Kahalewai v. State of Hawaii D.P.S.
Filing
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ORDER GRANTING DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC SAFETY'S MOTION TO DISMISS (ECF No. 6 ) AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT. Signed by JUDGE HELEN GILLMOR on 3/31/2015. ~ DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC SAFETY'S MOTION TO DISMISS (ECF No. 6) is GRANTED. Plaintiff is GRANTED leave to file an amended complaint. In his Opposition, Plaintiff contends that he has stated an Eighth Amendment claim, but also asks for remand . Plaintiff's Complaint does not state an Eighth Amendment claim. Plaintiff has until May 1, 2015, to file an amended complaint. Any amended complaint must be in conformance with the Court's Order. Alternatively, by May 1, 2015, Plainti ff may voluntarily dismiss his Eighth Amendment claim. If Plaintiff voluntarily dismisses his Eighth Amendment claim, the matter will be remanded to state court. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RADFORD KAHALEWAI,
Plaintiff,
vs.
STATE OF HAWAII DEPARTMENT OF
PUBLIC SAFETY; MATHER MURPHY,
Defendants.
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CIV. NO. 15-00009 HG-KSC
ORDER GRANTING DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC
SAFETY’S MOTION TO DISMISS (ECF No. 6)
AND
GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT
This case arises out of Plaintiff’s Eighth Amendment and
state tort law claims against the State of Hawaii Department
of Public Safety and fellow inmate Defendant Mather Murphy as
a result of an alleged physical attack against Plaintiff by
Defendant Murphy.
At the time, Plaintiff was incarcerated in
Arizona at the Saguro Correctional Center (“SCC”).
SCC is a
private correctional facility contracted by the Department of
Public Safety.
There was a Stay Away order, requiring the
separation of Plaintiff and Defendant Murphy.
Plaintiff’s
claims against the Department of Public Safety are based on
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SCC’s alleged failure to properly enforce the Stay Away order.
Plaintiff has failed to state a claim against the State
of Hawaii Department of Public Safety.
Defendant State of Hawaii Department of Public Safety’s
Motion to Dismiss (ECF No. 6) is GRANTED.
Plaintiff is GRANTED leave to file an amended complaint.
PROCEDURAL HISTORY
On January 12, 2015, Defendant State of Hawaii Department
of Public Safety (“DPS”) filed a Notice of Removal of
Plaintiff Radford Kahalewai’s Complaint, filed on December 11,
2014, in the First Circuit Court, State of Hawaii, to this
Court based on federal question jurisdiction.
(ECF No. 1.)
On January 20, 2015, DPS filed a Motion to Dismiss for
failure to state a claim.
(ECF No. 6.)
On February 9, 2015, Plaintiff filed a memorandum in
opposition to DPS’s Motion to Dismiss.
(ECF No. 13.)
On March 2, 2015, DPS filed a reply.
(ECF No. 14.)
Pursuant to Local Rule 7.2(d), the Court elected to
decide this matter without a hearing.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows dismissal
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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-unlawfullyharmed-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 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
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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).
BACKGROUND
Plaintiff is serving a prison sentence.
(Compl. ¶ 1.)
Plaintiff alleges that he is a ward of the State of Hawaii and
that DPS involuntarily and temporarily sent him to Saguro
Correctional Facility in Eloy, Arizona.
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(Compl. ¶ 1.)
The
correct name of the facility is the Saguro Correctional Center
(“SCC”).
1.)
The SCC is operated on contract with DPS.
The SCC is not owned or operated by DPS.
(Compl. ¶
The SCC is a
private correctional facility. (See www.cca.com, visited March
17, 2015).
The basis for Plaintiff’s Complaint arises from SCC’s
alleged failure to properly enforce a Stay Away order between
Plaintiff and Defendant Mather Murphy.
(Compl. ¶ 3.)
Plaintiff alleges that Defendant Murphy was a prison inmate
housed in the Hawaii state prison system who threatened
Plaintiff at the Halawa Correctional Facility in 2007 or 2008.
(Compl. ¶ 3.)
Away order.
Defendant Murphy’s threats resulted in a Stay
(Compl. ¶ 3.)
Plaintiff alleges that the Stay
Away order was in Plaintiff and Defendant Murphy’s personal
file jackets.
(Compl. ¶ 6.)1
DPS sent Plaintiff to SCC to serve a portion of his
prison sentence.
According to Plaintiff, the Stay Away order
should have been known to the DPS employees who sent Plaintiff
to SCC.
(Compl. ¶ 6.)
Plaintiff further alleges that DPS had
written notice of the Stay Away order.
1
The paragraphs in Plaintiff’s
The Court has started from paragraph
sequentially. The opening paragraph
also mistakenly refers to “Plaintiff
Plaintiff Kahalewai.
5
(Compl. ¶ 10.)
Complaint are misnumbered.
1 and applied the numbers
of Plaintiff’s Complaint
Pauline” rather than
The incident at issue occurred on December 9, 2012 at the
SCC. (Compl. ¶ 7.)
On that date, Plaintiff and Defendant
Murphy approached the chow hall.
As Plaintiff passed
Defendant Murphy, Murphy allegedly hit Plaintiff on the left
side of his head knocking him down and out cold. (Compl. ¶ 7.)
According to Plaintiff, Murphy continued to hit him while he
was unconscious on the floor until he was pulled off by other
people.
(Compl. ¶ 8.)
Plaintiff alleges that he suffered
physical and emotional injuries as well as brain trauma.
(Compl. ¶¶ 11-12.)
Plaintiff alleges that SCC, on contract with DPS, was
negligent in not preventing harm to Plaintiff.
(Compl. ¶ 10.)
Plaintiff also alleges that “Defendant DPS had notice that
Defendant Murphy’s actions needed to be closely monitored and
that he should not be allowed to assault the Plaintiff as he
had previously threatened to do.”
(Compl. ¶ 13.)
Plaintiff brings three causes of action.
As to DPS,
Plaintiff’s first cause of action is that DPS facilitated and
allowed the illegal assault upon Plaintiff on December 9, 2012
in violation of the Eighth Amendment of the United States
Constitution.
(Compl. ¶¶ 15-16.)
action is for assault and battery.
Plaintiff’s second cause of
As to DPS, Plaintiff
alleges that Defendant Murphy’s assault is in violation of the
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State’s duty to protect him from harm while in custody.
(Compl. ¶ 18.)
Plaintiff’s third cause of action is for
intentional infliction of emotional distress.
Plaintiff
alleges that DPS contributed to the emotional distress caused
by Defendant Murphy because the facility with which DPS had
contracted, SCC, ignored the Stay Away order. (Compl. ¶ 20.)
ANALYSIS
DPS moves to dismiss all counts against it for failure to
state a claim.
Cause of Action 1: Plaintiff’s Claim Under the Eighth
Amendment of the United States Constitution Pursuant to 42
U.S.C. § 1983
The Eighth Amendment of the United States Constitution
protects prisoners from inhumane conditions of confinement.
Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006)
(citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
Prison
officials have a “duty to ensure that prisoners are provided
with adequate shelter, food, clothing, sanitation, medical
care, and personal safety.”
Johnson v. Lewis, 217 F.3d 726,
731 (9th Cir. 2000) (citations omitted).
To establish a
violation of this duty, a prisoner must satisfy both an
objective and subjective component.
U.S. 294, 298 (1991).
See Wilson v. Seiter, 501
First, a prisoner must demonstrate an
objectively serious deprivation, one that amounts to the
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denial of “the minimal civilized measures of life’s
necessities.”
Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.
1996) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).
Second, a prisoner must demonstrate that prison officials
acted with “deliberate indifference.”
303; Johnson, 217 F.3d at 733.
Wilson, 501 U.S. at
A prison official is liable
for denying an inmate humane conditions of confinement only if
“the official knows of and disregards an excessive risk to
inmate health and safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.”
Farmer, 511 U.S. at 837.
There are no allegations of any direct involvement by DPS
in the conduct at issue in this lawsuit.
The only allegation
pertaining to DPS is that it contracted with SCC.
Plaintiff
does not, for instance, allege that DPS knew about, or in any
way participated in SCC’s alleged failure to enforce the Stay
Away order.
There are no allegations that DPS had any reason
to believe that SCC would not properly enforce the Stay Away
order as alleged, or that DPS failed to inform SCC of the Stay
Away order.
According to the Complaint, DPS provided SCC with
Plaintiff’s and Defendant Murphy’s files which contained the
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Stay Away order.
Plaintiff does not allege any wrong by DPS,
much less one that could establish a constitutional violation.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994)2; Dews v.
Brown, No. 13-16382, 580 Fed.Appx. 536 (9th Cir. June 19,
2014) (“The district court properly dismissed Dews’s Eighth
Amendment claim because Dews failed to allege facts showing
that defendants knew that Dews faced substantial risk of
serious harm to his health and disregarded that risk by
failing to take reasonable measures to abate it.”).
Moreover, Plaintiff cannot rely on a theory of
supervisory liability to state a claim against DPS for
violation of the Eighth Amendment based on alleged conduct by
SCC.
It is well established that constitutional claims under
42 U.S.C. § 1983 may not be brought against supervisory
officials on the basis of vicarious liability or respondeat
superior. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(“A supervisor is only liable for constitutional violations of
2
In Farmer v. Brennan, 511 U.S. 825, 834 (1994) the
Supreme Court set forth the two requirements to state a claim
against a prison official for violation of the Eighth
Amendment: (1) the deprivation alleged must be, objectively,
sufficiently serious; and (2) must be done with “deliberate
indifference” to inmate health or safety. For a claim based
on a failure to prevent harm, “the inmate must show that he is
incarcerated under conditions posing a substantial risk of
serious harm.” Id.
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his subordinates if the supervisor participated in or directed
the violations, or knew of the violations and failed to act to
prevent them. There is no respondeat superior liability under
section 1983.”); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989)(“Under Section 1983, supervisory officials are not
liable for actions of subordinates on any theory of vicarious
liability. [citation omitted].
A supervisor may be liable if
there exists either (1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient causal
connection between the supervisor's wrongful conduct and the
constitutional violation.”).
There is no allegation that DPS participated in housing
or meal scheduling decisions at SCC.
Nor are there any
allegations that DPS participated in crafting an ineffective
policy for enforcement of stay away orders.
There are no
allegations that DPS otherwise participated in Defendant
Murphy’s alleged assault against Plaintiff.
In sum, there are
no allegations that DPS participated in wrongful conduct, much
less wrongful conduct that has a sufficient causal connection
to Plaintiff’s allegations that SCC failed to enforce the Stay
Away order.
Based on the facts alleged, Plaintiff has failed to state
an Eighth Amendment claim against DPS.
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Plaintiff’s first
cause of action for violation of the Eighth Amendment of the
United States Constitution is DISMISSED as to DPS.
Causes of Actions 2 and 3: Plaintiff’s Intentional Tort Claims
Plaintiff’s second cause of action alleges an assault and
battery claim against DPS and Defendant Murphy.
Plaintiff’s
third cause of action alleges an intentional infliction of
emotional distress claim against DPS and Murphy.
As to his
assault and battery claim against DPS, Plaintiff alleges that
the state had a duty to protect him from harm while he was in
custody.
(Compl. ¶ 18.)
As to his intentional infliction of
emotional distress claim, Plaintiff alleges that SCC “operated
on contract by the State of Hawaii, Department of Public
Safety’s ignoring of the written stay away order obviously and
plainly contributed [to] the Defendant Murphy being able to
assault Plaintiff KAHALEWAI, and clearly contributed to the
emotional distress suffered by the Plaintiff in this case.”
(Compl. ¶ 20.)
DPS argues that the Plaintiff’s intentional tort claims
are barred by the doctrine of sovereign immunity.
DPS cites
to Haw. Rev. Stat. § 662-15(4), which provides that the State
has not waived sovereign immunity for any claim “arising out
of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
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misrepresentation, deceit, or interference with contract
rights”.
Haw. Rev. Stat. § 662-15(4).
While this is correct,
Haw. Rev. Stat. § 662-15(4) is not directly applicable here
because the alleged assault and battery was committed by
another inmate, under the supervision of SCC, and not by a DPS
employee.
Plaintiff appears to be proceeding under the theory that
DPS was negligent in its duty to protect Plaintiff from
physical harm. (Compl. ¶¶ 17-18, 20.)
Plaintiff, however,
does not assert a negligence based claim against DPS.
DPS has a duty of care to inmates to protect them from
attacks by other inmates.
See Cummings v. State, No. 26975,
2006 WL 3834309 at *2 (Haw. Dec. 29, 2006)(recognizing that
state was under duty to take reasonable action to protect
inmate from unreasonable risk of physical harm); Haworth v.
State, 592 P.2d 820 (Haw. 1979) (“It is well settled that a
state, by reason of the special relationship created by its
custody of a prisoner, is under a duty to the prisoner to take
reasonable action to protect the prisoner against unreasonable
risk of physical harm.”).3
To state a claim against DPS,
3
Under facts such as those present in this case, the
discretionary function exception to the State’s waiver of
sovereign immunity, set forth in Haw. Rev. Stat. §662-15(1),
does not apply. See Cummings, 2006 WL 3834309 at *2.
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Plaintiff would need to allege facts that would show that DPS
breached this duty of care.
Plaintiff does not allege that
DPS employees failed to carry out their duties as prescribed
by the rules or failed to exercise their due care in the
performance of their duties. See Molokai Veterans Caring For
Veterans v. County of Maui, Civ. No. 10-00538 LEK-RLP, 2011 WL
1637330, at *27 (D. Haw. April 28, 2011)(“Hawai‘i law
recognizes a general duty requiring government employees to
carry out their official duties as prescribed by the
applicable laws and rules and in the exercise of due care.”);
Doe Parents No. 1 v. State, Dept. of Educ., 58 P.3d 545, 577
(Haw. 2002) (Hawaii department of education did not have
immunity from claims against it for negligent retention and
supervision of teacher who molested students); Upchurch v.
State, 454 P.2d 112, 115 (Haw. 1969) (“if the acts of
negligence alleged and proven were the failure of employees to
carry out their duties as prescribed by the rules, or their
failure to exercise due care in the performance of their
duties, such acts or omissions would not be exempted and would
be actionable under the State Tort Liability Act.”).
The fact that Plaintiff was in state custody when the
assault occurred does not, without more, give rise to state
liability.
See Doe Parents No. 1, 58 P.3d at 577 (“a
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plaintiff cannot merely point to an assault and battery and
then claim, based simply on its occurrence, that the state was
negligent in not preventing it.”) (quoting Doe v. Durtschi,
716 P.2d 1238, 1245 (Idaho 1986)). Plaintiff does not allege
any facts that would establish a claim against DPS based on
its alleged breach of its duty of care to him.
Plaintiff does suggest a negligence claim against SCC
for ignoring the Stay Away order. (Compl. ¶ 20.)
however, has not named SCC as a Defendant.
Plaintiff,
Moreover,
Plaintiff has not alleged a basis under which DPS would be
liable for SCC’s alleged negligence.
SCC’s role is analogous
to that of an independent contractor.
SCC is not an employee
of DPS.
As a general rule, “the employer of an independent
contractor is not liable for physical harm caused to another
by an act or omission of the contractor or his servants.”
Bryant v. Pleasant Travel Service, No. 29642, 2012 WL 1951146,
at *6 (Haw. App. May 30, 2012)(citing Restatement (Second) of
Torts § 409 (1965) (Restatement)).
In certain instances,
however, “liability producing acts of an independent
contractor can be imputed to the principal on the basis of
respondeat superior”.
(Haw. 1970).
Retherford v. Kama, 470 P.2d 517, 521
One such instance is where the duty of care is
non-delegable. See REST 2d AGEN § 214 (“one may have a duty to
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see that due care is used in the protection of another, a duty
which is not satisfied by using care to delegate its
performance to another but is satisfied if, and only if, the
person to whom the work of protection is delegated is careful
in giving the protection.”).
If the state’s duty to protect
prisoners from the unreasonable risk of physical harm is nondelegable, DPS may be liable for SCC’s alleged negligence.
See Haworth, 592 P.2d at 823 (“The common law duty of an
employer to exercise reasonable care for the safety of his
employees has been stated: A master is subject to a duty that
care be used either to provide working conditions which are
reasonably safe for his servants and subservants . . . These
duties are considered non-delegable, i.e. the employer is
vicariously liable for the negligent failure to perform such
duties by one he appointed to perform them.”).
The Court, however, need not reach these issues at this
juncture.
Plaintiff has not pled a negligence based claim
against DPS.
Plaintiff has failed to state a claim against DPS based
on assault and battery and intentional infliction of emotional
distress.
Plaintiff’s second and third causes of action are
DISMISSED as to DPS.
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CONCLUSION
DEFENDANT STATE OF HAWAII DEPARTMENT OF PUBLIC SAFETY’S
MOTION TO DISMISS (ECF No. 6) is GRANTED.
Plaintiff is GRANTED leave to file an amended complaint.
In his Opposition, Plaintiff contends that he has stated an
Eighth Amendment claim, but also asks for remand.
Plaintiff’s
Complaint does not state an Eighth Amendment claim.
Plaintiff has until May 1, 2015, to file an amended
complaint.
Any amended complaint must be in conformance with
the Court’s Order.
may
Alternatively, by May 1, 2015, Plaintiff
voluntarily dismiss his Eighth Amendment claim.
If
Plaintiff voluntarily dismisses his Eighth Amendment claim,
the matter will be remanded to state court.
IT IS SO ORDERED.
Dated: March 31, 2015, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
______________________________________________________________
Kahalewai v. State of Hawaii Dept. of Public Safety; Mather
Murphy; Civ. No. 15-00009 HG-KSC; ORDER GRANTING DEFENDANT STATE
OF HAWAII DEPARTMENT OF PUBLIC SAFETY’S MOTION TO DISMISS (ECF
No. 6) AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT
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