O'Connor v. Kapua-Allison et al
Filing
35
AMENDED ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 24 ) AND DENYING LEAVE TO AMEND. Signed by JUDGE HELEN GILLMOR on 9/18/2015. ~ Defendants' Motion to Dismiss (ECF No. 24) is GRANTED. Plaintiff is DENIED leave to amend. Causes of Action One (federal and state constitutional claims), Two (abuse of process), Four (false imprisonment), and Five (negligence) are DISMISSED WITH PREJUDICE. Cause of Action Three (assault) is DISMISSED WITHOUTPREJUDICE. There bei ng no remaining claims or parties, this case is now CLOSED. Re: 33 Order Granting Defendants' Motion to Dismiss (ECF No. 24 ) and Denying Leave to Amend. (ecs, )CERTIFICATE OF SERVICEParticip ants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN J. P. O’CONNOR,
)
)
Plaintiff,
)
)
vs.
)
)
CHRISTOPHER KAPUA-ALLISON;
)
JOSHUA H. F. GOUVEIA; COUNTY OF )
HAWAII; JOHN DOES 1-10,
)
)
)
Defendants.
_______________________________ )
CIVIL NO. 14-00507 HG-KSC
AMENDED ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (ECF NO. 24)
AND DENYING LEAVE TO AMEND
This case arises out of Plaintiff Brian J. P. O’Connor’s
arrest and state court criminal convictions for driving under the
influence of an intoxicant and without a licence.
In his state
court criminal proceeding, Plaintiff was charged with five counts
including operating a vehicle under the influence of an
intoxicant; refusal to submit to a breath, blood, or urine test;
driving without a licence; reckless driving; and resisting an
order to stop a motor vehicle.
In the state court proceeding, Plaintiff entered into a plea
agreement whereby three of the five charges were dropped, and he
plead no contest to the remaining charges of driving under the
influence of an intoxicant and driving without a license.
Plaintiff also waived his right to a jury trial.
1
The state court
judge found him guilty of both charges and judgments were entered
against him.
Plaintiff’s driver’s license was administratively revoked.
An administrative hearing was conducted by the Hawaii
Administrative Driver’s License Revocation Office (“Hawaii
Administrative Dr. Lic. Rev. Off.”) regarding the revocation of
Plaintiff’s driver’s license.
The Hearings Officer gave
Plaintiff the option of contesting the revocation and calling
witnesses, including the officers, or accepting a reduction in
his revocation from two years to one year.
Plaintiff agreed to
the reduction in the length of his driver’s license suspension in
exchange for not contesting the revocation.
The Hearings Officer
found that there existed reasonable suspicion to stop Plaintiff’s
vehicle, probable cause to believe that Plaintiff operated the
vehicle while under the influence of an intoxicant, and that the
preponderance of the evidence proved that Plaintiff was operating
a vehicle while under the influence of an intoxicant.
The
Hearings Officer reduced the period of administrative revocation
from two years to one year.
Plaintiff originally sued the Hawaii Administrative Dr. Lic.
Rev. Off. in this action, but has since stipulated to the
dismissal of the Hawaii Administrative Dr. Lic. Rev. Off. and of
all claims against it.
Plaintiff’s remaining claims are against the County of
2
Hawaii and Hawaii County police officers Christopher KapuaAllison and Joshua H. F. Gouveia.
Plaintiff brings
constitutional and state law claims against them regarding the
circumstances surrounding his arrest and the resulting criminal
charges and convictions.
Plaintiff is an attorney licensed in Hawaii and is
representing himself.
Defendant police officers Christopher Kapua-Allison, Joshua
H. F. Gouveia, and the County of Hawaii have filed a Motion to
Dismiss Plaintiff’s Complaint with prejudice.
Because Plaintiff
has failed to state a claim on any of the grounds set forth in
his Complaint, Defendants’ Motion to Dismiss (ECF No. 24) is
GRANTED.
Plaintiff is DENIED leave to amend and this action is
DISMISSED.
PROCEDURAL HISTORY
On November 10, 2014, Plaintiff filed his Complaint.
On January 15, 2015, Defendant Administrative Driver’s
License Revocation Office filed a Motion to Dismiss. (ECF No. 6.)
On February 26, 2015, the parties stipulated to the
dismissal of the Administrative Driver’s License Revocation
Office and all claims against it, with prejudice. (ECF No. 21.)
On March 3, 2015, the Court entered a Minute Order
dismissing Defendant Administrative Driver’s License Revocation
3
Office with prejudice pursuant to the parties’ stipulation. (ECF
No. 23.)
On March 16, 2015, Defendants Kapua-Allison, Gouveia and
Hawaii County filed a Motion to Dismiss the Complaint. (ECF No.
24.)
On March 17, 2015, the Court issued a Minute Order setting a
briefing schedule on Defendants’ Motion to Dismiss which ordered
Plaintiff to file an Opposition by April 1, 2015. (ECF No. 26.)
Plaintiff failed to file an Opposition by that date.
By May 27, 2015, Plaintiff had still failed to file an
Opposition and, on that date, the Court entered a Minute Order
detailing its extensive efforts to contact Plaintiff to no avail.
(ECF No. 27.) The Court gave Plaintiff until June 10, 2015 to
contact the Court before dismissing the action with prejudice for
failure to prosecute. (ECF No. 27.)
On June 1, 2015, Plaintiff contacted the Courtroom Manager
and stated that he wanted to pursue the case. (ECF No. 28.)
The
Court gave Plaintiff until June 10, 2015 to file an Opposition to
Defendants’ Motion to Dismiss. (ECF No. 28.)
On June 10, 2015, Plaintiff filed an Opposition. (ECF No.
29.)
On June 26, 2015, Defendants filed a Reply. (ECF No. 30.)
On August 11, 2015, this matter came on for hearing.
No. 32.)
4
(ECF
BACKGROUND
A.
Allegations in Plaintiff’s Complaint
Plaintiff alleges that the police violated his
constitutional rights and committed various state common law
torts when arresting him for driving under the influence of an
intoxicant.
According to the Complaint, on the night of November
11, 2012, Plaintiff was driving along the Hamakua Coast headed
toward Hilo, Hawaii. (ECF No. 1, Compl. ¶ 9.)
Plaintiff alleges
that a private citizen phoned the Hawaii Island Police Department
and complained that Plaintiff was driving erratically.
(Id. ¶
9.)
The police pulled Plaintiff over.
(Id. ¶ 11.)
According to
the Complaint, after the stop, Officer Kapua-Allison told
Plaintiff that someone had made a complaint about his erratic
driving. (Id. ¶ 12.)
Plaintiff asked if he could request that a
“cross complaint be filed against the private citizen” who
complained about his erratic driving. (Id.)
This was one of four
requests Plaintiff stated he made to file a “cross complaint”
against the private citizen. (Id.)
According to the criminal charges in the state proceeding,
Plaintiff failed the field sobriety test and was placed under
arrest. (Id. ¶¶ 13, 17.)
Plaintiff complains that Officer Kapua-
Allison’s police report falsely stated that he failed the field
sobriety test. (Id. ¶ 13.)
5
According to the Complaint, after Plaintiff was placed under
arrest, another police officer took him to the police station in
Hilo, Hawaii, where Plaintiff was placed in the intake holding
area. (Id. ¶¶ 14-15.)
After some time, Defendant Kapua-Allison
came to the room, sat down in front of a computer, and began
asking Plaintiff general information and typing the answers into
his computer. (Id. ¶ 15.)
Plaintiff and Defendant Kapua-Allison
were separated by a large glass partition and concrete walls.
(Id.)
The Complaint states that during a lull in the questioning,
Plaintiff again asked Officer Kapua-Allison if he could make a
cross complaint against the private citizen who reported him for
suspected drunk driving. (Id. ¶ 15.)
Plaintiff alleges that
Officer Kapua-Allison, who was still separated from Plaintiff by
the glass partition and concrete walls, became angry, stood up
and leaned his body into the glass partition and, in an
intimidating manner, told Plaintiff to behave. (Id.)
According
to Plaintiff, he felt fear and thought that Officer Kapua-Allison
meant to harm him. (Id.)
Plaintiff states that he was then moved to another room that
had a breathalyzer test apparatus. (Id. ¶ 16.)
Plaintiff alleges
that he then immediately asked, for a third time, if he could
file a cross complaint against the private citizen. (Id.)
Plaintiff alleges that Officer Kapua-Allison again became angry,
6
flipped over the paperwork he had in front of him and leaned
menacingly toward Plaintiff. (Id.)
Plaintiff does not allege
that Officer Kapua-Allison verbally or physically threatened him.
Plaintiff further alleges that Officer Gouveia was standing
right next to a desk in the room “with what Plaintiff believes to
be a taser.” (Id.) Plaintiff does not state the basis for his
belief that there was a taser.
taser is not stated.
The location of the possible
Plaintiff does not allege that either
officer ever had a taser in or near his hand or that either one
ever threatened to use the taser on him.
Plaintiff did not take the breathalyzer test while at the
police station. (Id. ¶ 19.)
According to documentation by
Officers Kapua-Allison and Gouveia, Plaintiff refused to take the
breathalyzer test, but Plaintiff contends that he requested to
take it three times.
(Id. ¶ 25.)
According to the Complaint, in the early morning hours of
November 12, 2014, Plaintiff was placed in a jail cell in the
police station. (Id. ¶ 26.)
Plaintiff claims that he was not
allowed to make a phone call for some time because the intercom
of his jail cell was turned off. (Id. ¶ 27.)
Plaintiff
complains that the cell was brightly lit, the mattress was
uncomfortable, and this affected his ability to sleep. (Id. ¶
28.)
7
B.
Criminal Charges Against Plaintiff
In the state District Court of the Third Circuit for the
State of Hawaii, Plaintiff was charged with five counts:
Count 1: operating a vehicle under the influence of intoxicant
pursuant to Haw. Rev. Stat. § 291E-61(a).
Count 2: refusal to submit to breath, blood, or urine test
pursuant to Haw. Rev. Stat. § 291E-15.
Count 3: driving without a license pursuant to Haw. Rev. Stat. §
286-102(b).
Count 4: reckless driving pursuant to Haw. Rev. Stat. § 291-2.
Count 5: resisting an order to stop a motor vehicle pursuant to
Haw. Rev. Stat. § 710-1027(1).1
On April 29, 2013, the District Court of the Third Circuit
1
Defendants have attached the record of Plaintiff’s
criminal and administrative proceedings to the Declaration of
attorney Lerisa L. Heroldt attached to Defendants’ Memorandum in
Support of Motion to Dismiss. Those documents include: a
certified copy of the of the Calendar in State of Hawai`i v.
Brian J.P. O’Connor, District Court of the Third Circuit, State
of Hawai`i, Case No. 3DCW-12-0000830 (Exhibit 2); a certified
copy of the Notice of Entry of Judgment (Exhibit 3); the Findings
of Fact, Conclusions of Law and Decision of the Administrative
Driver’s License Revocation Office, dated January 8, 2013
(Exhibit 4); and the Administrative Driver’s License Revocation
Office’s Notice of Administrative Hearing Decision, dated January
8, 2013 (Exhibit 5). (Exhibits 1-5 to Defendants’ Memorandum in
Support of Motion to Dismiss and Declaration of Lerisa L.
Heroldt, ECF Nos. 24-5 through 24-8.) Plaintiff refers to the
Administrative Driver’s License Revocation Office and state court
proceedings in his compliant and, pursuant to Fed. R. Evid. 201,
the Court takes judicial notice of these documents as public
records.
8
entered a “Notice of Entry of Judgment and/or Order” for each of
the five counts against Plaintiff. (Notice of Entry of Judgment,
attached as Ex. 3 to Defendants’ Memorandum in Support of Motion
to Dismiss, ECF No. 24-6.)
The state court docket sheet for the
criminal proceeding against Plaintiff also details the
disposition of all counts against him. (State Court Docket last
updated August 29, 2013, attached as Ex. 2 to Defendants’
Memorandum in Support of Motion to Dismiss, ECF No. 24-5.)
The
docket sheet lists all filings and the text of the court minutes.
A review of the minutes and filings shows that Plaintiff had the
opportunity to, and did, file motions for discovery and to
suppress evidence.
As to Count 1, operating a vehicle under the influence of
intoxicant pursuant to Haw. Rev. Stat. § 291E-61(a), Plaintiff
pled no contest and was found guilty.
As to Count 3, driving
without a license pursuant to Haw. Rev. Stat. § 286-102(b),
Plaintiff also pled no contest and was found guilty.
Counts 2,
4, and 5 were nolle prosequi by the prosecutor per the plea
agreement and dismissed by the court.
Although Plaintiff pled no contest to two charges, and the
remaining charges were dismissed per a plea agreement, Plaintiff
now complains that the County of Hawaii did not produce Officers
Kapua-Allison and Gouveia at his criminal trial on April 29,
2013. (Complaint at ¶ 32, ECF No. 1.)
9
C.
Administrative Driver’s License Revocation Proceeding
Against Plaintiff
Plaintiff’s driver’s license was administratively revoked.
On January 8, 2013, an administrative hearing was conducted by
the Hawaii Administrative Driver’s License Revocation Office
(“Hawaii Administrative Dr. License Rev. Off.”) regarding the
revocation of Plaintiff’s driver’s license.
The Hearings Officer
gave Plaintiff the option of either contesting the underlying
revocation and subpoenaing the officers or accepting a deal in
which there was a reduction in the period of revocation from two
years to one year based on Plaintiff’s testimony that he did not
understand the consequences of refusing to take a breath test.
Plaintiff did not contest or dispute the administrative
revocation of his driver’s license for driving while under the
influence of intoxicating liquor on November 11, 2012.
He
received a reduction in the revocation of his license from two
years to one year.
(January 8, 2013 Hawaii Administrative
Driver’s Lic. Rev. Off. Decision, attached as Ex. 4 to
Defendants’ Memorandum in Support of Motion to Dismiss, ECF No.
24-7.)
In the Notice of Administrative Hearing Decision, the
Hearings Officer found the administrative revocation sustained
for the following reasons:
1.
There existed reasonable suspicion to stop the vehicle;
2.
There existed probable cause to believe that
10
[Plaintiff] operated the vehicle while under the
influence of an intoxicant; and
3.
The evidence proves by the preponderance that
[Plaintiff] operated the vehicle while under the
influence of an intoxicant.
(January 8, 2013, Hawaii Administrative Driver’s Lic. Rev. Off.
Notice of Administrative Hearing Decision, at p. 1., attached as
Ex. 5 to Defendants’ Memorandum in Support of Motion to Dismiss,
ECF No. 24-8.)
Plaintiff, in this action, complains that the County did not
produce the police officers at his administrative hearing
concerning the revocation of his license.
In fact, at the
administrative hearing, Plaintiff did not contest the
administrative suspension of his driver’s license and agreed he
did not wish to subpoena witnesses in the proceeding and would
not contest the underlying DUI. (Transcript of Proceedings Before
Administrative Driver’s Lic. Rev. Off., attached as Ex. 6 to
Defendants’ to Memorandum in Support of Motion to Dismiss, ECF
No. 24-9.)
D.
Stipulation to Dismiss Defendant Administrative Driver’s
License Revocation Office
In the case before this Court, on February 26, 2015,
Plaintiff and the Hawaii Administrative Driver’s Lic. Rev. Off.
entered into a stipulation for dismissal of all claims against
the Hawaii Administrative Driver’s Lic. Rev. Off. which the Court
11
approved.
(Stipulation for Dismissal, ECF No. 21; Minute Order
approving Stipulation for Dismissal, ECF No. 23.)
In light of
the stipulation for dismissal, Plaintiff cannot complain that the
Hawaii Administrative Dr. License Rev. Off. violated his
constitutional rights.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows dismissal
where a complaint fails “to state a claim upon which relief can
be granted.” Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220, 1225 (9th Cir. 2008). The complaint must contain
“a short and plain statement of the claim showing that the
pleader is entitled to relief.”
Fed. R. Civ. P. Rule 8(a)(2).
Rule 8 of the Federal Rules of Civil Procedure “does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me-accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 555 (2007)). A pleading
must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” The factual
allegations in a pleading “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint survives a motion to dismiss when it contains
sufficient factual matter, accepted as true, to state a claim for
12
relief that is plausible on its face. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). A claim is facially plausible
when the factual content of the complaint allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged. The plausibility standard does not
require probability, but it requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). A complaint that pleads facts that are
“merely consistent with” a defendant’s liability “stops short of
the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).
When considering a Rule 12(b)(6) motion to dismiss, the
Court must presume all allegations of material fact to be true
and draw all reasonable inferences in favor of the non-moving
party. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The
Court need not accept as true, however, allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998
(9th Cir. 2010)(documents attached to the complaint and matters
of public record may be considered on a motion to dismiss).
13
ANALYSIS
Causes of Action in Plaintiff’s Complaint
The Complaint asserts the following causes of action against
the Defendants County of Hawaii and Officers Kapua-Allison and
Gouveia:
First Cause of Action: Plaintiff alleges that Defendants acted
under a policy, practice, custom, statute or regulation that
violated Plaintiff’s rights under the United States and Hawaii
State Constitutions.
Plaintiff cites the Fourth, Fifth,
Eighth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 5, 6, 7, 12 and 14 of the
Constitution of the State of Hawaii as well as Hawaii Revised
Statutes, Chapter 291E. (ECF No. 1, ¶¶ 34-36.)
Second Cause of Action (Abuse of Process): Plaintiff alleges
that Officers Kapua-Allison and Gouveia engaged in abuse of
process
by
“intentionally,
willfully,
knowingly,
or
maliciously perverting the County of Hawaii and ADLRO
process.” (ECF No. 1, 37-40.)
Third Cause of Action (Assault): Plaintiff alleges that
Officer Kapua-Allison acted outside the scope of his
employment when he became angry and engaged in an intentional
display of force while Plaintiff was at the police station.
(ECF No. 1, ¶¶ 41-43.)
Fourth Cause of Action (False Imprisonment): Plaintiff alleges
that the County of Hawaii, among other wrongs, detained him
too long and “unlawfully extended his freedom from restraint
of movement.” (ECF No. 1, ¶¶ 44-47.)
Fifth Cause of Action (Negligence): Plaintiff alleges that
Officers Kapua-Allison and Gouveia, along with the County of
Hawaii, as their supervisor, are liable for Officers KapuaAllison and Gouveia’s allegedly negligent conduct committed
within the scope of their employment as Hawaii County police
officers. (ECF No. 1, 48-50.)2
2
Plaintiff’s Sixth Cause of Action for “due process and
vagueness” was against the Hawaii Administrative Driver’s Lic.
Rev. Off. only. Since the Hawaii Administrative Driver’s Lic.
Rev. Off. and all claims against it have been dismissed with
14
Waiver, Collateral Estoppel, and the Rooker-Feldman Doctrine
Plaintiff, in essence, is attempting to re-litigate his
state court criminal and administrative driver’s license
revocation proceedings in federal court.
As discussed further
below, several legal doctrines - waiver, collateral estoppel, and
the Rooker-Feldman doctrine3 - prevent Plaintiff from being able
to do so.
Plaintiff has waived any right to contest the basis
for his criminal convictions and driver’s license revocation and
has not stated grounds upon which an independent constitutional
claim could be based.
In the state criminal proceeding, the prosecutor agreed to
dismiss three of the charges against Plaintiff per a plea
agreement and Plaintiff pled no contest to the remaining two
charges.
By entering into a plea and pleading no contest,
Plaintiff waived his right to contest whether there was probable
cause to arrest him and to claim that the County of Hawaii and/or
Officers Kapua-Allison and Gouveia violated his rights by not
appearing in court.
In pleading no contest, Plaintiff expressly
waived his right to a jury trial.
Had Plaintiff wanted a full
prejudice, Plaintiff’s Sixth Cause of Action has been dismissed.
(ECF No. 23, Minute Order approving Stipulation to Dismiss ADLRO
with prejudice.)
3
The Rooker-Feldman doctrine is a rule of civil procedure
enunciated by the United States Supreme Court in two cases,
Rooker v. Fidelity Trust Co, 263 U.S. 413 (1923) and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
15
trial with testimony from the officers, he could have pled not
guilty.
Plaintiff received a benefit from his plea deal.
Under
the Rooker-Feldman doctrine, this Court cannot sit as an
appellate court and re-examine the basis for Plaintiff’s arrest
and conviction.
The same is true with the proceedings before the
Administrative Driver’s License Revocation Office. In the Hawaii
Administrative Driver’s Lic. Rev. Off. proceeding, Plaintiff
expressly waived his right to contest the revocation of his
driver’s license and the procedures leading to it.
(Transcript
of Hawaii Administrative Driver’s Lic. Rev. Off. Proceedings at
2:13-17, 25; 3:10, attached as Ex. 6 to Defendants’ Memorandum in
Support of Motion to Dismiss, ECF No. 24-9); see United States v.
Amwest Surety Ins. Co., 54 F.3d 601, 602 (9th Cir. 1995).4
I.
First Cause of Action - Plaintiff’s Constitutional Based
Claims
Plaintiff brings federal constitutional claims under the
Fourth, Fifth, Eighth and Fourteenth Amendments of the United
States Constitution and corresponding claims under the Hawaii
State Constitution. (Complaint at ¶ 36, ECF No. 1.)
4
The Court finds that it may consider the contents of the
Hawaii Administrative Driver’s Lic. Rev. Off. hearing transcript
in the context of Defendants’ Motion to Dismiss because what
transpired at the Hawaii Administrative Driver’s Lic. Rev. Off.
hearing is incorporated into the Complaint by reference and, as a
public record, is a proper matter for judicial notice. See Coto
Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010);
Fed. R. Evid. 201.
16
Plaintiff’s claims under the United States Constitution are
brought pursuant to 42 U.S.C. § 1983. Title 42 U.S.C. § 1983
“provides a cause of action for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’
of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S.
498, 508 (1990) (quoting 42 U.S.C. § 1983).
Plaintiff combines all of his constitutional claims into a
single count.
For clarity the Court separates Plaintiff’s claims
by constitutional amendment and addresses each claim in turn.
A.
Plaintiff Has Failed to State a Fourth Amendment Claim
Plaintiff’s Fourth Amendment claim is based on his allegedly
improper arrest and detention.
(Complaint at ¶ 36, ECF No. 1.)
"A claim for unlawful arrest is cognizable under § 1983 as a
violation of the Fourth Amendment, provided the arrest was
without probable cause or other justification." Lacey v. Maricopa
Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting Dubner v. City
& Cnty. of S.F., 266 F.3d 959, 964 (9th Cir.2001)).
Plaintiff has failed to state a Fourth Amendment claim
because it is undisputed that there was probable cause to arrest
him.
In the Criminal Proceeding, Plaintiff pled no contest and
was convicted of operating a vehicle under the influence of
intoxicant pursuant to Haw. Rev. Stat. § 291E-61(a) and of
driving without a license.
At the Hawaii Administrative Driver’s
Lic. Rev. Off. proceeding, Plaintiff elected not to contest his
17
driver’s license revocation in exchange for a reduction in his
license revocation from a period of two years to one year.
The
Hawaii Administrative Driver’s Lic. Rev. Off. further determined
that “[b]ased on the preponderance of the evidence considered at
the hearing . . .[t]here existed probable cause to believe that
[Plaintiff] operated the vehicle while under the influence of an
intoxicant.” (January 8, 2013 Hawaii Administrative Driver’s Lic.
Rev. Off. Notice of Administrative Hearing Decision at p. 1,
attached as Ex. 5 to Defendants’ Memorandum in Support of Motion
to Dismiss, ECF No. 24-8.)
Plaintiff’s pleas that resulted in
his conviction in the Criminal Proceeding and the Hawaii
Administrative Driver’s Lic. Rev. Off.’s findings conclusively
establish the existence of probable cause in this action.
The record shows that Plaintiff had a full and fair
opportunity to litigate the issue of probable cause in the state
criminal and administrative proceedings but he chose to enter
into plea agreements.
He is now estopped from re-litigating the
probable cause issue in this case.
See Haupt v. Dillard, 17 F.3d
285, 290 (9th Cir. 1994) (collateral estoppel applied where
plaintiff in civil rights suit had full and fair opportunity to
litigate the issue of probable cause during the course of his
criminal prosecution); see McIntosh v. Prestwich, 277 Fed. Appx.
683, 2008 WL 1944812, at *1 (9th Cir. 2008) (“The district court
properly dismissed McIntosh's Fourth Amendment claim because he
18
was collaterally estopped from relitigating the probable cause
determination made at his preliminary hearing.”); Santos v. State
Dep’t of Transp., 646 P.2d 962, 966 (Haw. 1982) (citation
omitted) (Under Hawaii law, “[t]he doctrines of res judicata and
collateral estoppel also apply to matters litigated before an
administrative agency.”).
In the proceeding before the Hawaii Administrative Driver’s
License Rev. Off. Plaintiff chose to accept a reduction in the
length of his revocation from two years to one year instead of
contesting his revocation.
The Hearings Officer explained that
Plaintiff had the option of contesting his revocation, but
Plaintiff voluntarily elected not to contest it. (January 8, 2013
Hawaii Administrative Driver’s Lic. Rev. Off. Hearing Transcript,
attached as Ex. 6 to Defendants’ Memorandum in Support of Motion
to Dismiss, ECF No. 24-9.)
Collateral estoppel/issue preclusion
Collateral estoppel/issue preclusion applies where: (1) the
issue decided in the prior adjudication is identical to the one
presented in the action in question; (2) there is a final
judgment on the merits; (3) the issue decided in the prior
adjudication was essential to the final judgment; and (4) the
party against whom [issue preclusion] is asserted was a party or
in privity with a party to the prior adjudication.
Lee, 976 P.2d 904, 911 (Haw. 1999).
19
Dorrance v.
Each of these four elements
is satisfied as to Plaintiff’s claim that Defendants violated his
rights under the Fourth Amendment.
This case is similar to Cooper v. Ramos, 704 F.3d 772, 784
(9th Cir. 2012).
In that case, the plaintiff attempted to bring
a constitutional claim based on alleged government misconduct.
The Ninth Circuit Court of Appeals held that collateral estoppel
applied to bar plaintiff’s claim because it had already been
litigated and decided in state court. (Id.)
Rooker-Feldman Doctrine
To the extent Plaintiff is asking this Court to function as
an appellate court in reviewing his state court conviction, his
action is barred by the Rooker-Feldman doctrine. “The
Rooker–Feldman doctrine instructs that federal district courts
are without jurisdiction to hear direct appeals from the
judgments of state courts.”
Cooper, 704 F.3d at 777.
Plaintiff’s Fourth Amendment claim is tantamount to a direct
appeal of his state court conviction.
A key test for whether the
Rooker-Feldman doctrine applies is whether plaintiff’s claim is
independent or inextricably intertwined with the state court
judgment.
Cooper, 704 F.3d at 778.
The question of whether the
officers had probable cause to arrest and detain Plaintiff is
inextricably intertwined with the state court decision.
This is
because a finding of no probable cause would effectively reverse
the state court decision.
Fontana Empire Ctr., LLC v. City of
20
Fontana, 307 F.3d 987, 992 (9th Cir. 2002) (claims were
inextricably intertwined where “the relief requested in the
federal action would effectively reverse the state court decision
or void its ruling.”) (citation and quotation omitted).
For these reasons, Plaintiff has not and cannot state a
claim against any of the Defendants under the Fourth Amendment.
B.
Plaintiff Has Failed to State a Fifth Amendment Claim
The Fifth Amendment of the United States Constitution
applies only to actions of the federal government.
Because
Plaintiff’s action is against the County of Hawaii, the Fifth
Amendment does not apply.
See Bingue v. Prunchak, 512 F.3d 1169,
1174 (9th Cir. 2008) (“the Fifth Amendment’s due process clause
only applies to the federal government.”).
Plaintiff argues that the Fifth Amendment applies to the
County of Hawaii because it may accept highway funds from the
federal government. (Opposition at p. 12, ECF No. 29.)
Plaintiff
cites no authority for this proposition and it is not supported
by case law.
See Wheat v. Mass, 994 F.2d 273, 276 (5th Cir.
1993) (hospital’s receipt of federal funds by virtue of its
participation in organ sharing network did not make hospital a
federal actor for purposes of Fifth Amendment equal protection
claim).
In any event, a Fifth Amendment due process claim against
the federal government is the same as a Fourteenth Amendment due
21
process claim against a state or local government.
Bingue, 512
F.3d at 1174 (citing Betts v. Brady, 316 U.S. 455 (1942) (“Due
process of law is secured against invasion by the federal
Government by the Fifth Amendment and is safe-guarded against
state action in identical words by the Fourteenth.”), overruled
on other grounds by Gideon v. Wainwright, 372 U.S. 335 (1963)).
Plaintiff’s Fourteenth Amendment claim is dismissed infra.
Plaintiff has not and cannot state a Fifth Amendment claim.
C.
Plaintiff Has Failed to State an Eighth Amendment Claim
Plaintiff’s Eighth Amendment claim is directed against
Defendants Kapua-Allison and Gouveia.
Plaintiff has voluntarily
dismissed his Eighth Amendment claim.
(Opposition at p. 4, ECF
No. 29.)
Even if Plaintiff had not dismissed this claim, the Eighth
Amendment does not apply as a matter of law.
The Eighth
Amendment’s prohibition of “cruel and unusual punishments”
applies only “after conviction and sentence.”
Graham v. Connor,
490 U.S. 386, 393 n.6 (1989) (citing Ingraham v. Wright, 430 U.S.
651, 671 n.40 (1977)).
Plaintiff’s allegations pertain only to
allegedly wrongful conduct prior to his conviction.
Plaintiff has not and cannot state an Eighth Amendment
claim.
22
D.
Plaintiff Has Failed to State a Due Process Claim Under
the Fourteenth Amendment
1.
Plaintiff Fails to State a Claim Based on His
Post-Arrest Detainment
Plaintiff’s Fourteenth Amendment claims regarding his postarrest detainment fall into two categories: (1) an excessive
force claim; and, (2) a deliberate indifference claim based on
the conditions of his confinement.
In his Complaint, Plaintiff asserts these claims pursuant to
the Eighth Amendment to the United States Constitution.
(Complaint at ¶ 36, ECF No. 1.)
In Plaintiff’s Opposition, he
acknowledges that these claims are not Eighth Amendment claims
but instead are brought pursuant to the Fourteenth Amendment to
the United States Constitution.
(Pla.’s Opp. at p. 4, ECF No.
29).
a.
Plaintiff Fails to State an Excessive Force
Claim
In order to state an excessive force claim under the
Fourteenth Amendment, a pretrial detainee must provide
allegations that the force purposefully or knowingly used against
him was objectively unreasonable under the circumstances.
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472-73 (2015).
Plaintiff’s excessive force claim describes verbal
interaction between him and Officer Kapua-Allison.
¶¶ 15-16, 43, ECF No. 1.)
(Complaint at
Taken in the light most favorable to
Plaintiff, Officer Kapua-Allison intimidated Plaintiff by getting
23
angry, raising his voice, and leaning forward in an intimidating
manner.
(Id.)
Plaintiff has failed to state an excessive force claim.
The
allegations regarding Officer Kapua-Allison’s conduct do not
describe the use of any force against Plaintiff, let alone
objectively unreasonable force.
b.
Kingsley, 135 S.Ct. at 2473.
Plaintiff Fails to State a Claim Based on the
Conditions of His Confinement
In order to state a Fourteenth Amendment claim based on the
conditions of his confinement, a pretrial detainee must provide
allegations that (1) he faced a substantial risk of serious harm,
(2) the defendants were deliberately indifferent to that risk,
and (3) the defendants’ failure to act was a proximate cause of
the harm that he suffered.
Castro v. Cnty. of Los Angeles, ___
F.3d ___, 2015 WL 4731366, *4, *6 (9th Cir. Aug. 11, 2015).
A defendant is deliberately indifferent to a substantial
risk of serious harm when he knew of the risk but disregarded it
by failing to take reasonable measures to address the danger.
Id. (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)).
Plaintiff alleges that he had difficulty sleeping because
the “jail cell was brightly lit and contained a flimsy plastic
mattress upon a concrete bench.”
(Complaint at ¶ 28, ECF No. 1.)
Plaintiff’s additional allegations about the conditions of his
confinement state that he was delayed in making a phone call
because the intercom in his cell was turned off.
24
(Id. at ¶ 27.)
Plaintiff has provided a detailed recitation of his postarrest detention but has not alleged facts that state a
deliberate indifference claim under the Fourteenth Amendment
based on the conditions of his confinement.
The Complaint does not contain allegations to demonstrate
that Plaintiff faced a substantial risk of serious harm while he
was confined.
Plaintiff does not allege facts which show that
either Officer Kapua-Allison or Officer Gouveia acted with
deliberate indifference to a substantial risk of serious harm.
Plaintiff’s constitutional rights were not violated by the
alleged temporary deprivation of telephone privileges.
See
Harrill v. Blount County, Tenn., 55 F.3d 1123, 1125 (6th Cir.
1995) (explaining that right to make a telephone call upon arrest
is not a recognized property right or a tradition liberty
interest recognized by federal law); State Bank of St. Charles v.
Camic, 712 F.2d 1140, 1145 n.2 (7th Cir. 1993)(explaining that
“[t]here is no constitutional requirement that a phone call be
permitted upon completion of booking formalities.”).
Finally, Plaintiff continues to complain about the police
officers’ failure to heed his request to file a cross-complaint
against the citizen who reported him for drunk driving.
argument has no basis.
This
Plaintiff does not have a constitutional
right to have a particular person investigated. See Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a
25
judicially cognizable interest in the prosecution or
nonprosecution of another”); see also Rennick v. City of
Cincinnati, 2007 WL 2248818, *5 (S.D. Ohio 2007) (“Plaintiff has
no constitutional right ‘as a member of the public at large and
as a victim’ to have a particular person investigated”) (quoting
Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1998)).
2.
Plaintiff Fails to State a Due Process Claim Based
on the County of Hawaii’s Policies or Procedures
Plaintiff’s remaining due process claim under the Fourteenth
Amendment pertains to the proceeding before the Hawaii
Administrative Driver’s License Revocation Office and to his
state court criminal case.
(Complaint at ¶ 36, ECF No. 1.)
Plaintiff complains that he was forced to participate in the
custody interrogation at the police station which, he contends,
was erroneously documented; that the Hawaii Administrative
Driver’s Lic. Rev. Office did not investigate his allegations
against Officer Kapua-Allison; and that Officers Kapua-Allison
and Gouveia were not present at the Administrative Driver’s
License Revocation Office proceeding or in state court for his
criminal case.
(Id.)
Plaintiff also complains that he was not
properly served with the Administrative Driver’s License
Revocation Office paperwork. (Id.)
Plaintiff’s claims are barred by waiver, collateral
estoppel, and the Rooker-Feldman doctrine.
In the state criminal proceeding, Plaintiff entered into a
26
plea agreement.
trial.
He pled no contest and waived his right to a
In the Hawaii Administrative Driver’s Lic. Rev. Off.
proceeding, Plaintiff similarly agreed not to contest the
revocation of his license.
In doing so, Plaintiff also waived
any objection regarding allegedly defective service of the
paperwork for the Hawaii Administrative Driver’s Lic. Rev. Off.
proceeding.
In accepting a plea deal, waiving his right to a
trial, and not contesting his driver’s license revocation,
Plaintiff also waived any right to command the presence of
Officers Kapua-Allison and Gouveia at either the criminal or
administrative proceedings.
Plaintiff cannot now challenge the evidence used to support
the state court judgment or the revocation of his driver’s
license. In the state criminal proceeding, Plaintiff had the
opportunity to, and did, argue that the procedures used to obtain
evidence, against him were improper.
In particular, Plaintiff
argued that the citizen who reported his drunk driving was
unreliable.5
Plaintiff is estopped from relitigating these
5
See Plaintiff O’Connor’s “Motion to Depose Darrell M.
Silva” filed in State Court, attached as Ex. 8 to Defendants’
Memorandum in Support of Motion to Dismiss, ECF No. 24-11;
Plaintiff O’Connor’s “Motion to Compel Discovery” filed in State
Court, attached as Ex. 9 to Defendants’ Memorandum in Support of
Motion to Dismiss, ECF No. 24-12; Plaintiff O’Connor’s “Motion to
Suppress &/or Dismiss” filed in State Court, attached as Ex. 10
to Defendants’ Memorandum in Support of Motion to Dismiss, ECF
No. 24-13. Exhibits 8, 9, and 10 to Defendants’ Motion to
Dismiss are court filings by Plaintiff in the state criminal
proceedings before the Hawaii District Court of the Third
27
issues in this Court.
The issues raised here are the same issues
that Plaintiff could have, and did, raise in the state criminal
and administrative proceedings.
As with Plaintiff’s Fourth Amendment claim, the RookerFeldman doctrine applies to bar Plaintiff’s Fourteenth Amendment
claims based on unlawful arrest, unlawful charges, and false
imprisonment.
Plaintiff was found guilty of driving under the
influence and of driving without a license.
In order to prevail
on his claims for unlawful arrest, unlawful charges, and false
imprisonment, Plaintiff must attack his convictions, including
the alleged lack of probable cause and improper procedures.
Under the Rooker-Feldman doctrine, however, he is barred from
doing so.
See Reusser v. Wachovia Bank, N.A., 525 F.3d 855,
858-59 (9th Cir. 2008) (Rooker-Feldman prohibits federal district
courts from exercising appellate jurisdiction over final state
court judgments.); Cooper, 704 F.3d at 781.
Plaintiff has not, and cannot state a claim a Fourteenth
Amendment claim.
E.
Plaintiff’s Hawaii State Constitutional Claims
For the same reasons that Plaintiff has failed to state
claims under the United States Constitution, Plaintiff has also
failed to state claims under the corresponding provisions of the
Circuit. Pursuant to Fed. R. Civ. P. 201, this Court takes
judicial notice of these documents as public records.
28
Hawaii State Constitution.
See Vernon v. City of Los Angeles, 27
F.3d 1385, 1392 (9th Cir. 1994)(“Where the state constitutional
provisions are co-extensive with related federal constitutional
provisions, we may decide the federal constitutional claims
because that analysis will also decide the state constitutional
claims.”)
II.
Second Cause of Action - Abuse of Process Claim
Plaintiff’s abuse of process claim is based on Officers
Kapua-Allison and Gouveia’s preparation of police reports which
allegedly contained false or omitted information regarding
Plaintiff’s four requests to make a cross complaint against the
citizen who reported him for drunk driving and regarding his
alleged requests to take the breathalyzer test. (Complaint at ¶
39, ECF No. 1.)
Plaintiff alleges that the report’s indication
that he refused to take the breathaylyzer test led to a charge
against him. (Id.)
Plaintiff entered a not guilty plea as to
this charge - (Count 2 - refusal to submit to breath, blood, or
urine test pursuant to Haw. Rev. Stat. § 291E-15) - and it was
dismissed per his plea agreement.
There are two essential elements in a claim for abuse of
process: “(1) an ulterior purpose and (2) a willful act in the
use of the process which is not proper in the regular conduct of
the proceeding.” Young v. Allstate Ins. Co., 198 P.3d 666, 675
(Haw. 2008) (affirming dismissal of abuse of process claim in
29
action against insurer brought by accident victim) (citations and
internal quotation marks omitted). For the second element,
“‘[p]rocess,’ as used in the tort of ‘abuse of process,’ . . .
has been interpreted broadly to encompass the entire range of
‘procedures’ incident to litigation.” Id. at 675-76 (quoting
Barquis v. Merchants Collection Ass’n, 496 P.2d 817, 824 n.4
(Cal. 1972)).
Plaintiff has failed to state an abuse of process claim.
Plaintiff has not alleged facts to establish the first element of
the claim - an ulterior purpose.
Plaintiff does not allege any
facts that would show that Defendants had a motive ulterior to
Plaintiff’s criminal prosecution and license revocation for
driving under the influence.
Compare Dubois v. Ass’n of
Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1181 (9th Cir.
2006) (affirming dismissal of abuse of process claim where
plaintiff alleged that foreclosure proceedings were initiated for
their intended purpose pursuant to relevant statute), with
McCollough v. Johnston, Rodenburg & Lauinger, LLC, 637 F.3d 939,
956 (9th Cir. 2011)(determining that collection proceeding was
initiated for something other than intended purpose, i.e., to
extract money from opposing party that was not owed, and litigant
knew it had no valid claim).
Moreover, Plaintiff’s request that the Court re-examine the
evidence underlying Plaintiff’s criminal conviction and driver’s
30
license revocation is precluded by waiver, collateral estoppel
and the Rocker-Feldman doctrine.
Plaintiff has failed to, and cannot state, an abuse of
process claim.
III. Third Cause of Action - Assault
Plaintiff alleges that twice while at the Hilo Police
Station, Defendant Kapua-Allison’s displays of anger and force
made him fear for his safety and expect immediate bodily harm.
(Complaint at ¶ 43, ECF No. 1.)
An assault claim is an intentional tort.
In order to state
a cause of action for assault a plaintiff must establish “(1)
that defendant intended to cause harmful or offensive contact, or
the imminent apprehension of such contact, and (2) that plaintiff
was put in imminent apprehension of such contact.”
Pourny v.
Maui Police Dep’t, County of Maui, 127 F. Supp. 2d 1129, 1147 (D.
Haw. 2000) (citing RESTATEMENT (SECOND) OF TORTS § 21 (1965));
Mukaida v. Hawaii, 159 F.Supp.2d 1211, 1223 (D. Haw. 2001)(“[a]
person commits the common law tort of assault if he or she acts
with intent to cause another a nonconsensual harmful or offensive
contact or apprehension thereof, and the other person apprehends
imminent contact.”).
Whether a person’s behavior creates fear of
imminent harm must be reasonable and is determined from an
objective standpoint.
See Brooks v. United States, 29 F. Supp.
2d 613, 617 (N.D. Cal. 1998) (requiring that apprehension of
31
harmful or offensive conduct be reasonable); Wilk v. Abbott
Terrace Health Center, Inc., 2007 WL 2482486, at *8 (Conn. Super.
Aug. 15, 2007)(“While no physical contact is required, the
apprehension must be one which would be normally aroused in the
mind of a reasonable person”) (citation and quotation omitted);
cf. United States v. Acosta-Sierra, 690 F.3d 1111, 1118 (9th Cir.
2012) (adopting common law definition of assault in criminal
action for assault on federal officer which requires apprehension
of immediate bodily harm to be reasonable); United States v. Jim,
865 F.2d 211, 213 (9th Cir. 1989)(actual, reasonable fear, is a
necessary element of criminal assault by threat).
Even taking the facts alleged in Plaintiff’s Complaint as
true, Plaintiff has failed to state a claim for assault as a
matter of law.
Plaintiff has not alleged facts based upon which
a finder of fact could find that Plaintiff had a reasonable
imminent apprehension of harm or offensive contact.
In the first
incident which took place during Plaintiff’s initial interview, a
glass partition and a concrete wall separated Plaintiff and
Officer Kapua-Allison.
Plaintiff alleges that Officer Kapua-
Allison got angry, leaned against the glass partition, and, in an
intimidating manner, told Plaintiff to behave himself.
(Complaint at ¶ 15, ECF No. 1.)
Plaintiff alleges that Officer
Kapua-Allison again got angry while they were in the breathalyzer
testing room and flipped over papers in front of him and leaned
32
menacingly toward Plaintiff.
(Id. at ¶ 16.)
Plaintiff alleges
that Officer Gouveia was also in the test room and standing next
to a “the desk in this room with what Plaintiff believes to be a
taser.” (Id.)
From an objective standpoint, based on the facts alleged,
Plaintiff could not have had a reasonable fear of imminent harm.
In the first incident which occurred during Plaintiff’s initial
interview, Officer Kapua-Allison was behind a glass partition and
concrete wall.
The glass partition and concrete wall were
physical barriers to imminent harm.
Plaintiff alleges that
Defendant spoke to him in an intimidating manner and told him to
behave.
Plaintiff does not allege that Defendant yelled at him
or threatened him in any way.
Officer Kapua-Allison’s actions in
the first incident do not constitute an assault as a matter of
law.
See Wilk, 2007 WL 2482486, at *8 (Conn. Super. 2007) (“A
person’s behavior must create a fear of imminent harm from an
objective standpoint, and even violent behavior accompanied by
threats has been held insufficient to state a claim for assault
absent some clear implication of imminent harm.”).
As to the second incident which took place in the
breathalyzer test room, Plaintiff alleges similar facts.
Plaintiff alleges that Officer Kapua-Allison flipped papers
upside down and leaned menacingly toward him.
allege how close the officer was to him.
33
Plaintiff does not
Plaintiff does not
allege that Officer Kapua-Allison made any verbal threats or
otherwise displayed conduct that would lead a reasonable person
to believe that Plaintiff had reason to imminently apprehend
harm.
The same is true as to Officer Gouveia.
Plaintiff alleges
only that Officer Gouveia was standing “right next to a desk with
what Plaintiff believe to be a taser.”
No. 1.)
(Complaint at ¶ 16, ECF
Plaintiff does not allege that Officer Gouveia ever
touched a taser, or in any way threatened Plaintiff with one.
It
is unclear whether the possible taser was on the desk, in the
desk, or ever even anywhere near Officer Gouveia’s hand.
Plaintiff cannot establish an assault claim based on his belief
that there might have been a taser in the room.
If that were
true, any individual could automatically have an assault claim
against an officer based on the mere fact that the officer was
carrying a gun.
Plaintiff’s has failed to state a claim for assault as a
matter of law.
IV.
Fourth Cause of Action - False Imprisonment
In support of his false imprisonment claim, Plaintiff
alleges that he was detained too long at the police station in
Hilo, Hawaii. (ECF No. 1, ¶ 45.)
Plaintiff further complains
that he was told that he could make a phone call at 6:00 a.m. on
November 12, 2012, but that a phone call was not made for him
34
until that afternoon. (Id. ¶ 47.)
The essential elements for a false imprisonment claim are:
“(1) the detention or restraint of one against his [or her] will,
and (2) the unlawfulness of such detention or restraint.” Reed v.
City and County of Honolulu, 873 P.2d 98, 109 (Haw. 1994)
(internal quotation marks and citation omitted).
Plaintiff cannot establish that his detention was unlawful.
In light of the prior state criminal and administrative
proceedings, it is undisputed that probable cause existed to
arrest and detain Plaintiff.
See Reed, 873 P.2d at 109
(determination of probable cause at preliminary hearing in
criminal action barred arrestees’ subsequent false imprisonment
claim in civil action); House v. Ane, 538 P.2d 320, 325-26 (Haw.
1975) (holding that conviction in criminal case conclusively
established the existence of probable cause in subsequent false
imprisonment action).
Further, Plaintiff’s allegation that he
was not able to make a phone call until the early afternoon is
not a basis for a false imprisonment claim.
Plaintiff has not stated, and cannot state, a false
imprisonment claim as a matter of law.
V.
Fifth Cause of Action - Negligence Claim
Plaintiff alleges that Officers Kapua-Allison and Gouveia,
along with the County of Hawaii, as their supervisor, are liable
for Officers Kapua-Allison and Gouveia’s allegedly negligent
35
conduct. (Complaint at ¶¶ 48-50, ECF No. 1.)
Plaintiff alleges
that the police officers committed their allegedly negligent
conduct within the scope of their employment.
Plaintiff’s negligence claim fails as a matter of law as to
all Defendants.
Officers Kapua-Allison and Gouveia are entitled
to a conditional privilege protecting them from liability for
negligence.
The conditional privilege immunizes government
officials from liability for tortious acts unless they were
motivated by malice.
1982).
Towse v. State, 647 P.2d 696, 702 (Haw.
For purposes of applying the conditional privilege,
“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.” Winchester-Sye v. County of Hawaii, Civ. No. 12-00592
ACK-KSC, 2014 WL 5465308, at *10 (D. Haw. Oct. 27, 2014)
(citation, internal quotation marks and brackets omitted);
Long
v. Yomes, Civ. No. 11–00136 ACK-KSC, 2011 WL 4412847 at *6 (D.
Haw. 2011) (In order for a plaintiff to prevail in a state tort
action against a nonjudicial government official, the plaintiff
must “allege and demonstrate by clear and convincing proof that
the official was motivated by malice and not by an otherwise
proper purpose.”).
Plaintiff has not alleged that Officers Kapua-Allison and
Gouveia acted with the requisite malice.
36
Because Plaintiff
cannot state a negligence claim against Officers Kapua-Allison
and Gouveia, Plaintiff has likewise failed to state a claim
against the County of Hawaii on this ground.
Plaintiff’s negligence claim fails as a matter of law.
Leave to Amend
“Dismissal of a complaint without leave to amend is proper
where it is clear that the complaint could not be saved by
amendment.” Cooper, 704 F.3d at 783.
Plaintiff’s claims in causes of action one (federal and
state constitutional claims), two (abuse of process), four (false
imprisonment), and five (negligence) cannot be saved by amendment
as there is no legal basis under which Plaintiff could bring
these claims.
These causes of action are dismissed with
prejudice.
Plaintiff has also failed to state a claim for assault as a
matter of law.
Although it is doubtful that Plaintiff could
amend his complaint to add the facts necessary to state a claim
for assault, Plaintiff’s assault claim is the only claim for
which allowing Plaintiff leave to amend would arguably not be
futile.
Because this is Plaintiff’s first Complaint, the Court
will dismiss Plaintiff’s third cause of action for assault,
without prejudice.
Because the Court dismisses Plaintiff’s constitutional
claims with prejudice there is no longer a basis for federal
37
question jurisdiction.
Nor is there a basis for diversity
jurisdiction because there is no diversity between the Plaintiff
and Defendants, all of whom are Hawaii residents.
The Court
declines to exercise supplemental jurisdiction over Plaintiff’s
state tort law claim for assault in the event Plaintiff were to
re-allege this claim.
Accordingly, rather than granting leave to
amend, the Court dismisses Plaintiff’s third cause of action for
assault without prejudice.
Plaintiff may bring an assault claim
in state court if he believes that he has grounds to do so.
CONCLUSION
Defendants’ Motion to Dismiss (ECF No. 24) is GRANTED.
Plaintiff is DENIED leave to amend.
Causes of Action One (federal and state constitutional
claims), Two (abuse of process), Four (false imprisonment), and
Five (negligence) are DISMISSED WITH PREJUDICE.
Cause of Action Three (assault) is DISMISSED WITHOUT
PREJUDICE.
38
There being no remaining claims or parties, this case is now
CLOSED.
IT IS SO ORDERED.
DATED: September 18, 2015, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Brian J. P. O’Connor v. Christopher Kapua-Allison; Joshua H. F.
Gouveia; County of Hawaii; John Does 1-10; Civ. No. 14-00507 HGKSC; AMENDED ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (ECF
NO. 24) AND DENYING LEAVE TO AMEND
39
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