that he had viewed a
video on the Store’s surveillance system that had captured the
incident.
Cadiz Decl. ¶ 25.
Defendant Cadiz went into the Store
again to try to locate the suspect.
Cadiz Decl. ¶ 26.
At
approximately 10:00 p.m., Defendant Cadiz saw an older bald man
standing in line at one of the registers.
Cadiz Decl. ¶ 27.
The
man Defendant Cadiz approached was asked if he was the driver of
the white truck, to which Plaintiff replied “yes.”
¶ 29.
Cadiz Decl.
Defendant Cadiz then asked Plaintiff to produce
identification.
Cadiz Decl. ¶ 30.
Plaintiff showed Defendant
Cadiz a Hawaii driver’s license with the name “Antonio Gonzalez,
Jr.” and a photograph bearing his resemblance.
Cadiz Decl. ¶ 30.
Defendant Cadiz then asked Plaintiff to accompany him outside,
and Plaintiff agreed to do so.
Cadiz Decl. ¶ 32.
7
At this time, Defendant Okagawa called into dispatch
that he was at the location.
Okagawa Decl. I ¶ 10.
Outside the store a field show-up was conducted.
Querido Aff. ¶ 2; Okagawa Decl. I ¶ 28.
Mr. Querido identified
Plaintiff as the man he observed exit the white truck and scratch
his vehicle.
Querido Aff. ¶ 19; Okagawa Decl. I ¶ 30; Cadiz
Decl. ¶ 33.
Shortly after Mr. Querido identified Plaintiff,
Defendant Okagawa informed Defendant Cadiz that Plaintiff was the
same man that Defendant Okagawa had seen on the surveillance
video.
Cadiz Decl. ¶ 35.
Defendant Okagawa asked Mr. Querido if
he was going to file a criminal complaint against Plaintiff, to
which Mr. Querido replied that he wanted to have Plaintiff
prosecuted for the damage done to his vehicle.
¶ 35.
Okagawa Decl. I
Defendant Okagawa spoke with Defendant Cadiz and told him
that he believed that probable cause existed to arrest Plaintiff.
Okagawa Decl. I ¶ 38.
Defendant Cadiz then informed Plaintiff that he was
under arrest for criminal property damage in the third degree.
Cadiz Decl. ¶ 36.
Decl. ¶ 28.
Plaintiff was then placed in handcuffs.
Plaintiff was very argumentative and denied damaging
any vehicle, but the arrest occurred without incident.
Decl. ¶ 39.
Cadiz
Cadiz
Plaintiff was then brought to the Pearl City Police
Substation by another officer.
Okagawa Decl. I ¶ 40.
Plaintiff’s truck was not seized or even touched by the
8
police officers on the night of the incident.
¶ 43.
Okagawa Decl. I
Neither Defendant Cadiz nor Defendant Okagawa took
Plaintiff’s truck from him, nor did they instruct any other
officer to do so.
Okagawa Decl. I ¶ 44.
II. Plaintiff’s Account of the Events
Plaintiff filed an untimely Separate and Concise
Statement of Facts both in support of his Amended Motion and in
opposition to both of the Defendants’ Motions.
Statement, ECF No. 130.
See Pl.’s
Plaintiff’s Concise Statement does not
specifically accept or deny the facts set forth in Defendants’
Concise Statements.
130.
Compare ECF Nos. 112 and 124 with ECF No.
Instead, Plaintiff’s Concise Statement responds to some of
the facts set forth in Defendants’ Concise Statements by listing
facts and arguments, some of which purport to controvert
Defendants’ facts.
Id.
Plaintiff submitted excerpts of
Interrogatory Responses from Defendant Cadiz and Mr. Querido.
Exs. 2 and 3 to Pl.’s Statement, ECF Nos. 130-3, 130-4.
The only
declaration submitted by Plaintiff is the Declaration of
Defendant Okagawa, dated April 12, 2013, which was included with
Defendants’ Concise Statements.
ECF No. 130-13.
See Ex. 13 to Pl.’s Statement,
Plaintiff did not provide a declaration or
affidavit from himself or any other witness to support the facts
alleged.
Although Plaintiff references in his Motion that he
spoke with a “Confidential Source” and an assistant manager at
9
the Store, such statements are not sufficient under Rule 56 and
will not be considered by the Court.
See Pl.’s Mot., ECF No.
126, at 35-36; Pl.’s Opp. to Officer Defs.’ Mot., ECF No. 127, at
27, 54, 64-65.
Most of the assertions in Plaintiff’s Concise Statement
are not statements of fact, but are instead arguments related to
what the police officers allegedly failed to do or should have
done differently on the night of the incident.
See Pl.’s
Statement, ECF No. 130, at 2-3, 4-6, 12-14, 16-20, 22-23.
The
Court will only address the facts presented in Plaintiff’s
Statement.
Most of Plaintiff’s factual assertions are
inadmissible because they lack foundation, are not based on
personal knowledge, and/or are speculative and conclusory.
Only
admissible evidence can be considered on a motion for summary
judgment.
See Fed. R. Civ. P. 56(e); Orr v. Bank of Am., 285
F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider
admissible evidence in ruling on a motion for summary
judgment.”).
Plaintiff does not properly authenticate any of the
documents attached to Plaintiff’s Concise Statement or to his
Motion.
Authentication is a “condition precedent to
admissibility,” and this condition is satisfied by “evidence
sufficient to support a finding that the matter in question is
what its proponent claims.”
Fed. R. Evid. 901(a).
The Ninth
Circuit has “repeatedly held that unauthenticated documents
10
cannot be considered in a motion for summary judgment.”
F.3d at 773 (citations omitted).
Orr, 285
Finally, material facts
submitted by Defendants that are not controverted by Plaintiff’s
facts or evidence in the record will be deemed admitted for the
purpose of disposing of these Motions.
See LR 56.1(g);
Television Events & Mktg., Inc. v. AMCON Distrib., Co., 484 F.
Supp. 2d 1124, 1128 n.1 (D. Haw. 2006).
When Mr. Querido called the police to report the
incident, Mr. Querido described the suspect as a “Samoan male
wearing white shirt and shorts.”
at 2.
To support this statement, Plaintiff attached the HPD
“Incident Recall” sheet.
2.
Pl.’s Statement, ECF NO. 130,
This document states:
Ex. 1 to Pl.’s Statement, ECF No. 130“IN THE PLOT LOWER LVL FRNTG NEXT TO A
BRN ACURA / SAM ML JST KEYED HIS CAR / ML WEARING WHT SHIRT AND
SHORTS / ML IS SILL IN THE AREA.”
Id.
Although Plaintiff did
not submit a declaration authenticating this document, Defendant
Okagawa states in his declaration that he reviewed “Incident
Recall Sheets, or CADS, prepared by dispatch, which summarize the
radio transmissions made that evening.”
Okagawa Decl. II ¶ 6.
Plaintiff is an African-American male and wore a green
shirt and beige shorts on the evening in question.
Querido
Interrog. Responses, Ex. 3 to Pl.’s Statement, ECF No. 130-4, at
7 (stating that Plaintiff was wearing “a faded green t-shirt”
when Mr. Querido identified him); Pl.’s Dep., ECF Nos. 112-5,
11
124-8, 133-9, 78:13-17.
Plaintiff attached to his Motion a mug
shot, which depicts a male wearing a green shirt.
Pl.’s Mot., ECF No. 127-18.
Ex. 17 to
Plaintiff also cites Defendant
Okagawa’s report, which states that Plaintiff was wearing a green
t-shirt and beige shorts.
5, at 1.
Ex. 4 to Pl.’s Statement, ECF No. 130-
Neither the mug shot nor the report are admissible
because Plaintiff did not provide any declaration or affidavit to
authenticate these documents or lay a proper foundation.
However, a properly authenticated photograph of Plaintiff on the
night of the incident was submitted with the Officer Defendants’
Concise Statement, which shows Plaintiff wearing a green t-shirt.
Ex. B to Officer Defs.’ Statement, ECF No. 124-6; Okagawa Decl. I
¶ 32.
Plaintiff does not dispute that Mr. Querido also
described the person he saw scratch his car as a tall, bald,
older man, possibly in his 50s.
See ECF No. 130 at 6-7.
Plaintiff asserts, without citation to any evidence,
that he was not the individual who drove “his white Mazda truck,”
license plate PTR 107, to the Store that evening.
Statement, ECF No. 130, at 3, 4, 8.
Pl.’s
Plaintiff did not provide a
declaration or affidavit in support of his Motion or in
Opposition to Defendants’ Motions.
Plaintiff repeatedly refused
to answer questions regarding the incident during his deposition
stating that he refused to do so on the basis of his Fifth
12
Amendment right against self-incrimination.
Nos. 112-12, 124-8, 133-9, at 15:6-72:17.
See Pl.’s Dep., ECF
Without admissible
evidence to support this statement, the Court cannot consider it.
Plaintiff states, without citation to any evidence,
that Defendant Cadiz did not inquire whether he was the “driver”
of the white truck when Defendant Cadiz approached Plaintiff at
the register inside the Store.
9.
Pl.’s Statement, ECF No. 130, at
As noted above, Plaintiff did not provide a declaration or
affidavit in support of his Motion and refused to answer
questions at his deposition regarding the incident.
See Pl.’s
Dep., ECF Nos. 112-12, 124-8, 133-9, at 15:6-72:17.
Without
admissible evidence to support this statement, the Court cannot
consider it.
Plaintiff states that he did not have “on his person” a
Hawaii driver’s license on the evening in question.
Statement, ECF No. 130, at 9.
Pl.’s
Plaintiff cites Defendant Cadiz’s
report in support of this statement.
Id.
However, Defendant
Cadiz’s report states that Defendant Cadiz approached Plaintiff
“standing in line at the check out register” and “inquired if he
was the driver of the suspect’s vehicle, PTR 107, to which
[Plaintiff] replied ‘yes’” and then Plaintiff “was identified via
his Hawaii Driver’s License as Antonio GONZALEZ.”
Statement, ECF No. 130-8.
Ex. 7 to Pl.’s
Even assuming that this document was
properly authenticated, there is nothing in Defendant Cadiz’s
13
report to support Plaintiff’s assertion that he did not have his
driver’s license on his person.
Without admissible evidence to
support this statement, the Court cannot consider it.
Plaintiff asserts that he was placed under arrest at
22:00 hours while he was inside the Store at the register.
Statement, ECF No. 130, at 10.
Pl.’s
Although not referenced by
Plaintiff in his Concise Statement, Plaintiff testified at his
deposition that Defendant Cadiz told Plaintiff that he was under
arrest at the register inside the Store.
Q: Did any of the officers tell you that you
were under arrest before you were taken
outside?
A: Yeah.
Q: Who did?
A: Cadiz.
Q: Cadiz told you that you were under arrest
while you were inside of the Wal-Mart?
A: Yeah.
Q: That’s a yes?
A: (Witness nods head up and down.)
Q: Was that there at the checkout?
A: Yeah.
Pl.’s Dep., ECF Nos. 112-12, 124-8, 133-9, at 79:7-19.
Additionally, Defendant Cadiz responded to an interrogatory that
Plaintiff was “placed under arrest at 2200 hours.”
14
Cadiz
Interrog. Responses, Ex. K to Defs.’ Statement, ECF No. 133-161.
Plaintiff’s Store receipt from the night of the incident shows
that he completed his transaction at the register inside the
Store at 22:00:30 hours.
Ex. 9 to Pl.’s Statement, ECF No. 130-
10; Ex. C to Pl.’s Dep., ECF No. 112-12, at 28.
Mr. Querido saw three uniform police officers escort
Plaintiff along the front of the Store to within a few yards of
Mr. Querido.
Querido Interrog. Responses, ECF No. 130-4, at 3.
Defendant Cadiz escorted Plaintiff to Mr. Querido’s location
“close enough for [Mr. Querido] to make a positive
identification.”
2.
Querido Interrog. Responses, ECF No. 130-4, at
Defendant Cadiz asked Mr. Querido if he could identify the
person who scratched his car.
Querido Interrog. Responses, ECF
No. 130-4, at 2.
Plaintiff notes that the HPD “Incident Recall” sheet
reflects that Defendant Okagawa did not call into dispatch to
report that he was at the location until 21:58 hours, two minutes
before Plaintiff asserts he was placed under arrest.
Pl.’s
Statement, ECF No. 130, at 17-19 (citing Ex. 1 to Pl.’s
Statement, ECF No. 130-2).
However, Plaintiff offers no facts to
1
The copies of the interrogatory responses provided by
Plaintiff are incomplete and do not contain this response. See
Ex. 2 to Pl.’s Motion, ECF No. 126-3; Ex. 2 to Pl.’s Statement,
ECF No. 130-3. However, Defendants provided Defendant Cadiz’s
complete interrogatory responses with their Concise Statements.
See Ex. K to Defs.’ Statement, ECF No. 133-16.
15
controvert Defendant Okagawa’s statements in his declaration that
he was on scene prior to that time, but did not call into
dispatch until later.
See id.
Plaintiff states that when he was outside Defendant
Okagawa “berated” him stating “The guy said you scratched his
car.
He was watching you from inside the store.”
Statement, ECF No. 130, at 22.
me?”
say.”
Id.
Id.
Pl.’s
Plaintiff replied “It was not
Defendant Okagawa stated “That’s not what the camera
Plaintiff states that after Defendant Okagawa said
this to him, Defendant Okagawa walked approximately thirteen
yards away and spoke with Mr. Querido.
Id. at 23.
As noted
above, Plaintiff did not provide a declaration or affidavit in
support of his Motion and refused to answer questions regarding
the incident during his deposition.
See generally Pl.’s Dep.,
ECF Nos. 112-12, 124-8, 133-9, at 15:6-72:17.
Without admissible
evidence to support these statements, the Court cannot consider
them.
Plaintiff does not dispute that he had one prior
arrest, but notes that he was eventually cleared of the charges.
Pl.’s Statement, ECF No. 130, at 24.
In addition, Plaintiff does
not dispute, or even address, the following facts set forth in
Defendants’ Concise Statements.
See ECF No. 130.
Plaintiff’s
truck was never seized or even touched by the police officers.
See ECF No. 124 at 4.
Defendant Cadiz and Defendant Okagawa did
16
not take Plaintiff’s truck from him or instruct any other officer
to do so.
Id.
Defendant Cadiz and Defendant Okagawa did not
know Plaintiff and were not familiar with him prior to the night
of the incident.
Id.
Defendant Cadiz and Defendant Okagawa did
not harbor any ill will toward Plaintiff on the night of the
incident.
Plaintiff.
Id.
The Court deems these facts admitted by
See LR 56.1(g).
DISCUSSION
Summary judgment is appropriate where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
A fact
is material when, under the governing substantive law, it could
affect the outcome of the case.
477 U.S. 242, 248 (1986).
Anderson v. Liberty Lobby, Inc.,
A dispute about a material fact is
genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id.
“Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment.”
T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The party seeking summary judgment bears the initial
burden of establishing the absence of a genuine issue of material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
moving party can satisfy this burden in two ways: (1) by
presenting evidence that negates an essential element of the
17
The
nonmoving party’s case, or (2) by demonstrating that the
nonmoving party failed to make a showing sufficient to establish
an element essential to that party’s case on which that party
will bear the burden of proof at trial.
Id. at 322-23.
If the moving party meets this initial burden, the
nonmoving party cannot defeat summary judgment merely by
demonstrating “that there is some metaphysical doubt as to the
material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Rather, the nonmoving party
must “go beyond the pleadings” and by “the depositions, answers
to interrogatories, and admissions on file,” designate “specific
facts showing that there is a genuine issue for trial.”
Corp., 477 U.S. at 324.
Celotex
Courts have “refused to find a ‘genuine
issue’ where the only evidence presented is ‘uncorroborated and
self-serving’ testimony.”
Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause,
Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).
“Conclusory
allegations unsupported by factual data cannot defeat summary
judgment.”
Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074,
1078 (9th Cir. 2003).
“Only admissible evidence may be
considered in deciding a motion for summary judgment.”
Miller v.
Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006).
Where conflicting evidence is presented by both
parties, “the judge must assume the truth of the evidence set
18
forth by the nonmoving party with respect to that fact.”
Elec. Serv., 809 F.2d at 631.
T.W.
Evidence and inferences must be
construed in the light most favorable to the nonmoving party.
Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir. 2005).
Courts do not make credibility determinations or weigh
conflicting evidence at the summary judgment stage.
Id.; see
also Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009)
(“credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.”) (citations omitted).
However,
inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.
T.W. Elec. Serv., 809 F.2d at
631.
I.
The Court Will Consider the Merits of Plaintiff’s
Motion.
Defendants argue that Plaintiff’s Motion should not be
considered by the Court because it is based on Plaintiff’s prior
complaint and was not filed timely.
Mot., ECF No. 132, at 3-4.
See Defs.’ Opp. to Pl.’s
A pro se litigant’s filings must be
read more liberally than those drafted by counsel.
Haines v.
Kerner, 404 U.S. 519, 520–21 (1972); Wolfe v. Strankman, 392 F.3d
358, 362 (9th Cir. 2004).
Also, when a pro se plaintiff
technically violates a rule, the court should act with leniency
19
toward the pro se litigant.
(9th Cir. 1986).
Draper v. Coombs, 792 F.2d 915, 924
Defendants assert that Plaintiff’s Motion is
not viable because it is based on his original complaint, which
was superceded by the filing of his Amended Complaint.
Defs.’ Opp. to Pl.’s Mot., ECF No. 132, at 3-4.
See
Although the
title of Plaintiff’s Motion appears to be based on Plaintiff’s
original complaint filed on June 27, 2012, construing Plaintiff’s
filing liberally, the Court finds that Plaintiff is seeking
summary judgment on his Amended Complaint.
Defendants also
assert that Plaintiff’s Motion should be disregarded because it
was filed nine days after the dispositive motions deadline
expired.
Defs.’ Opp. to Pl.’s Mot., ECF No. 132, at 4.
Court agrees that Plaintiff’s motion was untimely.
65, Rule 16 Scheduling Order.
The
See ECF No.
However, given Plaintiff’s pro se
status and the fact that Plaintiff was only nine days late, the
Court will consider Plaintiff’s Motion.
II.
Defendants Are Entitled to Summary Judgment on
Plaintiff’s Constitutional Claims.
Plaintiff’s first claim is entitled “Violations of the
Constitution of the State of Hawaii.”
96, at 6.
Amended Compl., ECF No.
However, Plaintiff alleges in this first claim that he
was “assaulted, improperly detained, and suffered the loss of his
liberty without any probable, sufficient, just, or reasonable
cause in the violation of rights guaranteed to him by the Fourth,
20
Fifth, and Fourteenth Amendments to the United States
Constitution, and Article 1 of the Constitution of the State of
Hawaii.”
Id. ¶ 24.
Plaintiff also states that this Court has
“jurisdiction over this matter pursuant to 42 U.S.C., 1983 and 28
U.S.C., 1331” because this is a “civil action[] arising under the
Constitution, laws, or treaties of the United States.”
¶¶ 1-2.
Id.
Accordingly, the Court will address this claim as if
Plaintiff seeks recovery under both the Hawaii Constitution and
Section 1983.
A.
Plaintiff’s Claim Under the Hawaii Constitution
First, to the extent Plaintiff attempts to assert a
Section 1983 claim based on violations of the Hawaii
Constitution, that claim fails because state constitutional
claims are not covered by Section 1983.
See Moreland v. Las
Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998)
(“state law violations do not, on their own, give rise to
liability under § 1983” (citation omitted)); Lovell v. Poway
Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) (“Section
1983 limits a federal court’s analysis to the deprivation of
rights secured by the federal ‘Constitution and laws.’” (citing
42 U.S.C. § 1983)).
Second, to the extent Plaintiff is bringing this claim
directly under the Hawaii Constitution, Hawaii courts have
declined to recognize a direct private cause of action for
21
violation of rights guaranteed under the provisions of the Hawaii
Constitution listed by Plaintiffs.
See Makanui v. Dep’t of
Educ., 6 Haw. App. 397, 721 P.2d 165, 170 n. 2 (Haw. Ct. App.
1986) (“We do not decide whether Hawaii recognizes a cause of
action for damages for deprivation of rights under the state’s
constitution or laws.”); see also Maizner v. Hawaii Dep’t of
Educ., 405 F.Supp. 2d 1225, 1240 (D. Haw. 2005); Galario v.
Adewundmi, Civ. No. 07-00159 DAE-KSC, 2009 WL 1227874, at *11 (D.
Haw. May 1, 2009) (granting summary judgment against a plaintiff
because such a cause of action has not been recognized); Alston
v. Read, 678 F.Supp. 2d 1061, 1074 (D. Haw. 2010), reversed on
other grounds 663 F.3d 1094 (9th Cir. 2011) (“There is no Hawaii
statutory or case-law equivalent to 42 U.S.C. § 1983).
Plaintiff
does not offer any legal authority that such an action is
cognizable and this Court declines to infer or create such a
cause of action.
Accordingly, the Court GRANTS summary judgment
in favor of Defendants as to Plaintiff’s claim for violation of
his rights under that Hawaii Constitution.
B.
Plaintiff’s Claims Under Section 1983
Section 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects or causes to be
subjected, any citizen of the United States .
. . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party in an action at law, suit in equity or
22
other proper proceeding to redress.
42 U.S.C. § 1983.
1. Section 1983 Claim Against the City
Plaintiff did not file an opposition to the City’s
Motion.
However, even construing Plaintiff’s own Motion as an
opposition, the Court GRANTS summary judgment in favor of the
City on Plaintiff’s Section 1983 claims.
Local governmental bodies such as the City are
“persons” that may be sued under Section 1983.
See Monell v.
Dep’t of Social Servs., 436 U.S. 658, 690 (1978).
However, under
Section 1983, the City is only liable for its own actions.
The
City is not liable under Section 1983 based on respondeat
superior liability, as it is with tort claims.
Id. at 694.
Municipal liability under Section 1983 may be established in one
of three ways.
The City can only be held liable for
unconstitutional acts where the acts were “(1) the direct result
of inadequate police training or supervision; (2) the product of
an officially adopted policy statement, ordinance, regulation, or
decision; or (3) illustrative of a custom which is so permanent
and well settled to constitute a custom or usage with the force
of law.”
Sunn v. City & County of Honolulu, 852 F.Supp. 903,
908–09 (D. Haw. 1994).
“[T]he inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train
23
amounts to deliberate indifference to the rights of persons with
whom the police come into contact.”
489 U.S. 378, 388 (1989).
City of Canton v. Harris,
“[T]he word ‘policy’ generally implies
a course of action consciously chosen from among various
alternatives.”
823 (1985).
City of Oklahoma City v. Tuttle, 471 U.S. 808,
The word custom recognizes situations where the
practices of officials are permanent and well settled.
See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970).
“The
plaintiff must also demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the
injury alleged.
That is, a plaintiff must show that the
municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the
municipal action and the deprivation of federal rights.”
Bd. of
County Comm’rs v. Brown, 520 U.S. 397, 404 (1997).
Here, Plaintiff has not presented any evidence that
could create a genuine issue of fact of whether the City
exhibited a deliberate indifference to Plaintiff’s rights,
ratified certain conduct, or had a custom and policy of
searching, seizing, or arresting people without probable cause.
In contrast, Defendant Cadiz and Defendant Okagawa provided
statements in their declarations that they received training in
the course of their employment with the City that probable cause
must exist before an arrest can take place.
24
Cadiz Decl. ¶ 47;
Okagawa Decl. I ¶ 47.
Additionally, Defendant Okagawa stated
that the City has a policy that provides that arrests must be
according to the law and supported by probable cause.
Okagawa
Decl. I ¶ 49 (referencing HPD Policy 7.01, entitled “Arrests and
Persons”).
Even if the Court assumes that Plaintiff was arrested
without probable cause, Plaintiff has failed to present any
evidence that the City was aware of, condoned, instituted or
allowed to be instituted actions as alleged, or a policy
encouraging such conduct, or that the City was the moving force
behind any such unlawful practice.
To defeat summary judgment, a
nonmoving party must set forth “significant probative evidence”
in support of its position.
T.W. Elec. Serv., 809 F.2d at 630.
Plaintiff has not presented any probative evidence of inadequate
training or supervision or of a custom or practice to arrest
without probable cause.
The Court GRANTS summary judgment in
favor of the City as to Plaintiff’s Section 1983 claim.
2. Section 1983 Claim Against the Officer Defendants
Plaintiff asserts that Defendant Cadiz and Defendant
Okagawa unlawfully arrested him in violation of his Fourth
Amended rights.2
Pl.’s Mot., ECF No. 126, at 20-21.
2
Defendant
Although Plaintiff also lists the Fifth and Fourteenth
Amendments in this claim, false arrest claims are properly made
under the Fourth Amendment, not the Fifth or Fourteenth
Amendments. “The Due Process Clause of the Fifth Amendment
applies to actions of the federal government and not to
individual activities of private actors.” Rank v. Nimmo, 677
F.2d 692, 701 (9th Cir. 1982). Additionally, the Fourteenth
25
Cadiz and Defendant Okagawa assert that had probable cause to
arrest Plaintiff.
Officer Defs.’ Mot., ECF No. 123, at 4-13.
An arrest is lawful “only if it is accompanied by
probable cause to believe that the arrestee has committed, or is
committing, an offense.”
Torres v. City of L.A., 548 F.3d 1197,
1207 n.7. (9th Cir. 2008).
Probable cause exists “if, ‘under the
totality of circumstances known to the arresting officers, a
prudent person would have concluded that there was a fair
probability that [the defendant] had committed a crime.’”
Beier
v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004) (quoting
Grant v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir.
2002)).
The Court must decide whether a reasonable officer in
the same position would have believed that there was probable
cause to arrest Plaintiff.
See Fuller v. M.G. Jewlery, 950 F.2d
1437, 1443 (9th Cir. 1991) (“[E]ven if the officers were mistaken
that probable cause to arrest the Fullers existed, they are
nonetheless immune from liability if their mistake was
reasonable.”).
As an initial matter, there is no merit to Plaintiff’s
Amendment does not apply because of the “more-specific provision”
rule. See Graham v. Connor, 490 U.S. 386, 395 (1989) (providing
that when there is an “explicit textual source” of constitutional
protection available, “that Amendment, not the more generalized
notion of ‘substantive due process,’ must be the guide for
analyzing” such claims). The Court, therefore, GRANTS
Defendants’ Motions as to Plaintiff’s Section 1983 claims brought
under the Fifth and Fourteenth Amendments.
26
argument that a police officer cannot make a warrantless arrest
for a misdemeanor crime unless the misdemeanor occurs in the
officer’s presence.
See Pl.’s Mot., ECF No. 126, at 25.
Under
Hawaii Revised Statute Section 803-5, a police officer “may,
without warrant, arrest and detain for examination any person
when the officer has probable cause to believe that such person
has committed any offense, whether in the officer’s presence or
otherwise.”
Haw. Rev. Stat. § 803-5.
The Officer Defendants contend that they had probable
cause to arrest Plaintiff for criminal property damage in the
third degree under Hawaii Revised Statutes Section 708-822.
Cadiz Decl. ¶ 36.
A person commits the offense of criminal
property damage in the third degree if:
The person intentionally or knowingly damages
the property of another, without the other’s
consent, in an amount exceeding $500.
Haw. Rev. Stat. § 708-822(1)(b).
A threshold dispute is whether Plaintiff was arrested
at the register, as he contends, or was merely detained at the
register and escorted outside where he was later placed under
arrest, as Defendants contend.
Factors relevant to a custody
determination include (1) the language used by the officers;
(2) the physical surroundings of the location where the
questioning occurs; (3) the extent to which the suspect is
confronted with evidence of guilt; (4) the duration of the
27
detention; and (5) the degree of pressure applied to detain the
individual.
United States v. Hayden, 260 F.3d 1062, 1066 (9th
Cir. 2001).
Plaintiff testified at his deposition that Defendant
Cadiz told Plaintiff that he was under arrest at the register
inside the Store.
79:7-19.
Pl.’s Dep., ECF Nos. 112-12, 124-8, 133-9, at
Defendant Cadiz stated that Plaintiff was “placed under
arrest at 2200 hours,” and Plaintiff’s Store receipt shows that
he completed his purchase at the register at 22:00:30 hours.
Cadiz Interrog. Responses, Ex. K to Defs.’ Statement, ECF No.
133-16; Ex. 9 to Pl.’s Statement, ECF No. 130-10.
Accordingly,
the Court will assume arguendo that Plaintiff was arrested at the
register and determine whether a reasonable officer would have
believed that there was probable cause for the arrest at that
time.
The Court must consider whether the Officer Defendants
could have reasonably concluded, under the totality of the
circumstances, that a “fair probability” existed that Plaintiff
knowingly damaged Mr. Querido’s property, without Mr. Querido’s
consent, in an amount exceeding $500, at the time that Plaintiff
asserts he was placed under arrest.
822(1)(b).
See Haw. Rev. Stat. § 708-
Whether the opposite conclusion was also reasonable,
or even more reasonable, does not matter so long as the Officer
Defendants’ conclusion was itself reasonable.
F.3d 1126, 1132.
28
See Conner, 672
Before Plaintiff was presumably arrested at the
register, Defendant Cadiz had met with and interviewed Mr.
Querido, who told Defendant Cadiz that his vehicle did not have
the scratch marks prior to driving to the Store, that he did not
give anyone permission to damage his car, and that he estimated
the damage to his car was approximately $1000.
¶ 12; Cadiz Decl. ¶ 13.
Querido Aff.
Mr. Querido observed a man exit a white
truck, walk along the driver’s side of Mr. Querido’s car, and
extend his arm over the hood as he passed the front end of Mr.
Querido’s car.
Querido Aff. ¶ 9.
Mr. Querido identified to
Defendant Cadiz a white truck with license plate PTR 107 as the
truck he saw the man exit from.
¶ 16.
Querido Aff. ¶ 2; Cadiz Decl.
Mr. Querido described the man who exited the white truck
as a tall, older, bald man wearing a white shirt.
2; Cadiz Decl. ¶ 16.
Querido Aff. ¶
Approximately ten minutes after Defendant
Cadiz arrived on scene he called into dispatch to request that
they run the license plate of the white truck.
Cadiz Decl. ¶ 30;
Okagawa Decl. II ¶ 11; Ex. J to Defs.’ Counter-Statement, ECF No.
133-15 (recordings of radio transmission on the night of the
incident).
Dispatch responded almost immediately that the white
truck was registered to “Antonio Gonzalez.”
Cadiz Decl. ¶ 31;
Okagawa Decl. II ¶ 14; Ex. J to Defs.’ Counter-Statement, ECF No.
133-15 (recordings of radio transmission on the night of the
incident).
29
Defendant Cadiz spoke with Defendant Okagawa who told
Defendant Cadiz that Defendant Okagawa had viewed a video taken
from the Store’s surveillance system that had captured the
incident.
Cadiz Decl. ¶ 25.
Defendant Cadiz went into the Store
to try to locate the suspect.
Cadiz Decl. ¶ 26.
At
approximately 10:00 p.m., Defendant Cadiz saw Plaintiff, an older
bald man wearing a green t-shirt, standing in line at one of the
registers.
Cadiz Decl. ¶ 27.
Defendant Cadiz approached
Plaintiff and asked if he was the driver of the white truck, to
which Plaintiff replied “yes.”
Cadiz Decl. ¶ 29.3
Defendant
Cadiz then asked Plaintiff to produce identification.
Decl. ¶ 30.
Cadiz
Plaintiff showed Defendant Cadiz a Hawaii driver’s
license with the name “Antonio Gonzalez, Jr.” and a photograph
bearing his resemblance.
Cadiz Decl. ¶ 30.
A reasonable officer in Defendant Cadiz’s position
would have believed that there was probable cause to arrest
Plaintiff for criminal property damage based on the investigation
conducted by Defendant Cadiz, Mr. Querido’s description of the
suspect as an older bald male, the confirmation of Mr. Querido’s
description of the incident to Defendant Cadiz by Defendant
Okagawa after he viewed the surveillance footage, the
3
As detailed in the fact section, Plaintiff’s conclusory
assertions that purport to contradict the testimony of Defendant
Cadiz regarding what occurred at the register are not admissible
and cannot be considered by the Court in deciding summary
judgment.
30
identification of Plaintiff as the owner of the white truck by
police dispatch, the statement by Plaintiff that he was the
driver of the white truck, and the confirmation of Plaintiff’s
identity by his driver’s license.
The fact that Mr. Querido
initially described the suspect as a “Samoan” man wearing a white
t-shirt does not defeat the finding of probable cause given all
of the other information that the Officer Defendants knew at the
time of Plaintiff’s arrest.
Accordingly, the Court GRANTS
summary judgment in favor of the Defendant Cadiz and Defendant
Okagawa on Plaintiff’s Section 1983 claim.
III.
Defendants Are Entitled to Summary Judgment on
Plaintiff’s State Law Claims.
Plaintiff asserts six state law claims against the
Officer Defendants:
intentional infliction of emotional
distress; negligence; defamation; negligent training, supervision
and/or discipline; false imprisonment; and conversion.
Amended
Compl., ECF No. 96, at 8-12.
Plaintiff also asserts two state
law claims against the City:
negligence under respondeat
superior; and negligent training, supervision and/or discipline.
Id. ¶¶ 31, 37-38.
Defendants seek summary judgment on all of
Plaintiff’s state law claims.
See City’s Mot., ECF No. 113, at
9-12; Officer Defs.’ Mot., ECF No. 123, at 16-31.
Although the title of Plaintiff’s Motion includes “any
and all claims asserted by Plaintiff,” Plaintiff does not address
31
any of his state law claims in his Motion.
No. 126.
See Pl.’s Mot., ECF
Plaintiff also does not address his state law claims in
his Opposition to the Officer Defendants’ Motion, which sought
summary judgment as to the state law claims.
Officer Defs.’ Mot., ECF No. 127.
See Pl.’s Opp. to
As noted above, Plaintiff did
not file an opposition to the City’s Motion, which also sought
summary judgment on the state law claims asserted against the
City.
Where a plaintiff abandons his state law claims by failing
to address them in his motion for summary judgment or in
opposition to the defendant’s motion for summary judgment,
summary judgment against the plaintiff on those state law claims
is appropriate.
See Ramirez v. City of Buena Park, 560 F.3d
1012, 1026 (9th Cir. 2009) (affirming the district court’s grant
of summary judgment to defendants where plaintiff did not address
his state law claims in his motion or opposition).
However, even
looking to the substance of Plaintiff’s state law claim, the
Court GRANTS summary judgment in favor of Defendants as detailed
below.
A. The Officer Defendants are Entitled to Summary
Judgment on All of Plaintiff’s State Law Claims.
Defendant Okagawa and Defendant Cadiz are entitled to
summary judgment on all of Plaintiff’s state law claims based on
conditional privilege and the substance of each claim.
32
1. The Officer Defendants are Entitled to Conditional
Privilege as to Plaintiff’s State Law Claims.
Under Hawaii law, “non-judicial governmental officials,
when acting in the performance of their public duty, enjoy the
protection of what has been termed a qualified or conditional
privilege.”
Towse v. Hawaii, 64 Haw. 624, 647 P.2d 696, 702
(Haw. 1982).
This privilege is overcome if the official was
motivated by malice and not by an otherwise proper purpose.
See
Kajiya v. Dep’t of Water Supply, 2 Haw. App. 221, 629 P.2d 635,
640 (Haw. Ct. App. 1981); Medeiros v. Kondo, 55 Haw. 499, 522
P.2d 1269, 1271–72 (Haw. 1974).
Hawaii courts define 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, ill will, and wickedness of heart.”
Awakuni v.
Awana, 115 Haw. 126, 165 P.3d 1027, 1042 (Haw. 2007) (quoting
Black’s Law Dictionary 976–77 (8th ed. 2004) (internal quotation
marks omitted)).
Summary judgment is only proper on conditional
privilege grounds when malice has been removed from the case
because the existence of malice is generally a jury question.
Id.
The Court finds that Defendant Cadiz and Defendant
Okagawa are entitled to conditional privilege for all of
33
Plaintiff’s state law claims.4
support a finding of malice.
Plaintiff presents no facts to
Defendant Cadiz and Defendant
Okagawa both attest to the fact that they did not know Plaintiff
on the night of the incident and did not harbor any ill will
toward him.
Cadiz Decl ¶ 44; Okagawa Decl. I ¶ 45.
Plaintiff
does not address these statements in his Opposition and does not
present any evidence in his Concise Statement that would suggest
malice.
See Pl.’s Opp. to Officer Defs.’ Mot., ECF No. 127;
Pl.’s Statement, ECF No. 130.
Plaintiff has not raised a genuine
factual dispute as to malice.
See McNally v. Univ. of Haw., 780
F.Supp. 2d 1037, 1060 (D. Haw. 2011) (concluding defendants were
entitled to conditional privilege on plaintiff’s state law claims
because plaintiff failed to raise any issue of fact as to
malice).
Accordingly, the Officer Defendants are entitled to
conditional privilege and the Court GRANTS summary judgment in
4
In Plaintiff’s claims of intentional infliction of
emotional distress and negligent training, supervision and/or
discipline, Plaintiff alleges that Defendant Cadiz and Defendant
Okagawa acted outside the scope of their employment. Amended
Compl., ECF No. 96, ¶¶ 26, 36. However, Plaintiff does not set
forth any evidence that Defendant Cadiz or Defendant Okagawa were
acting outside the scope of their employment when they performed
the acts described on the night of the incident. Both Defendant
Cadiz’s and Defendant Okagawa’s declarations state that they were
acting within the course and scope of their employment on the
night of the incident. Cadiz Decl. ¶¶ 4-5; Okagawa Decl. I ¶¶ 46. Plaintiff did not address this fact in his Concise Statement.
Accordingly, the fact that Defendant Cadiz and Defendant Okagawa
were acting within the course and scope of their employment on
the night in question is deemed admitted. See Local Rule
56.1(g).
34
favor of the Officer Defendants as to all of Plaintiff’s state
law claims.
2.
Regardless of Conditional Privilege, the Officer
Defendants are Entitled to Summary Judgment on Plaintiff’s State
Law Claims.
Even putting aside the issue of conditional privilege,
the Officer Defendants are entitled to summary judgment on
Plaintiff’s state law claims.
The Court addresses each of the
six state law claims asserted in Plaintiff’s Amended Complaint
below.
a.
Intentional Infliction of Emotional Distress
Plaintiff alleges that the Officer Defendants were
“intentional and/or reckless, outrageous, unreasonable, and
without just cause or excuse” caused Plaintiff severe emotional
distress.
Amended Compl., ECF No. 96, ¶¶ 26-28.
intentional infliction of emotional distress are:
The elements of
“(1) that the
act allegedly causing the harm was intentional; (2) that the act
was unreasonable; and (3) that the actor should have recognized
that the act was likely to result in illness.”
Dunlea v. Dappen,
83 Haw. 28, 924 P.2d 196, 206 & n.11 (Haw. 1996) (citing Marshall
v. Univ. of Haw., 9 Haw. App. 21, 821 P.2d 937, 947 (Haw. Ct.
App. 1991)).
Hawaii courts have interpreted the term
“outrageous” to mean “without just cause or excuse and beyond all
bounds of decency.”
Enoka v. AIG Haw. Ins. Co., 109 Haw. 537,
35
559, 128 P.3d 850, 872 (Haw. 2006) (citing Lee v. Aiu, 85 Haw.
19, 34 n.12, 936 P.2d 655, 670 n.12 (Haw. 1997) (internal
quotation marks and citations omitted)).
“The question whether
the actions of the alleged tortfeasor are unreasonable or
outrageous is for the court in the first instance, although where
reasonable persons may differ on that question it should be left
to the jury.”
Dunlea, 924 P.2d at 206 (quotations omitted).
Liability for intentional infliction of emotional distress is
“only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.”
Id.
The undisputed facts of this case do not rise to the
level of outrageousness required to establish a claim of
intentional infliction of emotional distress.
The Officer
Defendants had probable cause to arrest Plaintiff, and Plaintiff
has not presented any facts demonstrating outrageous or extreme
conduct.
Plaintiff’s conclusory allegations in his Amended
Complaint are not sufficient.
¶ 28.
See Amended Coml., ECF No. 96,
Accordingly, the Court GRANTS summary judgment in favor of
the Officer Defendants on the claim of intentional infliction of
emotional distress.
b.
Negligence
Plaintiff alleges that the Officer Defendants
36
“negligently caused [Plaintiff] to suffer physical injuries,
chest pains, mental anguish, server emotional distress, anxiety,
embarrassment, humiliation, worry, and anger.”
ECF No. 96, ¶ 30.
Amended Compl.,
Under Hawaii law, a claim for negligence
requires Plaintiff to prove that Defendants “(1)[had a] duty to
conform to a certain standard of conduct, (2) breach of the duty,
(3) causal connection between the breach and the injury, and (4)
damage to [Plaintiff].”
Nielsen v. Am. Honda Motor Co., 92 Haw.
180, 989 P.2d 264, 274 (Haw. Ct. App. 1999).
“A negligence
action lies only when the defendant owes a duty to the
plaintiff.”
Hao v. Campbell Estate, 76 Haw. 77, 869 P.2d 216,
219 (Haw. 1994).
Whether the law imposes a duty of care on a
relationship is a question of law.
See id. at 221.
Here, Plaintiff’s negligence claim fails as a matter of
law because Plaintiff fails to plead what duty the Officer
Defendants might have breached and fails to provide any evidence
of actual damages.
probable cause.
There is no duty to not arrest without
See Pourny v. Maui Police Dep’t., 127 F. Supp.
2d 1129, 1145-46 (D. Haw. 2000).
The intentional tort of “false
arrest” addresses arrest without probable cause, which Plaintiff
alleges in his Sixth Cause of Action discussed below.
See Reed
v. City & County of Honolulu, 76 Haw. 219, 873 P.2d 98, 109 (Haw.
1994).
Plaintiff cannot sue under negligence for false arrest.
Accordingly, the Court GRANTS the summary judgment in favor of
37
the Officer Defendants on this claim.
c.
Defamation
Plaintiff alleges that Defendant Cadiz defamed
Plaintiff when Defendant Cadiz referenced in his report that
Plaintiff had “one (1) prior arrest” causing Plaintiff to suffer
“great mental anguish, severe emotional distress, anxiety,
embarrassment, humiliation, worry and anger.”
ECF No. 96, ¶ 34.
Amended Compl.,
“Under both federal and Hawaii law, truth is a
complete defense to an action for defamation.”
Basilius v.
Honolulu Pub. Co., Ltd., 711 F.Supp. 548, 551 (D. Haw. 1989)
(citing Garrison v. Louisiana, 379 U.S. 64, 73 (1964) and Wright
v. Hilo Tribune–Herald, Ltd., 31 Haw. 128, 130 (1929)).
During Plaintiff’s deposition, he stated that he was
arrested on one prior occasion.
Q: Did you in fact have one prior arrest on
August 20, 2011?
A: Fifty one years prior to August 20, 2011.
Fifty one years. Okay.
***
Q: So, what the officer put in his report is
correct?
A: I was arrested.
I was arrested.
Yes.
Pl.’s Dep., ECF Nos. 112-12, 124-8, 133-9, at 41-42:16-10.
Plaintiff cannot prove the falsity of Defendant Cadiz’s statement
because he has admitted its truth.
Accordingly, the Court GRANTS
summary judgment in favor of Defendant Cadiz as to the defamation
38
claim.
d.
Negligent Training, Supervision, and/or Discipline
Although not entirely clear from his pleading, it
appears that Plaintiff asserts his claim for negligent training,
supervision and/or discipline against both the City and the
Officer Defendants.
See Amended Complaint, ECF No. 96, at 9-11.
First, the only admissible evidence before the Court demonstrates
that Defendant Cadiz and Defendant Okagawa have been trained that
probable cause must exist before an arrest can take place.
Decl. ¶ 47; Okagawa Decl. I ¶ 47.
Cadiz
HPD policy emphasizes that
arrests must be according to law and must have a probable cause
basis.
Okagawa Decl. I ¶ 49.
negligent supervision.
Second, there is no evidence of
Aside from Plaintiff’s allegation in his
Amended Complaint, there is no evidence or indication that
Defendant Cadiz or Defendant Okagawa were acting outside the
course and scope of their employment on the night of the
incident.
Without such evidence, Plaintiff cannot prove that the
City negligently supervised the Officer Defendants.
See Dairy
Road Partners v. Island Ins. Co., 92 Haw. 398, 427, 992 P.2d 93,
122 (Haw. 2000) (“negligent supervision may only be found where
an employee is acting outside of the scope of his or her
employment”).
Finally, there is no evidence that there has been
a failure to discipline the Officer Defendants.
Plaintiff’s
claim of negligent training, supervision and/or discipline is
39
factually unsupported and summary judgment is GRANTED in favor of
Defendants on the claim of negligent training, supervision,
and/or discipline.
e.
False Imprisonment
To prevail on his false imprisonment claim, Plaintiff
must show that no probable cause existed to arrest him.
See
Fraser v. County of Maui, 855 F. Supp. 1167, 1183 (D. Haw.
1994)(citing Lopez v. Wigwam Dep’t Stores, 49 Haw. 416, 423, 421
P.2d 289, 293-94 (Haw. 1966).
Probable cause is an affirmative
defense to the claim of false imprisonment.
423, 421 P.2d at 293–94.
Lopez, 49 Haw. at
As detailed above, the Court finds that
the Officer Defendants had probable cause to arrest Plaintiff.
Accordingly, the Court GRANTS summary judgment in favor of the
Officer Defendants as to Plaintiff’s claim for false
imprisonment.
f.
Conversion
Plaintiff alleges that the Officer Defendants “exerted
dominion and control over Plaintiff’s truck and cash, thereby
depriving Plaintiff of the possession and use of said property
and causing him damages.”
Amended Compl., ECF No. 96, ¶ 42.
Under Hawaii law, conversion is defined as “[a]ny distinct act of
dominion wrongfully exerted over another’s personal property in
denial of or inconsistent with his rights therein.”
Bayer, 25 Haw. 693, 696 (Haw. 1920).
40
Tsuru v.
The elements of a
conversion claim are “(1) [a] taking from the owner without his
consent; (2) an unwarranted assumption of ownership; (3) an
illegal use or abuse of the chattel; and (4) a wrongful detention
after demand.”
Freddy Nobriga Enters., Inc. v. State, Dept. of
Hawaiian Home Lands, 129 Haw. 123, 295 P.3d 993, 999 (Haw. Ct.
App. 2013) (quoting Tsuru, 25 Haw. at 696)).
Here, Plaintiff has not asserted any facts to support
his allegations of conversion.
Plaintiff’s truck was not seized
or even touched by the police officers on the night of the
incident.
Okagawa Decl. I ¶ 43.
Neither Defendant Cadiz nor
Defendant Okagawa took Plaintiff’s truck from him, nor did they
instruct any other officer to do so.
Okagawa Decl. I ¶ 44.
There is no evidence that the Officer Defendants took Plaintiff’s
truck or cash without his consent, that they assumed ownership of
his property, that they illegally used or abused his property, or
that the Officer Defendants wrongfully detained Plaintiff’s
property.
merit.
See Tsuru, 25 Haw. at 696.
This claim is without
The Court GRANTS summary judgment in favor of the Officer
Defendants on Plaintiff’s claim of conversion.
B.
The City is Entitled to Summary Judgment on All of
Plaintiff’s State Law Claims.
First, Plaintiff’s negligence claim against the City is
based on the City’s responsibility for the negligent acts of
Defendant Cadiz and Defendant Okagawa.
41
Under Hawaii law, “if an
employee is immune from suit, then the employer is also immune
from suit and cannot be held liable.”
Reed v. City and County of
Honolulu, 76 Haw. 219, 227, 873 P.2d 98, 107 (Haw. 1994) (citing
Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61–62, 647 P.2d 713,
716 (Haw. 1982)).
As detailed above, the Officer Defendants are
entitled to conditional privilege.
Therefore, based on the
Officer Defendants’ conditional privilege, the Court GRANTS
summary judgment in favor of the City as to Plaintiff’s claim of
negligence.
Even without conditional privilege, this claim fails
because Plaintiff fails to plead what duty the Officer Defendants
breached and fails to provide any evidence of actual damages.
There can be no respondeat superior liability when the employees
did not commit a tortious act.
Second, as to Plaintiff’s claim for negligent training,
supervision, and/or discipline, the evidence demonstrates that
Defendant Cadiz and Defendant Okagawa have been trained that
probable cause must exist before an arrest can take place and HPD
policy emphasizes that arrests must be according to law and must
have a probable cause basis.
¶¶ 47, 49.
Cadiz Decl. ¶ 47; Okagawa Decl. I
As detailed above, there is no indication that
Defendant Cadiz or Defendant Okagawa were acting outside the
course and scope of their employment on the night of the incident
and there is no evidence that there has been a failure to
discipline the Officer Defendants.
42
Plaintiff’s claim of
negligent training, supervision and/or discipline is factually
unsupported, and the Court GRANTS summary judgment in favor of
the City as to Plaintiff’s claim for negligent training,
supervision, and/or discipline.
CONCLUSION
In accordance with the foregoing, the Court GRANTS the
City and County of Honolulu’s Motion for Summary Judgment, GRANTS
Jensen Okagawa and Roberto Cadiz’s Motion for Summary Judgment,
and DENIES Plaintiff’s Amended Motion for Summary Judgment.
The
Court GRANTS summary judgment in favor of Defendants on all
counts and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, JUNE 3, 2013.
_____________________________
Richard L. Puglisi
United States Magistrate Judge
GONZALEZ V. OKAGAWA, ET AL.; CIVIL NO. 12-00368 RLP; MEMORANDUM
OPINION AND ORDER (1) GRANTING CITY AND COUNTY OF HONOLULU’S
MOTION FOR SUMMARY JUDGMENT; (2) GRANTING JENSEN OKAGAWA AND
ROBERTO CADIZ’S MOTION FOR SUMMARY JUDGMENT; AND (3) DENYING
PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT
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