Griego v. County of Maui
ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT ORDER AND DENYING PLAINTIFFS' REQUESTS TO SUPPRESS EVIDENCE, FOR AN EVIDENTIARY HEARING, FOR DISCOVERY SANCTIONS, AND TO COMPEL DISCOVERY re: 173 , 126 . Signed by JUDGE SUSAN OKI MOLLWAY on 7/6/2017. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JASON GRIEGO and JAMES
COUNTY OF MAUI; ANSELM
YAZAKI; ALY MIYASHIRO; MYLES
S. WON; DOE OFFICERS 2-15,
CIVIL NO. 15-00122 SOM-KJM
ORDER DENYING DEFENDANTS’
MOTION FOR RECONSIDERATION OF
SUMMARY JUDGMENT ORDER AND
DENYING PLAINTIFFS’ REQUESTS
TO SUPPRESS EVIDENCE, FOR AN
EVIDENTIARY HEARING, FOR
DISCOVERY SANCTIONS, AND TO
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION OF
SUMMARY JUDGMENT ORDER AND DENYING PLAINTIFFS’ REQUESTS TO
SUPPRESS EVIDENCE, FOR AN EVIDENTIARY HEARING, FOR
DISCOVERY SANCTIONS, AND TO COMPEL DISCOVERY
Defendants County of Maui, Anselm Yazaki, Aly
Miyashiro, and Myles Won seek reconsideration of the order this
court entered on March 29, 2017, granting in part and denying in
part Defendants’ Motion for Summary Judgment.
but do not establish that their recent discovery of additional
material warrants reconsideration of the order.
denies the reconsideration motion.
In their opposition papers, Plaintiffs Jason Griego
and James Sanchez request an evidentiary hearing and ask this
court to “suppress” the newly discovered evidence.
will not apply “suppression” analyses applicable in criminal
procedure to this civil case and therefore denies the request
for “suppression” of evidence and for an evidentiary hearing in
relation to the purported suppression motion.
opposition papers also appear to include requests to compel
discovery and for discovery sanctions.
Those requests are
David Maniatis told police that two men had threatened
him at his home in Wailea, Maui, on July 14, 2013.
speaking with Maniatis and several of his employees, Maui Police
Department officers arrested Griego and Sanchez for Burglary in
the First Degree.
The officers also searched Griego’s and
Sanchez’s hotel rooms for weapons.
Griego and Sanchez were
booked but ultimately released without charge.
Griego and Sanchez filed the present lawsuit against
the County and three individual police officers, asserting
claims under 42 U.S.C. § 1983 based on alleged violations of the
Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments of the
United States Constitution, as well as state claims of false
imprisonment or false arrest, intentional infliction of
emotional distress, and negligence.
judgment on all claims.
Defendants sought summary
On March 29, 2017, this court granted summary judgment
to Defendant County of Maui on all § 1983 claims.
See Griego v.
Cty. of Maui, Civ. No. 15-00122, 2017 WL 1173912, at *24 (D.
Haw. March 29, 2017).
With respect to the § 1983 claims against
the individual Defendants, this court granted summary judgment
on the claims relating to alleged violations of the Fifth,
Eighth, and Ninth Amendments, as well as with respect to any
alleged violation of the Fourth Amendment relating to the fact
The court denied summary judgment with respect
to § 1983 claims relating to alleged Fourth Amendment violations
concerning the manner of arrest and the searches for guns.
This court also granted summary judgment to all
Defendants on the state law claims of false imprisonment/false
arrest, and to the County on the negligent
With respect to the
claim of negligence against the individual Defendants and the
claim of respondeat superior liability on the part of the
County, summary judgment was denied to the extent those claims
related to the manner of arrest and the gun searches.
all other respects, summary judgment was granted on the
negligence and respondeat superior claims.
summary judgment was denied with respect to any intentional
infliction of emotional distress claim relating to any matter
remaining for further adjudication, but granted with respect to
any alleged emotional distress growing out of alleged wrongdoing
on which the court granted summary judgment to Defendants.
Summary judgment as to claims relating to the gun
searches was denied given genuine issues of material fact.
While the Maui Police Department officers maintained
that Griego and Sanchez had consented to the searches, Griego
and Sanchez denied that they had consented.
Id. at *19-21.
This court was unable to determine what had actually occurred in
the hotel rooms during the gun searches.
Id. at *21.
immunity in relation to the § 1983 claim relating to the gun
searches was also denied; this court noted that, “given the
uncertainty as to what the officers did, the court cannot
possibly say whether the acts the officers took did or did not
violate a constitutional right.”
Defendants seek reconsideration of a portion of the
order filed on March 29, 2017, arguing that newly discovered
evidence reveals that Sanchez’s claim that his Fourth Amendment
rights were violated by the gun search is “based on
misrepresentations” to this court.
PageID # 1239.
ECF No. 173-1,
Defendants say the additional evidence shows
that Sanchez lied and committed perjury, which warrants a
reversal of this court’s ruling as to the claims concerning the
ECF No. 181, PageID # 1327.
According to defense counsel, the new evidence was
discovered after the summary judgment order issued.
On May 1,
2017, as defense counsel was preparing for what was then the
upcoming trial, defense counsel learned that now-retired
Detective Myrna Sabas-Ryder had recorded some of her
conversations with Griego and Sanchez “for report writing
ECF No. 173-3, PageID # 1245; ECF No. 173-2,
PageID # 1240-41.
According to Detective Sabas-Ryder, she
typically deleted recordings after writing the part of the
report addressing the conversations.
PageID # 1241.
ECF No. 173-2,
She says she therefore did not turn in any
recordings with her report.
Nor did she turn in any
recordings relating to Griego’s or Sanchez’s inquiries as to the
status of their case.
In her view, those inquiries did not
relate directly to the substance of the investigation.
Detective Sabas-Ryder believed that, when she retired in 2015,
she had turned in all work-related material and equipment.
At a meeting on May 1, 2017, Detective Sabas-Ryder
told defense counsel that she was “not sure” she had any
recordings and that the recordings “may not exist.”
See ECF No.
173-3, PageID # 1246; see also ECF No. 173-2, PageID # 1241.
Defense counsel nevertheless asked Detective Sabas-Ryder to look
at home for any recordings.
The detective then found two
recorded conversations with Sanchez that were “still saved on a
ECF No. 173-2, PageID #s 1241-42.
Detective Sabas-Ryder, neither recording had been submitted with
Id., PageID # 1242.
Counsel says that, before learning of the recordings,
she had followed her “normal protocol” of submitting a request
to the Chief of Police requesting all records relating to the
ECF No. 173-3, PageID #s 1243-44.
The Records Section of
the Maui Police Department provided all relevant materials; no
audio or video recordings were included.
Id., PageID # 1243-45.
Defense counsel notes that this was not unusual because
recordings are generally only attached to police reports if the
case involves the use of lethal force by an officer.
PageID # 1244.
Defense counsel did not ask Detective Sabas-Ryder for
any recordings before May 1, 2017, because “it never occurred”
to counsel that Detective Sabas-Ryder would have anything
related to this case.
Id., PageID # 1246.
materials should have been submitted to the Records Section at
Defense counsel had “never asked a police officer
directly for any materials because all reports and evidence are
[generally] sent to the Records section.”
Id., PageID #s 1243-
According to defense counsel, only during an ongoing active
investigation might a police officer, rather than the Records
Section, be holding the report and any relevant evidence.
Once an investigation concluded, all reports and
evidence should have been sent to the Records Section.
On the afternoon of May 1, 2017, now-retired Detective
Sabas-Ryder left a copy of the two recorded conversations at
defense counsel’s office.
ECF No. 173-2, PageID #s 1242.
May 3, 2017, defense counsel listened to the recordings and
contacted counsel for Griego and Sanchez.
PageID # 1247.
ECF No. 173-3,
Defense counsel sent a copy of the recordings to
Plaintiffs’ counsel, had the recordings transcribed, and sent a
transcript to Plaintiffs’ counsel.
In one recorded conversation between Detective SabasRyder and Sanchez, Sanchez refers to having consented to the
search of his hotel room.
See ECF No. 173-4, PageID # 1250.
DETECTIVE SABAS: You didn’t -- you didn’t have
it on your person?
CHIEF SANCHEZ: No, absolutely not. And besides
that, I’m protected under HR[S] 2 -- 218 if I had
one, but the fact is I didn’t have one. And I
gave consent to search my room and I -- I wasn’t
in possession of a firearm. And you could check
the travel logs --
While clarifying whether he had been carrying a gun on the
night of the alleged incident with Maniatis, Sanchez again told
Detective Sabas-Ryder, “I asked them to search my room.”
PageID # 1251.
In a declaration, Sanchez confirms that he telephoned
Detective Sabas-Ryder on July 24, 2013.
PageID # 1293.
ECF No. 180-4,
He says the purpose of the call was to get a
status update about the investigation and to learn if any
charges would be brought against him.
Id., PageID #s 1293-94.
According to Sanchez, he also called to ask why his minor son
had been left unattended after his arrest and why his son had
been physically removed by hotel employees from his hotel room.
Sanchez further states,
Although I apparently stated that I “consented”
to the search of my hotel room in my telephone
conversation with Officer Sabas-Ryder, to the
best of my recollection on the evening that I was
arrested I never was asked by any police officer
for permission to search my hotel room, and I
never actually consented to any search of my
hotel room and belongings.
Id., PageID # 1294.
Defendants assert that, in light of the new evidence,
Sanchez’s claims associated with the search for guns must be
dismissed to prevent manifest injustice.
ECF No. 173-1,
PageID # 1236; see also ECF No. 181, PageID # 1330.
The summary judgment order is an interlocutory order
governed by Local Rule 60.1.
See Preaseau v. Prudential Ins.
Co. of Am., 591 F.2d 74, 79-90 (9th Cir. 1979) (“[A]n order
denying a motion for summary judgment is generally interlocutory
and subject to reconsideration by the court at any time”
(quotation marks and citation omitted)).
Under Local Rule 60.1,
a reconsideration motion may be based on “(a) Discovery of new
material facts not previously available; (b) Intervening change
in law; and (c) Manifest error of law or fact.”
“Mere disagreement with a previous order is an
insufficient basis for reconsideration.”
F. Supp. 2d 1271, 1274 (D. Haw. 2006).
White v. Sabatino, 424
“Whether or not to grant
reconsideration is committed to the sound discretion of the
Id. (quoting Navajo Nation v. Confederated Tribes &
Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.
Defendants’ Motion for Reconsideration Based on
Newly Discovered Evidence Is Denied.
Defendants seek reconsideration of an interlocutory
order based on newly discovered evidence.
That is, Defendants
seek reconsideration of an order that, at the time it was
entered, left other claims for further adjudication.
support a motion for reconsideration based upon newly discovered
evidence, the movant is obliged to show not only that the
evidence was newly discovered or unknown, but also that it could
not with reasonable diligence have discovered and produced such
evidence at the hearing.”
Oyama v. Univ. of Haw., Civ. No. 12-
00137 HG-BMK, 2013 WL 3296567, at *2 (D. Haw. June 28, 2013);
accord Hagan v. U.S. Nat’l Bank, Civ. No. 14-00215 DKW-KSC, 2014
WL 5465321, at *2 (D. Haw. Oct. 27, 2014).
weight of authority is that the failure to file documents in an
original motion or opposition does not turn the late filed
documents into ‘newly discovered evidence.’”
Sch. Dis. No. 1J
v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Defendants show that the “new evidence”--the recorded
conversation between Detective Sabas-Ryder and Sanchez dated
July 24, 2013--was unknown to them before the summary judgment
The existence of the recording was not discovered and
not in Defendants’ possession until May 1, 2017, over a month
after the summary judgment order had been filed.
Sabas-Ryder believed that she had turned over all materials and
reports to the police department when she retired in 2015, and
all materials and reports held in the Records Section were given
directly to defense counsel.
The recording was not part of what
was turned over; therefore, counsel did not have the recording
at the time of the summary judgment hearing.
Defense counsel explains that the normal protocol for
requesting discovery materials from the Maui Police Department
does not include interviewing individual detectives or officers,
especially when the underlying case was not prosecuted.
or video recordings are not usually attached to police reports
or held in the Records Section, except in cases involving the
use of lethal force by an officer.
Upon being pressed by
counsel to look for any remaining recordings at home, Detective
Sabas-Ryder found two recorded conversations on a “jump drive”
at her house.
This court can easily understand how it happened that
the evidence was not discovered earlier.
had retired and was not named as an individual defendant in the
Second Amended Complaint.
The recording was on a “jump drive”
at her house, not in the Records Section, and even Detective
Sabas-Ryder was apparently unaware she had it.
But even if the recording was newly discovered, it
does not warrant reconsideration.
The newly discovered evidence
goes to Sanchez’s credibility with respect to whether or not he
consented to a search for guns in his hotel room.
maintained under penalty of perjury that he did not give
Although he concedes that he told Detective Sabas-
Ryder during their telephone conversation on July 24, 2013, that
he “consented” to a search for guns, that telephone conversation
was not under oath.
Sanchez says, “[T]o the best of my
recollection on the evening that I was arrested I never was
asked by any police officer for permission to search my hotel
room, and I never actually consented to any search of my hotel
room and belongings.”
ECF No. 180-4, PageID # 1294.
Defendants argue that Sanchez’s claims “are based on
misrepresentations to this Court” and that he “should not be
permitted to benefit from [his] deceit.”
PageID # 1239.
ECF No. 173-1,
However, in considering a motion for summary
judgment, a court must not weigh the evidence, make credibility
determinations, or draw inferences from the facts adverse to the
See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); see also Entrepreneur Media, Inc. v. Smith, 279
F.3d 1135, 1149 (9th Cir. 2002) (“[O]f course, it is for the
trier-of-fact, not the court deciding whether to grant summary
judgment, to determine issues of credibility.”).
may well be critical at trial, but the issue of Sanchez’s
credibility is best left for a jury to decide.
While the recorded conversation is probative of
whether Sanchez consented to a gun search on July 14, 2013, it
does not by itself conclusively establish what actually happened
at Sanchez’s hotel room.
The record is not so “one-sided” that
Defendants must prevail as a matter of law on all of Sanchez’s
claims relating to the search for guns.
See Anderson, 477 U.S.
Viewed in the light most favorable to Sanchez, the
record does not establish that there are no genuine issues of
material fact as to whether Sanchez consented to a search for
The recorded conversation does not alter this court’s
conclusion that summary judgment may not be awarded with respect
to the search for Sanchez’s guns.
Notably, although the
reconsideration motion refers to “Plaintiffs,” the recording
appears to relate only to Sanchez, not to both Sanchez and
Reconsideration of this court’s summary judgment order
The Request for an Evidentiary Hearing Is Denied.
Griego and Sanchez ask this court to “suppress” the
newly discovered evidence.
in criminal cases.
“Suppression” is typically a remedy
The Federal Rules of Criminal Procedure do
not apply to civil cases.
See Fed. R. Crim. P. 1(a)(1) (“These
rules govern the procedure in all criminal proceedings in the
United States district courts . . . .”).
Griego and Sanchez do
not explain why “suppression” applies in this civil case.
Before this court is Defendants’ motion for
reconsideration of this court’s order granting in part and
denying in part Defendants’ motion for summary judgment.
court has applied the civil standards and procedures for a
motion for summary judgment and motion for reconsideration.
Moreover, an opposition memorandum is not usually an
appropriate vehicle for a new motion.
The regular briefing
protocol for a motion would be undermined if a new motion (other
than a mirror-image motion such as a cross- or counter-motion)
were countenanced if mentioned in an opposition memorandum.
party responding to the new motion would be limited to
addressing the new motion in a reply memorandum supporting the
A reply memorandum is subject to a more
limited word limit and response time than the ordinary
Therefore, even putting aside the
inapplicability of “suppression” to this civil case, this court
does not convert the “suppression” motion into a motion to
exclude any evidence at trial.
To the extent that Griego and Sanchez believe further
discovery is warranted, they may raise that matter with the
To the Extent Griego and Sanchez Seek Discovery
Sanctions and an Order Compelling Discovery,
Those Requests Are Denied.
To the extent Griego and Sanchez ask in their
opposition for an order compelling discovery and/or for
discovery sanctions, that request should be made in a separate
Under Local Rule 7.4, any such motion would follow the
orderly briefing schedule of a motion, opposition, and a reply.
This court also observes that discovery motions are generally
handled by Magistrate Judges, not District Judges.
to compel discovery and/or for discovery sanctions is denied,
but Griego and Sanchez may file separate motions seeking an
extension of the discovery cutoff and discovery sanctions.
court is not here indicating whether the Magistrate Judge should
grant or deny any such motion.
This court denies Defendants’ motion for
reconsideration of this court’s order of March 29, 2017.
requests to suppress evidence and for an evidentiary hearing are
To the extent Plaintiffs’ opposition includes
requests to compel discovery and for discovery sanctions, those
requests are denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 6, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Jason Griego and James Sanchez v. County of Maui; Anselm Yazaki; Aly
Miyashiro; Myles S. Won; Doe Officers 2-15, Civ. No. 15-00122 SOM-KJM, ORDER
DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT ORDER AND
DENYING PLAINTIFFS’ REQUESTS TO SUPPRESS EVIDENCE, FOR AN EVIDENTIARY
HEARING, FOR DISCOVERY SANCTIONS, AND TO COMPEL DISCOVERY.
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