Young v. Kraus et al

Filing 32

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS THE COUNTY OF HAWAI'I AND THE COUNTY OF HAWAI'I POLICE DEPARTMENT'S MOTION TO DISMISS; AND GRANTING IN PART AND DENYING IN PART DEFENDANT PATRICK T. KIHARA'S MOTION TO DISMISS re 5 Motion to Dismiss re 10 Motion to Dismiss Signed by JUDGE LESLIE E. KOBAYASHI on 01/29/2016. -- The Motion to Dismiss Complaint Filed July 21, 2015, which the County filed on October 5, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART, and the Motion to Dismiss Complaint Filed July 21, 2015, which Kihara filed October 30, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART. Plaintiff must file his amended complaint, consistent with the ter ms of this Order, by no later than March 2, 2016. (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 were served by first class mail on the date of this docket entry

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 DEFENDANTS
THE COUNTY OF HAWAI`I AND THE COUNTY OF HAWAI`I POLICE
DEPARTMENT’S MOTION TO DISMISS; AND GRANTING IN PART AND
DENYING IN PART DEFENDANT PATRICK T. KIHARA’S MOTION TO DISMISS
Pro se Plaintiff Christopher Young (“Plaintiff”) filed
his Complaint in state court on July 21, 2015.

Defendants the

County of Hawai`i and the County of Hawai`i Police Department
(collectively, “the County”) filed a motion to dismiss the
Complaint (“County Motion”) on October 7, 2015, and Defendant
Patrick T. Kihara (“Kihara”) filed a motion to dismiss the
Complaint (“Kihara Motion”) on October 30, 2015.1

1

[Dkt. nos. 5,

Defendant Michael M. Kraus (“Kraus”) filed a statement of
no opposition to the Kihara Motion on November 23, 2015. [Dkt.
no. 13.] On January 5, 2016, Plaintiff filed an “Objection” to
Kraus’s statement. [Dkt. no. 23.]

10.]

On January 11, 2016, Plaintiff filed an “Objection” to the

Kihara Motion (“Kihara Opposition”), and, on January 19, 2016,
Plaintiff filed an “Objection” to the County Motion (“County
Opposition”).

[Dkt. nos. 26, 29.]

On January 15, 2016, the

County and Kihara (collectively, “the County Defendants”) filed a
joint reply in support of both motions.

[Dkt. no. 27.]

On

January 28, 2016, Plaintiff filed an objection to the reply.2
[Dkt. no. 31.]

The Court finds these matters 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”).

After careful

consideration of the motions, supporting and opposing documents,
and the relevant legal authority, the County Motion and the
Kihara Motion are HEREBY GRANTED IN PART AND DENIED IN PART for
the reasons set forth below.
BACKGROUND
According to the Complaint, on July 25, 2013, at
approximately 11:40 a.m., Plaintiff and Kraus were involved in a
motor vehicle accident in Hilo, Hawai`i.

While Kraus’s vehicle

was stopped at a stop sign on a hill, he put his vehicle in

2

This Court notes that, other than the memorandum in
opposition and the reply, “[n]o further or supplemental briefing
shall be submitted without leave of court.” Local Rule LR7.4.
This Court CAUTIONS Plaintiff that, in the future, if he files
any post-reply documents without obtaining leave of court, this
Court may strike the filing.
2

reverse and struck Plaintiff’s vehicle.

Plaintiff alleges that,

as a result of Kraus’s negligence, Plaintiff’s vehicle was
damaged, and Plaintiff suffered substantial bodily injury.
[Notice of Removal, filed 9/28/15 (dkt. no. 1), Decl. of Laureen
L. Martin (“Martin Removal Decl.”), Exh. A (Complaint) at ¶¶ 6,
8-9, Exh. 1 (State of Hawaii Motor Vehicle Accident Report, dated
7/29/13).]
According to Plaintiff, Kraus is the owner of Tree
Works Inc. (“Tree Works”), and Kraus was operating a commercial
vehicle when he was involved in the accident.

[Id. at ¶¶ 2, 6.]

Plaintiff sues Kraus in his individual capacity and in his
official capacity with Tree Works.

[Id. at ¶ 2.]

Plaintiff called 911 for police assistance and, an hour
later, he called 911 for an ambulance.
arrived at approximately 12:40 p.m.

Kihara3 and the ambulance

[Id. at ¶ 7.]

Although

Kihara acknowledged that Kraus operated his vehicle in a
negligent manner, he did not issue a citation to Kraus, and his
accident report did not reflect Plaintiff’s injury.
¶ 10, Exh. 1.]

[Id. at

Plaintiff argues that Kihara had a duty to issue

a criminal citation after the accident.

[Id. at ¶ 11.]

Plaintiff alleges that, as a result of the actions of
the County Defendants and Kraus (collectively “Defendants”), he

3

The Complaint alleges that Kihara is employed by the
County of Hawai`i Police Department. [Complaint at ¶ 4.]
3

suffered “emotional and psychological trauma, loss of property,
as well as financial loss.”

[Id. at ¶ 12.]

Plaintiff alleges

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”);4 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”).

Plaintiff prays for the following relief:

general, special, consequential, incidental, and punitive
damages: fees and costs; prejudgment interest; and any other
appropriate relief.
On September 28, 2015, the County removed the case to
this district court based on federal question jurisdiction.
[Notice of Removal at ¶ 4.]

The County asserted that it was the

only party that had been properly served by the time of removal.
[Id. at ¶ 9.]

Before filing the Notice of Removal, the County’s

4

Plaintiff apparently misnumbered his counts. Both his
IIED/NIED claim and his interference with chattels claim are
designed as Count II. For the sake of clarity, this Court will
refer to the interference with chattels claim as “Count IIA”.
4

counsel attempted to speak to Kraus, but was unable to do so.
Counsel was informed by someone at Tree Works that a copy of the
Complaint was delivered to Tree Works on September 23, 2015.
Counsel states that she “believe[s] all Defendants have and/or
will consent to the removal of this matter.”
Decl. at ¶ 11.]

[Martin Removal

The County argues that the delivery of the

Complaint to Tree Works was an improper attempt to serve Kraus.
[Notice of Removal at ¶ 9.]
The County Motion argues that Plaintiff’s Complaint
fails to state a claim upon which relief can be granted because:
the County owed no duty to Plaintiff because there is no private
cause of action to enforce the criminal statutes that Kraus
allegedly violated; Plaintiff did not suffer any damages as a
result of Kihara’s failure to issue a citation; Plaintiff has not
alleged sufficient facts to support any of his claims;
Plaintiff’s claim for fees and costs and his claim for punitive
damages fail because all of his substantive claims fail; and,
even if any substantive claim remains, municipalities cannot be
held liable for punitive damages.

The County urges this Court to

dismiss the Complaint with prejudice.
The Kihara Motion raises the same arguments as the
County Motion.

In addition, Kihara argues that this Court should

dismiss the claims against him because he was not properly served

5

and because he has qualified immunity.

Kihara also urges this

Court to dismiss the Complaint with prejudice.
DISCUSSION
I.

Service on Kihara
On October 16, 2015 – after removal, Plaintiff sent the

Complaint to Kihara’s workplace via certified mail, return
receipt requested.

[Kihara Motion, Decl. of Laureen L. Martin

(“Martin Kihara Decl.”), Exh. B (copy of the envelope sent to
Kihara’s workplace).]

Kihara argues that this was not proper

service under Fed. R. Civ. P. 4(e), which states:
Unless federal law provides otherwise, an
individual – other than a minor, an incompetent
person, or a person whose waiver has been filed –
may be served in a judicial district of the United
States by:
(1) following state law for serving a
summons in an action brought in courts of
general jurisdiction in the state where the
district court is located or where service is
made; or
(2)

doing any of the following:
(A) delivering a copy of the summons
and of the complaint to the individual
personally;
(B) leaving a copy of each at the
individual’s dwelling or usual place of
abode with someone of suitable age and
discretion who resides there; or

6

(C) delivering a copy of each to an
agent authorized by appointment or by
law to receive service of process.
Mailing a complaint by certified mail to a defendant’s workplace
does not constitute proper service under Rule 4(e)(2).
Under Rule 4(e)(1), Plaintiff could make service by
complying with Hawai`i state law.

Hawai`i law allows for service

by certified mail in certain circumstances.
When service of summons is provided for by section
634-33, 634-34, or 634-35, service shall be made
by service upon the defendant personally by any
person authorized to serve process in the place in
which the defendant may be found or appointed by
the court for the purpose, or sent by certified,
registered, or express mail, postage prepaid, with
return receipt requested, by the plaintiff or the
plaintiff’s attorney to the defendant. . . .
Both Haw. Rev. Stat. § 634-33, which governs service in cases
arising from the defendant’s operation of a motor vehicle, and
Haw. Rev. Stat. § 634-34, which governs service on boat
operators, state that service is to be made pursuant to § 634-36
“if the defendant cannot be found in the State.”

Haw. Rev. Stat.

§ 634-35 is the Hawai`i long-arm statute, and subsection (b)
allows service pursuant to § 634-36 “if the person cannot be
found in the State.”
The factual allegations of the Complaint do not trigger
the application of either § 634-33 or § 634-34.

Moreover,

neither § 634-33, § 634-34, nor § 634-35 apply because the record
reflects that Kihara could be found within the State.

7

See

Martin Kihara Decl., Exh. B (copy of the envelope that Plaintiff
used to mail the Complaint to Kihara in Hilo, Hawai`i).

This

Court CONCLUDES that § 634-36 does not apply to Plaintiff’s
service of Kihara, and therefore the attempted service via
certified mail was not proper service under Rule 4(e).

This

Court GRANTS the Kihara Motion insofar as Plaintiff’s claims
against Kihara are DISMISSED for lack of proper service.
II.

Claims Against the County Defendants
According to the County Defendants, underlying all of

Plaintiff’s claims against them is the assumption that they owe a
duty to Plaintiff to enforce state criminal laws and that
Plaintiff has private right of action to enforce that duty.
Based on the allegations in the Complaint, Plaintiff appears to
contend that Kihara should have cited Kraus for a violation of
Haw. Rev. Stat. § 707-705 or § 707-706.5

5

The County Defendants

Section 707-705(1) states:
A person commits the offense of negligent injury
in the first degree if that person causes:
(a) Serious bodily injury to another person
by the operation of a vehicle in a negligent
manner; or
(b) Substantial bodily injury to a
vulnerable user by the operation of a
[vehicle] in a negligent manner.

Section 707-706(1) states: “A person is guilty of the offense of
negligent injury in the second degree if that person causes
(continued...)
8

emphasize that “[w]hether to prosecute and what criminal charges
to bring are decisions that generally rest in the discretion of
the prosecutor,” and they argue that, as a general rule,
“criminal statutes do not provide a private cause of action or a
basis for civil liability.”

[Mem. in Supp. of County Motion at

4; Mem. in Supp. of Kihara Motion at 5.]
Both this district court and the Hawai`i state courts
have recognized that the prosecutor has broad discretion to
determine whether charges should be filed against a defendant.
See, e.g., Veloria v. United States, Crim. No. 00-00145 SOM, Civ.
No. 08-00019 SOM/BMK, 2008 WL 4055819, at *15 (D. Hawai`i Aug.
28, 2008) (“prosecutors are afforded broad discretion in
selecting whom to prosecute and what charges to bring, subject to
constitutional limits”); Naluai v. Naluai, 99 Hawai`i 363, 368,
55 P.3d 856, 861 (Ct. App. 2002) (“[t]he prosecutor not only has
complete discretion as to whether to charge, he also has complete
discretion as to when charges will be filed, what charges will be
filed, how many charges will be filed, and under what statutes
the charges will be made” (alteration in Naluai)).

However,

courts do not extend the same level of discretion to law
enforcement officers that they do to prosecutors.

For example,

one district court has stated:

5

(...continued)
substantial bodily injury to another person by the operation of a
vehicle in a negligent manner.”
9

[T]he judiciary owes special deference to the
prosecutorial office. The exercise of
prosecutorial discretion in bringing charges is a
power within the “‘special province’ of the
Executive.” [United States v. Armstrong, 517 U.S.
456,] 464, 116 S. Ct. 1480 [(1996)]. “As a
result, the presumption of regularity supports
their prosecutorial decisions and, in the absence
of clear evidence to the contrary, courts presume
that they have properly discharged their official
duties.” Id. (internal quotation marks, brackets
and citation omitted). Law enforcement officers,
in contrast, never have been afforded the same
presumption of regularity extended to prosecutors.
Courts have recognized the possibility that
officers in the field occasionally may abuse their
discretion and selectively target specific groups
and individuals on the basis of race or other
illegitimate factors. See, e.g., United States v.
Martinez–Fuerte, 428 U.S. 543, 559, 96 S. Ct.
3074, 49 L. Ed. 2d 1116 (1976); Delaware v.
Prouse, 440 U.S. 648, 661, 99 S. Ct. 1391, 59 L.
Ed. 2d 660 (1979).
Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1141 (N.D.
Cal. 2000) (emphasis added).

Similarly, the Ninth Circuit has

stated that, “[u]nlike prosecutors, who enjoy absolute immunity,
police officers are entitled only to qualified immunity in
section 1983 cases.”

Elliot-Park v. Manglona, 592 F.3d 1003,

1006 (9th Cir. 2010) (citing Malley v. Briggs, 475 U.S. 335,
341–43, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).

Further,

while the officers’ discretion in deciding whom to
arrest is certainly broad, it cannot be exercised
in a racially discriminatory fashion. For
example, a police officer can’t investigate and
arrest blacks but not whites, or Asians but not
Hispanics. Police can’t discriminate on the basis
of the victim’s race, either. We recognized as
much in Estate of Macias v. Ihde, where we held
that there is no right to state protection against
madmen or criminals, but “[t]here is a
10

constitutional right . . . to have police services
administered in a nondiscriminatory manner - a
right that is violated when a state actor denies
such protection to disfavored persons.” 219 F.3d
1018, 1028 (9th Cir. 2000); see also DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S.
189, 197 n.3, 109 S. Ct. 998, 103 L. Ed. 2d 249
(1989) (“The State may not, of course, selectively
deny its protective services to certain disfavored
minorities without violating the Equal Protection
Clause.”).
Id. at 1006-07.

Thus, this Court rejects the County Defendants’

general argument that all of Plaintiff’s claims against them fail
because Kihara owed no duty to him to issue a criminal citation
to Kraus.

Although Kihara has broad discretion to decide who to

arrest or issue citation to, he cannot exercise that discretion
in a manner that discriminated either against Plaintiff or in
favor of Kraus based on race or another impermissible criteria.
This Court now turns to the issue of whether Plaintiff has pled
sufficient facts to state any plausible claims against the County
Defendants arising from the decision not to issue a citation to
Kraus.

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))).
A.

Count I - Fraudulent Misrepresentation
This Court has stated:
Under Hawai`i law, the elements of a
fraudulent or intentional misrepresentation claim
11

are: “(1) false representations made by the
defendant; (2) with knowledge of their falsity (or
without knowledge of their truth or falsity);
(3) in contemplation of plaintiff’s reliance upon
them; and (4) plaintiffs detrimental reliance.”
Miyashiro v. Roehrig, Roehrig, Wilson & Hara, 122
Hawai`i 461, 482–483, 228 P.3d 341, 362–63 (Ct.
App. 2010) (citing Hawaii’s Thousand Friends v.
Anderson, 70 Haw. 276, 286, 768 P.2d 1293, 1301
(1989)). . . .
Du Preez v. Banis, Civil No. 14-00171 LEK-RLP, 2015 WL 415890, at
*10 (D. Hawai`i Jan. 30, 2015).

In addition, this Court must

review Count I under the following standard to determine whether
Plaintiff has sufficiently pled his fraudulent misrepresentation
claim:
[Fed. R. Civ. P.] 9(b) requires that, “[i]n
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud
or mistake.” Pursuant to Rule 9(b), a party is
required to make particularized allegations of the
circumstances constituting fraud. See Sanford v.
MemberWorks, Inc., 625 F.3d 550, 557–58 (9th Cir.
2010).
In their pleadings, Plaintiffs “must allege
the time, place, and content of the fraudulent
representation; conclusory allegations do not
suffice.” See Shroyer v. New Cingular Wireless
Servs., Inc., 622 F.3d 1035, 1042 (9th Cir. 2010)
(citation omitted). “Malice, intent, knowledge,
and other conditions of a person’s mind may be
alleged generally.” Fed. R. Civ. P. 9(b); see
also Odom v. Microsoft Corp., 486 F.3d 541, 554
(9th Cir. 2007) (en banc) (“[T]he state of mind —
or scienter — of the defendants may be alleged
generally.” (citation omitted)); Walling v.
Beverly Enters., 476 F.2d 393, 397 (9th Cir. 1973)
(stating that Rule 9(b) “only requires the
identification of the circumstances constituting
fraud so that the defendant can prepare an
adequate answer from the allegations” (citations
omitted)).
12

When there are multiple defendants,
Rule 9(b) does not allow a complaint to
merely lump multiple defendants together but
require[s] plaintiffs to differentiate their
allegations when suing more than one
defendant . . . and inform each defendant
separately of the allegations surrounding his
alleged participation in the fraud. In the
context of a fraud suit involving multiple
defendants, a plaintiff must, at a minimum,
identif[y] the role of [each] defendant[] in
the alleged fraudulent scheme.
Swartz v. KPMG LLP, 476 F.3d 756, 764–65 (9th Cir.
2007) (alterations in Swartz) (internal quotation
marks and citations omitted); see also Meridian
Project Sys., Inc. v. Hardin Constr. Co., 404 F.
Supp. 2d 1214, 1226 (E.D. Cal. 2005) (“When fraud
claims involve multiple defendants, the complaint
must satisfy Rule 9(b) particularity requirements
for each defendant.” (citations omitted)).
Barker v. Gottlieb, 23 F. Supp. 3d 1152, 1164-65 (D. Hawai`i
2014) (alterations in Barker) (some citations omitted).
Plaintiff has not pled his fraud claim with sufficient
particularity to meet these standards.

Plaintiff has not

identified the specific fraudulent misrepresentations that his
claim is based upon, nor has he identified who made them.

He

apparently alleges that the fraudulent misrepresentations were
made at the scene of the accident.

Thus, the Complaint does

allege the time and place where the alleged misrepresentations
were made.

However, as to each defendant named in the fraud

claim, Plaintiff must at least identify that defendant’s role in
the alleged fraud.

13

This Court therefore CONCLUDES that Count I fails to
state a claim upon which relief can be granted.
P. 12(b)(6).

See Fed. R. Civ.

This Court, however, FINDS that it is arguably

possible for Plaintiff to cure the defects in Count I by
amendment.

See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma

Cty., 708 F.3d 1109, 1117-18 (9th Cir. 2013) (“As a general rule,
dismissal without leave to amend is improper unless it is clear
. . . that the complaint could not be saved by any amendment.”
(brackets, citation, and internal quotation marks omitted)).
B.

Count II
1.

IIED

This district court has stated:
“[T]he tort of IIED consists of four
elements: ‘1) that the act allegedly causing the
harm was intentional or reckless, 2) that the act
was outrageous, and 3) that the act caused
4) extreme emotional distress to another.’” Young
v. Allstate Ins. Co., 119 Hawai`i 403, 429 (2008)
(quoting Hac v. Univ. of Hawaii, 102 Hawai`i 92,
106–07 (2003)). . . . [T]he standard for an IIED
claim is a very high one:
In explaining the type of “outrageous”
conduct that makes a claim for intentional
infliction of emotional distress actionable,
the Restatement (Second) of Torts states:
It has not been enough that the defendant has
acted with an intent which is tortious or
even criminal, or that he has intended to
inflict emotional distress, or even that his
conduct has been characterized by “malice,”
or a degree of aggravation which would
entitle the plaintiff to punitive damages for
another tort. Liability has been found only
where the conduct has been so outrageous in
14

character, and so extreme in degree, as to go
beyond all bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in a civilized community.
Generally, the case is one in which the
recitation of the facts to an average member
of the community would arouse his resentment
against the actor, and lead him to exclaim,
“Outrageous!”
Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., Inc.,
76 Hawai`i 454, 465 n.12, 879 P.2d 1037, 1048 n.12
(1994) (quoting Restatement (Second) of Torts
§ 46, cmt. d. (1965)). . . .
Toguchi v. Matayoshi, Civil No. 13–00380 DKW–KSC, 2014 WL
7420003, at *5 (D. Hawai`i Dec. 31, 2014) (some alterations in
Toguchi).
This Court must liberally construe Plaintiff’s
Complaint 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))).

Liberally construed, Plaintiff’s

Complaint alleges that Kihara intentionally decided not to issue
a citation to Kraus after the accident, [Complaint at ¶ 10,] and
Plaintiff suffered “emotional and psychological trauma” as a
result [id. at ¶ 12].

However, although Plaintiff alleges that

Defendants’ conduct was “outrageous,” [id.,] the factual
allegations in the Complaint do not support Plaintiff’s
conclusory argument.

See Iqbal, 556 U.S. at 678 (“Although for
15

the purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true, we are not bound to
accept as true a legal conclusion couched as a factual
allegation.” (citation and internal quotation marks omitted)).
Plaintiff merely alleges that Kihara failed to issue a criminal
citation to Kraus after the accident.

That fact alone is not

enough to establish the type of outrageous conduct necessary to
support an IIED claim.

This Court therefore CONCLUDES that

Plaintiff’s IIED claim fails to state a claim upon which relief
can be granted.
2.

NIED

This Court has stated:
The elements of a claim for NIED are:
(1) that the defendant engaged in negligent
conduct; (2) that the plaintiff suffered serious
emotional distress; and (3) that such negligent
conduct of the defendant was a legal cause of the
serious emotional distress. Tran v. State Farm
Mut. Auto. Ins. Co., 999 F. Supp. 1369, 1375 (D.
Hawai`i 1998). A cognizable claim for NIED under
Hawai`i law also “requires physical injury to
either a person or property,” see Calleon v.
Miyagi, 76 Hawai`i 310, 320, 876 P.2d 1278 (1994),
or a mental illness, see Haw. Rev. Stat.
§ 663–8.9. Dowkin v. Honolulu Police Dep’t, Civ.
No. 10–00087 SOM–LEK, 2010 WL 4961135, at *9 (D.
Hawai`i Nov. 30, 2010). Duty and breach are
essential elements of a negligence claim under
Hawai`i law. See Cho v. Hawai`i, 115 Hawai`i 373,
379 n.11, 168 P.3d 17, 23, n.11 (2007) (“It is
well-established that, in order for a plaintiff to
prevail on a negligence claim, the plaintiff is
required to prove all four of the necessary
elements of negligence: (1) duty; (2) breach of
duty; (3) causation; and (4) damages.” (citation
omitted)).
16

Siales v. Haw. Elec. Co., Civil No. 13-00413 LEK-KSC, 2013 WL
6210639, at *9 (D. Hawai`i Nov. 27, 2013).

Liberally construed,

Plaintiff’s Complaint alleges that Kihara’s failure to issue a
citation was negligent and, as a result, Plaintiff suffered
serious emotional distress.

Plaintiff also alleges that Kihara

had a duty to issue the citation, but Kihara breached that duty.
[Complaint at ¶¶ 10-12.]

Plaintiff, however, does not allege a

“physical injury to either a person or property” that resulted
from the failure to issue a citation.

He only alleges physical

injury the resulted from the accident itself.
¶ 9.

See, e.g., id. at

This Court therefore CONCLUDES that Plaintiff’s NIED claim

fails to state a claim upon which relief can be granted.
This Court, however, finds that it is arguably possible
for Plaintiff to cure the defects in both his IIED claim and his
NIED claim by amendment.
C.

Count IIA - Interference with Chattels
This Court has not found any case law in this district

court or in the Hawai`i state courts recognizing an “interference
with chattels” claim.

Count IIA appears to be based on the

damage that Plaintiff’s vehicle sustained in the accident.

Thus,

this Court liberally construes Count IIA as alleging a trespass
to chattels claim.

See James v. City & Cty. of Honolulu, Civil

No. 13-00397 JMS-BMK, 2014 WL 4181461, at *11 (D. Hawai`i
Aug. 20, 2014) (discussing the plaintiff’s trespass to chattels

17

claim (citing Restatement (Second) of Torts § 218)).

Section 218

states:
One who commits a trespass to a chattel is subject
to liability to the possessor of the chattel if,
but only if,
(a) he dispossesses the other of the
chattel, or
(b) the chattel is impaired as to its
condition, quality, or value, or
(c) the possessor is deprived of the use of
the chattel for a substantial time, or
(d) bodily harm is caused to the possessor,
or harm is caused to some person or thing in
which the possessor has a legally protected
interest.
Based on the allegations in the Complaint, any loss related to
Plaintiff’s vehicle was caused by Kraus during the accident.
Plaintiff has not alleged any loss related to his vehicle that
resulted from Kihara’s failure to issue a citation to Kraus.
This Court therefore CONCLUDES that Count IIA fails to
state a claim upon which relief can be granted.

This Court,

however, FINDS that it is arguably possible for Plaintiff to cure
the defects in Count IIA by amendment.
D.

Section 1983 Claims
Section 1983 states, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
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rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress . . .
1.

Count III - § 1983 Claim for Civil Rights Torts

In Count III, Plaintiff alleges that “the traditional
common law counts of torts that have been incorporated by
reference are also recognizable under” § 1983.
¶ 20.]
TORTS.”

[Complaint at

The title of Count III refers to “CIVIL RGIHTS [sic]
[Id. at pg. 5.]

Plaintiff does not state what specific

civil right tort, recognized in federal common law, he alleges in
Count III.

Further, depending on what common law tort Plaintiff

alleges, it may not be necessary for him to bring the claim
pursuant to § 1983; he may be able to assert the tort claim
directly against the County Defendants.
This Court therefore CONCLUDES that Count III fails to
state a claim upon which relief can be granted.

It is arguably

possible for Plaintiff to amend his federal civil right tort
claim to cure the defects in the claim, but this Court cannot
give Plaintiff any specific guidance regarding the claim because
this Court cannot determine what specific tort claim Plaintiff is
alleging.
2.

Remaining Section 1983 Claims Against the County

The United States Supreme Court has held:
A municipality or other local government may be
liable under this section if the governmental body
itself “subjects” a person to a deprivation of
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rights or “causes” a person “to be subjected” to
such deprivation. See Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 692, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978). But, under
§ 1983, local governments are responsible only for
“their own illegal acts.” Pembaur v. Cincinnati,
475 U.S. 469, 479, 106 S. Ct. 1292, 89 L. Ed. 2d
452 (1986) (citing Monell, 436 U.S., at 665–683,
98 S. Ct. 2018). They are not vicariously liable
under § 1983 for their employees’ actions. See
id., at 691, 98 S. Ct. 2018; [City of] Canton [v.
Harris], 489 U.S. [378,] 392, 109 S. Ct. 1197
[(1989)]; Board of Comm’rs of Bryan Cty. v. Brown,
520 U.S. 397, 403, 117 S. Ct. 1382, 137 L. Ed. 2d
626 (1997) (collecting cases).
Plaintiffs who seek to impose liability on
local governments under § 1983 must prove that
“action pursuant to official municipal policy”
caused their injury. Monell, 436 U.S., at 691, 98
S. Ct. 2018; see id., at 694, 98 S. Ct. 2018.
Official municipal policy includes the decisions
of a government’s lawmakers, the acts of its
policymaking officials, and practices so
persistent and widespread as to practically have
the force of law. See ibid.; Pembaur, supra, at
480–481, 106 S. Ct. 1292; Adickes v. S.H. Kress &
Co., 398 U.S. 144, 167–168, 90 S. Ct. 1598, 26 L.
Ed. 2d 142 (1970). These are “action[s] for which
the municipality is actually responsible.”
Pembaur, supra, at 479–480, 106 S. Ct. 1292.
Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (some alterations
in Connick).
Plaintiff’s Complaint does not allege that Kihara’s
decision not to issue a citation to Kraus was based on an
official County policy.

This Court CONCLUDES that Plaintiff’s

remaining § 1983 claims – Counts IV and V – fail to state a
plausible claim for relief against the County because the County
cannot be held liable for Kihara’s actions and omissions based on

20

a respondeat superior theory.

This Court, however, FINDS that it

is arguably possible for Plaintiff to amend his Complaint to cure
the defects in his claims against the County in Counts IV and V.
3.

Remaining Section 1983 Claims Against Kihara

Count IV alleges a § 1983 claim for violation of
Plaintiff’s Fourteenth Amendment right to due process.

It

alleges that Defendants’ actions were intended “to intimidate and
prevent the Plaintiff from exercising of liberty and property.”
[Complaint at ¶ 22.]

This district court has stated that: “The

right to procedural due process under the Fourteenth Amendment
protects individuals from being deprived of either liberty or
property without adequate notice and hearing.”

Lee v. Haw. Pac.

Univ., Civil No. 12-00604 BMK, 2014 WL 794661, at *5 (D. Hawai`i
Feb. 26, 2014) (citing Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 571–72 (1972)).

There are no factual

allegations in the Complaint that support Plaintiff’s conclusory
statement that Kihara’s decision not to issue a citation to Kraus
deprived Plaintiff of his liberty or property.

This Court

therefore CONCLUDES that Count IV fails to state a plausible
§ 1983 claim against Kihara for the violation of Plaintiff’s
right to due process.
Count V alleges a § 1983 claim for violation of
Plaintiff’s Fourth Amendment right to be free from the use of
excessive and unreasonable force.

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It alleges that “[t]he

Defendants used excessive and unreasonable force to deprive the
Plaintiff from the rights alleged before, therefore violating
those protections guaranteed to all American citizens under the
fourth amendment [sic].”

[Complaint at ¶ 24.]

“The Fourth

Amendment, which protects against excessive force in the course
of a seizure, requires that courts examine the objective
reasonableness of a particular use of force to determine whether
it was indeed excessive.”

Michino v. Lewis, Civ. No. 13-00546

ACK-BMK, 2015 WL 3752503, at *7 (D. Hawai`i June 16, 2015) (some
citations omitted) (citing Graham v. Connor, 490 U.S. 386,
394–95, 398 (1989)).

There are no factual allegations in the

Complaint that support Plaintiff’s conclusory statement that
Kihara used any force against Plaintiff – let alone excessive and
unreasonable force – when Kihara decided not to issue a citation
to Kraus.

This Court therefore CONCLUDES that Count V fails to

state a plausible § 1983 claim for the use of excessive and
unreasonable force.
4.

Qualified Immunity

Kihara also argues that he is entitled to qualified
immunity from Plaintiff’s § 1983 claims.

It is not necessary for

this Court to discuss the qualified immunity issue as to the
claims against Kihara in the Complaint because this Court has
already dismissed the claims against him for lack of service, and
it has ruled that the § 1983 claims against him do not state a

22

claim upon which relief can be granted.

Thus, the only issue

that qualified immunity may be relevant to is the issue of
whether Plaintiff should be allowed to amend his claims against
Kihara.
This district court has stated:
Qualified immunity protects an official who
“reasonably but mistakenly believed that his or
her conduct did not violate a clearly established
constitutional right.” Hunt v. Cnty. of Orange,
672 F.3d 606, 615–16 (9th Cir. 2012). Assessing
whether an official is entitled to immunity is a
two prong inquiry. Under the first prong the
Court asks whether the officer’s conduct violated
a constitutional right. Saucier [v. Katz], 533
U.S. [194,] 201, 121 S. Ct. 2151 [(2001)]. Under
the second prong, the Court examines whether the
right was clearly established. Id. The Court may
examine either prong first, and may grant
qualified immunity on the ground that a purported
right was not “clearly established” without
resolving the question of whether the right exists
at all. Reichle v. Howards, ––– U.S. ––––, 132 S.
Ct. 2088, 2093, 182 L. Ed. 2d 985 (2012).
To be “clearly established, the contours of
the right must be sufficiently clear that a
reasonable official would understand that what he
is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97
L. Ed. 2d 523 (1987) (internal quotation marks
omitted).[6] In other words, “existing precedent
must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563

6

In Ashcroft v. al-Kidd, the United States Supreme Court
described this standard as “every ‘reasonable official would have
understood that what he is doing violates that right.’” 131 S.
Ct. 2074, 2083 (2011) (emphasis added) (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523
(1987)).

23

U.S. 731, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d
1149 (2011). “The relevant, dispositive inquiry
in determining whether a right is clearly
established is whether it would be clear to a
reasonable officer that his conduct was unlawful
in the situation he confronted.” Id. at 202, 121
S. Ct. 2151. “Whether the law was clearly
established is an objective standard; the
defendant’s subjective understanding of the
constitutionality of his or her conduct is
irrelevant.” Karl v. City of Mountlake Terrace,
678 F.3d 1062, 1073 (9th Cir. 2012) (quoting
Clairmont v. Sound Mental Health, 632 F.3d 1091,
1100 (9th Cir. 2011)). Thus an officer whose
actions in fact violate clearly established law
may nonetheless be entitled to qualified immunity
if those actions are reasonable in light of the
information the officer had at the time of the
arrest. Mendocino Env. Center v. Mendocino Cnty.,
14 F.3d 457, 463 (9th Cir. 1994). Indeed, it is
oft stated that qualified immunity protects “all
but the plainly incompetent or those who knowingly
violate the law.” Hunter v. Bryant, 502 U.S. 224,
229, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991).
Goodhue v. Cty. of Maui, 98 F. Supp. 3d 1133, 1145-46 (D. Hawai`i
2015).

The two-prong qualified immunity inquiry is specific to

the facts of the case, and therefore this Court cannot conduct
the inquiry until after Plaintiff amends his § 1983 claims
against Kihara and clarifies the basis for those claims.

See

Perez v. United States, 103 F. Supp. 3d 1180, 1200 (S.D. Cal.
2015) (“Where government officials are sued in their individual
capacities for civil damages, a court must ‘begin by taking note
of the elements a plaintiff must plead to state a claim . . .
against officials entitled to assert the defense of qualified
immunity.’” (alteration in Perez) (quoting Iqbal, 556 U.S. at
675, 129 S. Ct. 1937)).

This Court therefore FINDS that it is
24

arguably possible for Plaintiff to amend his Complaint to cure
the defects in his claims against Kihara in Counts IV and V.
E.

Claims for Punitive Damages, Fees and Costs
Count VI seeks an award of fees and costs associated

with Plaintiff’s § 1983 claims, pursuant to 42 U.S.C. § 1988.
[Complaint at ¶ 26.]

Count VII seeks punitive damages.

[Id. at

¶ 28.]
Under both federal law and Hawai`i law, punitive
damages are a remedy, not an independent cause of action.

See,

e.g., Cortez v. Skol, 776 F.3d 1046, 1050 n.2 (9th Cir. 2015);
Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., 76 Hawai`i 454, 466,
879 P.2d 1037, 1049 (1994).
fees and costs.

The same is true for an award of

Thus, it was not necessary for Plaintiff to

include either his request for punitive damages or his request
for fees and costs among the counts of his Complaint.

The fact

that he included them in his prayer for relief was sufficient.
Although Kraus does not have a motion to dismiss pending before
this Court, the same analysis applies to Plaintiff’s claim for
punitive damages and his claim for fees and costs against Kraus.
This Court therefore DISMISSES Counts VI and VII against all
Defendants.
However, this district court has noted that,
“[m]unicipal defendants are generally immune from liability for
punitive damages.”

Souza v. Silva, Civil No. 12-00462 HG-BMK,

25

2014 WL 2452579, at *16 (D. Hawai`i May 30, 2014) (citing City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct.
2748, 69 L. Ed. 2d 616 (1981) (finding a municipality defendant
is not liable for punitive damages for causes of action brought
pursuant to 42 U.S.C. § 1983)).

In addition, “the Hawaii Supreme

Court has found that punitive damages are not available against
the City and County of Honolulu pursuant to Hawaii state law.”
Id. (citing Lauer v. Y.M.C.A., 57 Haw. 390, 557 P.2d 1334,
1341–42 (Haw. 1976)).

This Court therefore CONCLUDES that

Plaintiff cannot recover punitive damages against the County in
the instant case.

The dismissal of Count VII against the County

is WITH PREJUDICE; in other words, Plaintiff cannot include a
request for punitive damages against the County in his amended
complaint.
The dismissal of Count VII against Kihara and Kraus is
WITHOUT PREJUDICE; Plaintiff can include a request for punitive
damages against Kihara and Kraus in the amended complaint.
Similarly, the dismissal of Count VI against all Defendants is
WITHOUT PREJUDICE.

Plaintiff can include a request for fees and

costs against all Defendants in the amended complaint.
III. Summary and Leave to Amend
The County Motion is GRANTED insofar as: all of
Plaintiff’s claims against the County are HEREBY DISMISSED; and
the dismissal of Count VII is WITH PREJUDICE against the County.

26

The County Motion is DENIED insofar as: the dismissal of the
claims against the County in Counts I, II, III, IV, and V is
WITHOUT PREJUDICE; and the dismissal the claim for fees and costs
against the County in Count VI is WITHOUT PREJUDICE.
The Kihara Motion is GRANTED insofar as: the Complaint
is HEREBY DISMISSED for lack of proper service on Kihara; and the
Court CONCLUDES that all of the claims against Kihara in the
Complaint fail to state a claim upon which relief can be granted.
The Kihara Motion is DENIED insofar as the dismissal of the
claims against Kihara in Counts I through V is WITHOUT PREJUDICE;
and the dismissal of the claims against Kihara in Counts VI and
VII is WITHOUT PREJUDICE.
This Court also DISMISSES Counts VI and VII against
Kraus.

The dismissal is WITHOUT PREJUDICE, insofar as Plaintiff

may include a request for fees and costs and a request for
punitive damages against Kraus within the prayer for relief in
his amended complaint.

This Court emphasizes that this Order

makes no findings or conclusions regarding the merits of
Plaintiff’s other claims against Kraus.
This Court ORDERS Plaintiff to file his amended
complaint by March 2, 2016.

This Court CAUTIONS Plaintiff that,

if he fails to file his amended complaint by March 2, 2016, all
of the claims that this Court dismissed without prejudice in this
Order will be dismissed with prejudice, and this Court will order
27

the Clerk’s Office to terminate the County and Kihara as parties.
In other words, Plaintiff would have no remaining claims against
the County and Kihara, and only his claims in the Complaint
against Kraus would remain.
CONCLUSION
On the basis of the foregoing, the Motion to Dismiss
Complaint Filed July 21, 2015, which the County filed on October
5, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART, and the
Motion to Dismiss Complaint Filed July 21, 2015, which Kihara
filed October 30, 2015, is HEREBY GRANTED IN PART AND DENIED IN
PART.

Plaintiff must file his amended complaint, consistent with

the terms of this Order, by no later than March 2, 2016.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 29, 2016.

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

CHRISTOPHER YOUNG VS. MICHAEL M. KRAUS, ET AL; CIVIL 15-00383
LEK-KSC; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS
THE COUNTY OF HAWAI`I AND THE COUNTY OF HAWAI`I POLICE
DEPARTMENT’S MOTION TO DISMISS; AND GRANTING IN PART AND DENYING
IN PART DEFENDANT PATRICK T. KIHARA’S MOTION TO DISMISS

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