Gregg v. State of Hawaii, Department of Public Safety

Filing 45

ORDER (1) GRANTING DEFENDANTS STATE OF HAWAII, DEPARTMENT OF PUBLIC SAFETY, TED SAKAI IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAII, AND NEAL WAGATSUMA, IN HIS OFFICIAL CAPACITY AS WARDEN OF THE KAUAI COMMUNITY CORRECTIONAL CENTER, DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAII, IN HIS INDIVIDUAL CAPACITY'S MOTION TO DISMISS FIRST AMENDED COMPLAINT, DOC. NO. 19; AND (2) GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS, DOC. NO. 27 re 19 ; 27 - Signed by JUDGE J. MICHAEL SEABRIGHT on 8/18/2014. For the foregoing reasons, the court GRANTS State Defendants' Motion to Dismiss, Doc. No. 19; and GRANTS Wagatsuma, in his individual capacity's Motion for Judgment on the Pleadings. Because this dismissal is without leave to amend, the court directs the Clerk's Office to close the case file." (emt, )CERTIFICATE OF SERVICEParticipants registered to re ceive 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
ALEXANDRIA GREGG Individually)
and on Behalf of All Others Similarly )
Situated,
)
)
Plaintiffs,
)
)
vs.
)
)
THE STATE OF HAWAII,
)
DEPARTMENT OF PUBLIC
)
SAFETY, et al.,
)
)
Defendants.
)
)
)
)
)
)
)
)
_____________________________ )

CIV. NO. 14-00056 JMS-KSC
ORDER (1) GRANTING
DEFENDANTS STATE OF HAWAII,
DEPARTMENT OF PUBLIC SAFETY,
TED SAKAI IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE
DEPARTMENT OF PUBLIC SAFETY,
STATE OF HAWAII, AND NEAL
WAGATSUMA, IN HIS OFFICIAL
CAPACITY AS WARDEN OF THE
KAUAI COMMUNITY
CORRECTIONAL CENTER,
DEPARTMENT OF PUBLIC SAFETY,
STATE OF HAWAII, IN HIS
INDIVIDUAL CAPACITY’S MOTION
TO DISMISS FIRST AMENDED
COMPLAINT, DOC. NO. 19; AND
(2) GRANTING MOTION FOR
JUDGMENT ON THE PLEADINGS,
DOC. NO. 27

ORDER (1) GRANTING DEFENDANTS STATE OF HAWAII,
DEPARTMENT OF PUBLIC SAFETY, TED SAKAI IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE DEPARTMENT OF PUBLIC
SAFETY, STATE OF HAWAII, AND NEAL WAGATSUMA, IN HIS
OFFICIAL CAPACITY AS WARDEN OF THE KAUAI COMMUNITY
CORRECTIONAL CENTER, DEPARTMENT OF PUBLIC SAFETY,
STATE OF HAWAII, IN HIS INDIVIDUAL CAPACITY’S MOTION TO
DISMISS FIRST AMENDED COMPLAINT, DOC. NO. 19; AND
(2) GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS,
DOC. NO. 27

I. INTRODUCTION
On January 31, 2014, Plaintiff Alexandria Gregg (“Plaintiff”),
individually and on behalf of all others similarly situated, brought this civil rights
class action against Defendants State of Hawaii, Department of Public Safety
(“DPS”); Ted Sakai in his official capacity as Director of DPS (“Sakai”); and Neal
Wagatsuma (“Wagatsuma”) in both his individual and official capacity as Warden
of the Kauai Community Correctional Center (“KCCC”). Plaintiff alleges that
while she was incarcerated at KCCC in March 2011 and June to November 2011,
she experienced cruel and unusual punishment and other unlawful treatment when
Wagatsuma subjected Plaintiff and others similarly situated to harassment, sexual
psychological humiliation, and public sexual degradation.
Currently before the court are (1) DPS, Sakai, and Wagatsuma in his
official capacity’s (collectively “State Defendants”) Motion to Dismiss Plaintiff’s
First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6), Doc. No. 19,
and (2) Wagatsuma, in his individual capacity’s Motion for Judgment on the
Pleadings, Doc. No. 27. State Defendants argue that the Eleventh Amendment bars
certain aspects of Plaintiff’s claims, and all Defendants argue that Plaintiff’s claims
are barred by the statute of limitations. Based on the following, the court

2

GRANTS the Motions and dismisses Plaintiff’s First Amended Complaint
(“FAC”), without leave for Plaintiff to amend.
II. BACKGROUND
A.

Factual Background
Plaintiff’s claims are based on events that occurred while she was

detained at KCCC during various periods from March to November 2011. See
Doc. No. 7, FAC ¶ 8.
1.

March 2011 Incarceration at KCCC
When Plaintiff was first detained at KCCC in March 2011, she was

placed in the Life Time Stand (“LTS”) housing, where conditions are less
restrictive for detainees. Id. ¶ 18. While in custody, Plaintiff asserts that
Wagatsuma repeatedly forced her and other female inmates to stand at a podium
and speak about their private, intimate, and traumatizing sexual experiences. Id.
¶ 19. During these sessions, Wagatsuma asked Plaintiff questions such as whether
she had sex while on drugs, how many sexual partners she had, whether she had
been raped, and the circumstances of her rape. Id. Wagatsuma also allowed male
detainees to question and harass Plaintiff and other class members, and Plaintiff
felt pressured and forced into answering improper questions. Id. ¶ 21. Wagatsuma

3

had male detainees videotape these sessions, which would then be shown to
KCCC’s detainee population. Id. ¶ 19.
After Plaintiff was released from KCCC on March 28, 2011, she
requested that Wagatsuma return the videotapes documenting Plaintiff’s
statements. Id. ¶ 24. In response, Wagatsuma refused, asserting that they were
destroyed. Id.
2.

June to November 2011 Incarceration KCCC
Plaintiff returned to KCCC in June 2011, when she was pregnant.

Id. ¶¶ 25-26. Plaintiff asserts that Wagatsuma became upset when he learned the
identity of the father, and placed Plaintiff in KCCC’s regular module units instead
of LTS housing. Id. ¶¶ 26-27. It was not until Plaintiff’s child was born in
September 2011 and she began pumping breast milk that Wagatsuma transferred
Plaintiff to LTS housing. Id. ¶ 28.
While Plaintiff was in LTS housing, Wagatsuma allegedly resumed
his public questioning of Plaintiff regarding her private sexual matters. Id. ¶ 29.
During these sessions in which male detainees and KCCC staff were present,
Wagatsuma would ask Plaintiff, for example, how many males in the group
Plaintiff slept with and would call her a “batuna,” a local slang word for a woman
who engages in sex for drugs. Id. Wagatsuma subsequently transferred Plaintiff
4

back to the regular module units when he learned that she had stopped pumping
breast milk, and Plaintiff became severely depressed. Id. ¶¶ 30-31.
Plaintiff asserts that “[s]ometime in November of 2011, Plaintiff could
not tolerate Wagatsuma’s continued harassment, sexual psychological humiliation,
and improper treatment.” Id. ¶ 32. As a result, Plaintiff requested and was granted
a transfer to federal custody at the Federal Detention Center (“FDC”) in Honolulu.
Id. Plaintiff was detained at the FDC from November 2011 until her release on
May 15, 2012. Id. ¶ 33.
B.

Procedural Background
Plaintiff filed this action on January 31, 2014, and filed her FAC on

March 21, 2014. Doc. No. 7. The FAC asserts claims titled (1) Cruel and Unusual
Punishment Under the Eighth Amendment of the United States Constitution;
(2) Violations of Due Process of Law Under the Fifth and Fourteenth Amendments
of the United States Constitution; (3) Failure of the State of Hawaii to Properly
Oversee and Supervise Mental Health Treatment/Services at KCCC; (4) Violations
of the Right to Freedom of Speech Under the First and Fourteenth Amendments of
the United States Constitution (incorrectly labeled as a second “Third Claim for
Relief”); (5) Violation of Equal Protection Under the Fourteenth Amendment of
the United States Constitution; (6) Violation of 42 U.S.C. Section 1983; and
5

(7) Violations of Hawaii State Constitution.
On May 1, 2014, State Defendants filed their Motion to Dismiss.
Doc. No. 19. On May 20, 2014, Wagatsuma filed his Motion for Judgment on the
Pleadings. Doc. No. 27. Plaintiff filed an Opposition to the Motion to Dismiss on
June 9, 2014, Doc. No. 29, and an Opposition to the Motion for Judgment on the
Pleadings on June 16, 2014. Doc. No. 36. Replies were filed on June 16 and 2014.
Doc. Nos. 35, 37. Pursuant to the court’s July 1, 2014 Entering Order, Doc. No.
38, Defendants filed a Supplemental Memorandum on July 2, 2014. Doc. No. 39.
A hearing was held on July 7, 2014.
On July 8, 2014, a status conference was held in which the parties
agreed for the court to hold in abeyance its determination on the Motions to allow
Plaintiff forty-five days to seek leave to amend the FAC. See Doc. No. 42. In an
August 18, 2014 letter, Plaintiff’s counsel notified the court that she would not be
filing a motion seeking to name a replacement class representative such that the
Motions are ripe for adjudication. Doc. No. 44.
III. STANDARDS OF REVIEW
A.

Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss

claims over which it lacks proper subject matter jurisdiction. The court may
6

determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule
12(b)(1) so long as “the jurisdictional issue is [not] inextricable from the merits of
a case.” Kingman ReefAtoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195
(9th Cir. 2008). The moving party “should prevail [on a motion to dismiss] only if
the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.” Casumpang v. Int’l Longshoremen’s &
Warehousemen’s Union, 269 F.3d 1042, 1060-61 (9th Cir. 2001) (citation and
quotation marks omitted); Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495,
499 (9th Cir. 2001).
B.

Rules 12(b)(6) and 12(c)
Rule 12(b)(6) motions are virtually identical to Rule 12(c) motions,

with the only practical difference being the time of filing, and the court therefore
applies the same standard of review to both motions. See Dworkin v. Hustler
Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (holding that Rule 12(c) and
Rule 12(b)(6) motions differ in time of filing but are otherwise “functionally
identical,” and applying the same standard of review). Federal Rule of Civil
Procedure 12(b)(6) permits a motion to dismiss a claim for “failure to state a claim
upon which relief can be granted[.]” Similarly, in considering a Rule 12(c) motion
for judgment on the pleadings, the court must accept as true all factual allegations
7

in the complaint, and construe them in the light most favorable to the non-moving
party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
To survive either of these motions, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Weber v. Dep’t of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must
accept as true all of the allegations contained in the complaint -- “is inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.”).
Rather, “[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.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken
8

as true must plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only permit
the court to infer “the mere possibility of misconduct” do not show that the pleader
is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
IV. ANALYSIS
Defendants argue that Plaintiff’s claims against the DPS and Sakai
and Wagatsuma in their official capacities are barred by the Eleventh Amendment,
and that Plaintiff’s claims are otherwise barred by the statute of limitations.1 The
court addresses each argument in turn.
A.

Eleventh Amendment Immunity
State Defendants argue that Plaintiff’s claims against them are barred

by the Eleventh Amendment. The court agrees in part.
“It is clear, . . . that in the absence of consent a suit in which the State
or one of its agencies or departments is named as the defendant is proscribed by the

1

State Defendants also include in their Motion a one-sentence statement, without any
legal support, that “Plaintiff’s Sixth Claim for Relief must be dismissed for the additional reason
that there is no 1st, 4th, 8th or 14th Amendment to the Hawaii State Constitution.” Doc. No. 191, State Defs.’ Mot. at 2. And in their Reply, State Defendants further argue that Plaintiff cannot
assert a violation of Hawaii state law, including the Hawaii State Constitution. Doc. No. 35,
State Defs.’ Reply at 13. Because State Defendants did not properly present and/or support these
arguments, the court will not address them.
9

Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984). “This jurisdictional bar applies regardless of the nature of the relief
sought.” Id.; Alabama v. Pugh, 438 U.S. 781, 782 (1978) (holding that suit against
the State and its Board of Corrections is barred by the Eleventh Amendment absent
consent); see also Durning v. Citibank, 950 F.2d 1419, 1422-23 (9th Cir. 1991)
(noting that the Eleventh Amendment bars “federal courts from deciding virtually
any case in which a state or the ‘arm of a state’ is a defendant”).
The Eleventh Amendment does not, however, bar suits seeking
prospective injunctive relief against state officers sued in their official capacities.
See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Ex Parte
Young, 209 U.S. 123, 159-60 (1908); Pena v. Gardener, 976 F.2d 469, 472 (9th
Cir. 1992). Nor does the Eleventh Amendment bar suits for violations of federal
law against state officials sued in their individual capacities for damages. Scheuer
v. Rhodes, 416 U.S. 232, 238 (1974).
Further, “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th
Cir. 1997). “[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office.” Will, 491
10

U.S. at 71 (citations omitted). Eleventh Amendment immunity is therefore
consistent with the general rule that “states or governmental entities that are
considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’
under § 1983.” Lawrence Livermore Nat’l Lab., 131 F.3d at 839 (citing Will, 491
U.S. at 71).
The State of Hawaii has not waived its immunity to suit in federal
court, and the DPS is an agency of the State and not considered a “person” under
§ 1983. Thus, Plaintiff’s claims against the DPS are barred by the Eleventh
Amendment and are DISMISSED. The Eleventh Amendment does not, however,
preclude Plaintiff’s claims for prospective injunctive relief against Sakai and
Wagatsuma to the extent they are sued in their official capacities, or Plaintiff’s
claims for damages against Wagatsuma in his individual capacity.2 See Coeur
d’Alene Tribe of Idaho, 521 U.S. at 269; Hafer v. Melo, 502 U.S. 21, 27, 31(1991)
(stating that suits against state officials in their official capacity should be treated

2

In reply, State Defendants argue that the injunctive and declaratory relief aspects of
Plaintiff’s claims are not cognizable. See Doc. No. 35, State Defs.’ Reply at 12. The court will
not consider substantive arguments raised for the first time in a Reply. See, e.g., Hi-Tech
Rockfall Const., Inc. v. Cnty. of Maui, 2009 WL 529096, at *18 n.9 (D. Haw. Feb. 26, 2009)
(“Local Rule 7.4 provides that ‘[a]ny arguments raised for the first time in the reply shall be
disregarded.’”); Coos Cnty. v. Kempthorne, 531 F.3d 792, 812 n. 16 (9th Cir. 2008) (declining to
consider an argument raised for the first time in a reply brief).
11

as suits against the State). The court therefore proceeds to address Defendants’
remaining arguments for dismissal as to these Defendants.
B.

Statute of Limitations
To determine whether Plaintiff’s claims are barred by the statue of

limitations, the court first outlines the applicable legal framework and then
addresses Plaintiff’s claims.
1.

Framework
In § 1983 actions, courts apply the forum state’s statute of limitations

and its tolling provisions for personal injury actions. See Canatella v. Van de
Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007). As a result, Plaintiff’s § 1983 claims
are subject to the two-year statute of limitations set forth in Hawaii Revised
Statutes (“HRS”) § 657-7, which provides that “[a]ctions for recovery of
compensation for damage or injury to persons or property shall be instituted within
two years after the cause of action accrued, and not after . . . .”3

3

State Defendants argue that the applicable statute of limitations for claims against them
is provided in HRS § 662-4, which provides that, except for an irrelevant exception, “[a] tort
claim against the State shall be forever barred unless action is begun within two years after the
claim accrues.” As described above, Plaintiff’s claims against the State are barred by the
Eleventh Amendment immunity. And to the extent HRS § 662-4 would apply to Sakai and
Wagatsuma in their official capacities (an issue the court need not decide), it would not affect the
analysis -- both statutes provide a limitations period of two years, Hawaii’s tolling provisions do
not apply to this case, and federal law still applies in determining accrual. Indeed, at the July 7,
2014 hearing, the parties agreed that regardless of the particular applicable statute, a two-year
statute of limitations applies.
12

Although the court looks to state law to determine the applicable
statute of limitations, when a cause of action begins to accrue is a question of
federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a
§ 1983 cause of action is a question of federal law that is not resolved by reference
to state law.”). Under federal law, “[t]he touchstone for determining the
commencement of the limitations period is notice: ‘a cause of action generally
accrues when a plaintiff knows or has reason to know of the injury which is the
basis of his action.’” Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1136
(9th Cir. 2006) (quoting Hoesterey v. City of Cathedral City, 945 F.2d 317, 319
(9th Cir. 1991)); see also Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54
(9th Cir. 2000). Implicit in this standard is that “[t]he plaintiff must be diligent in
discovering the critical facts.” Bibeau v. Pac. Nw. Research Found. Inc., 188 F.3d
1105, 1108 (9th Cir. 1999). Thus, “a plaintiff who did not actually know that his
rights were violated will be barred from bringing his claim after the running of the
statute of limitations, if he should have known in the exercise of due diligence.”
Id. (citing Herrera-Diaz v. United States, 845 F.2d 1534, 1537 (9th Cir. 1988));
United States v. Kubrick, 444 U.S. 111, 122 (1979) (explaining that the statute of
limitations begins to run only upon a plaintiff’s knowledge “of the critical facts
that he has been hurt and who has inflicted the injury”).
13

In general, “what [a plaintiff] knew and when [he] knew it are
questions of fact.” Bibeau, 188 F.3d at 1108 (quoting Simmons v. United States,
805 F.2d 1363, 1368 (9th Cir. 1986)). A claim may be dismissed under Rule 12 as
“barred by the applicable statute of limitations only when ‘the running of the
statute is apparent on the face of the complaint.’” Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v.
Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)); see also Supermail
Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (“[A]
complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can
prove no set of facts that would establish the timeliness of the claim.” (quotations
and citations omitted)).4
2.

Application
All of Plaintiff’s claims are for injuries she allegedly sustained from

her incarceration at KCCC, which ended in November 2011. Specifically, Plaintiff
alleges: (1) an Eighth Amendment claim that Defendant’s actions during Plaintiff’s
incarceration at KCCC constitute cruel and unusual punishment, Doc. No. 7, FAC
¶¶ 65-71; (2) a claim that Plaintiff was subjected to illegal “mental health”
4

Although Twombly “retired” the “no set of facts standard,” the Ninth Circuit continues
to use the “no set of facts” formulation post-Twombly in the statute of limitations context. See,
e.g., Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).
14

practices and treatment while at KCCC without due process of law, id. ¶¶ 73-75;
(3) a claim that the State failed to oversee and supervise Plaintiff’s mental health
treatment and services at KCCC, id. ¶¶ 77-82; (4) a First Amendment claim that
she was retaliated against while at KCCC for reporting the misconduct at KCCC,
id. ¶¶ 84-86; and (5) an equal protection claim and violations of the Hawaii State
Constitution based on the events she experienced at KCCC. Id. ¶¶ 88-95. Because
Plaintiff brought this action on January 31, 2014 -- i.e., over two years after she
was transferred from KCCC to FDC and after she was subjected to this alleged
misconduct -- it appears that Plaintiff’s claims are time-barred unless the FAC
alleges facts providing a basis to toll the statute of limitations or suggesting that
her claims accrued sometime after she left KCCC.
a.

Tolling

Plaintiff’s incarceration at FDC from November 2011 until May 15,
2012 does not toll the statute of limitations. Although HRS § 657-13(1) tolls the
statute of limitations for imprisonment for certain cases, it does not apply where
such action is brought against “the sheriff, chief of police, or other officers.” The
DPS and its officers fall within this exclusion -- HRS § 26-14.6(f), the statute
creating the DPS, states that the “functions, authority, and obligations, . . . and the
privileges and immunities conferred thereby, exercised by a ‘sheriff’ . . . shall be
15

exercised to the same extent by the department of public safety.” In other words,
any statute that applies to the sheriff, chief of police, or other officers, conferring
either duties or immunities upon them, or, as in this case, exempting them from
application of a statute, applies equally to the DPS and its employees. As a result,
Plaintiff’s § 1983 claims are not tolled by HRS § 657-13. See Coles v. Eagle, 2014
WL 2214046, at *4 (D. Haw. May 27, 2014) (“This district court has ruled that,
pursuant to the ‘sheriff’ exception, § 657-13 tolling does not apply to the State of
Hawai‘i Department of Public Safety or its employees.” (citations omitted)); see
also Rodenhurst v. Hawaii, 2010 WL 1783568, at *3 (D. Haw. Apr. 29, 2010)
(citing Samonte v. Sandin, 2007 WL 461311, at *4 (D. Haw. Feb. 07, 2007)
(determining that § 657-13 does not apply to the DPS)).
b.

Accrual

Nor does the FAC include any allegations suggesting that Plaintiff did
not know or have reason to know of her claims until some time after she left
KCCC. Rather, the FAC makes plain that Plaintiff was well aware of her claims at
the time of her incarceration at KCCC. In particular, Plaintiff asserts that
Wagatsuma subjected her to a series of events constituting “harassment, sexual
psychological humiliation, and public sexual degradation.” Doc. No. 7, FAC ¶ 2.
According to Plaintiff, these events made her feel “humiliated, embarrassed, and

16

violated,” id. ¶ 22, and she became severely depressed when Wagatsuma
transferred her from the LTS housing to the regular housing during her second
period of incarceration at KCCC. Id. ¶ 31. That these events caused injury to
Plaintiff at the time of her incarceration and that Plaintiff was aware of such injury
is made clear by the fact that in November 2011, she “could not tolerate
[Wagastuma’s] continued harassment, sexual psychological humiliation, and
improper treatment,” and therefore requested a transfer to FDC. Id. ¶ 32. And
although the FAC asserts that “Plaintiff finds it difficult to think and talk about her
degrading sexual experiences at KCCC,” id. ¶ 34, such fact does not suggest she
was not aware of her injuries. Thus, from the face of the FAC, it is apparent that
the statute of limitations has run and Plaintiff’s claims are untimely.
In opposition, Plaintiff presents the declarations of herself and her
therapist, Ms. Fran Tyson Marchino, to assert that Plaintiff “did not receive any
therapy or psychological counseling related to her experiences from KCCC and the
DPS while in custody and remained unaware of her injuries until early 2014.”
Doc. No. 29, Pl.’s Opp’n at 14. Plaintiff further asserts that Marchino “continues
to help Plaintiff understand and appreciate the extent and nature of the
psychological damage” that Defendants caused. Id.; see also Doc. No. 29-2,
Marchino Decl. ¶ 14 (asserting that Plaintiff is still understanding the scope and

17

depth of her condition, and their therapy sessions have yielded breakthroughs in
which Plaintiff “is just now recognizing the harm and damage that was caused
while incarcerated”).
These new facts are not alleged in the FAC and are therefore
irrelevant in determining whether the FAC alleges timely claims. The court
therefore GRANTS the Motion to Dismiss and the Motion for Judgment on the
Pleadings.
C.

Leave to Amend as to Plaintiff
Although the court may not consider facts outside those alleged in the

FAC in determining Defendants’ Motions to Dismiss and for Judgment on the
Pleadings, the court may consider these facts in deciding whether to grant Plaintiff
leave to amend.5 See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003)
(“Facts raised for the first time in plaintiff’s opposition papers should be
considered by the court in determining whether to grant leave to amend or to
dismiss the complaint with or without prejudice.”) (citing Orion Tire Corp. v.
Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001) (“Where
counsel is able to posit possible amendments that would be consistent with the

5

At the July 7, 2014 hearing, the parties agreed that the court should consider the
Declarations as proffers of evidence for the purpose of determining whether leave to amend
should be granted, as opposed to converting the Motions to Motions for Summary Judgment.
18

operative complaint and could also possibly state a claim for relief, the complaint
should not be dismissed on its face with prejudice.”)). Where potential amendment
would be futile, the court need not provide a plaintiff the opportunity to amend.
See Mirmehdi v. United States, 662 F.3d 1073, 1082 (9th Cir. 2011) (“[A] party is
not entitled to an opportunity to amend his complaint if any potential amendment
would be futile.”); Cervantes v. Countrywide Home Loans, 656 F.3d 1034, 1043
(9th Cir. 2011) (“[L]eave to amend would be futile because the plaintiffs cannot
state a plausible basis for relief.”).
Plaintiff’s additional facts fail to suggest that her claims accrued
sometime after she left KCCC. Although Plaintiff asserts in conclusory fashion
that “I remained unaware of my injuries until well after my release [from FDC] in
May of 2012,” Doc. No. 29-1 Pl.’s Decl. ¶ 18, this statement runs directly contrary
to the other specific statements in her Declaration as well as the FAC suggesting
both that Plaintiff was injured and that she was aware of such injury during her
incarceration at KCCC. See Orion Tire Corp., 268 F.3d at 1137-38; see also
Telesaurus VPC LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (“A district
court may deny a plaintiff leave to amend if it determines that ‘allegation of other
facts consistent with the challenged pleading could not possibly cure the deficiency
. . . .’” (emphasis added) (citation omitted)).

19

In particular, Plaintiff’s assertion that she was unaware of her injuries
is directly contradicted by the specific facts alleged that (1) Plaintiff became
severely depressed when Wagatsuma transferred Plaintiff from the LTS housing to
the regular housing during her second period of incarceration at KCCC, Doc. No.
7, FAC ¶ 31; (2) Plaintiff requested a transfer to FDC because she “could not
tolerate Wagatsuma’s continued harassment, sexual psychological humiliation, and
improper treatment,” Doc. No. 29-1, Pl.’s Decl. ¶ 16; and (3) while Plaintiff was
detained at FDC, she “continued to remain fearful of retaliation by Wagatsuma and
the DPS so [she] did not make any complaints regarding Wagatsuma while in
custody.” Id. ¶ 17. Thus, according to Plaintiff’s own statements, she was aware
of Wagatsuma’s conduct and that the conduct caused her injury. And in light of
these specific statements establishing that Plaintiff was injured during her
incarceration at KCCC and that she was aware that she was injured, her conclusory
assertion that she was unaware of her injuries is insufficient to raise a question as
to when her claims accrued. See also Soremekun v. Thrifty Payless, Inc., 509 F.3d
978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in affidavits and
moving papers is insufficient to raise genuine issues of fact and defeat summary
judgment.”); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345

20

(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to
raise a genuine issue of fact to defeat summary judgment).
At most, Plaintiff’s evidence suggests that she may not have
comprehended the scope of her injuries while incarcerated at KCCC. But
Plaintiff’s awareness that she suffered some injury from Defendants is sufficient to
trigger Plaintiff’s duty to investigate her claims. As the Supreme Court explains:
“Under the traditional rule of accrual . . . the tort cause of
action accrues, and the statute of limitations commences
to run, when the wrongful act or omission results in
damages. The cause of action accrues even though the
full extent of the injury is not then known or predictable.”
1 C. Corman, Limitation of Actions
§ 7.4.1, pp. 526-527 (1991) (footnote omitted); see also
54 C.J.S., Limitations of Actions § 112, p. 150 (2005).
Were it otherwise, the statute would begin to run only
after a plaintiff became satisfied that he had been harmed
enough, placing the supposed statute of repose in the sole
hands of the party seeking relief.
Wallace, 127 S. Ct. at 1097; see, e.g., Wosotowsky v. Metlife Ins. Co., 2013 WL
1703874, at *2 (W.D. Pa. Apr. 19, 2013) (determining that claims were untimely
and explaining: “[t]hat he did not know of the magnitude of the injury or the extent
of the amount of restitution is of no significance under Pennsylvania’s discovery
rule”); Murthy v. Abbott Labs., 847 F. Supp. 2d 958, 979 (S.D. Tex. 2012) (“The
discovery rule does not toll statute of limitations when ‘some injury is known but
the full extent of injury and cause are unknown.’” (citation omitted)).
21

As a result, Plaintiff’s claims accrued when she was aware that she
suffered injury from Defendants, and the fact that it was not until later that Plaintiff
was formally diagnosed and/or that she learned the full extent of injury does not
make the accrual date a moving target. See, e.g., Kraft v. St. John Lutheran
Church of Seward, Neb., 414 F.3d 943, 947 (8th Cir. 2005) (rejecting that statute
of limitations was tolled until plaintiff obtained therapy because prior to that time,
the plaintiff “drew a direct connection between the abuse and his negative
behaviors in 1990”); Pitts v. Blue Ridge Sav. Bank of Greer, 2007 WL 1485909, at
*3 (D.S.C. May 17, 2007) (rejecting plaintiff’s argument that he did not discover
his claim until he was diagnosed with PTSD because “the fact that the injured party
may not at that time comprehend the full extent of the damage is immaterial”
(citations omitted)); Yruegas v. Vestal, 356 F. Supp. 2d 1238, 1243 (D.N.M. 2004)
(rejecting argument that claim did not accrue until the plaintiff “discovered in
counseling that her emotional injuries were the result of the teacher’s sexual abuse”
where evidence established that the plaintiff “knew or should have known of the
facts that would support the constitutional claims she now asserts”).
In opposition, Plaintiff asserts that the court should follow Simmons v.
United States, 805 F.2d 1363 (9th Cir. 1986), to find that the statute of limitations

22

did not begin until she obtained therapy with Tyson Marchino. See Doc. No. 36,
Pl.’s Opp’n at 12-14. Simmons, however, presents very different facts.
In Simmons, the plaintiff brought suit against the government under
the FTCA for injuries she sustained when her Indian health service counselor
wrongfully engaged her in a seemingly consensual sexual relationship which lasted
from 1978 to 1980. Id. at 1364. It was not until February 1983 that the plaintiff
learned that her counselor’s misconduct was the cause of her recent psychological
problems. Id. Prior to that time, the plaintiff had “no idea” that her emotional
condition was caused by the counselor’s conduct. Id. at 1367. As a result,
Simmons held that the plaintiff’s cause of action did not accrue during her
relationship with the counselor, but rather when she learned for the first time that
the counselor’s conduct caused her emotional injury. Id. at 1368. Simmons
reasoned that these facts established that “[i]t was not knowledge of [the
counselor’s] legal fault that [the plaintiff] gained in 1983, but knowledge of the
fact that his mishandling of her normal transference had caused her psychological
damage.” Id. at 1367.6

6

Similar to Simmons, other cases have held that a claim does not accrue where the
factual basis for the cause of action is “inherently unknowable” at the time of the injury -- i.e.,
that “the factual basis is ‘incapable of detection by the wronged party through exercise of
reasonable diligence.” Ramirez-Carlo v. United States, 496 F.3d 41, 46 (1st Cir. 2007) (quoting
Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002)); see also William A. Graham Co.
(continued...)
23

Although at the July 7, 2014 hearing Plaintiff’s counsel asserted that
Defendants’ unlawful acts were taken under the guise of “therapy,” unlike in
Simmons, the allegations of the FAC make plain that Plaintiff was aware that
Wagatsuma’s actions were wrongful and that they caused her injury during her
incarceration at KCCC. As a result, even if Plaintiff did not understand the full
scope of her injuries, her claims accrued at that time. See also K.E.S. v. United
States, 38 F.3d 1027, 1030 (8th Cir. 1994), holding modified in other part by
Garza v. U.S. Bureau of Prisons, 284 F.3d 930 (8th Cir. 2002) (distinguishing
Simmons where the plaintiff testified that she knew the defendant’s sex abuse
caused her contemporaneous physical and emotional injury); Sell v. U.S. Dep’t of
Justice, 585 F.3d 407, 410 & 410 n.2 (8th Cir. 2009) (rejecting that Simmons
applied where the plaintiff was aware of his injuries and their cause, and explaining
that “[a] government-induced illness tolls the statute only if it prevents discovery
of the nature and cause of the injury. If the illness does not prevent discovery, the
government’s negligence will not do so on its own.”); Reed v. Barnes, 986 F.2d
1428 (10th Cir. 1993) (determining that Simmons and similar cases did not apply
and that the statute of limitations ran where “[t]he alleged sexual abuse of which

6

(...continued)
v. Haughey, 646 F.3d 138, 150 (3d Cir. 2011); Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439
(5th Cir. 2009).
24

plaintiff accuses the defendant did not occur while plaintiff was a child when it
could be assumed that plaintiff would be unaware of the wrongful character of the
behavior or powerless to stop it”).
The court therefore GRANTS State Defendants’ Motion to Dismiss,
and Wagatsuma in his individual capacity’s Motion for Judgment on the Pleadings.
And because Plaintiff’s additional allegations contained in her Opposition provide
no basis to find that this action is timely, this dismissal is without leave to amend
as to Plaintiff.
V. CONCLUSION
For the foregoing reasons, the court GRANTS State Defendants’
Motion to Dismiss, Doc. No. 19; and GRANTS Wagatsuma, in his individual
///
///
///
///
///
///
///
///

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capacity’s Motion for Judgment on the Pleadings. Because this dismissal is
without leave to amend, the court directs the Clerk’s Office to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 18, 2014.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Gregg v. State of Hawaii, Dep’t of Public Safety, et al., Civ. No. 14-00056 JMS-KSC, Order
(1) Granting Defendants State of Hawaii, Department of Public Safety, Ted Sakai in His Official
Capacity as Director of the Department of Public Safety, State of Hawaii, and Neal Wagatsuma,
in His Individual Capacity as Warden of the Kauai Community Correctional Center, Department
of Public Safety, State of Hawaii, in His Official Capacity’s Motion to Dismiss First Amended
Complaint, Doc. No. 19; and (2) Granting Motion for Judgment on the Pleadings, Doc. No. 27

26