Fontanilla v. State of Hawaii et al
Filing
64
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT KRAIG MASSEY'S, IN HIS INDIVIDUAL CAPACITY, MOTION FOR SUMMARY JUDGMENT re: 39 . Signed by Judge BARRY M. KURREN on 8/19/2013. ~ " All of Fontanilla's claims survive summ ary judgment, except for the state law negligence claims in Count I and IV and the claim for punitive damages in Count VI." ~ [Order follows hearing held 8/12/2013 on defendant Kraig Massey's Motion for Summary Judgment, doc 39 , and defendant State of Hawaii'is Joinder to Motion for Summary Judgment, doc 44 . Minutes of hearing: doc 61 ] (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
FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
1:20 pm, Aug 19, 2013
FOR THE DISTRICT OF HAWAII
JAMES C.K. FONTANILLA,
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII, ET AL.,
)
)
Defendants.
)
______________________________ )
SUE BEITIA, CLERK
Civ. No. 12-00641 BMK
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT KRAIG MASSEY’S,
IN HIS INDIVIDUAL CAPACITY,
MOTION FOR SUMMARY
JUDGMENT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
KRAIG MASSEY'S, IN HIS INDIVIDUAL CAPACITY,
MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Kraig Massey’s, In His Individual
Capacity, Motion for Summary Judgment (Doc. 39). Defendant State of Hawaii
and Kraig Massey, in his official capacity, join in the Motion (Doc. 44.) The Court
heard this Motion on August 12, 2013. After careful consideration of the Motion,
the supporting and opposing memoranda, and the arguments of counsel, the Court
GRANTS IN PART and DENIES IN PART Massey’s Motion. Specifically, all
claims survive summary judgment, except Plaintiff James Fontanilla’s state law
negligence claims in Count I and IV and his claim for punitive damages in Count
VI.
FACTUAL BACKGROUND
This action arises out of a high speed car chase that resulted in the
shooting of Fontanilla by Massey, a deputy sheriff. Fontanilla survived the
shooting. Aside from these facts, the parties present substantially different
versions of what happened on the morning of February 19, 2011. Conflicting
eyewitness testimony is also included in the record.
According to Fontanilla, he had been operating a stolen car when he
realized that Massey was following him. (Fontanilla Decl’n ¶¶ 2-3.) He tried to
get away from Massey by driving onto the freeway and eventually exiting at the
Kunia exit. (Id. ¶ 3.) While still on the exit, he got out of the car, hoping to flee on
foot. (Id.) He ran up an embankment and when he was unable to climb over a
fence, he ran west to get away. (Id.) While running away, Massey shot him in the
back from behind. (Id.) He fell to the ground, then Massey pulled his arm in a
hurtful manner. (Id. ¶ 9.) Fontanilla begged Massey to turn him over to relieve the
pain, but he could not breathe and eventually blacked out. (Id.) According to
Fontanilla, there was no physical contact with Massey prior to the shooting, and he
did not try to grab Massey’s gun or knife, nor did he pull a knife on Massey or try
to wrestle, attack, or punch Massey. (Id. ¶ 5-9.)
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According to Massey, he followed Fontanilla to the Kunia exit, where
Fontanilla ran up a grassy embankment on the side of the freeway. (Massey Decl’n
¶¶ 13-15.) Massey ran after him and caught up to Fontanilla as he was trying to
climb over a fence. (Id. ¶ 15.) Massey says a struggle ensued, where Fontanilla
tried to grab Massey’s holstered firearm, but grabbed Massey’s knife instead. (Id.
¶¶ 15-16.) Fontanilla ran away again, then turned around and pointed the knife at
Massey. (Id. ¶ 16.) Massey drew his firearm and ordered Fontanilla to stop. (Id.)
Fontanilla continued to brandish the knife at Massey before running away, then
stopped and turned around, lunging at Massey with the knife. (Id. ¶¶ 17-18.)
Massey discharged his weapon and shot Fontanilla “in order to protect myself.”
(Id. ¶ 18.) Fontanilla ran away again, but Massey caught up to him and struggled
with Fontanilla until he was able to subdue him. (Id. ¶¶ 19-20.)
On October 25, 2012, Fontanilla filed this action against Massey and
the State of Hawaii. Fontanilla asserted the following claims: negligently and/or
intentionally shooting Fontanilla and respondeat superior (Count I); violating state
policies and using excessive force in violation of 42 U.S.C. § 1983 (Count II); false
claims and lying (Count III); negligent infliction of emotional distress (Count IV);
intentional infliction of emotional distress (Count V); and punitive damages (Count
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VI). Massey now moves, in his individual capacity, for summary judgment on all
claims against him.
DISCUSSION
I.
Summary Judgment Standard
Massey argues that, instead of viewing the facts in the light most
favorable to the nonmoving party, the Court should view the facts according to
Massey. Massey cites to Scott v. Harris, 550 U.S. 372 (2007) for support.
In Scott, the United States Supreme Court acknowledged that,
typically, “[a]t the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party.” Id. at 380. However, the Court stated: “When
opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that
version of facts for purposes of ruling on a motion for summary judgment.” Id.
(emphasis added). In other words, where the nonmoving party’s “version of events
is so utterly discredited by the record that no reasonable jury could [believe] him,”
the Court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment. Id. (emphasis added).
In Scott, the parties’ versions of events surrounding a high speed car
chase differed substantially. Id. at 378. According to the plaintiff, he drove
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carefully and was a “cautious and controlled driver.” Id. at 380. However, the
record contained a videotape that captured the events of the car chase and told
“quite a different story,” which “more closely resemble[d] a Hollywood-style car
chase of the most frightening sort, placing police officers and innocent bystanders
alike at great risk of serious injury.” Id. at 379-80. The Supreme Court concluded
that the videotape “clearly contradict[ed]” and “utterly discredited” the plaintiff’s
version of events such that “no reasonable jury could have believed him.” Id. at
378, 380. In other words, the plaintiff’s version of events was “blatantly
contradicted” by objective evidence in the record. Id. at 380. Consequently, the
Supreme Court held that the lower courts “should have viewed the facts in the light
depicted by the videotape” and not in the light most favorable to the plaintiff. Id.
at 380-81.
In the present case, Fontanilla and Massey have substantially different
accounts of what happened on the side of the freeway and the moments leading up
to Massey shooting Fontanilla. According to Fontanilla, he got out of the car he
was driving, tried to flee on foot, and was shot in the back while running away.
(Fontanilla Decl’n ¶ 3.) He says he did not try to obtain Massey’s gun or knife and
did not even see a knife at the scene. (Id. ¶ 6.) Fontanilla says he did not fight
with Massey and that the “only thing that could be described as ‘wrestling’ or
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‘fighting’ occurred after [he] was apprehended by Massey and pinned on the
ground.” (Id. ¶ 5.)
According to Massey, he caught up to Fontanilla as he tried to run
away and a struggle ensued where Fontanilla tried to grab Massey’s gun but
instead grabbed his knife. (Massey Decl’n ¶¶ 15-16.) After running away again,
Fontanilla turned around, pointed the knife at Massey, and lunged at him with the
knife. (Id. ¶¶ 17-18.) While this was happening, Massey drew his gun, ordered
Fontanilla to stop, then shot at Fontanilla. (Id. ¶¶ 16-18.) Fontanilla ran away
again and when Massey caught up to him, Massey grabbed him from behind,
struck Fontanilla with his fists, and threw him to the ground to subdue him. (Id.
¶¶ 19-20.)
Unlike in Scott, there is no videotape or other uncontested or
incontrovertible evidence of the events that happened during the moments leading
up to Massey shooting Fontanilla. Massey points to the testimony of three
eyewitnesses, as well as Fontanilla’s broken sunglasses and photographs of his
injuries, to argue that Fontanilla’s factual contentions are “completely
discredit[ed].” (Opp. at 13.) The Court disagrees.
Each of the eyewitnesses provides different versions of the events.
Calvin Naipo, III, testified that he was distracted by traffic during the moments
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leading up to the shooting. (Naipo Depo. at 32, 36.) While Naipo was looking
away, he heard a shot and then saw Massey handcuffing Fontanilla. (Id. at 32.) He
could not tell if Fontanilla had a weapon and he did not see Massey shoot
Fontanilla. (Id. at 32, 38.) The only “physical contact” he observed was Fontanilla
“swip[ing] at the sheriff.” (Id. at 29-30, 53.) George Kawaauahu testified that he
could not remember whether Massey unholstered his gun or whether Massey
physically touched Fontanilla. (Kawaauahu Depo at 12-13.) Steven Casuga
testified that he observed Fontanilla and Massey “wrestling.” (Casuga Depo at 9.)
These eyewitnesses and that fact that Massey’s sunglasses were broken and that he
suffered injuries do not “clearly contradict” or “utterly discredit” Fontanilla’s
version of events. Scott, 550 U.S. at 378, 380. Massey points to no objective and
undisputed evidence that “blatantly contradict[s]” Fontanilla’s facts such that “no
reasonable jury could believe it.” Id. at 380.
Indeed, there exist factual disputes between the parties regarding
material issues of fact – i.e., what occurred in the moments leading up to Massey
shooting Fontanilla. This is the “usual case where each side describes the incident
differently.” Jimenez v. Sambrano, Civ. No. 04cv1833-L(PCL), 2008 WL 538441,
at *4 (S.D. Cal. Feb. 26, 2008). Whether a jury will believe Fontanilla or Massey
is a question of witness credibility. Id. “Determinations regarding credibility, the
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weighing of evidence, and the drawing of legitimate inferences are jury functions
and are not appropriate for resolution by the court on a summary judgment
motion.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Accordingly, the Court declines to apply the standard announced in Scott v. Harris
and instead views the facts in the light most favorable to Fontanilla, the nonmoving
party. 550 U.S. at 380.
II.
Count III for False Statements
In Count III, Fontanilla alleges that Massey “concocted a false claim
that [Fontanilla] had physical contact with Massey and had pulled a knife out of
Massey’s pocket, opened the knife, and threatened Massey with it.” (Complaint
¶ 25.) Massey seeks summary judgment on this claim, arguing that “no rational
jury would find that Deputy Massey lied about what happened in the incident
giving rise to this action once the eyewitness testimony and the photographs of the
Plaintiff’s injuries and damaged personal property are examined.” (Motion at 21.)
As discussed above, this Court views the facts in the light most favorable to
Fontanilla, which includes Fontanilla’s declaration that he had no physical contact
with Massey prior to being shot and that he did not grab Massey’s knife or use a
knife against him. (Fontanilla Decl’n ¶¶ 4-8.) Those facts support Fontanilla’s
claim in Count III and negate Massey’s argument for judgment in his favor as to
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this claim. See Fed. R. Civ. P. 56(c) (the party moving for summary judgment
must show “that the moving party is entitled to judgment as a matter of law”).
III.
Qualified Immunity and Excessive Force
Massey argues that he is entitled to qualified immunity and that the
law on excessive force supports summary judgment in his favor. (Motion at
13-18.)
“The doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The purpose of
qualified immunity is to strike a balance between the competing ‘need to hold
public officials accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.’” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011)
(en banc).
In determining whether an officer is entitled to qualified immunity,
this Court employs a two-step test: “first we decide whether the officer violated a
plaintiff’s constitutional right; if the answer to that inquiry is ‘yes,’ we proceed to
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determine whether the constitutional right was ‘clearly established in light of the
specific context of the case’ at the time of the events in question.” Id.
With respect to the first prong of the test, this Court must determine
whether Massey violated Fontanilla’s Fourth Amendment rights. The Supreme
Court “has emphasized that there are no per se rules in the Fourth Amendment
excessive force context; rather, courts must still slosh [their] way through the
factbound morass of ‘reasonableness.’ Whether or not [a defendant’s] actions
constituted application of ‘deadly force,’ all that matters is whether [the
defendant’s] actions were reasonable.” Id. at 433 (quoting Scott, 550 U.S. at 383).
Importantly, the “‘most important’ . . . factor is whether the suspect posed an
‘immediate threat to the safety of the officers or others.’” Id. at 441. In
determining whether there was an immediate threat, a “simple statement by an
officer that he fears for his safety or the safety of others is not enough; there must
be objective factors to justify such a concern.” Id. at 441-42.
Massey agrees that “[t]here is no dispute that [his] action constituted
an intrusion on Mr. Fontanilla’s Fourth Amendment interests.” (Motion at 14.)
However, Massey argues that “shooting the Plaintiff was reasonable as necessary
to effect Plaintiff’s arrest and protect himself from serious bodily harm.” (Id.
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at 16.) Massey asks the Court to view the facts as Massey presents them, but as
discussed above, the Court views the facts in the light most favorable to Fontanilla.
Viewing the facts from Fontanilla’s perspective, Massey chased him
on the freeway until Fontanilla jumped out of the car to flee on foot. (Fontanilla
Decl’n ¶ 3.) He tried unsuccessfully to jump over a fence, but decided to run
away. (Id.) While running away, Fontanilla “was shot in the back from behind.”
(Id.) Fontanilla says he had no weapon on him and did not try to wrestle or attack
Massey. (Id. ¶ 5.) In light of these facts, Fontanilla posed no “immediate threat to
the safety of the officers or others,” as he was simply running away from Massey
unarmed. Mattos, 661 F.3d at 441. Therefore, a reasonable fact-finder could
conclude, taking the evidence in the light most favorable to Fontanilla, that
Massey’s application of deadly force was unreasonable and therefore
constitutionally excessive. See Mattos, 661 F.3d at 446.
Turning to the second prong of the qualified immunity test, this Court
must consider “whether the constitutional right was ‘clearly established in light of
the specific context of the case at the time of the events in question.” Mattos, 661
F.3d at 440. At the time Fontanilla was shot, “it was recognized that an officer
could use deadly force to effect the arrest of a fleeing felon if, under the
circumstances, he reasonably believed such force was necessary to protect himself
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or others from death or serious harm.” Curnow v. Ridgecrest Police, 952 F.2d 321,
325 (9th Cir. 1991). As discussed above, taking the facts in the light most
favorable to Fontanilla, he posed no threat to Massey or anyone else, as he was
simply fleeing by foot on the side of the freeway, unarmed. Thus, it was clearly
established that shooting Fontanilla in the back when he posed no threat to Massey
or the public violated Fontanilla’s Fourth Amendment rights. Id. (“Under Taylor’s
version of the shooting, the police officers could not reasonably have believed the
use of deadly force was lawful because Curnow did not point the gun at the
officers and apparently was not facing them when they shot him. . . . [T]he
[officers] are not entitled to qualified immunity.”).
Although this Court concludes above that, taking the facts in the light
most favorable to Fontanilla, the two prongs of the qualified immunity test are
satisfied such that Massey is not entitled to qualified immunity, Massey
nevertheless argues that he “could have believed reasonably but mistakenly that his
conduct did not violate a clearly established constitutional right.” (Motion at 22.)
Massey points to Hawaii Revised Statutes sections 703-307 and 803-7, which
allow officers to use force “to compel the person to submission” and “to effect a
lawful arrest.” Haw. Rev. Stat. §§ 703-307, 803-7. However, according to
Massey’s sworn declaration, he shot Fontanilla – not to compel his submission or
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to effect an arrest – but “in order to protect myself.” (Massey Decl’n ¶ 18.)
Because Massey shot Fontanilla to protect himself, his use of force is not justified
by the Hawaii Revised Statutes §§ 703-307, 803-7. Accordingly, the Court
concludes that Massey is not entitled to qualified immunity. Mattos, 661 F.3d
at 440.
IV.
State Law Negligence Claims
Massey contends that he is entitled to summary judgment on the state
law negligence claims in Count I (negligently shooting Fontanilla) and Count IV
(negligent infliction of emotional distress). (Motion at 18-20.) Massey argues that
he is entitled to qualified or conditional privilege under Hawaii law. (Id.)
“Hawaii state law provides that nonjudicial governmental officials
enjoy a ‘qualified or conditional privilege’ when performing their official duties.”
Bartolome v. Kashimoto, Civ. No. 06-176 BMK, 2009 WL 1956278, at *1
(June 26, 2009). Law enforcement officers “are nonjudicial government officials
who are eligible for the qualified or conditional privilege.” Id. The Hawaii
Supreme Court has held that this qualified privilege “allow[s] the action to proceed
but [ ] limit[s] liability to only the most guilty of officials by holding plaintiff[s] to
a higher standard of proof than in normal tort cases.” Medeiros v. Kondo, 522
P.2d 1269, 1272 (Haw. 1974). “Thus, to overcome this qualified privilege, a
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plaintiff must prove by clear and convincing evidence that an official was
‘motivated by malice and not by an otherwise proper purpose.’” Bartolome, 2009
WL 1956278, at *1. In order to overcome a nonjudicial official’s qualified
privilege, there must be “a showing that the official was ‘motivated by ill will or an
intention to commit, or a reckless disregard of committing, a wrongful act.’” Id. at
*2.
Like in this case, the plaintiff’s claims in Bartolome were for
negligence and negligent infliction of emotional distress. Id. In Bartolome, this
Court held that a showing of “ill will or an intention to commit” is “incompatible
with a claim based on negligence.” Id. This Court stated: “The level of intent
required to demonstrate malice removes the alleged injurious action from the realm
of negligence into that of intentionally tortious conduct.” Id. Thus, this Court held
that “a non-judicial official’s qualified privilege provides complete immunity from
negligence claims.” Id. Accordingly, Massey is entitled to qualified privilege –
and therefore summary judgment – as to the state law negligence claims in Count I
and IV.
V.
Count VI for Punitive Damages
In Count VI as well as in the Prayer for Relief, Fontanilla seeks
punitive damages. Although punitive damages may be sought as relief in this case,
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it is not an independent cause of action. Otani v. City & County of Haw., 126 F.
Supp. 2d 1299, 1309 (D. Haw. 1998); see also Mullaney v. Hilton Hotels Corp.,
634 F. Supp. 2d 1130, 1152 (D. Haw. 2009) (“A claim for punitive damages is not
an independent tort, but is purely incidental to a separate cause of action.”).
Therefore, summary judgment is proper on Fontanilla’s claim for punitive
damages. Otani, 126 F. Supp. 2d at 1309 (noting that punitive damages is not an
independent cause of action and granting summary judgment on the plaintiff’s
claim for punitive damages); Mullaney, 634 F. Supp. 2d at 1153 (granting
summary judgment on a claim for punitive damages). However, in granting
summary judgment on this claim, the Court is not denying Fontanilla’s ability to
seek punitive damages as a remedy in this case.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and
DENIES IN PART Massey’s Motion for Summary Judgment (Doc. 39). All of
Fontanilla’s claims survive summary judgment, except for the state law negligence
claims in Count I and IV and the claim for punitive damages in Count VI.
Fontanilla v. State of Hawaii, et al., Civ. No. 12-00641 BMK; ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT KRAIG MASSEY'S, IN HIS INDIVIDUAL
CAPACITY, MOTION FOR SUMMARY JUDGMENT.
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DATED: Honolulu, Hawaii, August 19, 2013.
IT IS SO ORDERED.
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Fontanilla v. State of Hawaii, et al., Civ. No. 12-00641 BMK; ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT KRAIG MASSEY'S, IN HIS INDIVIDUAL
CAPACITY, MOTION FOR SUMMARY JUDGMENT.
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