Begley v. County of Kauai, Kauai Police Department
Filing
340
ORDER Granting In Part and Denying In Part Motion To Dismiss and Substantive Joinder re 216 226 ."On the basis of the foregoing, Contrades's Motion to Dismiss Plaintiffs Second Amended Complaint Filed on February 15, 2018, fil ed March 14, 2018, and the County Defendants' Substantive Joinder, filed March 21, 2018, are HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED insofar as Counts II and IV against Contrades, in his individual capacity, are DISMISSE D, and DENIED insofar as the dismissal is WITHOUT PREJUDICE. The Substantive Joinder is GRANTED insofar as Count IV against the County Defendants is DISMISSED, and DENIED insofar as the dismissal is WITHOUT PREJUDICE. The Substantive Joinder is DENIE D in all other respects.Plaintiff has until August 31, 2018 to file a third amended complaint in accordance with this Order. The Court CAUTIONS Plaintiff that, if he fails to file his third amended complaint by August 31, 2018, the claims dismissed without prejudice in this Order will be dismissed with prejudice. Plaintiff is only granted leave to address the defects in his claims identified in this Order. To the extent Plaintiff wishes to make other changes, he must file a motion pursuant to Fed. R. Civ. P. 15(a)(2)." Signed by JUDGE LESLIE E. KOBAYASHI on 7/31/2018. (cib, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF KAUAI, KAUAI POLICE )
DEPARTMENT, DARRYL PERRY, ROY )
ASHER, MICHAEL CONTRADES AND )
DOE DEFENDANTS 16-100,
)
)
Defendants.
)
_____________________________ )
MARK N. BEGLEY,
CIVIL 16-00350 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS AND SUBSTANTIVE JOINDER
On March 14, 2018, Defendant Michael Contrades
(“Contrades”), in his individual capacity, filed his Motion to
Dismiss Plaintiff’s Second Amended Complaint Filed on
February 15, 2018 (“Motion”).
[Dkt. no. 216.]
On March 21,
2018, Defendants County of Kauai (“the County”); Kauai Police
Department (“KPD”); Darryl Perry (“Perry”), in his official
capacity; Roy Asher (“Asher”), in his official capacity; and
Contrades, in his official capacity (collectively, “County
Defendants”), filed a substantive joinder in the Motion
(“Substantive Joinder”).1
[Dkt. no. 226.]
On April 16, 2018,
Plaintiff Mark N. Begley (“Plaintiff”) filed his memorandum in
1
Plaintiff also brings claims against Asher and Perry, in
their individual capacities (collectively with Contrades, in his
individual capcity, “Individual Defendants”). Asher and Perry,
in their individual capacities, have not taken a position on the
Motion.
opposition.
[Dkt. no. 246.]
Contrades and the County Defendants
each filed their reply on April 23, 2018.
[Dkt. nos. 274
(Contrades Reply), 276 (County Defendants Reply).]
came on for hearing on May 7, 2018.
These matters
The Motion and Substantive
Joinder are hereby granted in part and denied in part for the
reasons set forth below.
BACKGROUND
This action commenced on June 27, 2016, and the First
Amended Complaint was subsequently filed on May 5, 2017.
nos. 1, 103.]
[Dkt.
On January 4, 2018, this Court issued its Order
Granting in Part and Denying in Part Defendant’s Motion to
Dismiss Portions of Plaintiff’s First Amended Complaint (“1/4/18
Order”).
[Dkt. no. 198.2]
On January 16, 2018, this Court
issued its Order Granting in Part and Denying in Part Defendant’s
Motion to Dismiss Portions of Plaintiff’s First Amended Complaint
(“1/16/18 Order”).
[Dkt. no. 199.3]
In the First Amended
Complaint, Plaintiff asserted four claims:
-retaliation, under Title VII of the Civil Rights Act of 1964
(“Title VII”), U.S.C. § 2000e-3(a) and Haw. Rev. Stat.
Chapter 368 and § 378-2(2),4 against the County and KPD
2
The 1/4/18 Order is also available at 2018 WL 295799.
3
The 1/16/18 Order is also available at 2018 WL 443437.
4
Effective January 1, 2012, the prohibition against
retaliation is codified at Haw. Rev. Stat. § 378-2(a)(2). 2011
Sess. Law. Ch. 206, Act 206, § 2. Although Plaintiff cites
§ 378-(2)(2) (2011), Plaintiff does not contend his Count I claim
(continued...)
2
(“Count I”);
-aiding and abetting retaliation, under Chapter 368 and
§ 378-2(3),5 against the Individual Defendants (“Count II”);
-violation of the Hawai`i Whistleblowers’ Protection Act, Haw.
Rev. Stat. § 378-61, et seq., against the County and KPD
(“Count III”); and
-intentional infliction of emotional distress (“IIED”) against
all Defendants (“Count IV”).
In the 1/4/18 Order and 1/16/18 Order, the motions to
dismiss of Asher and Contrades, respectively, in their individual
capacities, were denied as to Count II, and granted insofar as
Count IV was dismissed as time-barred.
The First Amended
Complaint lacked sufficient factual allegations, accepted as
true, to support Plaintiff’s position that, under the discovery
rule, his IIED claims accrued in 2016 when a United States Equal
Employment Opportunity Commission (“EEOC”) document production
revealed to him the outrageous character of otherwise time-barred
incidents.6
1/4/18 Order, 2018 WL 295799, at *4 (citing Ashcroft
4
(...continued)
accrued in 2011 so that § 378-(2)(2) (2011) applies.
5
Effective January 1, 2012, the prohibition against aiding
and abetting retaliation is codified at Haw. Rev. Stat.
§ 378-2(a)(3). 2011 Sess. Law. Ch. 206, Act 206, § 2; see also
1/4/18 Order, at *1 n.2. Although Plaintiff cites § 378-(2)(3)
(2011), Plaintiff does not contend his Count II claim accrued in
2011 so that § 378-(2)(3) (2011) applies.
6
“Outrageousness of the alleged conduct is a necessary
element of IIED.” 1/4/18 Order, 2018 WL 295799, at *4 n.5
(citing Young v. Allstate Ins. Co., 119 Hawai`i 403, 429, 198
P.3d 666, 692 (2008)).
3
v. Iqbal, 556 U.S. 662, 678 (2009)) (dismissing Count IV against
Asher); 1/16/18 Order, 2018 WL 443437, at *4 (dismissing Count IV
against Contrades “[f]or the reasons stated in the 1/4/18
Order”).
The dismissal of Count IV was without prejudice because
it was possible that Plaintiff could cure the timeliness defect
“by alleging facts that would support his position regarding the
2016 document production.”
1/4/18 Order, 2018 WL 295799, at *4
(footnote and citation omitted); see also 1/16/18 Order, 2018 WL
443437, at *4.
On February 15, 2018, Plaintiff filed his Second
Amended Complaint.
[Dkt. no. 201.]
Plaintiff alleges the same
claims as in the First Amended Complaint.
[Id. at ¶¶ 120-39.]
Plaintiff repeats all of the factual allegations considered in
the 1/4/18 Order and 1/16/18 Order.
The factual allegations set
forth in the First Amended Complaint are summarized in the 1/4/18
Order and are not repeated here except as relevant to the instant
Motion and Substantive Joinder.
See 2018 WL 295799, at *2.
short, Plaintiff was an assistant KPD chief of police.
Amended Complaint at ¶ 4.]
In
[Second
Plaintiff alleges he helped oppose
sex discrimination committed by Asher against Darla Abbatiello
(“Abbatiello”), who was a KPD police officer, and that as a
result, Defendants discriminated against him in the workplace.
Asher was also an assistant KPD chief of police; Contrades was
the deputy chief of police; and Perry was the KPD chief of
4
police.
[Id. at ¶¶ 6-8.]
The only significant new factual
allegations are that, on June 15, 2016, Plaintiff received a
document production from the EEOC.
[Id. at ¶ 36.]
According to
Plaintiff, the document production “revealed . . . further
retaliation . . . .
Prior to receiving the EEOC’s investigatory
files, Plaintiff was unaware of the aforementioned documents and
County-wide retaliatory efforts made against him.”
[Id. at
¶ 37.]
In the instant Motion, Contrades seeks dismissal of
Counts II and IV.
The County Defendants argue that, for the
reasons asserted in the Motion, they are entitled to dismissal of
Counts I, II, and IV.7
STANDARD
The Ninth Circuit has described the standard applicable
to a motion under Fed. R. Civ. P. 12(b)(6) as follows:
To survive a motion to dismiss for failure to
state a claim after the Supreme Court’s decisions
in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009) and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007), the [plaintiff’s]
factual allegations “must . . . suggest that the
claim has at least a plausible chance of success.”
In re Century Aluminum [Co. Sec. Litig.], 729 F.3d
[1104,] 1107 [(9th Cir. 2013)]. In other words,
their complaint “must allege ‘factual content that
allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
7
Plaintiff only asserts Count II against the Individual
Defendants. The County Defendants explicitly seek dismissal of
Count II. [Substantive Joinder at 3.]
5
alleged.’” Id. (quoting Iqbal, 556 U.S. at 678,
129 S. Ct. 1937).
Following Iqbal and Twombly, . . . . we have
settled on a two-step process for evaluating
pleadings:
First, to be entitled to the presumption of
truth, allegations in a complaint or
counterclaim may not simply recite the
elements of a cause of action, but must
contain sufficient allegations of underlying
facts to give fair notice and to enable the
opposing party to defend itself effectively.
Second, the factual allegations that are
taken as true must plausibly suggest an
entitlement to relief, such that it is not
unfair to require the opposing party to be
subjected to the expense of discovery and
continued litigation.
[Eclectic Props. E., LLC v. Marcus & Millichap
Co., 751 F.3d 990, 996 (9th Cir. 2014)] (quoting
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011)). In all cases, evaluating a complaint’s
plausibility is a “context-specific” endeavor that
requires courts to “draw on . . . judicial
experience and common sense.” Id. at 995–96
(internal quotation marks omitted).
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014)
(some alterations in Levitt).
This district court has stated, “although allegations
‘upon information and belief’ may state a claim after Iqbal and
Twombly, a claim must still be based on factual content that
makes liability plausible, and not be ‘formulaic recitations of
the elements of a cause of action.’”
Klohs v. Wells Fargo Bank,
N.A., 901 F. Supp. 2d 1253, 1260 n.2 (D. Hawai`i 2012) (quoting
Long v. Yomes, 2011 WL 4412847, at *4 (D. Haw. Sept. 20, 2011)
6
(quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955) (editorial
mark omitted)).
DISCUSSION
I.
Arguments Addressed in Previous Orders
A.
Description of the Asher’s Inappropriate Gesture
The 1/16/18 Order denied Contrades’s motion to dismiss
the First Amended Complaint, [filed 5/23/17 (dkt. no. 111)
(“5/23/17 Motion”),] “insofar as it argues that a description of
[Asher’s] alleged inappropriate comment and gesture [to
Abbatiello] is required for Plaintiff to state a claim for aiding
and abetting retaliation.”
omitted).
2018 WL 443437, at *2 (footnote
Notwithstanding this ruling, Contrades argues Count II
of the Second Amended Complaint should be dismissed for failure
to describe Asher’s alleged inappropriate comment and gesture
(“Gesture Description Argument”).
Apart from changing “FAC” to
“SAC,” Contrades repeats verbatim four pages of argument this
Court already considered before issuing the 1/16/18 Order.
Compare Mem. in Supp. of 5/23/17 Motion at 4-8 with Mem. in Supp.
of Motion at 3-7.
The Gesture Description Argument is rejected for the
reasons stated in the 1/16/18 Order.
See 2018 WL 443437, at *2
(“To the extent the Contrades Motion argues that the merits of
Plaintiff’s retaliation claim depend on the merits of
Abbatiello’s sex discrimination claim, the argument is rejected.”
7
(citing Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1304 (9th
Cir. 1997) (“On its face, the Hawaii statute prohibiting
retaliation does not condition the retaliation claim on the merit
of the underlying discrimination claim.”))).
The Motion is
therefore denied insofar as it seeks dismissal of Count II
against Contrades, in his individual capacity, based on the
Gesture Description Argument.
The Substantive Joinder is denied
insofar as it seeks dismissal of Count II against Contrades,
Asher, and Perry, in their official capacities, and dismissal of
Count I against the County and KPD, based on the Gesture
Description Argument.
B.
Substantial Assistance
Contrades argues Count II should be dismissed because
Plaintiff’s allegations amount to non-actionable “disappointment”
or to “[p]etty slights, minor annoyances and simply lack of good
manners,” which are insufficient to state a claim for
retaliation.
[Mem. in Supp. of Motion at 20 (citing Oncale v.
Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S. Ct. 998, 140
L. Ed. 2d. 201 (1998)).]
A similar argument in the 5/23/17 Motion was rejected
in the 1/16/18 Order.
In support of his position that
Plaintiff’s First Amended Complaint failed to plead a plausible
aiding and abetting claim against him, “Contrades cite[d], inter
alia, Park v. Oahu Transit Services, Inc., in which this district
8
court stated: ‘the fact that multiple people may have treated
Plaintiff poorly, or even discriminatorily, does not
automatically imply that they aided and abetted each other in
doing so.’”
1/16/18 Order, 2018 WL 443437, at *2 (some citations
omitted) (quoting CV No. 10-00445 DAE-KSC, 2011 WL 3490190, at *8
(D. Hawai`i Aug. 10, 2011)).
In rejecting Contrades’s argument,
this Court ruled “the First Amended Complaint pleads sufficient
facts to support the claim that Contrades aided or abetted the
retaliation committed by others” insofar as it alleges Contrades
“use[d] disciplinary committees and investigations to retaliate
against Plaintiff because of his protected activity.”
Id.
Contrades does not argue the Second Amended Complaint
omits factual allegations relevant to this Court’s ruling in the
1/16/18 Order.
Insofar as Contrades argues Plaintiff fails to
allege either that retaliation occurred or that Contrades
substantially assisted the alleged retaliation, that argument is
rejected for the reasons stated in the 1/16/18 Order.8
C.
See id.
Count II Is Cognizable Against Individual Defendants
Contrades argues Count II should be dismissed because
claims against individual defendants are not cognizable under
8
“‘[A] person aids and abets an unlawful discriminatory
practice of another if he knows that the practice constitutes a
breach of the other’s duty and if he provides substantial
assistance or encouragement with respect to the practice.’”
1/4/18 Order, 2018 WL 295799, at *5 (quoting Lovell v. United
Airlines, Inc., No. CIV. 09-00146 ACK-LEK, 2009 WL 3172729, at *4
(D. Hawai`i Oct. 2, 2009)).
9
Title VII or § 378-2.
[Mem. in Supp. of Motion at 16.]
The
1/4/18 Order recognized that the prohibition on persons aiding or
abetting discrimination contained in the former § 378-2(3)
(2011), cited in the First Amended Complaint as the basis for
Count II, is “substantively identical” to that contained in the
current, renumbered § 378-2(a)(3).
2018 WL 295799, at *1 n.2.
In the Second Amended Complaint, Plaintiff’s Count II claim
continues to allege aiding and abetting retaliation in violation
of § 378-2.
The plain text of § 378-2(a)(3) shows that claims
against individual defendants are cognizable.
See § 378-2(a)(3)
(prohibiting “any person, whether an employer, employee, or not,
to aid . . . ” certain discriminatory practices (emphasis
added)).
Moreover, Plaintiff’s Count II claim is only brought
under state law, and is not brought pursuant to Title VII.
[Second Amended Complaint at ¶¶ 128-31.]
D.
Whether the Otherwise Time-Barred Portion
of Count IV Is Saved by the Discovery Rule
The 1/16/18 Order ruled that:
incidents occurring
before June 27, 2014, are outside the two-year statute of
limitations applicable to IIED claims; the portions of Count IV
based those incidents were time-barred; Plaintiff failed to show
the discovery rule saved the otherwise time-barred portions
Count IV; and the portions of Count IV that were based on
incidents within the two-year statute of limitations failed to
10
state a plausible IIED claim.
1/16/18 Order, 2018 WL 443437, at
*3.
The discovery rule applies to IIED claims.
1/4/18
Order, 2018 WL 295799, at *2 (citing DeRosa v. Ass’n of Apartment
Owners of the Golf Villas, 185 F. Supp. 3d 1247, 1260 (D. Hawai`i
2016)).
The Hawai`i Supreme Court has stated:
“Under [Haw. Rev.
Stat.] § 657–7, a tort claim accrues when the plaintiff
discovers, or through the use of reasonable diligence should have
discovered, the negligent act, the damage, and the causal
connection between the two.”
Ass’n of Apartment Owners of
Newtown Meadows ex rel. its Bd. of Dirs. v. Venture 15, Inc., 115
Hawai`i 232, 277, 167 P.3d 225, 270 (2007).
Moreover, a
plaintiff “‘must exercise reasonable diligence in pursuing a
claim.
If a plaintiff fails to exercise such diligence in a
timely manner, the cause of action should be barred by the
statute of limitations.’”
Hays v. City & Cty. of Honolulu, 81
Hawai`i 391, 398, 917 P.2d 718, 725 (1996) (quoting In re Hawaii
Federal Asbestos Cases, 854 F. Supp. 702, 708 (D. Hawai`i 1994)).
The County Defendants argue Count IV must be dismissed
because Plaintiff fails to allege he “suffered extreme emotional
distress as a result of obtaining any of the documents from the
EEOC that allegedly serve as the basis for his IIED claim.”
[Substantive Joinder at 9.]
This argument is puzzling.
Plaintiff has not alleged Defendants intentionally inflicted
11
emotional distress on him by using the EEOC to expose him to
distressing documents.
The Motion and Substantive Joinder are
denied to the extent they are based on the argument that, to
invoke the discovery rule, Plaintiff must allege the document
production caused him extreme emotional distress.
The Second Amended Complaint fails to allege facts
sufficient to support Plaintiff’s argument that his IIED claims
accrued, under the discovery rule, following the EEOC document
production.
As compared to the First Amended Complaint, the
Second Amended Complaint alleges an additional conclusion, i.e.,
that the EEOC document production revealed information showing an
County-wide retaliatory scheme.
¶ 37.
See Second Amended Complaint at
This Court is not bound to accept Plaintiff’s conclusions
that the document production revealed to him the outrageous
character of incidents he was was previously aware of but had not
realized were outrageous.
See Twombly, 550 U.S. at 555 (A court
is “not bound to accept as true a legal conclusion couched as a
factual allegation.”).
Because Plaintiff fails to show any
exception to the two-year statute of limitations applies,
incidents occurring before June 27, 2014, are time-barred.
The
portions of Count IV based on time-barred incidents are therefore
dismissed.
In the Second Amended Complaint, Plaintiff does not
allege any additional incidents which are not time-barred (i.e.
12
occurred within the two-year statute of limitations) involving
Asher or Contrades.
For the reasons set forth in this Court’s
prior Orders, Plaintiff’s factual allegations that are not timebarred are insufficient to state a plausible IIED claim against
Contrades, in his individual capacity; or against Asher and
Contrades, in their official capacities.
See 1/4/18 Order, 2018
WL 295799, at *4 (Asher); 1/16/18 Order, 2018 WL 443437, at *4
(Contrades).
Plaintiff’s claims against Asher and Contrades in
Count IV based on incidents which occurred within the two-year
statute of limitations are dismissed.
As to Perry, Plaintiff’s only allegation that is not
time-barred is that, on February 2, 2016, Perry sent, and later
rescinded, a letter “indicating that the County and KPD would
begin the process of terminating Plaintiff’s employment.”
[Second Amended Complaint at ¶ 118.]
This allegation is
insufficient to state a claim for IIED against Perry, in his
official capacity.
See Medeiros v. Akahi Services, Inc., CIVIL
17-00307 LEK-KSC, 2018 WL 2449189, at *5 (D. Hawai`i May 31,
2018) (“IIED claims based on allegations of employment
discrimination — but not sexual harassment or sexual assault —
are barred by Haw. Rev. Stat. § 386-5”).
Plaintiff’s Count IV
claim against Perry, in his official capacity, based on incidents
which occurred within the two-year statute of limitations is
dismissed.
13
Plaintiff does not argue that any incidents alleged to
have occurred after June 27, 2014 support an IIED claim against
either Contrades or the County Defendants.
Therefore, as to
Contrades and the County Defendants, Count IV fails to state a
plausible claim to relief and must be dismissed.
See 1/4/18
Order, 2018 WL 295799, at *4 (citing Iqbal, 556 U.S. at 678).
Even considering the potential costs which may be
incurred by Defendants, the dismissal of Count IV must be without
prejudice because of the preference for resolution on the merits
and the possibility that Plaintiff can cure the defects in his
IIED claim by amendment.
See Sonoma Cty. Ass’n of Retired Emps.
v. Sonoma Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a
general rule, dismissal without leave to amend is improper unless
it is clear, upon de novo review, that the complaint could not be
saved by any amendment.” (brackets, citation and internal
quotation marks omitted))).
If Plaintiff intends to pursue his IIED claims, he must
plausibly state why his claims against each defendant are not
time-barred.
This Court emphasizes that it is not bound to
accept as true Plaintiff’s legal conclusions.
U.S. at 678.
See Iqbal, 556
If Plaintiff’s IIED claims fail to allege
sufficient facts, taken as true, to “allow[] the court to draw
the reasonable inference that [each] defendant is liable,” those
claims will again fail to survive a motion to dismiss.
14
See id.
II.
Qualified Immunity
Contrades, in his individual capacity, and Asher and
Contrades, in their official capacities, assert qualified
immunity and argue Counts II and IV should be dismissed.
The
Substantive Joinder is denied as to Count II because Plaintiff
alleges Count II only against the Individual Defendants and does
not allege Count II against Asher and Contrades, in their
official capacities.
Count IV only allege state law claims.
This Court has
stated:
Hawaii law provides that a nonjudicial
government official has a qualified or conditional
privilege with respect to his or her tortious
actions taken in the performance of his or her
public duty. Towse v. State of Hawaii, 647 P.2d
696, 702 (Haw. 1982); Runnels v. Okamoto, 525 P.2d
1125, 1128 (Haw. 1974). This privilege shields
all but the most guilty nonjudicial officials from
liability, but not from the imposition of a suit
itself. Towse, 647 P.2d at 702. The privilege is
the result of the Hawaii Supreme Court’s balancing
of competing interests. It protects the innocent
public servant’s pocketbook, yet it allows an
injured party to be heard. See Medeiros v. Kondo,
522 P.2d 1269, 1272 (Haw. 1974).
For a tort action to lie against a
nonjudicial government official, the injured
party must allege and demonstrate by clear
and convincing proof that the official was
motivated by malice and not by an otherwise
proper purpose. Towse, 647 P.2d at 702–03;
Medeiros, 522 P.2d at 1272. When a public
official is motivated by malice, and not by
an otherwise proper purpose, Hawaii law
provides that the cloak of immunity is lost
and the official must defend the suit the
same as any other defendant. Marshall v.
15
Univ. of Haw., 821 P.2d 937, 946 (Haw. Ct.
App. 1991), abrogated on other grounds by Hac
v. Univ. of Haw., 73 P.3d 46 (Haw. 2003).
The existence or absence of malice is
generally a question for the jury. Runnels,
525 P.2d at 1129. However, when the
existence or absence of malice is
demonstrated to the court via uncontroverted
affidavits or depositions, the court may rule
on the existence or absence of malice as a
matter of law. See id.
Edenfield v. Estate of Willets, Civ. No. 05–00418
SOM–BMK, 2006 WL 1041724, at *11–12 (D. Haw.
Apr. 14, 2006) (parallel citations omitted).
The Supreme Court of Hawai`i has held that
“the phrase ‘malicious or improper purpose’ should
be defined in its ordinary and usual sense.”
Awakuni v. Awana, 165 P.3d 1027, 1042 (Haw. 2007).
In Awakuni, the Supreme Court relied on Black’s
Law Dictionary, which defines “malicious” as
“‘[s]ubstantially certain to cause injury’ and
‘[w]ithout just cause or excuse’”; and defines
“malice” as “‘[t]he intent, without justification
or excuse, to commit a wrongful act[,]’ ‘reckless
disregard of the law or of a person’s legal
rights[,]’ and ‘[i]ll will; wickedness of heart.’”
Id. (quoting Black’s Law Dictionary 976–77 (8th
ed. 2004)).
Kosegarten v. Dep’t of the Prosecuting Att’y, 892 F. Supp. 2d
1245, 1264 (D. Hawai`i 2012) (alterations in Kosegarten)
(citation omitted).
Except in claims for defamation, “an actual
malice standard applies as to all tort claims.”
Id. at 1264-65.
“The applicable standard is whether Plaintiffs have met their
burden of proving [the defendants] were motivated by malice and
not by an otherwise proper purpose.”
Id. at 1265 (internal
citation and quotation marks omitted).
16
However, a plaintiff is
not required to “plead the word ‘malice’ in the complaint.
Under
the dismissal standard, all that is required is that the
plaintiff plead sufficient factual matter, accepted as true, to
state a plausible argument that the defendant acted with malice.”
Id.
With this framework in mind, the Court addresses each
defendant.
A.
Asher
The County Defendants argue Asher, in his official
capacity, is entitled to qualified immunity for claims arising
from a May 24, 2012 letter Asher sent to Plaintiff, which stated
Plaintiff’s hearing before the Administrative Review Board
(“ARB”) was postponed (“5/24/12 ARB Postponement Letter”).
Specifically, the County Defendants argue Plaintiff fails to
allege facts showing the 5/24/12 ARB Postponement Letter “was
sent with a malicious intent or with a reckless disregard for
Plaintiff’s constitutional rights.
To the contrary, the letter
was sent to notify Plaintiff of his constitutional right to
appear at a disciplinary hearing that had been postponed.”
[Substantive Joinder at 8.]
The County Defendants make no
attempt to reconcile this assertion with the 1/4/18 Order, in
which this Court concluded Plaintiff’s First Amended Complaint
plausibly alleged Asher’s sending of “the 5/24/12 ARB
Postponement Letter was part of an ongoing retaliatory scheme
using disciplinary hearings and investigations to retaliate
17
against Plaintiff because of his protected activity.”
295799, at *5.
2018 WL
Plaintiff’s allegations are sufficient “to state
a plausible argument that [Asher] acted with malice”; and
therefore, Asher, in his official capacity, is not entitled to
qualified immunity based on the pleadings.
F. Supp. 2d at 1265.
See Kosegarten, 892
The Substantive Joinder is denied to the
extent it seeks dismissal of Count IV against Asher, in his
official capacity, on qualified immunity grounds.
B.
Contrades
The 1/16/18 Order ruled “Plaintiff’s allegations
sufficiently allege that Contrades substantially assisted the
retaliatory scheme” against Plaintiff through his involvement in
various internal investigations and disciplinary proceedings
against Plaintiff.
2018 WL 443437, at *3.
In the Second Amended
Complaint, Plaintiff alleges Contrades performed administrative
functions consistent with the ordinary performance of his
official responsibilities, such as ordering investigations
against Plaintiff after receiving various tips alleging Plaintiff
committed wrongful acts.
See, e.g., Second Amended Complaint at
¶ 110 (after a report was made that Plaintiff committed animal
cruelty, “Chief Perry via Deputy Chief Contrades issued a memo to
Sergeant Miller requesting that [Miller] initiate an internal
investigation”).
Plaintiff’s factual allegations against
Contrades are insufficient “to state a plausible argument that
18
[Contrades] acted with malice.”
at 1265.
See Kosegarten, 892 F. Supp. 2d
Contrades is therefore entitled to qualified immunity
on the pleadings.
The Motion and Substantive Joinder are
therefore granted and Plaintiff’s claims against Contrades,
individually and in his official capacity, are dismissed.
At the hearing on the Motion, Plaintiff conceded he had
failed to plead malice sufficiently to defeat Contrades’s
entitlement to qualified immunity, but contended additional facts
could be pled sufficiently to state that Contrades acted with
malice.
It is at least arguably possible that Plaintiff can file
a third amended complaint curing his failure to sufficiently
allege malice, and therefore the dismissal on qualified immunity
grounds must be without prejudice.
CONCLUSION
On the basis of the foregoing, Contrades’s Motion to
Dismiss Plaintiff’s Second Amended Complaint Filed on February
15, 2018, filed March 14, 2018, and the County Defendants’
Substantive Joinder, filed March 21, 2018, are HEREBY GRANTED IN
PART AND DENIED IN PART.
The Motion is GRANTED insofar as Counts
II and IV against Contrades, in his individual capacity, are
DISMISSED, and DENIED insofar as the dismissal is WITHOUT
PREJUDICE.
The Substantive Joinder is GRANTED insofar as Count
IV against the County Defendants is DISMISSED, and DENIED insofar
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as the dismissal is WITHOUT PREJUDICE.
The Substantive Joinder
is DENIED in all other respects.
Plaintiff has until August 31, 2018 to file a third
amended complaint in accordance with this Order.
The Court
CAUTIONS Plaintiff that, if he fails to file his third amended
complaint by August 31, 2018, the claims dismissed without
prejudice in this Order will be dismissed with prejudice.
Plaintiff is only granted leave to address the defects in his
claims identified in this Order.
To the extent Plaintiff wishes
to make other changes, he must file a motion pursuant to Fed. R.
Civ. P. 15(a)(2).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 31, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARK N. BEGLEY VS. COUNTY OF KAUAI, ET AL; CIVIL 16-00350 LEKKJM; ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
AND SUBSTANTIVE JOINDER
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