Young v. Kraus et al

Filing 106

ORDER GRANTING IN PART AND DENYING IN PART THE COUNTY DEFENDANTS' MOTION TO DISMISS CHRISTOPHER YOUNG AMENDMENT (SIC) OF COMPLAINT FILED MARCH 4, 2016 [DOCUMENT 35 ] re 38 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 01/ 27/2017. The County Defendants' Motion to Dismiss Christopher Young Amendment (sic) of Complaint Filed March 4, 2016 [Document 35 ] which the County Defendants filed on March 14, 2016 is HEREBY GRANTED IN PART AND DENIED I N PART. The Motion is DENIED as to the request to dismiss the Amended Complaint as untimely. The Motion is GRANTED as to the request to dismiss Plaintiff's claims against the County Defendants for failure to state a claim. All of Plaintiff' s claims against Defendants the County of Hawai'i, the County of Hawai'i Police Department, and Patrick T. Kihara in the Amended Complaint are HEREBY DISMISSED WITH PREJUDICE. In addition, Count VI of the Amended Complaint is HEREBY DISMISS ED WITH PREJUDICE as to Defendant Michael M. Kraus. There being no remaining claims against the County Defendants, this Court DIRECTS the Clerk's Office to terminate them as parties on February 15, 2017, unless any party files a motion for re consideration of this Order by February 13, 2017. (eps, )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 served by first class mail on January 30, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
)
MICHAEL M. KRAUS, Owner of
)
Tree Works Inc., COUNTY OF
)
HAWAII, POLICE DEPARTMENT,
PATRICK T. KIHARA as a Police )
)
Officer in the County of
Hawaii, State of Hawaii, JOHN )
)
DOES 1-10, JANE DOES 1-10,
)
DOE CORPORATIONS 1-10, DOE
)
PARTNERSHIPS 1-10, AND DOE
)
GOVERNMENT ENTITIES 1-10,
)
)
Defendants.
_____________________________ )
CHRISTOPHER YOUNG,

CIVIL 15-00383 LEK-KSC

ORDER GRANTING IN PART AND DENYING IN PART
THE COUNTY DEFENDANTS’ MOTION TO DISMISS CHRISTOPHER YOUNG
AMENDMENT (SIC) OF COMPLAINT FILED MARCH 4, 2016 [DOCUMENT 35]
Pro se Plaintiff Christopher Young (“Plaintiff”) filed
his “Amendment of Complaint” (“Amended Complaint”) on March 4,
2016.

[Dkt. no. 35.]

Defendants the County of Hawai`i, the

County of Hawai`i Police Department (collectively, “the County”),
and Patrick T. Kihara (“Kihara”, all collectively, “the County
Defendants”) filed a motion to dismiss the Amended Complaint
(“Motion”) on March 14, 2016.

[Dkt. no. 38.]

Plaintiff did not

file a timely memorandum in opposition to the Motion.

On July 6,

2016, this Court issued an entering order finding the Motion
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States

District Court for the District of Hawai`i (“Local Rules”).
[Dkt. no. 64.]
On August 24, 2016, this Court issued an entering order
(“8/24/16 EO”) directing the County Defendants to file a
supplemental memorandum addressing Plaintiff’s fraudulent
misrepresentation claim.

[Dkt. no. 72.]

The County Defendants

filed their supplemental memorandum (“County Supplement”) on
September 14, 2016.

[Dkt. no. 79.]

Plaintiff filed a response

to the County Supplement on October 26, 2016 (“Plaintiff
Supplement”), and the County Defendants filed a supplemental
reply memorandum (“County Supplemental Reply”) on October 27,
2016.

[Dkt. nos. 93, 94.]

After careful consideration of the

Motion, supporting and opposing memoranda, and the relevant legal
authority, the County Defendants’ Motion is HEREBY GRANTED IN
PART AND DENIED IN PART.

The Motion is DENIED as to the request

to dismiss the Amended Complaint as untimely and GRANTED as to
the request to dismiss the claims against the County Defendants
for failure to state a claim.

Plaintiff’s claims against the

County Defendants are HEREBY DISMISSED WITH PREJUDICE because
Plaintiff failed to cure the defects in his claims that this
Court identified in its prior order.

2

BACKGROUND
The instant case arises from a motor vehicle accident
involving Plaintiff and Defendant Michael M. Kraus (“Kraus”).1
Plaintiff filed his original Complaint in state court.

[Notice

of Removal, filed 9/28/15 (dkt. no. 1), Decl. of Laureen L.
Martin (“Martin Removal Decl.”), Exh. A (Complaint).]

It alleged

the following claims: fraudulent misrepresentation (“Count I”);
intentional infliction of emotional distress (“IIED”) and/or
negligent infliction of emotional distress (“NIED” and
“Count II”); interference with chattels (“Count IIA”);2 a 42
U.S.C. § 1983 claim for civil rights torts under federal common
law (“Count III”); a § 1983 claim for violation of his Fourteenth
Amendment right to due process (“Count IV”); a § 1983 claim for
violation of his Fourth Amendment right to be free from the use
of excessive and unreasonable force (“Count V”); a claim for fees
and costs (“Count VI”); and a claim for punitive damages
(“Count VII”).

1

Plaintiff is suing Kraus in his individual capacity and in
his capacity as an employee of Defendant Tree Works. [Amended
Complaint at ¶ 2.] The Court will refer to Kraus and the County
Defendants collectively as “Defendants.”
2

Plaintiff apparently misnumbered the counts in the
original Complaint. Both his IIED/NIED claim and his
interference with chattels claim are designated as Count II. For
the sake of clarity, this Court has referred to the interference
with chattels claim as “Count IIA”.
3

In an order issued on January 29, 2016, this Court
1) dismissed Count VII against the County with prejudice and
dismissed all other claims against the County without prejudice;
2) dismissed the claims against Kihara without prejudice;
3) dismissed Counts VI and VII against Kraus without prejudice;3
and 4) made no findings or conclusions regarding the merits of
Plaintiff’s other claims against Kraus.
27.]

[1/29/16 Order at 26-

The 1/29/16 Order directed Plaintiff to file his amended

complaint by March 2, 2016, and cautioned him that all of the
claims that this Court dismissed without prejudice would be
dismissed with prejudice if he failed to file his amended
complaint by that date.

[Id. at 27-28.]

Plaintiff filed the

Amended Complaint on March 4, 2016.4
According to the Amended Complaint, Kraus was at fault,
and Plaintiff and the other person in the car – John Hoffman
(“Hoffman”) – were injured in the accident.

Plaintiff called 911

3

The dismissal of Count VI against all Defendants and the
dismissal of Count VII against Kihara and Kraus without prejudice
was based on the fact that a request for punitive damages and a
request for fees and costs are remedies, not independent causes
of action. Thus, the 1/29/16 Order prohibited Plaintiff from
including separate claims for punitive damages and for fees and
costs in the Amended Complaint, but allowed him to include the
requests in his prayer for relief. [1/29/16 Order at 25-26.]
4

Also on March 4, 2016, Plaintiff filed a document that
this Court construed as a motion for reconsideration of the
1/29/16 Order. [Dkt. nos. 34 (motion for reconsideration), 36
(order construing motion).] On April 19, 2016, this Court issued
an order denying the motion for reconsideration. [Dkt. no. 46.]
4

for police assistance and an ambulance, but Kraus left the scene.
Kihara and an ambulance arrived approximately one hour after the
accident.

[Amended Complaint at ¶¶ 6-11.]

Plaintiff alleges

that Kihara acknowledged that Kraus operated his vehicle in a
negligent manner.

Plaintiff argues that, because Plaintiff’s

negligence and violation of Hawai`i statutes caused an accident
that resulted in injuries or damages, it was mandatory that
Kihara arrest Kraus or issue a criminal citation.
13.]

[Id. at ¶¶ 12-

Plaintiff alleges that Kihara’s failure to cite or arrest

Kraus “violate[d] his Oath and duties (denied Plaintiff services)
to government operation.”

[Id. at ¶ 14.]

Plaintiff alleges that

the County also knew that Kraus was negligent and had violated
Hawai`i law, and Plaintiff apparently contends that the County is
also responsible for the failure to arrest or cite Kraus after
the accident.

[Id. at ¶ 13.]

In addition to the allegations about the failure to
cite or arrest Kraus, Plaintiff alleges that, at the scene of the
accident, Kihara called the paramedic away while the paramedic
was asking Plaintiff and Hoffman what happened.

According to

Plaintiff, Kihara told the paramedic that all parties in the
accident refused medical attention.

After Kihara spoke with the

paramedic, Kihara gave Plaintiff the police report number and
left the scene.

After Kihara left, Plaintiff and Hoffman were

taken to Hilo Medical Center to be examined by a doctor.

5

[Id. at

¶ 11.]

Plaintiff alleges that Defendants’ actions
denied Plaintiff medical service and prevent[ed]
Plaintiff from protesting the actions of all
Defendants[ and made it] intimidating to prevent
Plaintiff from exercising the Hawaii and United
States Constitution Rights of freedom of speech,
protest, association, and the basic right to
pursue the interest, to prevent the free exercise
of his rights.

[Id. at ¶ 17.]
The first six counts of the Amended Complaint allege
the same claims as Plaintiff alleged in Counts I, II,5 IIA, III,
IV and V of the original Complaint (“Amended Counts I through
V”).

The Amended Complaint also alleges a separate count for

punitive damages and attorneys’ fees and costs (“Amended
Count VI”).
In the instant Motion, the County Defendants argue that
this Court should dismiss the Amended Complaint because Plaintiff
filed it after the deadline in the 1/29/16 Order.

If this Court

does not dismiss the Amended Complaint as untimely, the County
Defendants urge this Court to dismiss the claims against them in
the Amended Complaint because they have the same deficiencies as
the claims in the original Complaint.

5

Amended Count II alleges the same IIED claim as Count II
of the original Complaint, but Amended Count II does not include
an NIED claim. [Amended Complaint at pg. 5.]
6

DISCUSSION
I.

Timeliness of the Amended Complaint
The County Defendants correctly point out that

Plaintiff failed to file the Amended Complaint by the March 2,
2016 deadline given in the 1/29/16 Order.
27-28.

See 1/29/16 Order at

They ask this Court to dismiss Plaintiff’s case pursuant

to Fed. R. Civ. P. 41(b) because of Plaintiff’s failure to comply
with the 1/29/16 Order.

[Mem. in Supp. of Motion at 4-5.]

However, the Ninth Circuit has
identified five factors that a district court must
consider before dismissing a case . . . : (1) the
public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the other
party; (4) the public policy favoring the
disposition of cases on their merits; and (5) the
availability of less drastic sanctions.
Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011)
(citations and quotation marks omitted).
This Court finds that none of the factors weigh
strongly in favor of dismissal.

The dismissal of a pleading that

a pro se plaintiff filed two days after a court-imposed deadline
would have a minimal effect on the public interest and the
court’s interest in managing its docket.

Further, this Court

finds that the filing of the Amended Complaint two days after the
deadline did not prejudice Defendants.

Moreover, the fourth and

fifth factors weigh strongly against dismissal.

This Court

therefore CONCLUDES that dismissal of this case based on
7

Plaintiff’s failure to comply with the filing deadline in the
1/29/16 Order is not warranted, and this Court DENIES the County
Defendants’ Motion as to the request to dismiss the Amended
Complaint as untimely.
This Court, however, notes that it has repeatedly
cautioned Plaintiff that he must comply with the applicable
deadlines, even though he is proceeding pro se.

For example, on

May 19, 2016, this Court issued the EO: Court Order Granting
Plaintiff’s “Requests for Extension on the Order Entered
4/19/2016” (“5/19/16 EO”), which stated, in relevant part:
The Court notes that this is not the first
time that Plaintiff has waited until after the
expiration of a filing deadline to request an
extension. See EO: Court Order Granting
Plaintiff’s Request for Extension, filed 12/8/15
(dkt. no. 17) (“12/8/15 EO”). In the 12/8/15 EO,
this Court granted Plaintiff’s request for an
extension, but stated:
This Court REMINDS Plaintiff that his
pro se status does not excuse him from
following the applicable court rules and
deadlines. See Briones v. Riviera Hotel &
Casino, 116 F.3d 379, 382 (9th Cir. 1997)
(per curiam) (stating that “pro se litigants
are not excused from following court rules”).
In the future, if Plaintiff requires an
extension of a court deadline, he must either
enter into a stipulation – i.e. a written
agreement – with the attorneys for all of the
defendants or file a motion for an extension.
Plaintiff must submit the stipulation or file
the motion before the original deadline. See
Local Rule LR6.2 (regarding “Extensions,
Enlargements, or Shortening of Time, and
Other Ex Parte Requests”).
[12/8/15 EO at 1-2 (emphasis in original).]
8

[Dkt. no. 55 at 1-2.]

This Court therefore CAUTIONS Plaintiff

that, in light of the warnings that it has given him in the past,
this Court will strike any document submitted after the
applicable deadlines.

Further, as stated in the 5/19/16 EO, any

future request or motion for an extension that Plaintiff submits
after the original deadline will be denied.
This Court now turns to the Motion’s arguments that it
should dismiss the Amended Complaint on the merits.
II.

Defects Identified in the 1/29/16 Order
The County Defendants’ Motion summarily argues that

this Court should dismiss Plaintiffs’ claims against them without
leave to amend because Plaintiff failed to cure the defects
identified in the 1/29/16 Order.
A.

Fraudulent Misrepresentation
In the 1/29/16 Order, this Court concluded that

Plaintiff failed to plead his claim with sufficient particularity
to satisfy the heightened pleading standard for fraud-based
claims because he failed to identify the specific fraudulent
misrepresentations that his claim was based upon and because he
failed to identify who made them.

See 1/29/16 Order at 11-13

(describing the elements of, and the standards applicable to, a
fraud-based claim).

9

Reading the Amended Complaint liberally,6 Plaintiff
alleges that, at the scene of the accident, after he called 911
for police assistance and an ambulance, Kihara falsely told the
paramedic that all parties who had been involved in the accident
refused medical attention.

[Amended Complaint at ¶¶ 10-11.]

Thus, as to Kihara, the Amended Complaint pleads the time, place,
and content of the allegedly fraudulent statement.

See Shroyer

v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1042 (9th
Cir. 2010).

Insofar as the Amended Complaint alleges that

Plaintiff was in pain and called 911 for an ambulance, and that
Plaintiff and Hoffman “were in obvious pain,” the Amended
Complaint, liberally construed, also alleges that Kihara knew the
statement was false.

However, a fraudulent misrepresentation

claim also requires that the defendant contemplated the
plaintiff’s reliance on the statement and that the plaintiff
detrimentally relied on the statement.

See Miyashiro v. Roehrig,

Roehrig, Wilson & Hara, 122 Hawai`i 461, 482–483, 228 P.3d 341,
362–63 (Ct. App. 2010).

The Amended Complaint does not allege

that Plaintiff relied on Kihara’s statement or that Kihara
contemplated Plaintiff’s reliance.

6

Arguably, Kihara contemplated

This Court must liberally construe Plaintiff’s pleadings
because he is proceeding pro se. See, e.g., Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454
U.S. 364, 365, 102 S. Ct. 700, 701, 70 L. Ed. 2d 551 (1982) (per
curiam))).
10

that the paramedic he made the statement to would rely on the
statement.

Even assuming that this is sufficient to satisfy the

contemplation of reliance element, the Amended Complaint does not
allege that the paramedic relied on Kihara’s statement.

In fact,

Plaintiff states that he and Hoffman were taken to Hilo Medical
Center to be examined by a doctor, [Amended Complaint at ¶ 11,]
in other words, Plaintiff did receive medical attention.

Thus,

the Amended Complaint does not allege either actual reliance on
Kihara’s alleged statement or that Kihara’s statement was somehow
detrimental to Plaintiff.
This Court therefore CONCLUDES that the Amended
Complaint fails to state a plausible fraudulent misrepresentation
claim based on Kihara’s statement that Plaintiff and Hoffman
denied medical treatment.

See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955
(2007))).

Further, the Amended Complaint does not allege any

other false statement that could be the basis of Plaintiff’s
fraudulent misrepresentation claim against the County Defendants.
This Court CONCLUDES that Count I fails to state a plausible
fraudulent misrepresentation claim against the County Defendants.
This Court has given Plaintiff notice of the deficiencies in his

11

fraudulent misrepresentation claim against the County Defendants
and the opportunity to amend his claim to cure the deficiencies.
Because Plaintiff has failed to cure the deficiencies in his
claim, this Court CONCLUDES that it is absolutely clear that he
cannot amend his fraudulent misrepresentation claim against the
County Defendants to cure the defects.

See Lucas v. Dep’t of

Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely
clear that no amendment can cure the defect, . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies
and an opportunity to amend prior to dismissal of the action.”).
This Court therefore GRANTS the County Defendants’
Motion insofar as this Court DISMISSES Plaintiff’s claim in
Amended Count I against them WITH PREJUDICE.
B.

IIED
In the 1/29/16 Order, this Court concluded that

Plaintiff’s allegation that Kihara failed to issue a criminal
citation to Kraus after the accident was not enough to allege the
type of outrageous conduct necessary to support an IIED claim.
[1/29/16 Order at 16.]

The Amended Complaint’s allegations

regarding the failure to issue a citation remain essentially the
same as the allegations in the original Complaint.

Plaintiff has

added the allegations regarding Kihara’s statement about the
refusal of medical treatment.

Even considering both allegations

together, Plaintiff has not pled the type of outrageous conduct

12

necessary to state an IIED claim, in particular because Plaintiff
did receive medical attention in spite of Kihara’s statement.
See Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., Inc., 76 Hawai`i
454, 465 n.12, 879 P.2d 1037, 1048 n.12 (1994) (describing the
type of outrageous conduct necessary to state an actionable IIED
claim).
This Court therefore CONCLUDES that Plaintiff has
failed to allege a plausible IIED claim against the County
Defendants, and it is absolutely clear that he cannot amend his
this claim to cure the defects.

This Court GRANTS the Motion

insofar as this Court DISMISSES Plaintiff’s claim in Amended
Count II against the County Defendants WITH PREJUDICE.
C.

Amended Counts IIA Through V
Plaintiff made no substantive changes to Amended

Counts IIA through V, and therefore he has not addressed the
defects in his claims identified in the 1/29/16 Order.

Amended

Count IIA still does not allege how Plaintiff’s loss related to
his vehicle resulted from Kihara’s failure to issue a citation to
Kraus.

[1/29/16 Order at 17-18.]

Amended Count III still does

not specify what specific civil right tort, recognized in federal
common law, he alleges against the County Defendants.
19.]

[Id. at

This Court therefore CONCLUDES that Plaintiff has failed to

allege plausible claims against the County Defendants in Amended
Counts IIA and III, and it is absolutely clear that he cannot

13

amend these claims to cure the defects.

This Court GRANTS the

Motion insofar as this Court DISMISSES Plaintiff’s claims in
Amended Counts IIA and III against the County Defendants WITH
PREJUDICE.
In the 1/29/16 Order, this Court dismissed Plaintiff’s
other § 1983 claims against the County because he failed to
allege that Kihara’s decision not to issue a citation to Kraus
was based on official County policy.

[Id. at 19-21.]

failed to cure this defect in Amended Counts IV and V.

Plaintiff
This

Court therefore CONCLUDES that Plaintiff has failed to allege
plausible claims against the County in Amended Counts IV and V,
and it is absolutely clear that he cannot amend these claims to
cure the defects.

This Court GRANTS the Motion insofar as this

Court DISMISSES Plaintiff’s claims in Amended Counts IV and V
against the County WITH PREJUDICE.
As to Kihara, this Court dismissed Plaintiff’s claim in
Count IV because Plaintiff did not plead any factual allegations
that supported his conclusory statement that Kihara’s decision
not to issue a citation to Kraus deprived Plaintiff of his
liberty or property.

[Id. at 21.]

This Court dismissed

Plaintiff’s claim against Kihara in Count V because he did not
plead any factual allegations supporting his conclusory statement
that Kihara used force against him – let alone excessive and
unreasonable force – when Kihara decided not to issue a citation

14

to Kraus.

[Id. at 21-22.]

Plaintiff failed to cure these

defects in Amended Counts IV and V.

This Court therefore

CONCLUDES that Plaintiff has failed to allege plausible claims
against Kihara in Amended Counts IV and V, and it is absolutely
clear that he cannot amend these claims to cure the defects.
This Court GRANTS the Motion insofar as this Court DISMISSES
Plaintiff’s claims in Amended Counts IV and V against Kihara WITH
PREJUDICE.
D.

Amended Count VI
Amended Count VI is titled “PUNITIVE DAMAGES,” but the

text within it refers to fees and costs pursuant to § 1983.
[Amended Complaint at pgs. 6-7.]

As stated in the 1/29/16 Order,

these are remedies, not independent causes of action.
Order at 25.]

[1/29/16

Moreover, because this Court has dismissed all of

Plaintiff’s substantive claims against the County Defendants with
prejudice, this Court GRANTS the Motion and DISMISSES Amended
Count VI WITH PREJUDICE as to the County Defendants.
This Court also DISMISSES Amended Count VI WITH
PREJUDICE as to Kraus.

This Court, however, EMPHASIZES that the

dismissal of Amended Count VI against Kraus does not affect the
request for punitive damages and the request for fees and costs
in the Amended Complaint’s prayer for relief.

15

CONCLUSION
On the basis of the foregoing, the County Defendants’
Motion to Dismiss Christopher Young Amendment (sic) of Complaint
Filed March 4, 2016 [Document 35] – which the County Defendants
filed on March 14, 2016 – is HEREBY GRANTED IN PART AND DENIED IN
PART.

The Motion is DENIED as to the request to dismiss the

Amended Complaint as untimely.

The Motion is GRANTED as to the

request to dismiss Plaintiff’s claims against the County
Defendants for failure to state a claim.

All of Plaintiff’s

claims against Defendants the County of Hawai`i, the County of
Hawai`i Police Department, and Patrick T. Kihara in the Amended
Complaint are HEREBY DISMISSED WITH PREJUDICE.

In addition,

Count VI of the Amended Complaint is HEREBY DISMISSED WITH
PREJUDICE as to Defendant Michael M. Kraus.
There being no remaining claims against the County
Defendants, this Court DIRECTS the Clerk’s Office to terminate
them as parties on February 15, 2017, unless any party files a
motion for reconsideration of this Order by February 13, 2017.
IT IS SO ORDERED.

16

DATED AT HONOLULU, HAWAII, January 27, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CHRISTOPHER YOUNG VS. MICHAEL M. KRAUSE, ET AL; CIVIL 15-00383
LEK-KSC; ORDER GRANTING IN PART AND DENYING IN PART THE COUNTY
DEFENDANTS’ MOTION TO DISMISS CHRISTOPHER YOUNG AMENDMENT (SIC)
OF COMPLAINT FILED MARCH 4, 2016 [DOCUMENT 35]

17