Gonzalez v. Okagawa et al

Filing 94

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS re 39 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/27/12. " The motion to dismiss is granted in part and is denied in part as set forth above. Gonzalez m ay file an Amended Complaint no later than January 21, 2013. If he fails to meet that deadline, the case will proceed with the claims left remaining by this order, and with any pending motions. The remaining claims include: 1) First Cause of Action -- constitutional claims asserted except for claims against the City under § 1983; 2) Second and Eighth Causes of Action -- intentional infliction of emotional distress and stress; 3) Fourth Cause of Action -- defamation; 4) Fifth Cause of Action -- negligent training, supervision, and/or discipline; 5) Sixth Cause of Action -- false imprisonment; and 6) Seventh Cause of Action -- conversion." (emt, )CERTIFICATE OF SERVICEParti cipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Antonio D. Gonzalez, Jr. shall be served by first class mail at the address of record on December 28, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
)
JENSEN OKAGAWA;
)
ROBERTO CADIZ;
)
REYNOLD KAM;
)
DANIEL AOKI;
)
JON NGUYEN;
EVERETT HUNG;
)
)
LOUIS M. KEALOHA;
)
JONATHAN QUERIDO;
)
CITY & COUNTY OF HONOLULU;
)
and JOHN DOES 1-10,
)
)
Defendants.
_____________________________ )
ANTONIO D. GONZALEZ, JR.

CIVIL NO. 12-00368 SOM/KSC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
I.

INTRODUCTION.
Plaintiff Antonio D. Gonzalez, a former Honolulu Police

Department (“HPD”) officer, was arrested and charged with having
caused criminal property damage by allegedly “keying” Defendant
Jonathan Querido’s vehicle.

The charges were ultimately

dismissed by the State of Hawaii district court without
consideration of the merits of the charges.

Gonzalez sues the

City and County of Honolulu (“City”), the two HPD officers who
investigated the matter and arrested him, four other HPD
officers, and HPD’s chief of police (collectively, “City
Defendants”), as well as Jonathan Querido, the alleged victim.

City Defendants have moved for dismissal of the
Complaint.

That motion is granted in part and denied in part.

To the extent Gonzalez asserts claims under 42 U.S.C. § 1983
against the City, those claims are dismissed.

The court also

dismisses the negligence claims asserted against all Defendants.
However, the court denies City Defendants’ request to dismiss the
official capacity claims asserted against the individual
Defendants.
Gonzalez is given leave to file a First Amended
Complaint no later than January 21, 2013.
II.

BACKGROUND.
Gonzalez is a 70-year-old man of Puerto Rican and

African American descent.

See Complaint ¶ 14.

Gonzalez says that, on the evening on October 20, 2011,
he went to a Walmart store in Kunia on Oahu.

See id. ¶ 16.

That

evening, Defendant Jonathan Querido had complained that someone
had “keyed” Querido’s car in the Walmart parking lot.
8 at PageID # 48 (photo of damage to car).

See id. Ex

That is, someone had

scratched the paint on Querido’s car, possibly with a key.
Querido apparently told HPD officers that, while in the
Walmart store, he saw his car being “keyed,” and that the culprit
might have been the driver of a white pickup truck parked in the
parking lot.

Querido pointed out such a truck, which was

registered to Gonzalez.

Id. ¶¶ 50, 56.

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According to Gonzalez, the arrest by Officers Cadiz and
Okagawa was not immediate.

The officers allegedly searched for a

suspect for nearly an hour before focusing on Gonzalez.
¶ 45.

Id.

Gonzalez says that proper police procedure would have been

to detain him only long enough to establish his identity, and
then to release him pending further investigation.

Id. ¶ 46.

Gonzalez accuses Officers Cadiz and Okagawa of having used racial
profiling and of having “rush[ed] to judgment” in deciding to
arrest him without probable cause.

Id. ¶¶ 43, 47.

Gonzalez adds

that, as the incident was caught on videotape, Officer Okagawa’s
“positive” identification of him was a “deliberate
misrepresentation.”

Id. ¶¶ 53, 54.

Although at a “show up”

Querido identified Gonzalez as the person who had scratched his
car, Gonzalez describes the “show-up” as having been suggestive
because Querido saw Gonzalez in police custody surrounded by
uniformed officers, and also allegedly saw Officer Okagawa
berating Gonzalez.

Id. ¶¶ 62(h) & (i).

Gonzalez says that Querido had actually identified
another man as the suspect earlier in the evening.

Gonzalez also

says that a security guard heard Querido say that his car had
been keyed by a “Samoan.”

Id. ¶ 62(l).

Querido allegedly said

that the person who had scratched his car was wearing a white
shirt, while Gonzalez says his shirt was not white.

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Id. ¶ 71(a);

Complaint, Ex. 8 (police report indicating that Gonzalez was
wearing a green shirt), PageID # 38.
As reported by Gonzalez, the initial charge against him
was criminal property damage in the third degree, in violation of
section 708-822(1)(c) of Hawaii Revised Statutes.

That statute,

says Gonzalez, applies when a “person intentionally damages the
agricultural equipment, supplies, or products or aquacultural
equipment, supplies, or products of another, including trees,
bushes, or any other plant and livestock of another, without the
other’s consent, in an amount exceeding $100.”
¶ 22.

See Complaint

Criminal property damage in the third degree is a

misdemeanor.

See Haw. Rev. Stat. § 708-822(2).

However, when he

appeared in court on November 7, 2011, Gonzalez was allegedly
served with a written complaint charging him with a violation of
section 708-822(1)(c).

See id. ¶ 28.

He says that, when he

appeared at a rescheduled court hearing on December 12, 2011, the
charge was amended to be a violation of section 708-822(1)(b),
which applies when a “person intentionally or knowingly damages
the property of another, without the other’s consent, in an
amount exceeding $500.”

See id. ¶ 29.

At a state-court hearing

on December 12, 2011, his arraignment and plea were set for
January 4, 2012.

See id.

On January 4, 2012, Gonzalez pled “not

guilty” and requested a jury trial.

He was told to appear in

First Circuit Court on January 17, 2012.

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See id. ¶ 30.

On January 17, 2012, Gonzalez went to the First Circuit
Court, where he says he was told that the prosecution had decided
to reduce the charge to criminal property damage in the fourth
degree in violation of section 708-823 of Hawaii Revised
Statutes, a petty misdemeanor.

That section states, “A person

commits the offense of criminal property damage in the fourth
degree if by means other than fire, the person intentionally or
knowingly damages the property of another without the other’s
consent.”

Gonzalez says that, with the reduction in the charge,

he had no right to a jury trial and was therefore sent back to
the state district court.

See Complaint ¶ 31.

Gonzalez appeared in state district court for trial on
April 9, 2012.

Because the prosecution was not ready to proceed,

the trial was continued.

See Complaint ¶ 32.

continued again on May 21, 2012.

¶ 33.

The trial was

When the prosecution

requested yet another continuance of the trial on June 20, 2012,
the state district court judge denied the request.

That same

day, Gonzalez’s attorney moved for dismissal of the charge with
prejudice.

That request was granted.

See id. ¶ 34.

Gonzalez alleges that “Okagawa and Cadiz, along with
the Honolulu City Prosecutor’s Office, were well aware from the
outset that the alleged Charge of Criminal Property Damage in the
Third Degree totally lacked merit, yet chose to proceed.”
Complaint ¶ 35.

Gonzalez says that they conducted a baseless and

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malicious prosecution of him, although he does not actually plead
a malicious prosecution cause of action.

Id. ¶ 38.

Gonzalez also sues HPD Officers Reynold Kam, Daniel
Aoki, Jon Nguyen, Everette Hung, and the Chief of HPD, Louis M.
Kealoha.

See id. ¶¶ 6-10.

It is not entirely clear why these

five individual Defendants are named as Defendants.

At the

hearing, Gonzalez says he named these individual as Defendants
because they helped to complete the arrest process.
alleged to have set bail at $500.

See id. ¶ 23.

Hung is

Nguyen is

alleged to have conducted a custodial search of Gonzalez and to
have issued him a receipt for items seized.

See id. ¶ 24.

is alleged to have “completed the Arrest Report.”
III.

Aoki

Id. ¶ 25.

RULE 12(b)(6) STANDARD.
Under Rule 12(b)(6), review is generally limited to the

contents of the complaint.

Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).

However, courts may “consider certain

materials--documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice--without converting the motion to dismiss into a

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motion for summary judgment.”
903, 908 (9th Cir. 2003).

United States v. Ritchie, 342 F.3d

Documents whose contents are alleged

in a complaint and whose authenticity is not questioned by any
party may also be considered in ruling on a Rule 12(b)(6) motion
to dismiss.

See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.

1994).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell, 266 F.3d at 988.
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).

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“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“the pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
556 U.S. at 677.
IV.

ANALYSIS.
The Complaint asserts causes of action for

“Consitutional and/or 42 U.S.C. Section 1983 violations,”
intentional infliction of emotional distress and stress,

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Iqbal,

negligence, defamation, “negligent training, supervision, and/or
discipline,” false imprisonment, and conversion.

Of these, only

the “Consitutional and/or 42 U.S.C. Section 1983 violations” and
negligence claims have been asserted against the City.

Only some

of these claims are the subject of the present motion to dismiss.
A.

Constitutional Claims Against the City.

With respect to the alleged “Consitutional and/or 42
U.S.C. Section 1983 violations,” the City seeks summary judgment,
arguing that, for purposes of § 1983, the Complaint inadequately
pleads an unconstitutional policy.
Section 1983 provides, in relevant part:
[E]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, 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 other proper proceeding to redress.
42 U.S.C. § 1983.
Local governmental bodies such as the City are
“persons” that may be sued under § 1983.

See Monell v. Dep’t of

Social Servs., 436 U.S. 658, 690 (1978).

However, under § 1983,

the City is only liable for its own actions.

The City is not

liable under § 1983 based on respondeat superior liability, as it
is with respect to negligence claims.

Id. at 694.

Municipal

liability under § 1983 may be established in one of three ways.
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First, the plaintiff may prove that a city
employee committed the alleged constitutional
violation pursuant to a formal governmental
policy or a longstanding practice or custom
which constitutes the standard operating
procedure of the local governmental entity.
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. Whether a particular
official has final policy-making authority is
a question of state law. Third, the
plaintiff may prove that an official with
final policy-making authority ratified a
subordinate’s unconstitutional decision or
action and the basis for it.
Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1993)
(citations and internal quotations omitted); accord Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1139 (2012) (“To create
liability under § 1983, the constitutional violation must be
caused by a policy, practice, or custom of the entity, or be the
result of an order by a policy-making officer.” (quotations and
citations omitted)).
The court agrees that Gonzalez does not adequately
plead municipal liability under § 1983.

At best, the Complaint

alleges that Defendants Cadiz, Okagawa, Hung, Nguyen, Kam, Aoki,
Kealoha, and other Doe Defendants “acted and/or purported to act
herein under color of statutes, ordinances, rules, regulations,
customs, policies, practices, and/or usage of the State of
Hawaii, City and County of Honolulu, and/or the Honolulu Police
Department when they arrested Plaintiff.”
10

See Complaint ¶ 77.

Because the Complaint does not plead enough specific facts to
state a municipal liability claim under § 1983, it does not
satisfy the minimal pleading standard set forth in Twombly and
Iqbal.

Accordingly, the § 1983 claim based on alleged violations

of the federal Constitution that is asserted against the City is
dismissed.
To the extent Gonzalez is asserting a § 1983 claim
based on violations of the Hawaii constitution, that claim fails
because § 1983 is a vehicle for seeking redress for violations of
only federal law.

See Cornejo v. County of San Diego, 504 F.3d

853, 855 n.3 (9th Cir. 2007) (“We note that a claim for violation
of state law is not cognizable under § 1983.”); Campbell v. Burt,
141 F.3d 927, 930 (9th Cir. 1998) (“As a general rule, a
violation of state law does not lead to liability under
§ 1983.”); Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981)
(“Section 1983 protects against the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.
Only federal rights, privileges, or immunities are protected by
the section.

Violations of state law alone are insufficient.”).

At the hearing on the motion, the court asked Gonzalez
whether he was asserting a direct claim under the Hawaii
constitution.

Gonzalez was unable to articulate whether he was

asserting such a claim.

Assuming that he is, the court does not

reach the issue of whether Gonzalez may assert such a claim, as

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that issue has not been briefed.

If Gonzalez chooses to file an

Amended Complaint, he should clearly articulate whether he is
asserting claims directly under the state constitution (that is,
not through the vehicle of a statute).
B.

Negligence Claims.

To prevail on a negligence claim, a plaintiff must
prove:
(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
the 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.
Takayama v. Kaiser Found. Hosp., 82 Haw. 486, 498-99, 923 P.2d
903, 915-16 (1996) (quoting Knodle v. Waikiki Gateway Hotel,
Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987)).
A viable negligence claim requires that a defendant
have owed a duty to the plaintiff.

See Pulawa v. GTE Hawaiian

Tel, 112 Haw. 3, 11, 143 P.3d 1205, 1213 (2006); Janssen v. Am.
Haw. Cruises, Inc., 69 Haw. 31, 34, 731 P.2d 163, 34 (1987).
Hawaii Supreme Court has stated:

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The

[I]n considering whether to impose a duty of
reasonable care on a defendant, we recognize
that duty is not sacrosanct in itself, but
only an expression of the sum total of those
considerations of policy which lead the law
to say that the particular plaintiff is
entitled to protection. Legal duties are not
discoverable facts of nature, but merely
conclusory expressions that, in cases of a
particular type, liability should be imposed
for damage done. In determining whether or
not a duty is owed, we must weigh the
considerations of policy which favor the
plaintiff’s recovery against those which
favor limiting the defendant’s liability.
The question of whether one owes a duty to
another must be decided on a case-by-case
basis.
Id. at 12, 143 P.3d at 1214 (quotations and citation omitted)
(format altered).
The Hawaii Supreme Court has identified several factors
relevant to imposing a duty:
Whether a special relationship exists, the
foreseeability of harm to the injured party,
the degree of certainty that the injured
party suffered injury, the closeness of the
connection between the defendants’ conduct
and the injury suffered, the moral blame
attached to the defendants, the policy of
preventing harm, the extent of the burden to
the defendants and consequences to the
community of imposing a duty to exercise care
with resulting liability for breach, and the
availability, cost, and prevalence of
insurance for the risk involved.
Id. (quotations and citation omitted) (format altered).
A defendant owes a duty of care only “to those who are
foreseeably endangered by the conduct and only with respect to
those risks or hazards whose likelihood made the conduct
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unreasonably dangerous.”

Id. (quotations and citations omitted).

In this context, the test for foreseeability “‘is whether there
is some probability of harm sufficiently serious that a
reasonable and prudent person would take precautions to avoid
it.’” Pulawa, 112 Haw. at 12, 143 P.2d at 1214 (quoting Knodle,
69 Haw. at 388, 742 P.2d at 385).

Whether a duty exists is a

question of law for the court to resolve.

Pulawa, 112 Haw. at

13, 143 P.2d at 1215; Janssen, 69 Haw. at 34, 731 P.2d at 34
(“The existence of a duty is a question of law.”).
In the present case, the negligence claim is
insufficiently pled.

Gonzalez makes the conclusory allegation

that Defendants “negligently caused Plaintiff to suffer physical
injuries, chest pains, mental anguish, severe emotional distress,
anxiety, embarrassment, humiliation, worry, and anger in amounts
to be proven at trial.”

While a mere “formulaic recitation of

the elements of a cause of action” would be insufficient,
Gonzalez does not make even a formulaic recitation.
U.S. at 555.

Twombly, 550

It is unclear which Defendant was allegedly

negligent and what duty each Defendant might have breached.
Accordingly, the negligence claim is dismissed without prejudice.

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C.

Official Capacity Claims Against Individual
Defendants.

City Defendants unpersuasively argue for dismissal of
the official capacity claims asserted against the individual
Defendants, claiming that those claims are duplicative of the
claims against the City.

City Defendants address this argument

in only eleven lines of text and include no discussion as to how
the claims are duplicative.
For example, as City Defendants note in their motion,
the City is named in only two of the counts.

City Defendants

appear to be seeking dismissal of the official capacity claims in
the other counts, although City Defendants do not explain how
those claims could duplicate nonexistent claims against the City.
Even with respect to the official capacity § 1983 claim, City
Defendants fail to show that individual liability on the part of
all Defendants mirrors liability on the part of the City.

For

example, because it is not clear that all individual Defendants
have the kind of final policy-making authority required for the
City to be liable, it may be that official capacity claims
against some individual Defendants rest on grounds inapplicable
to the City as a party.

See Gillette, 979 F.2d at 1346-47.

Under these circumstances, City Defendants do not
demonstrate that dismissal of the official capacity claims is
appropriate.

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D.

Gonzalez May File An Amended Complaint.

No later than January 21, 2013, Gonzalez may file an
Amended Complaint that cures the deficiencies discussed above.
With respect to the constitutional claims, Gonzalez may
not reassert § 1983 claims against the City, unless he alleges
facts supporting municipal liability.

If Gonzalez chooses to

file an Amended Complaint, he should also clarify whether he is
attempting to assert direct violations of the Hawaii
constitution.
For all claims asserted in any Amended Complaint,
Gonzalez should identify which Defendant did what.

That is,

Gonzalez should not simply bring a claim for negligence,
asserting that “Defendants were negligent.”

Instead, Gonzalez

should include factual allegations supporting a negligence claim
with respect to each Defendant named in that claim.

Each

Defendant must be on notice as to how he was allegedly negligent,
and the Amended Complaint must include facts demonstrating that
negligence.
Gonzalez should also consider simplifying his claims so
that they are asserted solely against Defendants who allegedly
committed the wrongful acts complained of.

In formulating any

Amended Complaint, Gonzalez should consider whether continuing to
name all of the present Defendants is appropriate, especially
because it is unclear that all Defendants actually caused

16

Gonzalez harm.

It may well be that naming fewer Defendants will

make proceedings in this case easier not just for Defendants, but
also for Gonzalez.

If, for example, Gonzalez decides to drop

Querido as a Defendant, there will be no need for the hearing on
Querido’s motion for summary judgment presently scheduled for
February 4, 2012.

Of course, if Gonzalez chooses to proceed

against Querido, the motion will be deemed to apply to any of the
same claims asserted against Querido in an Amended Complaint.
V.

CONCLUSION.
The motion to dismiss is granted in part and is denied

in part as set forth above.

Gonzalez may file an Amended

Complaint no later than January 21, 2013.

If he fails to meet

that deadline, the case will proceed with the claims left
remaining by this order, and with any pending motions.

The

remaining claims include: 1) First Cause of Action-constitutional claims asserted except for claims against the City
under § 1983; 2) Second and Eighth Causes of Action--intentional
infliction of emotional distress and stress; 3) Fourth Cause of
Action--defamation; 4) Fifth Cause of Action--negligent training,
supervision, and/or discipline; 5) Sixth Cause of Action--false
imprisonment; and 6) Seventh Cause of Action--conversion.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 27, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Gonzalez v. Okagawa, et al.; Civ. No. 12-00368 SOM/KSC; ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS

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