Kaahu al v. Randall et al

Filing 206

ORDER DENYING DEFENDANTS MARC A. RANDALL, SCOTT JONES VALDEZ, ANDRE PHILLIP CARREIRA, JOHN PATRICK VINES, AND RYAN NISHIMURA'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 161 ) AND GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 159 ) - Signed by JUDGE HELEN GILLMOR on 1/18/2018. "Defendant Officers' Motion for Summary Judgment (ECF No. 161 ) is DENIED. Defendant City and County of Honolulu's Motion for Summary Judgment (ECF No. 159 ) is GRANTED, IN PART, and DENIED, IN PART. Defendant City and County of Honolulu's Motion is GRANTED, as to: (1) Secti on 1983 Monell liability based on failure to train; (2) state law cause of action for negligent hiring; (3) state law cause of action for negligent training; and, (4) punitive damages against the City and County of Honolul u. Defendant City and County's Motion for Summary Judgment is DENIED, as to: (1) Section 1983 Monell liability based on policy andcustom; (2) Section 1983 Mon ell liability based on failure to supervise; (3) state law cause of action for negligent supervision; and, (4) state law tort claims based on respondeat superior. THE FOLLOWING CAUSES OF ACTION REMAIN : I. Plaintiff Jonah Kaahu against: The Defendant City and County of Honolulu; and, The Defendant Officers Randall, Valdez, Carreira, Nishimura, and Vines: C ause of Action 1: Excessive Force in violation of the Fourth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983 Cause of Action 2: Unreasonable Pretrial Detention in violation of the Fourth Amendment to the United Sta tes Constitution pursuant to 42 U.S.C. § 1983 Cause of Action 7: Assault and Battery Cause of Action 8: Negligence Cause of Action 12: False Arrest & False Imprisonment Cause of Action 13: Malicious Prosecution II. Plaintiff Donna Kaahu against: The Defendant City and County of Honolulu; and, The Defendant Officers Randall, Valdez, Carreira, Nishimura, and Vines: Cause of Action 3: Lo ss of Companionship due to Violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution Pursuant to 42 U.S.C. § 1983 Cause of Action 11: Loss of Consortium III. Plaintiffs Jonah Kaahu and Donna Kaahu against: The Defendant City and County of Honolulu: Cause of Action 4: Monell Liability Based on Policy or Custom for United States Constitutional Violations pursuant to 42 U. S.C. § 1983 Cause of Action 5: Monell Liability Based on Failure to Supervise for United States Constitutional Violations pursuant to 42 U.S.C. § 1983 Cause of Action 6: Negligent Supervision IV . Plaintiffs Jonah Kaahu and Donna Kaahu against: The Defendant City and County of Honolulu; and, The Defendant Officers Randall, Valdez, Carreira, Nishimura, and Vines: Cause of Action 9: Negligent In fliction of Emotional Distress Cause of Action 10: Intentional Infliction of Emotional Distress" (emt, )CERTIFICATE OF SERVICEParticipants registered to receive el ectronic 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
JONAH K. KAAHU and DONNA
LIAKA MARIE KAAHU,

)
)
)
Plaintiffs,
)
)
vs.
)
)
MARC A. RANDALL; SCOTT JONES )
VALDEZ; ANDRE PHILLIP
)
CARREIRA; RYAN NISHIMURA;
)
JOHN PATRICK VINES; CITY AND )
COUNTY OF HONOLULU,
)
)
Defendants.
)
)
________________________________

Civil No. 14-00266HG-RLP

ORDER DENYING DEFENDANTS MARC A. RANDALL, SCOTT JONES VALDEZ,
ANDRE PHILLIP CARREIRA, JOHN PATRICK VINES, AND RYAN NISHIMURA’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 161)
and
GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT CITY AND
COUNTY OF HONOLULU’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 159)
Plaintiffs Jonah and Donna Kaahu filed a First Amended
Complaint against the City and County of Honolulu and Honolulu
police officers Marc Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines.
The First Amended Complaint asserts causes of action arising
from the August 22, 2012 arrest of Plaintiff Jonah Kaahu.
Following his arrest, Kaahu was indicted and detained for over
150 days until a Hawaii State Circuit Court Judge dismissed the
indictment with prejudice.
Plaintiffs have brought claims pursuant to 42 U.S.C. § 1983

1

for alleged constitutional violations along with state law claims
for negligent hiring/training/supervision, assault and battery,
negligence, negligent and intentional infliction of emotional
distress, loss of consortium, false arrest, false imprisonment,
and malicious prosecution.
The Defendant Officers and Defendant City and County filed
separate Motions for Summary Judgment.
Defendants Marc A. Randall, Scott Jones Valdez, Andre
Phillip Carreira, John Patrick Vines, and Ryan Nishimura’s Motion
for Summary Judgment (ECF No. 161) is DENIED.
Defendant City and County of Honolulu’s Motion for Summary
Judgment (ECF No. 159) is GRANTED, IN PART, AND DENIED, IN PART.

PROCEDURAL HISTORY
On June 9, 2014, Plaintiffs Jonah K. Kaahu and Donna Liaka
Marie Kaahu filed a Complaint.

(ECF No. 1).

On September 10, 2014, Plaintiffs filed a NOTICE OF
DISMISSAL AS TO ALL CLAIMS AGAINST DEFENDANTS HONOLULU POLICE
DEPARTMENT, JOHN DOES 1-25, JANE DOES 1-25 AND DOE ENTITIES 1-25.
(ECF No. 22).
On March 15, 2016, the Court held a Status Conference and
continued the trial date and the trial-related deadlines at the
Parties’ request.

(ECF No. 45).

On June 1, 2016, Defendants filed Motions for Summary
Judgment.

(ECF Nos. 52, 54).

On August 1, 2016, the Court issued an ORDER TO SHOW CAUSE.
2

(ECF No. 88).

The Court required the Parties to file memoranda

concerning the representation of counsel for both Plaintiffs and
Defendants pursuant to the Hawaii Rules of Professional Conduct.
(Id.)
On August 8, 2016, the Court held a hearing and stayed the
case pending resolution on the possible conflicts.

(ECF No. 96).

On February 6, 2017, Plaintiffs’ attorney, Myles Breiner,
filed an EX PARTE APPLICATION FOR LEAVE TO FILE WITHDRAWAL AND
SUBSTITUTION OF COUNSEL FOR PLAINTIFFS JONAH AND DONNA KAAHU.
(ECF No. 99).
On February 9, 2017, the Court granted Attorney Breiner’s
Application for leave to withdraw and lifted the stay on the
proceedings.

(ECF No. 100).

On February 14, 2017, Attorney Terrance Revere was
substituted as counsel for Plaintiffs.

(ECF No. 102).

On June 13, 2017, the Court held a Status Conference.

(ECF

No. 110).
On June 29, 2017, Defendants withdrew their pending Motions
for Summary Judgment.

(ECF Nos. 115, 116).

On August 15, 2017, Defendants filed Motions for Summary
Judgment.

(ECF Nos. 131, 133).

On August 22, 2017, the Court granted the Parties’
STIPULATION FOR DISMISSAL WITH PREJUDICE OF DEFENDANT LOUIS M.
KEALOHA ONLY.

(ECF No. 139).

On September 15, 2017, Defendants withdrew their Motions for
Summary Judgment.

(ECF No. 153, 154).
3

On September 18, 2017, Plaintiffs filed their FIRST AMENDED
COMPLAINT.

(ECF No. 156).

On November 2, 2017, Defendant City and County of Honolulu
filed DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 159) and a CONCISE STATEMENT OF FACTS (ECF No.
160).
On the same date, the Defendant Honolulu police officers
filed DEFENDANTS MARC A. RANDALL, SCOTT JONES VALDEZ, ANDRE
PHILLIP CARREIRA, JOHN PATRICK VINES, AND RYAN NISHIMURA’S MOTION
FOR SUMMARY JUDGMENT (ECF No. 161) and a CONCISE STATEMENT OF
FACTS (ECF No. 162).
On November 20, 2017, Plaintiffs filed PLAINTIFFS’
MEMORANDUM IN OPPOSITION TO DEFENDANTS MARC A. RANDALL, SCOTT
JONES VALDEZ, ANDRE PHILLIP CARREIRA, JOHN PATRICK VINES, AND
RYAN NISHIMURA’S MOTION FOR SUMMARY JUDGMENT (ECF No. 165) and a
CONCISE STATEMENT OF FACTS IN OPPOSITION (ECF No. 166).
Also on November 20, 2017, Plaintiffs filed PLAINTIFFS’
MEMORANDUM IN OPPOSITION TO DEFENDANT CITY AND COUNTY OF
HONOLULU’S MOTION TO FOR SUMMARY JUDGMENT (ECF No. 167) and a
CONCISE STATEMENT OF FACTS IN OPPOSITION (ECF No. 168).
On December 4, 2017, Defendant City and County of Honolulu
filed its REPLY.

(ECF No. 197).

On the same date, the Defendant Honolulu police officers
filed their REPLY.

(ECF No. 198).

On December 12, 2017, the Court held a hearing on the
Defendants’ Motions for Summary Judgment.
4

(ECF No. 199).

BACKGROUND
The Parties agree that at approximately 5:50 p.m., on August
22, 2012, Officer Marc A. Randall, Officer Scott Jones Valdez,
Corporal Ryan Nishimura, Sergeant Andre Phillip Carreira, and
Lieutenant John Patrick Vines (referred to collectively as
“Defendant Officers”) responded to a call concerning a
disturbance involving several males near Giovanni’s Shrimp Truck
located on the North Shore of Oahu in Kahuku.

(Declaration of

Marc A. Randall (“Randall Decl.”) at ¶ 4, ECF No. 162-3;
Declaration of Ryan Nishimura (“Nishimura Decl.”) at ¶ 6, ECF No.
162-2; Declaration of John P. Vines (“Vines Decl.”) at ¶ 4, ECF
No. 162-5).
The dispatch reported to the Defendant Officers that there
were possible weapons involved.

(Randall Decl. at ¶ 4, ECF No.

162-3; Vines Decl. at ¶ 4, ECF No. 162-5).
There was a crowd of people and numerous vehicles in the
area when the Defendant Officers arrived.

(Randall Decl. at ¶ 6,

ECF No. 162-3; Vines Decl. at ¶ 7, ECF No. 162-5; Declaration of
Jonah Kaahu (“Kaahu Decl.”) at ¶¶ 8-18, ECF No. 166-1).

Officer

Randall arrived first and stated that he “noticed multiple people
running in different directions and shouting.”

(Randall Decl. at

¶ 6, ECF No. 162-3).
The Defendant Officers observed Plaintiff Jonah Kaahu
holding a shovel and another individual holding a stick.
(Randall Decl. at ¶ 6, ECF No. 162-3; Nishimura Decl. at ¶¶ 9-10,

5

ECF No. 162-2; Kaahu Decl. at ¶ 22, ECF No. 166-1).

Defendant

Officers Randall and Valdez focused their attention on Kaahu.
(Nishimura Decl. at ¶ 12, ECF No. 162-2; Randall Decl. at ¶¶ 7-8,
ECF No. 162-3; Declaration of Scott Valdez (“Valdez Decl.”) at ¶¶
7-10, ECF No. 162-4).
the ground.

Officer Valdez physically forced Kaahu to

(Valdez Decl. at ¶ 11, ECF No. 162-4).

Kaahu was arrested by the Defendant Officers after being
sprayed with pepper spray.

(Kaahu Decl. at ¶¶ 37, 38, ECF No.

166-1; Randall Decl. at ¶ 17, ECF No. 162-3).
Kaahu was indicted for state law crimes arising from the
incident with the Defendant Officers.

More than a year later, on

December 19, 2013, a Hawaii State Circuit Court Judge dismissed
the indictment with prejudice.

The Circuit Court Judge stated

that the Honolulu Police Department failed to turn over “crucial
documents” that resulted in “a violation of [Kaahu’s] due process
rights.”

(Transcript of Proceedings in State of Hawaii v. Jonah

Kaahu, Cr. No. 12-1-1384, dated December 23, 2013, at p. 7, ECF
No. 166-32).

Kaahu was detained for a total of more than 150

days between August 22, 2012 and the dismissal of the indictment
on December 19, 2013.

(Kaahu Decl. at ¶ 38, ECF No. 166-1).

The Parties disagree as to a number of events.
Plaintiffs’ Position:
Plaintiffs assert that Jonah Kaahu was shoveling gravel when
a group of young males arrived in a white truck and tried to pick
a fight with him.

(Kaahu Decl. at ¶¶ 7-11, ECF No. 166-1).
6

Kaahu did not know any of the people in the truck and did not
know why they wanted to fight.

(Id.)

pull out a knife and lunge at him.

Kaahu saw one of the men

(Id. at ¶ 12).

Kaahu states

that he swung the shovel at the males to defend himself, his coworkers, and family members.

(Id. at ¶¶ 14, 19).

Kaahu’s cousin, Keoni, claims the group of males were
members of the “North Shore Boyz” and one of them was flashing a
gun.

(Declaration of Keoni Kaahu (“Keoni Decl.”) at ¶¶ 16-17,

ECF No. 166-4).
Janice Souza, Plaintiff Jonah Kaahu’s sister-in-law and the
manager of the shrimp truck, called 911 to report the incident,
and the operator informed her that they had already received
calls and that officers were dispatched to the scene.
(Declaration of Janice Souza, (“Souza Decl.”) at ¶¶ 20-25, ECF
No. 166-3).
The men got back in the white truck and left when a black
truck pulled up and several other males exited and attempted to
fight with Kaahu.

(Kaahu Decl. at ¶¶ 14-17, ECF No. 166-1).

Plaintiffs state that when the Defendant Officers arrived,
Kaahu and others in the crowd told the officers that the males
from the North Shore Boyz were the aggressors.
Keoni Decl. at ¶¶ 29-32, ECF No. 166-4).

(Id. at ¶ 20;

Kaahu claims the

Defendant Officers targeted him instead of the aggressors who
were still present.

(Kaahu Decl. at ¶¶ 20-22, ECF No. 166-1).

Kaahu states that he dropped the shovel when the Defendant
Officers came at him with firearms and tasers drawn.
7

(Id. at ¶

22).

He states that he ran towards the back of the parking lot

then stopped in his tracks and put his hands up as he had not
done anything wrong.

(Id. at ¶¶ 23-24).

Kaahu asserts that Officer Valdez tackled him to the ground
and punched him in the head “with all of his might.”

(Kaahu

Decl. at ¶ 25, ECF No. 166-1; Kaahu Interview at p. 42, ECF No.
166-1).
Kaahu claims that the Defendant Officers used excessive
force including threatening the use of deadly force, punching him
in the face, punching him in the side of the head with handcuffs
“brass knuckles style,” and choking him.

(Kaahu Decl. at ¶¶ 25-

30, ECF No. 166-1; Interview of Jonah Kaahu dated August 23,
2012, at pp. 42-45, ECF No. 166-1).

Kaahu states that the

Defendant Officers piled on top of him and he told them he could
not breathe.

(Kaahu Decl. at ¶¶ 27-29, ECF No. 166-1).

Kaahu

claims that in response, an officer placed him in a chokehold and
shoved his face in the ground.

(Id. at ¶ 29).

Officer Carreira

then pepper sprayed Kaahu in the face.
Kaahu alleges the Defendant Officers provided false
testimony to facilitate bringing criminal charges against him in
state court.

(Kaahu Interview at pp. 45-55, ECF No. 166-1; Kaahu

Decl. at ¶¶ 33, 38, ECF No. 166-1).
The Defendants’ Position:
The Defendant Officers claim that when they arrived at the
scene Plaintiff Jonah Kaahu was holding a five-foot long shovel
8

and another individual was holding a stick.

(Randall Decl. at ¶

7, ECF No. 162-3; Valdez Decl. at ¶¶ 7-9, ECF No. 162-4).

The

Defendant Officers told the individuals to drop their weapons and
the individual holding the stick complied.
¶¶ 11-12, ECF No. 162-2).

(Nishimura Decl. at

Defendants claim Kaahu refused to

comply with the Defendant Officers and instead swung the shovel
at the officers and ran away.

(Declaration of Andre Phillip

Carreira (“Carreira Decl.”) at ¶ 9, ECF No. 162-6; Randall Decl.
at ¶ 10, ECF No. 162-3; Valdez Decl. at ¶ 10, ECF No. 162-4;
Vines Decl. at ¶ 10, ECF No. 162-5).
Officer Valdez states that he chased Kaahu who attempted to
evade capture.

(Valdez Decl. at ¶¶ 10-11, ECF No. 162-4).

Officer Valdez claims he “caught Jonah with my right arm and
forced him to the ground.
a result.”

Both Jonah and I fell to the ground as

(Id. at ¶ 11).

The Defendant Officers allege Kaahu resisted arrest, held
his arms under his body, swung a fist at one of the officers, and
intentionally bit Officer Randall, breaking the skin.

(Randall

Decl. at ¶¶ 15-17, ECF No. 162-3).
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

To defeat

summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
9

Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997).
The moving party has the initial burden of “identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

The moving party, however, has no burden

to negate or disprove matters on which the opponent will have the
burden of proof at trial.

The moving party need not produce any

evidence at all on matters for which it does not have the burden
of proof.

Celotex, 477 U.S. at 325.

The moving party must show,

however, that there is no genuine issue of material fact and that
he or she is entitled to judgment as a matter of law.

That

burden is met by pointing out to the district court that there is
an absence of evidence to support the non-moving party's case.
Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979).

The opposing party must present admissible

evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995).

“If the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.”
10

Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
The Court views the facts in the light most favorable to the
non-moving party.

State Farm Fire & Casualty Co. v. Martin, 872

F.2d 319, 320 (9th Cir. 1989).

Opposition evidence may consist

of declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.
477 U.S. at 324.

Fed. R. Civ. P. 56(c); Celotex,

The opposing party cannot, however, stand on

its pleadings or simply assert that it will be able to discredit
the movant's evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec.
Serv., 809 F.2d at 630.

The opposing party cannot rest on mere

allegations or denials.

Fed. R. Civ. P. 56(e); Gasaway v. Nw.

Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994).

When

the non-moving party relies only on its own affidavits to oppose
summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material fact.
Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); see
also Nat’l Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496,
502 (9th Cir. 1997).
ANALYSIS
Plaintiffs Jonah and Donna Kaahu (collectively,
“Plaintiffs”) assert multiple causes of action against the City
and County of Honolulu and five Honolulu Police Officers: Officer
Marc Randall, Officer Scott Valdez, Sergeant Andre Carreira,
Corporal Ryan Nishimura, and Lieutenant John Vines (collectively,

11

“the Defendant Officers”).
Plaintiffs are suing the Defendant Officers in their
individual and official capacities.
CAUSES OF ACTION IN PLAINTIFFS’ FIRST AMENDED COMPLAINT
Plaintiffs label their claims as causes of action.
FEDERAL QUESTIONS:
Cause of Action 1:

Excessive Force pursuant to 42 U.S.C. § 1983
Stated by:
Plaintiff Jonah Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines

Cause of Action 2:

Unreasonable Pretrial Detention pursuant to
42 U.S.C. § 1983
Stated by:
Plaintiff Jonah Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines

Cause of Action 3:

Loss of Companionship pursuant to 42 U.S.C. §
1983
Stated by:
Plaintiff Donna Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines

Causes of Action
4 and 5:

Municipal Liability pursuant to 42 U.S.C. §
1983 and Monell for its policy/custom and
failure to train/supervise
12

Stated by:
Plaintiffs Jonah and Donna Kaahu
Stated against:
The City and County of Honolulu
STATE LAW CAUSES OF ACTION:
Cause of Action 6:

Negligent Hiring/Training/Supervision
Stated by:
Plaintiff Jonah and Donna Kaahu
Stated against:
The City and County of Honolulu

Cause of Action 7:

Assault and Battery
Stated by:
Plaintiff Jonah Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines

Cause of Action 8:

Negligence
Stated by:
Plaintiff Jonah Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines

Cause of Action 9:

Negligent Infliction of Emotional Distress
Stated by:
Plaintiffs Jonah and Donna Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines

Cause of Action 10: Intentional Infliction of Emotional Distress
Stated by:
13

Plaintiffs Jonah and Donna Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines
Cause of Action 11: Loss of Consortium
State by:
Plaintiff Donna Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines
Cause of Action 12: False Arrest/Imprisonment
Stated by:
Plaintiff Jonah Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines
Cause of Action 13: Malicious Prosecution
Stated by:
Plaintiff Jonah Kaahu
Stated against:
The City and County of Honolulu and Marc
Randall, Scott Valdez, Andre Carreira, Ryan
Nishimura, and John Vines
I.

DEFENDANT OFFICERS’ MOTION FOR SUMMARY JUDGMENT (ECF No.
161)
A.

Qualified Immunity As To Plaintiffs’ Section 1983
Causes of Action

The Defendant Officers assert that they are entitled to
qualified immunity from liability for the Plaintiffs’
constitutional claims for excessive force, unreasonable
14

detention, and loss of companionship as stated in Causes of
Action 1-3 pursuant to 42 U.S.C. § 1983.
The doctrine of qualified immunity protects law enforcement
officials from liability for civil damages under Section 1983
when performing discretionary functions, unless their conduct
violates clearly established rights that a reasonable person
would have known.

Jackson v. City of Bremerton, 268 F.3d 646,

651 (9th Cir. 2001).

Qualified immunity is immunity from suit,

rather than a defense to liability.

Mitchell v. Forsyth, 472

U.S. 511, 526 (1985).
The Ninth Circuit Court of Appeals utilizes a two-step test
to determine whether an officer is entitled to qualified
immunity.

Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011)

(en banc).
The first step asks whether the officer’s conduct,
considered in the light most favorable to the plaintiff claiming
the injury, violated the plaintiff’s constitutional right.
at 440-41.

Id.

If the answer is in the negative, the officer is

entitled to qualified immunity.

Jackson, 268 F.3d at 651.

If

the answer to the first step is in the affirmative, the second
step must be considered.

Mattos, 661 F.3d at 440.

The second step inquires if the constitutional right that
was violated was clearly established at the time of the incident.
Id. (citations omitted).

A constitutional right is clearly

established if “its contours were sufficiently clear that every
reasonable official would have understood that what he is doing
15

violates that right.”

Id. at 442 (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)).

The officer is entitled to qualified

immunity if the law at the time of the incident did not clearly
establish that the officer’s conduct violated the United States
Constitution, and, therefore failed to put the officer on fair
notice.

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam).
Plaintiffs claim that the Defendant Officers’ actions
clearly violated their constitutional rights in three ways:
excessive force, unreasonable detention, and loss of
companionship.
1.

Violations of Plaintiffs’ Constitutional Rights
a.

Excessive Force

First, Plaintiff Jonah Kaahu alleges that the Defendant
Officers applied excessive force in the course of his August 22,
2012 arrest, in violation of the Fourth Amendment to the United
States Constitution.
Claims of excessive force are examined pursuant to the
Fourth Amendment and its objective reasonableness standard.
Brosseau, 543 U.S. at 197.

The United States Supreme Court has

instructed the lower courts that ascertaining whether the force
employed by an officer is reasonable pursuant to the Fourth
Amendment requires a balancing of the intrusion on the
plaintiff’s Fourth Amendment interests against the government’s
countervailing interests.

Graham v. Connor, 490 U.S. 386, 396
16

(1989) (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)).
The balancing test requires an analysis of the totality of
the circumstances.
omitted).

Mattos, 661 F.3d at 440-41 (citations

Courts analyze the reasonableness of an officer’s use

of force from the viewpoint of a reasonable officer at the scene.
C.V. by & through Villegas v. City of Anaheim, 823 F.3d 1252,
1255 (9th Cir. 2016) (quoting Graham, 490 U.S. at 396).
Courts examine the form and amount of force that the
officers inflicted when evaluating the nature and quality of the
intrusion upon a person’s Fourth Amendment rights.

Young v.

Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011).

The

Ninth Circuit Court of Appeals has indicated that the
availability of alternative methods of detaining the suspect, and
the plaintiff's mental and emotional state, may also be
considered.

Brooks v. Clark Cnty., 828 F.3d 910, 920 (9th Cir.

2016) (quoting Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir.
2010)).
The reasonableness of the use of force requires careful
attention to the facts and circumstances of each particular case.
Cnty. of Los Angeles, Cal. v. Mendez, 137 S.Ct. 1539, 1546
(2017).
b.

Pretrial Detention

Second, Plaintiff Jonah Kaahu challenges his pretrial
detention on Fourth Amendment grounds.

The Fourth Amendment

protects the right of the people to be secure in their persons

17

against unreasonable seizures.
137 S.Ct. 911, 917 (2017).

Manuel v. City of Joliet, Ill.,

The Fourth Amendment prohibits

government officials from detaining a person in the absence of
probable cause.

Id. at 918.

A person is confined without

constitutionally adequate justification when a judge’s probable
cause determination is predicated solely on a police officer’s
false statements.
c.

Id.
Loss of Companionship

Third, Plaintiff Donna Kaahu alleges that the actions of the
Defendant Officers interfered with her liberty interest in the
companionship of her husband.
Spouses may assert substantive due process claims pursuant
to the Fourteenth Amendment to the United States Constitution if
official conduct deprives them of the liberty interest in the
companionship of their spouse.

Lemire v. Cal. Dep’t of Corr. &

Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013); Morales v. City of
Delano, 852 F.Supp.2d 1253, 1273-74 (E.D. Cal. 2012).

The

Fourteenth Amendment’s Due Process Clause creates a right to be
free from excessive force which shocks the conscience.

Wilkinson

v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).
d.

State Constitutional Claims Are Not Available
Pursuant to Section 1983

In the First Amended Complaint, Plaintiffs also state that
their Section 1983 causes of action are brought for violations of
18

“the Constitution and laws of the State of Hawaii.”
Amended Complaint at ¶ 117, ECF No. 156).

(First

Plaintiffs are unable

to assert a Section 1983 claim pursuant to a violation of the
Hawaii State Constitution or state law.
Section 1983 is a remedy for violations of federal rights.
Violations of state law, including a state constitution, are not
cognizable pursuant to Section 1983.

Maizner v. Hawaii Dept. of

Educ., 405 F.Supp.2d 1225, 1240 (D. Haw. 2005) (citing Lovell v.
Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996)).
Plaintiffs are also unable to use violations of the Hawaii
Constitution as an independent cause of action.

Courts in Hawaii

have declined to recognize a direct private cause of action for
damages resulting from the violation of rights guaranteed under
the provisions of the Hawaii Constitution.

Davis v. Abercrombie,

No. CIV. 11-00144 LEK-BMK, 2014 WL 3809499, at *15 (D. Haw. July
31, 2014); Makanui v. Dep't of Educ., 721 P.2d 165, 170 n. 2
(Haw. Ct. App. 1986); see Ilae v. Tenn, No. CIV. 12-00316
ACK-KSC, 2013 WL 4499386, at *17 (D. Haw. Aug. 20, 2013).
2.

There Are Genuine Issues of Material Fact As To
The Violations Of Plaintiffs’ Constitutional
Rights

Here, there are genuine issues of material fact as to the
arrest and detention of Plaintiff Jonah Kaahu that prevent
summary judgment on the question of qualified immunity.

19

a.

Questions Of Fact As To The Force Used

Plaintiffs have produced statements from multiple witnesses
asserting that the Defendant Officers used an unreasonable amount
of force to detain Kaahu, including intentionally punching him
with handcuffs used as brass knuckles, along with hitting,
kneeing, and choking.
Plaintiffs state that Officer Valdez tackled Kaahu and
punched him in the head with a closed fist after he voluntarily
stopped running from the officers.

(Kaahu Decl. at ¶ 25, ECF No.

166-1; Kaahu Interview Transcript at pp. 41-42, ECF No. 166-1;
Police Statement of Amanda Aquino at p. 1, ECF No. 166-12; Police
Statement of Jarren-James Kaiahua-Fleming at p. 2, ECF No. 16615).

According to Plaintiffs, the punch caused Kaahu to lose

consciousness for a few seconds and fall to the ground.

(Kaahu

Decl. at ¶¶ 25, ECF No. 166-1; Kaahu Interview Transcript at p.
42, ECF No. 166-1).
Plaintiffs state that after Kaahu landed on the ground,
three or four officers piled on top of him.

(Police Statement

Kaiahua-Fleming Statement at p. 2, ECF No. 166-15; Police
Statement of Rochelle Russell at p. 1, ECF No. 166-11).

Laying

on his stomach, Kaahu told the Defendant Officers that he could
not breathe.

(Id.; Kaahu Decl. at ¶ 26, ECF No. 166-1; Kaahu

Interview Transcript at p. 17; Police Statement of Russell at p.
1, ECF No. 166-11).
Plaintiffs assert that while Kaahu was on his stomach,

20

Officer Randall hit him in the head and mouth with handcuffs and
placed him in a chokehold.

(Kaahu Decl. at ¶ 30, ECF No. 166-1;

Kaahu Interview Transcript at p. 45, ECF No. 166-1; Police
Statement of Tyler McCoy at p. 2, ECF No. 166-7; Police Statement
of Russell, ECF No. 166-11; Kaahu Interview Lineup Identifying
Officer Randall at 2, ECF No. 166-16).
According to Plaintiffs, the chokehold restricted Kaahu’s
breathing, to which Kaahu reflexively responded by biting Officer
Randall’s forearm.

(Kaahu Decl. at ¶¶ 27-29, ECF No. 166-1).

Witness statements provided by Plaintiffs indicate that during
the scuffle, either Officer Valdez or Officer Randall forcefully
pushed Kaahu’s head into the ground.

(Police Statement of Hilary

Benkmen at p. 2, ECF No. 166-8; Police Statement of Aquino at p.
2, ECF No. 166-12; Police Statement of Russell, ECF No. 166-11).
Plaintiffs also claim that Corporal Nishimura bent
Plaintiff’s fingers back and that Lieutenant Vines was involved
in holding down Plaintiff during the encounter.

(Pla.’s Partial

Video of the Incident, ECF No. 169).
It is undisputed that Sergeant Carreira applied pepper spray
to Kaahu’s face.

(Carreira Decl. at ¶ 19, ECF No. 162-6).

According to Plaintiffs, Officer Valdez grabbed Kaahu’s arms and
raised them high behind his neck, causing his left shoulder to
dislocate.

(Kaahu Police Interview at p. 25, attached as Ex. 2

to Pla.’s CSF, ECF No. 166-6).

Plaintiffs allege that Officer

Valdez attempted to break Kaahu’s fingers while lifting his arms.
(Id. at p. 26).

Plaintiffs claim that after Kaahu was
21

handcuffed, Officer Valdez stepped on Kaahu’s ribs.

(Id. at p.

27).
The Defendant Officers disagree with Plaintiffs’
characterization of events, but they do not dispute that Officer
Valdez tackled or caused Kaahu to fall to the ground, that
Officer Randall placed Kaahu in a headlock and hit Kaahu in the
head at least once, and that Sergeant Carreira applied pepper
spray to Kaahu’s face.

(Valdez Decl. at ¶¶ 11-16, ECF No. 162-4;

Randall Decl. at ¶¶ 11-17, ECF No. 162-3; Carreira Decl. at ¶ 19,
ECF No. 162-6).
The Parties have presented conflicting evidence concerning
how many times Kaahu was struck, which of the Defendant Officers
struck Kaahu, and the magnitude of force to which Kaahu was
subjected.

See Loharsingh v. City & Cnty. of S.F., 696 F.Supp.2d

1080, 1104 (N.D. Cal. 2010) (denying defendants’ motion for
summary judgment on excessive force claim where the plaintiff
could not attribute specific blows to each officer).
b.

Questions Of Fact As To The Need To Apply The
Force Used

There are also disputes of fact as to the immediate threat
that Kaahu posed to the officers and others.

Plaintiffs argue

that Kaahu was holding the shovel to protect his co-workers from
men who threatened them, and that he dropped the shovel pursuant
to the officers’ commands.

(Kaahu Decl. at ¶¶ 14, 19, ECF No.

166-1; Kaahu Police Interview at p. 5, ECF No. 166-6).

22

It is

Plaintiffs’ position that the officers did nothing to ascertain
the status of the threat called in by Kaahu’s employer.
Plaintiffs maintain the officers ignored the threatening
intruders and disregarded the statements from the crowd that
Kaahu was protecting them.
The Defendant Officers claim that Kaahu did not comply with
their commands and swung the shovel towards Officers Randall and
Valdez.

(Randall Decl. at ¶ 10, 162-3; Valdez Decl. at ¶ 10, ECF

No. 162-4).

Kaahu disputes swinging the shovel at the Defendant

Officers.
The Parties also disagree as to whether Kaahu was actively
resisting arrest.

The Parties agree that Kaahu ran away from the

officers who had drawn guns.
166-1).

(Kaahu Decl. at ¶ 22-24, ECF No.

Plaintiffs state, however, that Kaahu stopped running on

his own volition, turned around, and put his hands up before
Officer Valdez reached him.

(Id.)

The Defendant Officers assert

that Kaahu actively resisted arrest and ran from them, which
resulted in him being taken to the ground.
Defendants argued in their Replies that the evidence relied
upon by the Plaintiffs is not authenticated and contains
inadmissible hearsay.

At the hearing, Defendant withdrew their

authentication objection.
A number of the exhibits are declarations from witnesses,
including Plaintiffs, and are properly before the Court.
Evid. 901(b)(1).

Fed. R.

Jonah Kaahu, Donna Kaahu, Keoni Kaahu, and

Janice Souza have also authenticated evidence in their
23

declarations.

Id.

In addition, the Court takes judicial notice

of the proceedings in State of Hawaii v. Jonah Kaahu, Crim. No.
12-1-1384.

Fed. R. Evid. 201; Mendez v. Optio Solutions, LLC,

219 F.Supp.3d 1012, 1014 (S.D. Cal. 2016) (“judicial notice of
court records is routinely accepted”).

The Court takes judicial

notice of the Honolulu Police Department Statement Forms HPD-252
made by Jarren-James Kaiahua-Fleming, Lisa Evangelista, Jordan
Hammond, Amanda Aquino, and Rochelle Russell attached as Exhibits
B-F to Defendant’s Second Motion to Dismiss for Violation of
H.R.P.P. Rule 16, which were authenticated by Attorney Myles
Breiner.

United States v. Howard, 381 F.3d 873, 876 n.1 (9th

Cir. 2004) (taking judicial notice of court records in a
different case).
On December 23, 2013, the Hawaii State Circuit Court Judge
held a hearing on Kaahu’s motion to dismiss the indictment for
violations of Hawaii Rule of Penal Procedure 16.

(Findings of

Fact, Conclusions of Law, and Order Granting Defendant’s Second
Motion to Dismiss for Violation of H.R.P.P. Rule 16, State of
Hawaii v. Jonah Kaahu, Cr. No. 12-1-1384 dated February 5, 2014).
The State Circuit Court Judge found that Kaahu requested
discovery from the Honolulu Police Department for information
surrounding his arrest on August 22, 2012.

(Id. at ¶¶ 2-13).

The Judge stated that more than a year later, “[o]n December 18,
2013, while preparing for trial, defense counsel found five (5)
HPD 252 statement forms of Jarren-James Kaiahua-Fleming, Lisa
Evangelista, Jordan Hammond, Amanda Aquino, and Rochelle Russell
24

that were previously provided to [Honolulu Police Department’s
Professional Standards Office].”

(Id. at ¶ 14).

“These five (5)

HPD 252 forms containing clear exculpatory evidence were never
provided to the Court, the prosecution, and the defense.”

(Id.

at ¶ 15).
The State Circuit Court Judge held that “the State’s failure
to provide the five (5) exculpatory HPD 252 statements to the
defense is a violation of H.R.P.P. Rule 16.”

(Id. at ¶ 16).

The

State Circuit Court Judge also found that “[u]nder Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d
104 (1972), Defendant’s due process rights were violated,
resulting in prejudice to the Defendant.”

(Id. at ¶ 17).

Here, Defendants request that the Court disregard these same
five witness statements that were the basis for the dismissal of
Jonah Kaahu’s criminal charges in State Court.

The City and

County of Honolulu and the Defendant Police Officers argue that
the five eyewitness statements that were withheld by the Honolulu
Police Department in the prosecution of Kaahu should not be
considered for purposes of their Motions for Summary Judgment.
The Court will consider the five eyewitness statements in
evaluating Defendants’ Motions for Summary Judgment.

The State

Circuit Court Judge ruled that the five eyewitness statements
contained exculpatory information that supported Kaahu’s version
of events.

The eyewitness statements contain relevant, probative

information that may be presented in an admissible form at trial
25

by the witnesses themselves.

At the summary judgment stage, the

focus is not on the admissibility of the form of the evidence.
The focus is on the admissibility of its contents.

Stonefire

Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1037 (C.D.
Cal. 2013) (citing Norse v. City of Santa Cruz, 629 F.3d 966, 973
(9th Cir. 2010)).

The contents of the eyewitness’ statements to

the police could be presented in an admissible form at trial, and
the statements set forth genuine issues of material fact that
prevent granting the Defendants’ Motions.

Fraser v. Goodale, 342

F.3d 1032, 1036-37 (9th Cir. 2003).
There are additional questions of fact as to the involvement
of Corporal Nishimura, Sergeant Carreira, and Lieutenant Vines
and if they acted as supervisors and had a duty to intercede.
Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir.
2013).

In Maxwell, the appellate court affirmed the denial of

summary judgment and held that the plaintiff presented evidence
that the supervisory officers tacitly endorsed the beating of a
person and the use of pepper spray.

The appeals court found that

the ranking officers could be liable under Section 1983 when they
witnessed the violations of the plaintiff’s constitutional rights
and failed to intervene.

See also Starr v. Baca, 652 F.3d 1202,

1207–08 (9th Cir. 2011); Hansen v. Black, 885 F.2d 642, 646 (9th
Cir. 1989).

26

c.

Questions of Fact As To Events Following The
Arrest

Plaintiffs also claim that the Defendant Officers lied about
the incident in order to bring charges against Plaintiff Jonah
Kaahu.

According to Jonah Kaahu, “[w]hile I’m sitting next to

the patrol car waiting for the officers to take me to the
hospital, I could hear the supervising officer Andre [Carreira]
coaching the other officer on what he needs to bring certain
charges.”

(Kaahu Decl. at ¶ 33, ECF No. 166-1).

The Defendant

Officers’ statements resulted in Plaintiff being indicted for
Criminal Property Damages in the First Degree, Assault Against a
Law Enfocement Officer in the First Degree, and Terroristic
Threatening in the First Degree, all of which were dismissed with
prejudice by the Hawaii State Court Judge.
The Hawaii State Circuit Court Judge found that the Honolulu
Police Department failed to turn over exculpatory evidence to
Kaahu’s defense in the Hawaii State Court prosecution.

(Findings

of Fact, Conclusions of Law, and Order Granting Defendant’s
Second Motion to Dismiss for Violation of H.R.P.P. Rule 16, State
of Hawaii v. Jonah Kaahu, Cr. No. 12-1-1384).

There are

questions as to the involvement of the individual Defendant
Police Officers and their roles in the violation of Kaahu’s due
process rights in Hawaii State Court.

There is evidence that the

Defendant Officers targeted the Plaintiffs following Kaahu’s
August 22, 2012 arrest.
On December 3, 2013, Plaintiff Donna Kaahu wrote a letter to
27

the State Circuit Court Judge before whom Kaahu appeared on the
state charges.

The letter explained that,

After this incident on Aug. 22, 2012 the same officers
in this case Marc Randell [sic] and Scott Valdez pulled
us over several times and had our cars towed twice. I
was also followed to the store once by Officer Scott
Valdez, he just sat in his car and stared which made me
feel very uncomfortable. I made a complaint to their
sergeant because I felt like they were harassing us ...
These officers made it known to my husband and myself
that they were going to do anything to make our lives
hard because of the case and because they knew we went
to internal affairs.
(Letter from Donna Kaahu to Judge Edward H. Kubo, Jr. dated
December 3, 2013, ECF No. 166-2).
The Ninth Circuit Court of Appeals has stated that, “in
police misconduct cases, summary judgment should only be granted
‘sparingly’ because such cases often turn on credibility
determinations by a jury.”

Espinosa v. City & Cnty. of S.F., 598

F.3d 528, 537 (9th Cir. 2010) (citation omitted).
3.

There Are Genuine Issues of Material Fact As To
Whether The Defendant Officers’ Conduct Violated
Plaintiffs’ Clearly Established Constitutional
Rights

The Defendants request summary judgment on the basis of
qualified immunity.

The ultimate answer to whether the Defendant

Officers’ conduct violated a clearly established constitutional
right depends on issues of fact that are in dispute.

Where, as

here, a dispute over material facts concerning police officers’
actions exists, the Ninth Circuit Court of Appeals has instructed
the district courts to determine whether, on the facts offered in
28

support of the plaintiff’s claim, the alleged constitutional
violation was clearly established at the time of the incident.
See Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052,
1060 (9th Cir. 2003).
Prior to the August 22, 2012 incident, controlling law in
the Ninth Circuit established that a non-violent or passively
resisting suspect has the right to be free from the application
of non-trivial force.

Gravelet–Blondin v. Shelton, 728 F.3d

1086, 1093 (9th Cir. 2013) (citing Nelson v. City of Davis, 685
F.3d 867, 881 (9th Cir. 2012)).

Punches and other body blows are

considered forms of “significant force” that present a
substantial risk of bodily injury or death.

Garlick v. Cnty. of

Kern, 167 F.Supp.3d 1117, 1147 (E.D. Cal. 2016) (citing
Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir.
2007)).

Techniques that induce suffocation, such as chokeholds,

may not be applied to non-violent suspects.
Drummond, 343 F.3d at 1061.

See Drummond ex rel.

Similarly, the use of pepper spray

to subdue non-violent suspects has been held to be excessive
since well before 2012.

Headwaters Forest Def. v. Cnty. of

Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002).

It was clearly

established that police officers would be prohibited from using
handcuffs “as brass knuckles” in order to punch a suspect.
Similarly, it was clearly established that police officers are
precluded from lying in order to detain a suspect.
The disputed facts require that the Defendant Officers’
Motion for Summary Judgment as to Plaintiffs’ Section 1983 causes
29

of action for violations of the United States Constitution, on
the basis of qualified immunity, is DENIED.

B.

Conditional Privilege As To Plaintiffs’ State Law
Causes of Action

The Defendant Officers argue that as a matter of law,
Plaintiffs may not proceed on their state law causes of action
for assault and battery, negligence, negligent and intentional
infliction of emotional distress, loss of consortium, false
arrest, false imprisonment, and malicious prosecution, because
the Defendant Officers are protected by the doctrine of
conditional privilege.
Hawaii law provides non-judicial government officials with
conditional privilege as to their tortious actions made in the
performance of their public duties.
647 P.2d 696, 702 (Haw. 1982).

Towse v. State of Hawaii,

The conditional privilege does

not apply where there is clear and convincing evidence that
government officials acted with malice.

Id.

Malice is defined

as “the intent, without justification or excuse, to commit a
wrongful act, reckless disregard of the law or of a person's
legal rights, and ill will; wickedness of heart.”

Awakuni v.

Awana, 165 P.3d 1027, 1042 (Haw. 2007) (internal quotations
omitted).
jury.

Hawaii courts leave the question of malice to the

Runnels v. Okamoto, 525 P.2d 1125, 1129 (Haw. 1974).

Plaintiffs have produced sufficient evidence to raise a
genuine issue of material fact as to whether the Defendant
30

Officers maliciously subjected Kaahu to excessive force. Kaahu’s
statement, and the statements of other witnesses, accuse
each Defendant Officer of using excessive force or knowingly
allowing the other officers to use excessive force.

Evidence of

malice encompasses the allegation that Officer Valdez punched
Kaahu in the head after Kaahu stopped running away from the
officers and appeared to surrender.

Evidence that handcuffs were

used as brass knuckles to punch Kaahu after he was on the ground
is also evidence that could support a finding of malice.

(Kaahu

Decl. at ¶¶ 24-32, ECF No. 166-1; Kaahu Police Interview at pp.
5-6, 15-16, 24, ECF No. 166-6; McCoy Police Statement at p. 2,
ECF No. 166-7).
There are questions of fact concerning the Defendant
Officers’ interaction with Kaahu, and whether the officers’
actions were motivated by malice or a legitimate desire to quell
a chaotic situation and arrest an actively resisting suspect.
The issue of whether the Defendant Officers acted with malice is
a matter for the jury.

Runnels, 525 P.2d at 1129.

The Defendant Officers’ Motion for Summary Judgment as to
Plaintiffs’ state law causes of action, on the basis of
conditional privilege, is DENIED.

C.

State Law Claims of False Arrest/Imprisonment And
Malicious Prosecution Against Defendant Officers

The Defendant Officers move for summary judgment as to
Plaintiffs’ false arrest/imprisonment and malicious prosecution
31

causes of action on the basis that there was probable cause to
arrest Plaintiff Jonah Kaahu.
To bring a claim for false arrest or imprisonment, a
plaintiff must demonstrate that the detention was against the
plaintiff’s will and the detention was unlawful.

Reed v. City &

Cnty. of Honolulu, 873 P.2d 98, 109 (Haw. 1994); see Young v.
Allstate Ins. Co., 198 P.3d 666, 680 (Haw. 2008).

For malicious

prosecution, a plaintiff must demonstrate that the criminal
proceedings were initiated without probable cause and initiated
with malice.

Reed, 873 P.2d at 109.

The determination of probable cause is a defense to the
common law claims of false arrest, false imprisonment, and
malicious prosecution.

Id.; Towse, 647 P.2d at 704.

There are questions of material fact as to whether the
Defendant Officers had probable cause to arrest Plaintiff Jonah
Kaahu.

In their Motion, the Defendant Officers claim that

Defendant was arrested for Disorderly Conduct, Assault Against a
Law Enforcement Officer in the First Degree, and
Threatening in the First Degree.
1).

Terroristic

(Motion at p. 11, ECF No. 161-

Review of the Indictment, however, demonstrates that

Plaintiff was indicted for Criminal Property Damage, Assault
Against A Law Enforcement Officer, and Terroristic Threatening in
the First Degree.

It is not possible at this stage to determine

if probable cause for arrest existed given the number of facts in
dispute.
The Defendant Officers argue that they cannot be liable for
32

malicious prosecution because they did not “initiate” the
proceedings in Hawaii State Court.

The disputed facts before the

Court prevent a determination of what role the Defendant Officers
played in initiating the proceedings against Plaintiff Jonah
Kaahu.
The indictment against Jonah Kaahu was dismissed in Hawaii
State Circuit Court, because the Judge found Kaahu’s due process
rights were violated by the Honolulu Police Department.
(Transcript of Hearing dated December 23, 2013 before the
Honorable Edward H. Kubo, Jr., ECF No. 166-32).

Plaintiffs claim

that the Defendant Officers lied in order to detain Plaintiff
Kaahu.

(First Amended Complaint at ¶¶ 153-55, ECF No. 156).

Plaintiff Jonah Kaahu claims that he heard Sergeant Carreira
“coaching” other Defendant Officers in order to facilitate
bringing charges against him.

(Kaahu Decl. at ¶ 33, ECF No. 166-

1).
The Defendant Officers’ Motion for Summary Judgment as to
Plaintiffs’ false arrest/imprisonment and malicious prosecution
causes of action is DENIED.

D.

Punitive Damages Against The Defendant Officers

To obtain punitive damages in a Section 1983 case, a
plaintiff must prove that the defendant’s conduct was malicious,
oppressive, or in reckless disregard of the plaintiff’s rights.
Dang v. Cross, 422 F.3d 800, 810-11 (9th Cir. 2005).

A request

for punitive damages is derivative of the underlying substantive
33

claim.

See Kentucky v. Graham, 473 U.S. 159, 167 n. 13 (1985)

(permitting punitive damages against an official in his
individual capacity).
An award of punitive damages pursuant to Hawaii law requires
a plaintiff to prove by clear and convincing evidence that the
defendant acted “wantonly or oppressively or with such malice as
implies a spirt of mischief or criminal indifference to civil
obligations; or where there has been some wilful misconduct or
that entire want of care which would raise the presumption of a
conscious indifference to consequences”.

Masaki v. Gen. Motors

Corp., 780 P.2d 566, 572 (Haw. 1989) (internal quotations and
citation omitted); Kang v. Harrington, 587 P.2d 285, 291 (Haw.
1978) (“An award of punitive damages is purely incidental to the
cause of action”).
Genuine issues of material fact exist as to whether the
Defendant Officers’ conduct was motivated by malice such that
Plaintiffs may be entitled to punitive damages.
The Defendant Officers’ Motion for Summary Judgment as to
punitive damages is DENIED.
In sum, there are genuine issues of material fact that
prevent summary judgment on the question of qualified immunity as
to the federal Section 1983 claims.
There are also genuine issues of material fact that prevent
summary judgment on the question of conditional privilege as to
the state law causes of action.
The Defendant Officers are not entitled to summary judgment
34

on the causes of action for false arrest, false imprisonment, and
malicious prosecution.

There are insufficient facts as to

whether there was probable cause to arrest Kaahu and questions of
fact as to the Defendant Officers’ involvement in the state court
criminal prosecution.
The Defendant Officers’ Motion for Summary Judgment (ECF No.
161) is DENIED.
II.

DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 159)
A.

Plaintiffs’ Section 1983 Monell Cause of Actions For
Municipal Liability Pursuant to 42 U.S.C. § 1983

Municipalities are considered “persons” for purposes of
suits pursuant to Section 1983.

Monell v. Dep't of Soc. Servs.

of City of N.Y., 436 U.S. 658, 690 (1978).

To impose liability

against a municipality, a plaintiff must demonstrate that action
pursuant to official policy, custom, or practice caused the
constitutional injury.
846 (9th Cir. 2016).

Garmon v. Cnty. of L.A., 828 F.3d 837,
A municipality is not subject to respondeat

superior liability pursuant to Section 1983.

Monell, 436 U.S. at

694.
A municipality may be liable in a Section 1983 action under
two main theories.

Under the first theory, a municipality is

liable for injuries caused by a municipality’s unconstitutional
policy or custom.

Monell, 436 U.S. at 694; Webb v. Sloan, 330

F.3d 1158, 1164 (9th Cir. 2003).

The official policy or custom

requirement limits municipal liability to actions in which the
35

municipality is actually responsible for the unconstitutional
act.

Young v. Hawaii, 911 F.Supp.2d 972, 985 (D. Haw. 2012);

Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986).
The second theory under which a municipality may be held
liable under Section 1983 is for failure to train, supervise, or
discipline its employees.
U.S. 378, 387 (1989).

City of Canton, Ohio v. Harris, 489

Municipal liability may be imposed

pursuant to the second theory when the policymakers of the city
can reasonably be said to have been deliberately indifferent to
the need for better training, supervision, or discipline.

Id. at

390.
1.

Monell Claim Against The Defendant City And County
Pursuant To A Municipal Policy or Custom

In order to establish an official policy or custom
sufficient for Monell liability, a plaintiff must show either a
violation resulting from an employee acting pursuant to an
expressly adopted official policy, or an employee acting pursuant
to a long-standing practice, or an employee acting as a final
policymaker.

Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066

(9th Cir. 2013).

A single occurrence of unconstitutional conduct

by a non-policymaking employee is insufficient to establish the
existence of an actionable municipal policy or custom.

See Davis

v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989)
Monell allows the imposition of government liability not
only when the challenged conduct executes or implements a
formally adopted policy, but also when that conduct reflects
36

practices of municipal or state officials that are so permanent
and well settled as to constitute a custom or usage with the
force of law.

436 U.S. at 691; see Bouman v. Block, 940 F.2d

1211 (9th Cir. 1991) (finding that a plaintiff may proceed under
Monell even if there is not an express written policy).
Here, there is evidence that the Honolulu Police Department
has an actual custom or practice of failing to turn over evidence
in criminal prosecutions.

A Hawaii State Circuit Court Judge

found that the Honolulu Police Department withheld exculpatory
evidence in the state court criminal proceeding against Kaahu.
(Findings of Fact, Conclusions of Law, and Order Granting
Defendant’s Second Motion to Dismiss for Violation of H.R.P.P.
Rule 16, State of Hawaii v. Jonah Kaahu, Cr. No. 12-1-1384 dated
February 5, 2014).

The evidence included the eyewitness

statements of Jarren-James Kaiahua-Fleming, Lisa Evangelista,
Jordan Hammond, Amanda Aquino, and Rochelle Russell that were
provided on Hawaii Police Department Form 252.

(Exhibits B-F

attached to the Defendant’s Second Motion to Dismiss for
Violation of H.R.P.P. Rule 16, in the First Circuit, State of
Hawaii, State of Hawaii v. Jonah Kaahu, Cr. No. 12-1-1384 on
December 19, 2013).

During the hearing before the Hawaii State

Circuit Court Judge, he found that the prosecutor himself was not
personally liable, but the Honolulu Police Department was at
fault:
This court finds that the five statements not only
surprised this court but goes to the heart of a
preparation for a defense. The defendant’s due process
37

rights has been violated. At the very least, this was
Giglio material on the police officers. At the very
most it was exculpatory to the defense....
[The Honolulu Police Department’s] procedures are
confidential to even you and that’s the fault of this
system. Because HPD won’t even provide you and your
office with things which you and your office are
entitled to, we have to run to corp counsel? No. The
State has the obligation. The State has failed its
obligation....
And, you know, again, and this has happened many times
before in legal history, I’m sure, where the prosecutor
has affirmed and followed every ethical rule that he
knows or she knows of, but that the people who are duty
bound to give the prosecutor the correct and complete
information for some reason or for a reason or another
decides or doesn’t do so. It’s not the prosecutor’s
fault and I’m not faulting you. In fact, I find that
you have fulfilled your obligation, especially in light
of the fact when these statements came to your
attention, then you tried to trace down the fact and
was, in essence, stonewalled by HPD because of their
own rules and regulations.
Now I’m not finding willfulness on the HPD. There’s a
smell here, and I can’t quite say it stinks, but
there’s a smell and so I prefer to go with what I can
prove on the record. And the record will indicate that
I repeatedly asked for information and now I’m
surprised that the most important information that
should have been given to me I didn’t have the
opportunity to see and that includes the videotapes. I
can’t say that it was willful. Something stinks.
(Transcript of Proceedings in State of Hawaii v. Jonah Kaahu, Cr.
No. 12-1-1384, dated December 23, 2013, at pp. 4-18, ECF No. 16632).
There are questions of fact as to the Honolulu Police
Department’s actions in the criminal prosecution of Kaahu and
whether a longstanding practice or custom of the Police
Department may have deprived Kaahu of his constitutional rights.
Price v. Sery, 513 F.3d 962, 973-74 (9th Cir. 2008) (finding
38

there were questions of fact if the City’s practice and
interpretation of its written policies violated the plaintiff’s
constitutional rights).
Kaahu made numerous requests for investigatory reports
relating to his arrest along with any complaints against the
Defendant Officers to the Honolulu Police Department’s
Professional Standards Office.

Despite Kaahu’s requests, the

Honolulu Police Department failed to turn over the exculpatory
evidence in violation of the Hawaii State Court Rules of Penal
Procedure and Kaahu’s constitutional rights.
The Hawaii State Circuit Court Judge stated at the hearing
that Kaahu’s due process rights were violated in the state court
prosecution due to the policies of the Honolulu Police
Department.

There is evidence that supports a finding that the

Defendant City and County of Honolulu is liable pursuant to
Monell due to the Honolulu Police Department’s internal policy or
custom.

See Dixon v. County of Cook, 819 F.3d 343, 348-49 (7th

Cir. 2016) (finding there were questions of fact as to the
plaintiff’s Monell claim where the essence of the claim against
the County was that it implemented a records policy that created
barriers to informed care).
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to Monell liability based on policy or custom is
DENIED.

39

2.

Monell Claim Against the Defendant City and County
Pursuant To Its Failure To Train Defendant
Officers

A municipality may be held liable in certain circumstances
for constitutional violations for failing to train employees.
Canton, 489 U.S. at 392.

In order to prevail, the plaintiff must

demonstrate that the municipality’s training is so insufficient
as to constitute “deliberate indifference” to the rights of
persons with whom the police come into contact.

Id. at 388. The

plaintiff must show that the constitutional injury could have
been avoided if the officers were properly trained.

Blankenhorn,

485 F.3d at 484.
The Defendant City and County submitted a declaration from
Lieutenant Bradon Ogata (“Lieutenant Ogata”), who works in the
Honolulu Police Department’s training division, as evidence that
it adequately trains police officers on appropriate uses of
force.

(Declaration of Lieutenant Brandon Ogata (“Ogata Decl.”),

ECF No. 160-3).

Lieutenant Ogata attests that each of the

Defendant Officers successfully completed courses concerning the
use of force when they attended the police academy.
3-7).

(Id. at

¶¶

Lieutenant Ogata also states that the Defendant Officers

have regularly attended Annual Recall Training, which “includes
some education in the area of control and arrest tactics.”
at ¶¶ 8-11).

(Id.

His declaration indicates that the officers are

required to know the laws governing the use of force and the
Honolulu Police Department's policy, which prohibits the use
40

excessive force. (Id. at ¶¶ 12-17).
In addition, the Defendant City and County has put forward
an official policy of the Honolulu Police Department concerning
the use of force.

(Use of Force Policy Number 1.04, attached as

Ex. A, ECF No. 160-9).

The policy provides substantial

information concerning how officers are to determine what level
of force is appropriate and what techniques may be permissible.
(Id.)

The policy discusses the use of various means of force,

including chemical agents like pepper spray (pp. 8-9), strikes
and kicks (pp. 9-10), and submission holds (pp. 12-13).
A pattern of constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate
indifference for purposes of failure to train.
Thompson, 563 U.S. 51, 62 (2011).

Connick v.

Plaintiffs have not provided

evidence that the City and County’s training program is
insufficient.
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to Monell liability based on failure to train is
GRANTED.
3.

Monell Claim Against Defendant City And County
Pursuant To Its Failure to Supervise Defendant
Officers

A municipality’s failure to supervise its police officers
may lead to municipal liability.

Davis, 869 F.2d at 1235.

A

claim of inadequate supervision or discipline requires a showing
that such supervision or discipline is so deficient that it
41

constitutes deliberate indifference to the rights of persons with
whom the police come into contact.

Id. (citations omitted).

A supervisor is liable under Section 1983 for a
subordinate’s constitutional violations if the supervisor
participated in or directed the violations, or knew of the
violations and failed to act to prevent them.

Maxwell, 708 F.3d

at 1086 (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989)).
Here, there are issues of fact that preclude summary
judgment on Plaintiffs’ failure to supervise Monell claim.

As

explained above, there are genuine issues of material facts as to
the alleged constitutional violations by the Defendant Officers
in this case.

There are questions of fact as to the action or

inaction of the supervisory officers Sergeant Carreira,
Lieutenant Vines, and Corporal Nishimura.

Questions as to their

participation in the circumstances surrounding Plaintiff Kaahu’s
arrest prevent granting summary judgment.

There are also

questions if they were supervising officers who were required to
prevent the other Defendant Officers from committing the alleged
constitutional violations.
There is evidence that the Defendant City and County had
knowledge that Defendant Officers Valdez and Randall had a
history of inappropriate behavior while on duty.

Plaintiffs

presented a citizen’s report that alleges Officer Valdez harassed
him and pushed him during a traffic stop in 2010.

(Police

Statement of Matthew Smith, attached as Ex. 1, ECF No. 168-6).
42

There is a transcript from an internal interview of a Honolulu
Police Officer describing a workplace confrontation he had with
Officer Randall in 2012.
ECF No. 168-10).

(Police Interview, attached as Ex. 6.

The interview described inappropriate slurs and

actions attributed to Officer Randall.

(Id.)

There are genuine issues of material fact as to whether the
Defendant City and County of Honolulu provided inadequate
supervision of the Defendant Officers.
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to Monell liability based on failure to supervise is
DENIED.

B.

Plaintiffs’ State Law Causes Of Action Against
Defendant City And County Of Honolulu
1.

Negligent Hiring Against Defendant City And County
Of Honolulu Pursuant To Hawaii State Law

Hawaii law requires employers to exercise reasonable care
when hiring persons to fill positions where the nature of the
employment may pose a threat of injury to the public.
Am. Haw. Cruises, Inc., 731 P.2d 163, 166 (Haw. 1987).

Janssen v.
For a

plaintiff to prevail on a claim of negligent hiring, he must
prove:
(1)

the defendant owed a duty of care to the plaintiff;

(2)

the defendant breached that duty by hiring an employee,
even though the defendant knew, or should have known,
of the employee's dangerous propensities;

(3)

the plaintiff suffered monetarily compensable physical
or emotional injuries; and,
43

(4)

the breach of the duty was the proximate cause of
plaintiff's physical or emotional injuries.

See Murphy v. Lovin, 284 P.3d 918, 928-931 (Haw. Ct. App.
2011), as corrected (Jan. 10, 2012) (approving jury instruction
listing the elements of negligent hiring).
Plaintiffs have produced no evidence that the Defendant City
and County knew or should have known of any of the Defendant
Officers’ allegedly dangerous propensities prior to hiring them
as Honolulu police officers.

The Defendant City and County has

put forward the declaration of Lieutenant Erik Yamane, who works
in the Honolulu Police Department Human Resources Division.
Lieutenant Yamane attests that the Honolulu Police Department has
established procedures concerning the screening of officer
candidates.

(Declaration of Lieutenant Erik Yamane (“Yamane

Decl.”) at ¶ 5, ECF No. 160-2).

The Police Department conducts

interviews, background checks, psychological and physical
evaluations of officer candidates.

(Id. at ¶¶ 7-8).

Lieutenant

Yamane states that information concerning a candidate’s past
violent behavior, and psychological, behavioral, and emotional
problems are of special concern to the Police Department.
at ¶ 8).

According to Lieutenant Yamane, each of the Defendant

Officers successfully completed the hiring process.
9-10).

(Id.

(Id. at ¶¶

None of the officers “had ever been under indictment for,

or convicted of, any crime of violence .... None of the Officers
had a history of drug use, behavioral, or emotional disorders.”
(Id. at ¶¶ 11-26).

44

Plaintiffs have not provided any evidence controverting
Lieutenant Yamane’s declaration.
An employer that is not on notice of an employee’s potential
danger prior to hire cannot be held liable as a matter of law for
a negligent hiring claim.

Fraser v. Cnty. of Maui, 855 F.Supp.

1167, 1184 (D. Haw. 1994).
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to the negligent hiring claim is GRANTED.

2.

Negligent Training Against Defendant City And
County Of Honolulu Pursuant To Hawaii State Law

The elements of a negligent training claim have not been
established by the Hawaii courts.

Id.

Hawaii law is clear,

however, that a plaintiff must present evidence that the employer
knew or should have known of the necessity and opportunity to
train its employees regarding the specific conduct about which
the plaintiff complains.

Otani v. City & Cnty. of Haw., 126

F.Supp.2d 1299, 1308 (D. Haw. 1998), aff’d, 246 F.3d 675 (9th
Cir. 2000).
The California courts require a plaintiff seeking relief on
a negligent training cause of action to prove that (1) the
employer negligently trained the employee regarding the
performance of his job duties, (2) which led the employee, in the
course of executing his job duties, (3) to cause an injury or
damages to the plaintiff.

Garcia ex rel. Marin v. Clovis Unified

Sch. Dist., 627 F.Supp.2d 1187, 1208 (E.D. Cal. 2009).
45

As explained in the Section on Municipal Failure to Train,
Plaintiffs have not demonstrated a genuine issue of material fact
to show that the City and County negligently trained the
Defendant Officers regarding the use of force.
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to the state law cause of action for negligent
training is GRANTED.

3.

Negligent Supervision Against Defendant City And
County Of Honolulu Pursuant To Hawaii State Law

The Defendant City and County of Honolulu argues that there
is no evidence that it failed to supervise the Defendant Officers
and seeks summary judgment on Plaintiffs’ negligent supervision
claim pursuant to Hawaii state law.
Negligent supervision is a recognized cause of action under
Hawaii law.

Fraser, 855 F.Supp. at 1184 (citing Abraham v. S.E.

Onorato Garages, 446 P.2d 821, 826 (Haw. 1968)).

The Hawaii

Supreme Court has adopted the Restatement (Second) of Torts’
standard for negligent supervision.

Dairy Rd. Partners v. Island

Ins. Co., 992 P.2d 93, 122 (Haw. 2000) (quoting Restatement
(Second) of Torts § 317 (1995)).
Generally, the concept of negligent supervision is applied
when an employee commits an act that it not within the scope of
the employee’s employment while under the supervisor’s control.
Black v. Correa, 2007 WL 3195122, *10 (D. Haw. Oct. 30, 2007)
(citing Wong-Leong v. Haw. Indep. Refinery, Inc., 879 P.2d 538,
46

549 (Haw. 1994)).

The City and County may be found negligently

liable for failure to supervise where the acts occurred outside
the scope of employment and the City negligently failed to
control the employee.

Id.

In the alternative, the City and

County may be found negligently liable for failure to supervise
where the employee committed the acts within the scope of
employment under a theory of respondeat superior.

Id.; see Ryder

v. Booth, 2016 WL 2745809, *10 (D. Haw. May 11, 2016).
The key factor in negligent supervision cases is whether the
employer knew or should have known of the necessity and
opportunity for exercising control.

Fraser, 855 F.Supp. at 1184

(quoting (Abraham, 446 P.2d at 826)).
As explained above in the Section on Municipal Failure to
Supervise, Plaintiffs have produced sufficient evidence that the
Defendant City and County of Honolulu should have known of the
necessity to supervise the Defendant Officers.

A reasonable jury

may find that the Defendant City and County negligently
supervised the Defendant Officers.
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to the state law cause of action for negligent
supervision is DENIED.

C.

Additional Hawaii State Law Causes of Action Against
Defendant City and County of Honolulu Based On
Respondeat Superior

The First Amended Complaint asserts the following state law
tort causes of action against the Defendant City and County of
47

Honolulu under the respondeat superior theory of liability:
Cause of Action 6:

Assault and Battery

Cause of Action 7:

Negligence

Cause of Action 8:

Negligent Infliction of Emotional
Distress

Cause of Action 9:

Intentional Infliction of Emotional
Distress

Cause of Action 10: Loss of Consortium
Cause of Action 11: False Arrest & False Imprisonment
Cause of Action 12: Malicious Prosecution
Under Hawaii law, a municipality may be liable pursuant to
respondeat superior for torts maliciously committed by an
employee acting within the scope of his authority.

McCormack v.

City & Cnty. of Honolulu, 762 F.Supp.2d 1246, 1253 (D. Haw.
2011).

Respondeat superior liability for municipalities extends

to intentional torts.

Alexander v. City and Cnty. of Honolulu,

545 F.Supp.2d 1122, 1136 (D. Haw. 2008).
Plaintiffs produced sufficient evidence to raise a genuine
issue of material fact regarding whether the Defendant Officers
acted with malice.
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to Plaintiffs’ state law tort claims is DENIED.

D.

Punitive Damages Against the Defendant City and County
of Honolulu

Municipalities are not liable for punitive damages related

48

to alleged violations of the United States Constitution.

City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

Hawaii

state law also bars litigants from pursuing punitive damages
against municipalities.

Eager v. Honolulu Police Dep't, No. CV

15-00098 JMS-KSC, 2016 WL 471282, at *6 (D. Haw. Feb. 4, 2016)
(citing Lauer v. Young Men's Christian Ass'n of Honolulu, 557
P.2d 1334, 1342 (Haw. 1976)).
Plaintiffs concede that punitive damages do not lie against
the City and County of Honolulu.
Defendant City and County of Honolulu’s Motion for Summary
Judgment as to punitive damages is GRANTED.
In sum, Defendant City and County of Honolulu’s Motion for
Summary Judgment is GRANTED, IN PART, and DENIED, IN PART.

CONCLUSION
Defendant Officers’ Motion for Summary Judgment (ECF No.
161) is DENIED.
Defendant City and County of Honolulu’s Motion for Summary
Judgment (ECF No. 159) is GRANTED, IN PART, and DENIED, IN PART.
Defendant City and County of Honolulu’s Motion is GRANTED,
as to:
(1)

Section 1983 Monell liability based on failure to
train;

(2)

state law cause of action for negligent hiring;

(3)

state law cause of action for negligent training; and,

(4)

punitive damages against the City and County of
49

Honolulu.
Defendant City and County’s Motion for Summary Judgment is
DENIED, as to:
(1)

Section 1983 Monell liability based on policy and
custom;

(2)

Section 1983 Monell liability based on failure to
supervise;

(3)

state law cause of action for negligent supervision;
and,

(4)

state law tort claims based on respondeat superior.

THE FOLLOWING CAUSES OF ACTION REMAIN:
I.

Plaintiff Jonah Kaahu against:
The Defendant City and County of Honolulu; and,
The Defendant Officers Randall, Valdez, Carreira, Nishimura,
and Vines:

Cause of Action 1:

Excessive Force in violation of the
Fourth Amendment to the United States
Constitution pursuant to 42 U.S.C. § 1983

Cause of Action 2:

Unreasonable Pretrial Detention in violation
of the Fourth Amendment to the United States
Constitution pursuant to 42 U.S.C. § 1983

Cause of Action 7:

Assault and Battery

Cause of Action 8:

Negligence

Cause of Action 12: False Arrest & False Imprisonment
Cause of Action 13: Malicious Prosecution

II.

Plaintiff Donna Kaahu against:
The Defendant City and County of Honolulu; and,
The Defendant Officers Randall, Valdez, Carreira, Nishimura,
and Vines:

Cause of Action 3:

Loss of Companionship due to Violations of
the Due Process Clause of the Fourteenth
Amendment to the United States Constitution
Pursuant to 42 U.S.C. § 1983
50

Cause of Action 11: Loss of Consortium
III. Plaintiffs Jonah Kaahu and Donna Kaahu against:
The Defendant City and County of Honolulu:
Cause of Action 4:

Monell Liability Based on Policy or Custom
for United States Constitutional Violations
pursuant to 42 U.S.C. § 1983

Cause of Action 5:

Monell Liability Based on Failure to
Supervise for United States Constitutional
Violations pursuant to 42 U.S.C. § 1983

Cause of Action 6:

Negligent Supervision

IV.

Plaintiffs Jonah Kaahu and Donna Kaahu against:
The Defendant City and County of Honolulu; and,
The Defendant Officers Randall, Valdez, Carreira, Nishimura,
and Vines:

Cause of Action 9:

Negligent Infliction of Emotional Distress

Cause of Action 10: Intentional Infliction of Emotional Distress

IT IS SO ORDERED.
DATED: January 18, 2018, Honolulu, Hawaii.

Jonah K. Kaahu; Donna Liaka Marie Kaahu v. Marc A. Randall; Scott
Jones Valdez; Andre Phillip Carreira; Ryan Nishimura; John
Patrick Vines; City and County of Honolulu, Civil No. 14-00266
HG-RLP; ORDER DENYING DEFENDANTS MARC A. RANDALL, SCOTT JONES
VALDEZ, ANDRE PHILLIP CARREIRA, JOHN PATRICK VINES, AND RYAN
NISHIMURA’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 161) and
GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT CITY AND
COUNTY OF HONOLULU’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 159)
51