Puana v. Kealoha
Filing
289
ORDER GRANTING IN PART AND DENYING IN PART: 211 DEFENDANT DEREK HAHN'S MOTION TO DISMISS; 216 DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS SECOND AMENDED COMPLAINT (ECF 207); 236 DEFENDANT MINH-HING "BOBBY" NGUY EN'S MOTION TO DISMISS SECOND AMENDED COMPLAINT [DOC. 207]. Signed by JUDGE LESLIE E. KOBAYASHI on 02/28/2022. (do)COURTS CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF)
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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
GERARD K. PUANA, RICKY L.
HARTSELL, AS TRUSTEE OF THE
FLORENCE M. PUANA TRUST;
CIV. NO. 16-00659 LEK-WRP
Plaintiffs,
vs.
KATHERINE P. KEALOHA, LOUIS M.
KEALOHA, MINH-HUNG NGUYEN, MINHHUNG "BOBBY" NGUYEN; DANIEL
SELLERS, NIALL SILVA, WALTER
CALISTRO, DRU AKAGI, JOHN
AND/OR JANE DOES 1-50, DEREK
WAYNE HAHN,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
THE MOTIONS TO DISMISS
Before the Court are: (1) Defendant Derek Hahn’s
(“Hahn”) Motion to Dismiss (“Hahn Motion”), filed on August 16,
2021; (2) Defendant City and County of Honolulu’s (“the City”)
Motion to Dismiss Second Amended Complaint (ECF 207) (“City
Motion”), filed on August 24, 2021; and (3) Defendant Minh-Hing
“Bobby” Nguyen’s (“Nguyen”) Motion to Dismiss Second Amended
Complaint [Doc. 207] (“Nguyen Motion”), filed on September 23,
2021 (collectively “the Motions”).
[Dkt. nos. 211, 216, 236.]
Plaintiffs Gerard K. Puana (“Puana”) and Ricky L. Hartsell as
Trustee of the Florence M. Puana Trust (collectively
“Plaintiffs”) filed their memoranda in opposition to the City
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Motion and the Hahn Motion on September 24, 2021 and their
memorandum in opposition to the Nguyen Motion on October 29,
2021.
[Dkt. nos. 238, 1 241, 263.]
Hahn and the City filed their
respective replies on October 1, 2021 and October 8, 2021.
[Dkt. nos. 251, 256.]
Nguyen did not file a reply.
The Hahn
Motion and the City Motion came on for hearing on October 15,
2021.
See Minutes, filed 10/15/21 (dkt. no. 260).
The Court
found the Nguyen Motion suitable for disposition without a
hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice
for the United States District Court for the District of Hawaii
(“Local Rules”).
no. 264).
See Entering Order, filed 11/9/21 (dkt.
The Motions are hereby granted in part and denied in
part for the reasons set forth below.
BACKGROUND
According to Plaintiffs, around January 2007,
Katherine Kealoha (“Katherine”), a Deputy Prosecuting Attorney
for the City at the time, approached Puana with an investment
opportunity.
[Second Amended Complaint for Damages (“Second
Amended Complaint”), filed 8/1/21 (dkt. no. 207), at ¶ 19.]
Puana is Katherine’s uncle.
Between February 2007 and October
Plaintiffs’ memorandum in opposition to the City Motion
includes a Cross-Motion for Partial Summary Judgment. This
Court has informed the parties that the motion for summary
judgment will be addressed separately from the instant Motions.
See Minute Order, filed 10/5/21 (dkt. no. 255).
1
2
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2008, Puana invested with Katherine.
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In December 2007, Puana
asked Katherine if his investments could be used as a down
payment to purchase a condominium (“the Greenwood Condo”), but
she told him the amount invested was not sufficient for a down
payment.
In January 2009, Katherine asked Puana to talk to
Florence Puana (“Florence”), Puana’s mother and Katherine’s
paternal grandmother, about seeking a reverse mortgage on
Florence’s house to fund the Greenwood Condo purchase and allow
Katherine and her husband Louis Kealoha (“Louis” and
collectively “the Kealohas”), who served as the Chief of Police
for the Honolulu Police Department (“HPD”) at the time, to
consolidate their personal bills and refinance a property.
In
the same month, Katherine obtained power of attorney from
Florence and became the Trustee of the Gerard K. Puana Revocable
Trust (“the Puana Trust”), in which she allegedly prepared and
executed a fraudulent trust document.
The document effectuating
the Puana Trust was notarized by a person named Allison LeeWong.
Plaintiffs allege Katherine used the name Allison Lee-
Wong as an alter ego to facilitate fraudulent activities.
Plaintiffs allege Puana never signed the Puana Trust document,
and it contained a list of assets that have never belonged to
Puana.
[Id. at ¶¶ 19–31.]
In October 2009, the reverse mortgage was recorded and
the funds, approximately $513,474, were deposited into an
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account controlled by Katherine.
[Id. at ¶ 32.]
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In the same
month, the Greenwood Condo deed, in Katherine’s name, was
recorded.
Katherine did not pay off the reverse mortgage as she
promised, and Florence lost her house as a result.
Plaintiffs
allege the Kealohas spent the funds from the reverse mortgage on
their lavish and extravagant lifestyle.
[Id. at ¶¶ 32, 34–35.]
In 2011, Puana became suspicious of Katherine and
asked her multiple times to return to him the money he invested,
and she refused.
Subsequently, the Kealohas began a campaign to
falsely implicate Puana in criminal activity.
The campaign
included Louis directing HPD Criminal Intelligence Unit (“CIU”)
officers to surveil Puana twenty-four hours a day.
On June 27,
2011, Puana was arrested for unauthorized entry into a dwelling
(“UED”) after stepping inside his neighbor’s house during an
argument over a parking spot.
Plaintiffs allege that, once
Puana was arrested, Katherine unlawfully entered his residence
with Nguyen and Defendant Daniel Sellers (“Sellers”), who were
CIU officers.
Katherine seized $15,000 in cash and other items.
On June 30, 2011, Puana was charged with UED in a case
prosecuted by the office where Katherine was then employed as a
Senior Deputy Prosecuting Attorney.
seventy-two days.
Puana was incarcerated for
During that time, Katherine told family
members his arrest was drug related and they should not post
4
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bail or assist him because she was handling the situation.
[Id.
at ¶¶ 48–56.]
Puana pleaded no contest to the UED charge, and he
received a deferred acceptance of his plea.
[Id. at ¶ 64.]
Around November 2013, Katherine directed personnel at the
prosecutor’s office to oppose Puana’s motion to dismiss his
deferred acceptance of no contest plea and to argue the court
should convert the deferred acceptance of no contest into a
felony conviction.
[Id. at ¶ 67.]
In March 2013, Plaintiffs sued Katherine in state
court for fraud and breach of fiduciary duty, amongst other
claims relating to the 2009 reverse mortgage.
counterclaim against Florence and Puana.
Katherine filed a
Plaintiffs allege
Katherine lied and committed perjury throughout that case.
On
February 12, 2015, the jury returned a verdict in favor of
Katherine and awarded her $658,787 in damages on her
counterclaim.
[Id. at ¶¶ 69–78.]
In June 2013, the Kealohas continued their campaign to
discredit Puana by staging the theft of their personal mailbox
to frame Puana.
[Id. at ¶ 85.]
Plaintiffs allege Katherine,
Louis, Nguyen, Sellers, and Hahn (who was also an HPD officer)
made false statements, fabricated evidence, and falsified
reports to implicate Puana in the theft of the mailbox.
Specifically, Plaintiffs allege: Nguyen and Louis falsely
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identified Puana as the person who stole the mailbox; Katherine
reported to the police that she could identify Puana from
surveillance video as the person stealing the mailbox; and Puana
was followed and investigated by police officers, including
Nguyen, Sellers, Hanh, Defendant Walter Calistro (“Calistro”),
Defendant Drew Akagi (“Akagi”), and Defendant Niall Silva
(“Silva”).
Puana was arrested and charged for destroying a
letter box or mail and indicted by a federal grand jury.
at ¶¶ 87–96.]
[Id.
Plaintiffs allege that, on December 4, 2014,
Louis testified at Puana’s federal criminal trial, and he
knowingly and deliberately testified falsely and revealed
prejudicial information before the jury, which caused a
mistrial.
On December 15, 2014, the federal charge against
Gerard Puana was dismissed with prejudice.
[Id. at ¶¶ 99–100.]
Plaintiffs allege that, in 2015 and 2016, the Honolulu
Police Commission (“Police Commission”) refused to open its own
investigation into Louis’s conduct related to the December 2014
mistrial.
On December 19, 2016, Louis received a target letter
from the United States Attorney’s Office informing him that he
was the target of a federal grand jury corruption investigation.
He was subsequently placed on paid leave.
[Id. at ¶¶ 104-06.]
Louis received a $250,000 severance and allowed to resign in
“good standing.”
[Id. at ¶¶ 107, 110.]
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Plaintiffs also allege that, in 2014 and 2015, the
City and County of Honolulu Ethics Commission’s (“Ethics
Commission”) Executive Director Charles Totto (“Totto”) had
seventeen separate investigations open regarding Louis and
Katherine’s misuse of City resources, conflicts of interest, and
abuse of their positions.
[Id. at ¶¶ 114–117.]
Plaintiffs
allege the Ethics Commission, Prosecuting Attorney Keith
Kaneshiro (“Kaneshiro”), and others frustrated the
investigations, which ultimately led to Totto’s removal from
investigating Louis and Katherine.
See id. at ¶¶ 118–23.
Plaintiffs further allege that, in 2016, Kaneshiro
made public statements in support of Katherine, criticized the
federal grand jury investigation into the crimes she was
ultimately convicted of, and expressed his belief in Katherine’s
innocence.
[Id. at ¶ 136.]
On December 16, 2016, Silva pled guilty to a felony.
He was originally charged with conspiring to obstruct justice
for his false statements, false testimony, and false reports
regarding the handling of the surveillance video which
purportedly showed Puana stealing the Kealohas’ mailbox.
As
charged in the felony, Silva conspired with Katherine, Nguyen,
Sellers, and Louis.
[Id. at ¶¶ 137-38.]
On October 19, 2017, Katherine, Louis, Hahn, and
Nguyen were indicted by a federal grand jury and charged with
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conspiring to violate Plaintiffs’ constitutional rights under
color of law, conspiring to alter, destroy, or conceal evidence,
conspiring to make false statements, conspiring to obstruct
justice, bank fraud, and identity theft.
[Id. at ¶ 139.]
In
March 2018, Katherine, Louis, Hahn, and Nguyen were charged in a
First Superseding Indictment.
On June 27, 2019, a jury found
Katherine, Louis, Hahn, and Nguyen guilty of: conspiring to
obstruct justice regarding the investigation and prosecution of
Puana for the purported stolen mailbox; obstructing and impeding
Puana’s criminal trial; and obstructing and impeding the
investigation which resulted in the charges brought against
them.
[Id. at ¶¶ 141–42.]
As part of their plea agreements in
their bank fraud and identity theft case, the Kealohas allegedly
admitted to stealing the proceeds from the reverse mortgage on
Florence’s house and spending it to support their lavish and
extravagant lifestyle.
[Id. at ¶¶ 143-45.]
On August 23, 2019, Plaintiffs filed their motion for
new trial in the state civil case regarding the 2009 reverse
mortgage, based on the newly discovered evidence produced at
trial in the criminal case against Katherine.
new trial was granted on September 13, 2019.
The motion for
[Id. at ¶¶ 79–80.]
Relevant to the instant Motions, Plaintiffs’ Second
Amended Complaint alleges: (1) the City violated Plaintiffs’
rights under the Fourth, Fifth, and Fourteenth Amendments of the
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United States Constitution and the corresponding rights
guaranteed by the State of Hawai`i Constitution (“Count I”);
(2) Nguyen and Hahn violated 18 U.S.C. § 1962(c) by engaging in
a pattern of racketeering activity (“civil RICO claims” and
“Count II”); (3) Nguyen and Hahn intentionally inflicted
emotional distress (“IIED”) on Plaintiffs (“Count III”); and
(4) Nguyen and Hahn defamed Plaintiffs (“Count IV”). 2
[Id. at
pgs. 38-41.]
DISCUSSION
I.
Hahn Motion
Hahn argues the civil RICO, IIED, and defamation
claims alleged against him should be dismissed because the
statute of limitations has expired, and the claims against him
in the Second Amended Complaint do not relate back to the First
Amended Complaint.
See Mem. in Supp. of Hahn Motion at 3–5.
Plaintiffs’ defamation and IIED claims against Hahn
have a two-year statute of limitations.
See Haw. Rev. Stat.
Although Plaintiffs, in the Second Amended Complaint,
allege generally that all the defendants are liable in their
official capacities for Count I, the parties stipulated that
only the City is the proper defendant for Count I, which appears
to be brought pursuant to 42 U.S.C. § 1983. See Stipulation to
Substitute City and County of Honolulu as Defendant for Official
Capacity Claims and Dismiss Official Capacity Claims Against
Individual Defendants with Prejudice and Order, filed 2/17/21
(dkt. no. 118). As such, to the extent that the Second Amended
Complaint alleges Count I against defendants other than the
City, the Court disregards such allegations.
2
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§§ 657-4, 657-7; see also Hale v. Haw. Publ’ns, Inc., 468 F.
Supp. 2d 1210, 1232 (D. Hawai`i 2006) (stating that Haw. Rev.
Stat. § 657-7 applies to IIED claims).
“The statute of
limitations for a civil RICO claim is four years.”
Moran v.
Bromma, 675 F. App’x 641, 644 (9th Cir. 2017) (citing Agency
Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156,
107 S. Ct. 2759, 97 L. Ed. 2d 121 (1987)).
The three claims are
governed by the “discovery rule,” i.e., a claim accrues when the
plaintiff knows or has reason to know of the injury.
See
Yamaguchi v. Queen’s Med. Ctr., 65 Haw. 84, 90, 648 P.2d 689,
693–94 (1982) (citation omitted) (stating that the discovery
rule determines when Hawai`i tort claims begin to accrue);
Tanaka v. First Hawaiian Bank, 104 F. Supp. 2d 1243, 1246 (D.
Hawai`i 2000) (stating “‘a civil RICO cause of action arises
when the plaintiff knows or should know that [he] has been
injured’” (alteration in Tanaka) (quoting Grimmett v. Brown, 75
F.3d 506, 512 (9th Cir. 1996))).
Plaintiffs do not allege precisely when they became
aware of their injuries.
Assuming Plaintiffs became aware of
their injuries when the federal theft charge against Puana was
dismissed on December 16, 2014, the statute of limitations
expired on December 16, 2016 for the IIED and defamation claims,
while the civil RICO claim’s statute of limitations expired on
10
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December 16, 2018. 3
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Plaintiffs filed their original complaint on
December 14, 2016, and Hahn was not named as a defendant at that
time.
See Complaint for Damages, filed 12/14/16 (dkt. no. 1).
Plaintiffs filed their First Amended Complaint, which added Hahn
as a defendant to the action, on September 3, 2020.
See First
Amended Complaint for Damages, filed 9/3/20 (dkt. no. 80).
Plaintiffs filed the Second Amended Complaint on August 1, 2021.
[Dkt. no. 207.]
The statute of limitations for Plaintiffs’
claims against Hahn expired by the time they filed the First
Amended Complaint.
Thus, Plaintiffs’ claims against Hahn are
time-barred, unless they relate back to the original complaint.
Federal Rule of Civil Procedure 15(c)(1) governs when
“[a]n amendment to a pleading relates back to the date of the
original pleading.”
It “incorporates the relation back rules of
the law of a state when that state’s law provides the applicable
statute of limitations and is more lenient.”
Butler v. Nat’l
Cmty. Renaissance of Cal., 766 F.3d 1191, 1200 (9th Cir. 2014).
Federal Rule of Civil Procedure 15(c), however, is more lenient
than Hawaii’s relation back rule.
See Fatai v. City & Cnty. of
Honolulu, Case No. 19-cv-00603-DKW-WRP, 2021 WL 1063790, at *6
Hahn states December 16, 2016 is the very latest the
statute of limitations could have expired for Plaintiffs’
claims, which is two years after the federal charges against
Gerard Puana were dismissed. See Mem. in Supp. of Hahn Motion
at 4. Plaintiffs do not appear to contest this.
3
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n.14 (D. Hawai`i Mar. 18, 2021); see also Haw. R. Civ. P. 15(c).
The Court therefore analyzes the relation-back issue under
Federal Rule of Civil Procedure 15(c).
This district court has stated:
With regard to adding defendants to an
amended filing, a plaintiff must meet a threepart test. A plaintiff must necessarily show:
(1) that the amendment arose out of the same
conduct, transaction, or occurrence set forth in
the original complaint; (2) that within 90 days
of the original complaint being filed, the newly
added defendants had notice of it; and (3) the
newly added defendants knew or should have known
that the action would have been brought against
them but for a mistake concerning the proper
party’s identity. Fed. R. Civ. P. 15(c); see
also Krupski v. Costa Crociere S.P.A., 560 U.S.
538, 545 (2010). The plaintiff has “the burden
of proving that the proposed defendant had actual
or constructive notice of a lawsuit.” Harlow v.
Chaffey Comm. Coll. Dist., 2019 WL 6520038, at *2
(C.D. Cal. June 28, 2019) (citation omitted).
Fatai, 2021 WL 1063790, at *6.
The parties do not dispute that the amendment arose
out the same conduct set forth in the original complaint.
Instead, the parties dispute whether (1) Hahn had notice of the
suit within 90 days after the suit was filed and (2) Hahn knew
or should have known that the action would have been brought
against him but for a mistake concerning the proper party’s
identity.
Plaintiffs fail to establish that Hahn had notice of
the suit.
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Plaintiffs rely on Korn v. Royal Caribbean Cruise
Line, Inc., 724 F.2d 1397 (9th Cir. 1984), and its progeny to
argue Hahn had notice of the suit because Hahn had “a sufficient
identity or community of interest” with Louis, Nguyen, and
Silva.
[Mem. in Opp. to Hahn Motion at 6.]
Plaintiffs allege
Hahn received constructive notice because, although Hahn was not
served with the original compliant, Louis, Nguyen, and Silva members of the same CIU as Hahn - were served with the original
complaint.
See id. at 7–8.
In Korn, the Ninth Circuit reversed
the denial of the plaintiff’s attempt to amend his original
complaint to name the proper defendant.
1401.
See Korn, 724 F.2d at
There, the plaintiff initially named as the defendant
Royal Caribbean Line, Inc, which was the marketing and sales
agent for the proper defendant, Royal Caribbean Cruise Line A/S.
See id. at 1398.
The Ninth Circuit held that there was
“sufficient community of interest” between the two entities to
impute knowledge of the suit from the original defendant to the
proper defendant because a third entity, which served as the
operating agent for the first two entities, had knowledge of the
suit.
See id. at 1401.
Specifically, correspondence addressed
to Royal Caribbean Line, Inc. was sent to a claims clerk for the
operating agent and the operating agent requested additional
information, including medical bills.
The operating agent also
reiterated to the plaintiff’s attorney that Royal Caribbean
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Line, Inc. was the proper party to name as a defendant although
it was not.
Id.
Korn is inapposite here because the facts in the
instant case are not analogous.
Other than pointing to Hahn’s
work connections with Louis, Nguyen, and Silva, Plaintiffs do
not allege facts to impute knowledge of the suit onto Hahn.
Without more, Plaintiffs fail to sufficiently allege Hahn had
notice of the suit.
The claims against Hahn were not timely
filed and, therefore, are dismissed.
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
(2007))).
However, the dismissal is without prejudice because
it may be possible for Plaintiffs to cure the defects by
amendment.
See Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102
(9th Cir. 2018) (“Dismissal with prejudice and without leave to
amend is not appropriate unless it is clear . . . that the
complaint could not be saved by amendment.” (citation and
quotation marks omitted)).
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II.
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Nguyen Motion 4
Nguyen argues the civil RICO, IIED, and defamation
claims alleged against him should be dismissed.
The Court
addresses each claim in turn.
A.
Civil RICO Claim
Nguyen argues Plaintiffs fail to allege both the
existence of an enterprise and Nguyen’s participation in a
pattern of racketeering activity.
Motion at 4–5.]
[Mem. in Supp. of Nguyen
Under 18 U.S.C. § 1962(c),
[i]t shall be unlawful for any person employed by
or associated with any enterprise engaged in, or
the activities of which affect, interstate or
foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful
debt.
The Ninth Circuit has stated:
“[T]o establish liability under § 1962(c) one
must allege and prove the existence of two
distinct entities: (1) a ‘person’; and (2) an
‘enterprise’ that is not simply the same ‘person’
referred to by a different name.” Cedric Kushner
Promotions, Ltd. v. King, 533 U.S. 158, 161, 121
S. Ct. 2087, 150 L. Ed. 2d 198 (2001); see also
Rae v. Union Bank, 725 F.2d 478, 481 (9th
Nguyen refers to his Motion as a motion to dismiss but
cites to Fed. R. Civ. P. 12(c). See, e.g., Nguyen Motion at 2.
Fed. R. Civ. P 12(c) governs a motion for judgment on the
pleadings. However, the standards for a motion to dismiss under
Fed. R. Civ. P. 12(b)(6) and a motion for judgment on the
pleadings under Fed. R. Civ. P. 12(c) are functionally
identical. See Cafasso v. Gen. Dynamics C4 Sys. Inc., 637 F.3d
1047, 1054 n.4 (9th Cir. 2011). Thus, the Court applies the
Iqbal standard in analyzing the Nguyen Motion.
4
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Cir.1984). The term “enterprise” is defined in
18 U.S.C. § 1961(4) as “any individual,
partnership, corporation, association, or other
legal entity, and any union or group of
individuals associated in fact although not a
legal entity.”
Living Designs, Inc. v. E.I. Dupont de Numours & Co., 431 F.3d
353, 361 (9th Cir. 2005) (alteration in Living Designs).
The
“expansive definition” of “enterprise” “is ‘not very
demanding.’”
United States v. Christensen, 828 F.3d 763, 780
(9th Cir. 2015) (quoting Odom v. Microsoft Corp., 486 F.3d 541,
548 (9th Cir. 2007) (en banc)).
“An associated-in-fact
enterprise . . . . has three elements: (1) a common purpose,
(2) an ongoing organization, and (3) a continuing unit.”
(citing Odom, 486 F.3d at 552).
Id.
Additionally, “liability
depends on showing that the defendants conducted or participated
in the conduct of the ‘enterprise’s affairs,’ not just their own
affairs.”
Cedric Kushner Promotions, 533 U.S. at 163 (emphases
in Cedric Kushner Promotions) (citation and some internal
quotation marks omitted).
Plaintiffs argue the enterprise in question is the
CIU.
See Mem. in Supp. of Nguyen Motion at 10.
Plaintiffs
allege members of the CIU began surveilling Puana in 2011.
[Second Amended Complaint at ¶ 50.]
Louis allegedly ordered CIU
officers to implicate Puana in the 2013 mailbox theft.
¶ 88.]
[Id. at
Members of the CIU allegedly falsified and fabricated
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evidence, which included Nguyen falsely identifying Puana as the
person who stole the Kealoha’s mailbox.
95.
See id. at ¶¶ 88-89,
In light of these alleged facts, Plaintiffs have
sufficiently alleged an enterprise because: (1) the CIU officers
identified in the Second Amended Complaint had a common purpose
of implicating Puana in the mailbox theft or otherwise
discrediting him; (2) the CIU was an ongoing organization in
that it was “a vehicle for the commission” of the alleged
conduct, see Odom, 486 F.3d at 552 (quotation marks and citation
omitted); and (3) the relevant CIU officers constituted a
continuing unit such that it existed long enough, and not in an
isolated manner, to engage in behavior consistent with its
purpose, see id. at 553.
Nguyen next argues Plaintiffs did not adequately
allege a pattern of racketeering activity.
“‘[R]acketeering
activity’ is any act indictable under several provisions of
Title 18 of the United States Code . . . .”
Turner v. Cook, 362
F.3d 1219, 1229 (9th Cir. 2004) (some citations omitted) (citing
18 U.S.C. § 1961(1)).
A “‘pattern of racketeering activity’
requires at least two acts of racketeering activity . . . .”
U.S.C. § 1961(5).
18
A “pattern” also “requires that the predicate
criminal acts be ‘related’ and ‘continuous.’”
Allwaste, Inc. v.
Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995) (quoting H.J. Inc. v.
Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S. Ct.
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2893, 2900–01, 106 L. Ed. 2d 195 (1989)).
“The element of
relatedness is the easier to define . . . .”
U.S. at 239.
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H.J. Inc., 492
Predicate criminal acts may be related if they
“have the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise are interrelated
by distinguishing characteristics and are not isolated events.”
Id. at 240 (quotation marks and citation omitted).
The element
of continuity, however, is more challenging to define.
In H.J. Inc., the Supreme Court observed
that the term “continuity” escapes strict
definition: “‘[c]ontinuity’ is both a closed- and
open-ended concept, referring either to a closed
period of repeated conduct or to past conduct
that by its nature projects into the future with
a threat of repetition.” [492 U.S.] at 241, 109
S. Ct. at 2902. “Closed-ended” continuity is
established by showing that related predicate
acts occurred over a “substantial period of
time.” Id. at 242, 109 S. Ct. at 2902. The
Court thus noted that “[p]redicate acts extending
over a few weeks or months and threatening no
future criminal conduct do not satisfy this
requirement,” and concluded that “Congress was
concerned in RICO with long-term criminal
conduct.” Id.
Where long-term criminal conduct cannot be
established, “open-ended” continuity may be
proved. Id. Open-ended continuity is the threat
that criminal conduct will continue into the
future. It is established by showing either that
the predicate acts “include a specific threat of
repetition extending indefinitely into the
future” or that the predicate acts were “part of
an ongoing entity’s regular way of doing
business.” Id.
The Court warned that “the precise methods
by which relatedness and continuity or its threat
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may be proved, cannot be fixed in advance with
such clarity that it will always be apparent
whether in a particular case a ‘pattern of
racketeering activity’ exists.” Id. at 243, 109
S. Ct. at 2903.
Allwaste, 65 F.3d at 1527 (some alterations in Allwaste).
Plaintiffs allege the racketeering activity here
“consists of the acts of obstruction under 18 U.S.C. § 1512(c).”
[Mem. in Opp. to Nguyen Motion. at 10.]
They further argue
those acts commenced in 2011 when Louis “assigned CIU officers
to follow and surveil Gerard Puana and continued into 2014 when
[Louis] committed perjury and caused a mistrial in [the federal
mailbox theft case against Puana].”
[Id.]
As to Nguyen,
Plaintiffs allege that, in 2011, Nguyen assisted Katherine in
unlawfully entering Puana’s residence after Puana was arrested
for the UED charge.
[Second Amended Complaint at ¶ 53.]
then allegedly joined the CIU in 2012.
[Id. at ¶ 45.]
Nguyen
As a
member of the CIU, Nguyen falsely identified Puana as the person
who stole the mailbox.
[Id. at ¶ 89.]
In October 2017, Nguyen
was indicted by a federal grand jury for conspiring with
Katherine, Louis, and Hahn to, among other things, alter,
destroy, or conceal evidence related to the 2013 mailbox theft.
[Id. at ¶ 139.]
Although Plaintiffs argue the racketeering activity
concerns obstruction in the 2013 mailbox theft case, they also
allege obstruction as to the 2011 UED case where Nguyen assisted
19
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Katherine with entering Puana’s residence.
PageID #:
Plaintiffs provide
scant facts on how assisting Katherine with entering Puana’s
residence violates 18 U.S.C. § 1512(c).
Section 1512(c)
provides that:
(c)
Whoever corruptly-(1) alters, destroys, mutilates, or
conceals a record, document, or other
object, or attempts to do so, with the
intent to impair the object’s integrity or
availability for use in an official
proceeding; or
(2) otherwise obstructs, influences, or
impedes any official proceeding, or attempts
to do so,
shall be fined under this title or imprisoned not
more than 20 years, or both.
Plaintiffs sufficiently allege that members of the
CIU, including Nguyen, violated § 1512(c) in the 2013 mailbox
theft case against Puana.
But, they do not allege how the
conduct stemming from the 2011 UED case violates § 1512(c).
Additionally, Plaintiffs allege Nguyen joined the CIU in 2012,
yet he assisted Katherine in 2011.
Thus, it is unclear under
Plaintiffs’ theory how Nguyen’s conduct can be attributable to
the enterprise if he was not a member of the CIU at that time.
If Nguyen’s conduct is not attributable to the enterprise, then
his conduct cannot serve as a predicate act of the enterprise.
See Cedric Kushner Promotions, 533 U.S. at 163.
20
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Plaintiffs’ civil RICO claim fails because they have not alleged
at least two predicate acts.
Even if Plaintiffs plausibly allege two predicate
acts, their civil RICO claim still fails because the allegations
concerning the element of continuity are insufficient.
Plaintiffs essentially allege a single scheme with a single
victim - i.e., to discredit Puana or implicate him in criminal
activity.
“[W]hen a plaintiff alleges only a single scheme with
a single victim it cuts against a finding of both closed-ended
as well as open-ended continuity.”
Metaxas v. Lee, 503 F. Supp.
3d 923, 941 (N.D. Cal. 2020) (citing Religious Tech. Ctr. v.
Wollersheim, 971 F.2d 364, 365-67 (9th Cir. 1992)).
This is
particularly true “in the context of open-ended continuity,”
because “a criminal scheme with a singular goal poses no threat
of continuing criminal activity once that goal is achieved.”
Id. (citation omitted).
In general, it is difficult to discern a
“pattern” of criminal activity where the alleged
conduct derives from a single wrong directed at a
single victim. The case at bar contrasts with
paradigmatic RICO cases involving multiple acts
against multiple victims. See, e.g., H.J. Inc.,
492 U.S. at 249-50, 109 S. Ct. 2893 (holding that
various plaintiff-victims alleged a pattern of
racketeering activity against defendants who paid
and received “numerous bribes, in several
different forms,” “over at least a 6-year
period”); Allwaste, 65 F.3d at 1529 (ruling that
pattern requirement was satisfied where
defendants demanded kickbacks from four victims
and where “there [was] nothing to suggest that
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they would have ceased” because the scheme was
“not connected to the consummation of any
particular transaction”).
Id. at 944 (alteration in Metaxas).
Here, open-ended continuity is not plausibly alleged
because the CIU’s single scheme against Puana does not indicate
a threat of continuing criminal activity once it achieved its
goal of implicating Puana in the mailbox theft.
Closed-ended
continuity is also not plausibly alleged because the CIU
officers’ acts of fabricating evidence and falsely identifying
Puana as the mailbox thief “were a part of, and dependent upon,
the core act of” implicating Puana in the mailbox theft –
suggesting “a single wrong directed at a single victim.”
See
id.
Although close-ended continuity may be found when “a
series of related predicates extend[] over a substantial period
of time,” see H.J. Inc., 492 U.S. at 242, Plaintiffs do not
plausibly allege that the scheme to implicate Puana in the
mailbox theft extended over a substantial period.
The Kealohas
staged the mailbox theft on June 21, 2013 and Nguyen falsely
identified Puana the next day.
¶¶ 85, 89.
See Second Amended Complaint at
Puana was indicted on July 1, 2013.
[Id. at ¶ 96.]
Such a short amount of time forecloses a finding of close-ended
continuity.
See H.J. Inc., 492 U.S. at 242 (“Predicate acts
extending over a few weeks or months and threatening no future
22
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criminal conduct do not satisfy this requirement[.]”).
Plaintiffs argue the related acts extended to December 4, 2014
when Louis testified at Puana’s federal criminal trial.
Mem. in Opp. to Nguyen Motion at 10.
See
Plaintiffs’ argument is
not convincing because they fail to articulate how Louis’s
conduct is attributable to Nguyen.
Accordingly, Plaintiffs fail
to state a plausible civil RICO claim against Nguyen, and the
claim must be dismissed.
But, because amendment may cure the
claim’s defects, the dismissal is without prejudice.
B.
IIED Claim
“[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, 198 P.3d 666, 692 (2008)
(internal quotation marks and citation omitted).
“An IIED claim
‘requires conduct exceeding all bounds usually tolerated by
decent society and which is of a nature especially calculated to
cause, and does cause, mental distress of a very serious kind.’”
You v. Longs Drugs Stores Cal., LLC, 937 F. Supp. 2d 1237, 1259
(D. Hawai`i 2013) (quoting Hac v. Univ. of Haw., 102 Hawai`i 92,
106, 73 P.3d 46, 60 (2003)).
Plaintiffs point to two acts for their IIED claim
against Nguyen: (1) Nguyen assisting Katherine with entering
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Puana’s residence in 2011, which resulted in Katherine allegedly
stealing $15,000; and (2) Nguyen falsely identifying Puana as
the person who stole the Kealoha’s mailbox.
Nguyen Motion at 12.]
[Mem. in Opp. to
Plaintiffs’ allegations concerning Nguyen
assisting Katherine with entering Puana’s residence are
insufficient for a plausible IIED claim.
Plaintiffs do not
allege that Nguyen knew Katherine was going to seize the money
or intended to assist her for the purpose of seizing the money.
Moreover, Plaintiffs do not allege Nguyen entered Puana’s
residence.
In fact, the Second Amended Complaint does not
provide how Nguyen assisted Katherine with entering the
premises.
Without such factual allegations, Plaintiffs fail to
allege a plausible IIED claim against Nguyen related to his
conduct in 2011.
Thus, that claim is dismissed but, because
amendment may cure the claim’s defects, the dismissal is without
prejudice.
However, Plaintiffs plausibly allege an IIED claim
related to Nguyen falsely identifying Puana as the mailbox
thief.
First, Plaintiffs allege Nguyen intentionally made the
false identification to implicate Puana in the mailbox theft.
See Second Amended Complaint at ¶¶ 88–89, 95.
Second, Nguyen
falsely identifying Puana as the mailbox thief is sufficiently
outrageous because Nguyen, a police officer entrusted with
considerable authority, abused his power to frame Puana in a
24
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crime he did not commit.
PageID #:
See Young, 119 Hawai`i at 425, 198
P.3d at 688 (“The extreme and outrageous character of the
conduct may arise from an abuse by the actor of a position, or a
relation with the other, which gives him actual or apparent
authority over the other, or power to affect his interests.”
(quotation marks and citation omitted)).
Third, Plaintiffs
allege Nguyen’s conduct caused Puana to suffer from “enormous
emotional distress, worry, and anxiety.”
Complaint at ¶ 151.]
[Second Amended
The Nguyen Motion is therefore denied as
to this claim.
C.
Defamation Claim
To plead a defamation claim under Hawai`i law, a
plaintiff must allege:
(a) a false and defamatory statement concerning
another;
(b) an unprivileged publication to a third
party;
(c) fault amounting at least to negligence on
the part of the publisher [actual malice where
the plaintiff is a public figure]; and
(d) either actionability of the statement
irrespective of special harm or the existence of
special harm caused by the publication.
Nakamoto v. Kawauchi, 142 Hawai`i 259, 270, 418 P.3d 600, 611
(2018) (alteration in Nakamoto) (citation omitted).
allege a plausible defamation claim.
25
Plaintiffs
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“[U]nder Hawaii law, statements that ‘impute to a
person the commission of a crime’ are defamatory per se.”
Tuomela v. Waldorf-Astoria Grand Wailea Hotel, Civ. No. 20-00117
JMS-RT, 2021 WL 233695, at *4 (D. Hawai`i Jan. 22, 2021)
(quoting Isaac v. Daniels, 2018 WL 1903606, at *6 (D. Haw.
Mar. 20, 2018)).
Plaintiffs allege such a statement because
they allege Nguyen falsely identified Puana as the mailbox
thief. 5
Plaintiffs argue the statement was published because it
was made “to others which resulted in Gerard Puana’s arrest and
an indictment being secured against him.”
Nguyen Motion at 13.]
[Mem. in Opp. to
Although Plaintiffs do not precisely
allege the “others” to whom Nguyen made the identification, they
allege the statement was used as evidence to implicate Puana,
including in reports.
See Second Amended Complaint at ¶¶ 88–89.
Statements made to police officers or contained in police
reports can constitute as publication for purposes of a
defamation claim.
Cf. Tuomela, 2021 WL 233695, at *5 (denying
the motion for judgment on the pleadings as to a defamation
It is unclear whether Nguyen made the identification
orally or in writing. It is irrelevant for this discussion,
however, because “Hawaii views claims for slander and libel
under the defamation rubric.” See McNally v. Univ. of Haw., 780
F. Supp. 2d 1037, 1058 (D. Hawai`i 2011) (citing Bauernfiend v.
AOAO Kihei Beach Condominiums, 99 Hawai`i 281, 282 n.2, 54 P.3d
452 n.2, 453 (Haw. 2002)) (some citations omitted).
5
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claims based on statements, but noting the plaintiff would have
the burden of proving the qualified privilege was abused). 6
Finally, because Plaintiffs plausibly allege
defamation per se, they do not need to allege special damages.
See Isaac v. Daniels, CIVIL NO. 16-00507 DKW-RLP, 2018 WL
1903606, at *6 (D. Hawai`i Mar. 30, 2018), report and
recommendation adopted, 2018 WL 1902543 (Apr. 20, 2018).
Thus,
Plaintiffs plausibly allege a defamation claim and, therefore,
the Nguyen Motion is denied as to this claim.
D.
Summary
Because Plaintiffs sufficiently allege (1) an IIED
claim against Nguyen relating to his false identification of
Puana and (2) a defamation claim against Nguyen relating to his
false identification of Puana, the Nguyen Motion is denied as to
those claims.
However, the Nguyen Motion is granted, insofar as
Plaintiffs’ civil RICO and IIED claims against Nguyen relating
to his 2011 conduct in assisting Katherine with entering Puana’s
residence are dismissed.
The dismissals of those claims are
without prejudice because it is arguably possible to cure the
defects in those claims by amendment.
Nguyen does not raise the issue of whether Nguyen’s
statements implicating Puana were privileged. Thus, the Court
does not address whether a qualified privilege applies here.
6
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III. The City Motion
Plaintiffs allege § 1983 claims against the City
stemming from three events: (1) the 2009 incident where the
Kealohas stole the proceeds from a reverse mortgage belonging to
Florence; (2) the 2011 incident where Puana was arrested,
charged, and pled no contest to UED; and (3) the 2013 incident
where Puana was charged with mailbox theft.
The City argues the
§ 1983 claims regarding the 2009 and 2011 incidents should be
dismissed with prejudice because they are barred by the statute
of limitations.
The City further argues the § 1983 claim
concerning the 2013 mailbox theft charge should be dismissed
with prejudice because Plaintiffs do not sufficiently allege
municipal liability.
The Court addresses each basis for
Plaintiffs’ § 1983 claim in turn. 7
Plaintiffs appear to allege the City violated Plaintiffs’
rights under the Hawai`i Constitution, but Plaintiffs do not
cite to any provisions of the Hawai`i Constitution to support
their claim. To the extent that Plaintiffs bring § 1983 claims
based on alleged violations of the Hawai`i Constitution, those
claims “fail because state constitutional claims are not covered
by Section 1983.” Gonzalez v. Okagawa, Civil No. 12-00368 RLP,
2013 WL 2423219, at *9 (D. Hawai`i June 4, 2013) (some citations
omitted) (citing Moreland v. Las Vegas Metro. Police Dep’t, 159
F.3d 365, 371 (9th Cir. 1998)). To the extent that Plaintiffs
bring claims directly under the Hawai`i Constitution, this Court
“declines to infer or create such a cause of action,” because
“Plaintiff[s] do[] not offer any legal authority that such an
action is cognizable.” See id. at *10.
7
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A.
PageID #:
Section 1983 Claim Arising from 2009 Reverse Mortgage
Plaintiffs bring a § 1983 claim against the City under
the theory that Katherine prevented Florence from enjoying
meaningful access to the courts when Katherine concealed
information, lied in depositions and at trial, and created false
documents relating to the 2009 reverse mortgage civil case.
See
Second Amended Complaint at ¶ 70.
Plaintiffs and the City both address the issue of
whether equitable estoppel applies to this claim.
However, the
dispute is academic because Plaintiffs’ claim is not ripe for
judicial consideration.
“The Supreme Court held long ago that
the right of access to the courts is a fundamental right
protected by the Constitution.”
Delew v. Wagner, 143 F.3d 1219,
1222 (9th Cir. 1998) (citing Chambers v. Baltimore & Ohio R.R.
Co., 207 U.S. 142, 148, 28 S. Ct. 34, 35, 52 L. Ed. 143 (1907)).
To prevail on this claim, Plaintiffs must allege Katherine’s
“cover-up violated their right of access to the courts by
rendering ‘any available state court remedy ineffective.’”
See
id. at 1222–23 (emphasis added) (quoting Swekel v. City of River
Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997)).
Plaintiffs state their motion for a new trial in the
2009 reverse mortgage civil case was granted because they
presented evidence that Katherine committed fraud upon the state
court.
See Second Amended Complaint at ¶ 80.
29
Because the
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motion for a new trial was granted, Plaintiffs have an available
state remedy – to retry the case.
Therefore, the underlying
litigation over the 2009 reverse mortgage has not concluded.
In
other words, Plaintiffs “cannot yet show the extent to which
they were injured as a result of [Katherine’s] alleged
misconduct.”
See Madrigal v. City of Santa Maria, No.CV 10-4479
PSG (VBKx), 2011 WL 486559, at *6 (C.D. Cal. Feb. 7, 2011) (some
citations omitted) (citing Morales v. City of Los Angeles, 214
F.3d 1151, 1154–55 (9th Cir. 2000)).
Accordingly, Plaintiffs’
§ 1983 access-to-courts claim stemming from the 2009 reverse
mortgage case is dismissed without prejudice.
This claim is not
ripe for judicial consideration “unless and until [the state]
proceedings are concluded adversely to Plaintiffs.”
See id.
(footnote omitted).
B.
Section 1983 Claim Arising from 2011 UED Conviction
Although the Second Amended Complaint does not clearly
allege the constitutional violation arising from Puana’s 2011
UED conviction, Plaintiffs argue that Katherine abused her
position as a deputy prosecutor, which denied Puana’s right to
adequate, effective, and meaningful access to the courts.
Mem. in Opp. to City Motion at 17–18.
See
Specifically, Plaintiffs
allege that, after Puana was arrested and transported from the
scene, Katherine unlawfully entered Puana’s residence and seized
$15,000 in cash.
Puana was allegedly unable to pay for his bail
30
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without the cash that was seized.
¶¶ 54, 57.]
PageID #:
[Second Amended Complaint at
Plaintiffs also allege that, between June 27, 2011
and September 6, 2011, Katherine used her position to have the
sheriffs transport Puana to state court so she could meet with
him and attempt to convince him that his UED case could be
favorably resolved if he enrolled in a drug treatment program.
[Id. at ¶¶ 58-59.]
Around November 2013, Katherine also
directed personnel at the prosecutor’s office to (1) oppose
Puana’s motion to dismiss his deferred acceptance of no contest
plea and (2) argue the court should convert Puana’s deferred
acceptance of no contest plea into a felony conviction.
[Id. at
¶67.]
Thus, it appears that Plaintiffs assert a § 1983
access-to-courts claim.
The City argues the statute of
limitations has expired on this claim and equitable estoppel is
not warranted.
The Court agrees.
The relevant statute of
limitations for claims brought under § 1983 is the forum state’s
statute of limitations for personal injury actions.
Bird v.
Dep’t of Hum. Servs., 935 F.3d 738, 743 (9th Cir. 2019)
(citation omitted).
The Hawai`i statute of limitations for
personal injury actions is two years.
Haw. Rev. Stat. § 657-7.
Although Hawai`i law determines the limitations period, federal
law determines when a civil rights claim accrues.
Bird, 935
F.3d 743 (quoting Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.
31
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2001)).
PageID #:
Under federal law, the “discovery rule” typically
governs the accrual of § 1983 claims.
Id. (citations omitted).
Plaintiffs do not allege when they knew or had reason
to know of the alleged constitutional violations stemming from
the 2011 UED conviction.
However, it appears Puana knew in 2011
that he could not post bail and that Katherine attempted to
enroll him in a drug treatment program.
Complaint at ¶¶ 57–58.]
[Second Amended
Thus, to the extent that Plaintiffs
allege a violation of Puana’s right to meaningful access to
courts based on this conduct, the statute of limitations for
this claim expired sometime in 2013.
Although Plaintiffs do not
allege when Puana knew that prosecuting attorneys attempted to
change his deferred acceptance of his no contest plea into a
felony conviction, Puana had reason to know in November 2013
because the prosecutors argued for the change in court. 8
at ¶ 67.
Plaintiffs do not contend otherwise.
See id.
Accordingly, to
the extent that Plaintiffs allege a violation of Puana’s right
to meaningful access to courts based on this conduct, the
statute of limitations expired on November 30, 2015, at the
latest.
Because Plaintiffs did not file their original
complaint until December 14, 2016, the access-to-courts claim
associated with the UED conviction is time-barred.
Plaintiffs do not allege that Puana’s deferred acceptance
of his no contest plea was changed into a felony conviction.
8
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Plaintiffs argue the claim is timely because it is
equitably estopped.
This Court has stated:
Fraudulent concealment, also termed “equitable
estoppel,” tolls the statute of limitations when
there is “active conduct by a defendant, above
and beyond the wrongdoing upon which the
plaintiff’s claim is filed, to prevent the
plaintiff from suing in time.” Guerrero v.
Gates, 442 F.3d 697, 706 (9th Cir. 2006)
(internal citation and quotation marks omitted).
Where equitable tolling is based on fraudulent
concealment (i.e., equitable estoppel), the
conduct constituting fraudulent concealment must
be plead with the particularity required by
Federal Rule of Civil Procedure 9(b). Id.; see
also Stejic v. Aurora Loan Services, LLC, 2009 WL
4730734, at *4 (D. Ariz. 2009). To meet the
pleading standard required by Rule 9(b), a
plaintiff “must state the time, place and
specific content of the false representations as
well as the identities of the parties to the
misrepresentation.” Alan Neuman Productions,
Inc. v. Albright, 862 F.2d 1388, 1393 (9th Cir.
1988) (internal citation omitted).
Molina v. OneWest Bank, FSH, 903 F. Supp. 2d 1008, 1023 (D.
Hawai`i 2012) (citation omitted).
A plaintiff must allege the
following elements of equitable estoppel: “(1) knowledge of the
true facts by the party to be estopped, (2) intent to induce
reliance or actions giving rise to a belief in that intent,
(3) ignorance of the true facts by the relying party, and
(4) detrimental reliance.”
Est. of Amaro v. City of Oakland,
653 F.3d 808, 813 (9th Cir. 2011) (quoting Bolt v. United
States, 944 F.2d 603, 609 (9th Cir. 1991)).
“Additionally, a
party asserting equitable estoppel against the government must
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also establish that (1) the government engaged in affirmative
misconduct going beyond mere negligence; (2) the government’s
wrongful acts will cause a serious injustice; and (3) the
public’s interest will not suffer undue damage by imposition of
estoppel.”
Baccei v. United States, 632 F.3d 1140, 1147 (9th
Cir. 2011) (citations omitted).
Plaintiffs do not allege either Katherine or the City
engaged in active conduct that prevented Plaintiffs from filing
this claim.
Plaintiffs allege the City engaged in “affirmative
acts,” but, as Plaintiffs readily admit, those alleged acts were
related to the 2009 reverse mortgage civil case – not the 2011
UED conviction.
See Mem. in Opp. to City Motion at 18.
Because
Plaintiffs do not allege the City engaged in affirmative
misconduct preventing Plaintiffs from filing their claim related
to the 2011 UED conviction, their § 1983 claim must be
dismissed.
The dismissal is without prejudice, however, because
it may be possible to cure the defects through amendment.
C.
Section 1983 Claims Arising
from 2013 Mailbox Theft Charge
As an initial matter, Plaintiffs allege the City is
liable for two constitutional violations related to the mailbox
theft prosecution.
First, they allege the City is liable for
the violation of Puana’s right to enjoy meaningful access to the
courts.
Second, they argue the City is liable for the malicious
34
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prosecution of Puana.
PageID #:
As to the first claim, “[c]laims for the
denial of access to the courts may arise from the frustration or
hinderance of a ‘litigating opportunity yet to be gained’
(forward-looking claim) or from the loss of a suit that cannot
now be tried (backward-looking claim).”
Davies v. Heick, CIV
NO. 20-00173 LEK-RT, 2020 WL 2308641, at *3 (D. Hawai`i May 8,
2020) (quoting Christopher v. Harbury, 536 U.S. 403, 412–15
(2002)).
Plaintiffs do not allege a forward-looking claim or a
backward-looking claim related to the 2013 mailbox theft
prosecution.
That is, they do not allege Louis, Katherine, or
any of the CIU officers prevented or frustrated Puana from
pursing “future litigation.”
See Christopher, 536 U.S. at 415.
Plaintiffs also do not allege a loss of a suit that cannot now
be tried.
Nor can they because Puana’s 2013 mailbox theft
charge was dismissed with prejudice.
Complaint at ¶ 100.
See Second Amended
Ultimately, Plaintiffs fail to allege an
“underlying cause of action and its lost remedy.”
Christopher, 536 U.S. at 416 (citation omitted).
See
Accordingly,
Plaintiffs’ access-to-courts claim related to the 2013 mailbox
theft prosecution is dismissed.
Because amendment may
potentially cure the claim’s defects, the dismissal is without
prejudice.
Next, the City argues Plaintiffs’ § 1983 malicious
prosecution claim should be dismissed because Plaintiffs fail to
35
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plausibly allege municipal liability.
PageID #:
The Court first addresses
whether Plaintiffs plausibly allege municipal liability, then it
addresses whether Plaintiffs plausibly allege a malicious
prosecution claim.
A section 1983 plaintiff may establish
municipal liability in one of three ways. First,
the plaintiff may prove that a city employee
committed the alleged constitutional violation
pursuant to a formal governmental policy or a
“longstanding practice or custom which
constitutes the ‘standard operating procedure’ of
the local governmental entity.” Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct.
2702, 2723, 105 L. Ed. 2d 598 (1989) (Jett)
(internal quotation omitted); accord Monell [v.
Dep’t of Soc. Servs.], 436 U.S. [658,] 690–91, 98
S. Ct. [2018,] 2035–36 [(1978)]. Second, the
plaintiff may establish that the individual who
committed the constitutional tort was an official
with “final policy-making authority” and that the
challenged action itself thus constituted an act
of official governmental policy. See Pembaur v.
City of Cincinnati, 475 U.S. 469, 480–81, 106 S.
Ct. 1292, 1298–99, 89 L. Ed. 2d 452 (1986)
(Pembaur). Whether a particular official has
final policy-making authority is a question of
state law. See Jett, 491 U.S. at 737, 109 S. Ct.
at 2723; City of St. Louis v. Praprotnik, 485
U.S. 112, 123–24, 108 S. Ct. 915, 924, 99 L. Ed.
2d 107 (1988) (plurality opinion) (Praprotnik).
Third, the plaintiff may prove that an official
with final policy-making authority ratified a
subordinate’s unconstitutional decision or action
and the basis for it. See Praprotnik, 485 U.S.
at 127, 108 S. Ct. at 926.
Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)
(some citations omitted), overruled on other grounds by Castro
v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016).
36
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Here, Plaintiffs do not allege the purported
constitutional violation was committed pursuant to a formal
government policy or longstanding practice or custom.
Instead,
Plaintiffs argue the City is liable because an official with
final policymaking authority either committed the constitutional
violation or ratified a subordinate’s unconstitutional actions
and the basis for it.
1.
See Mem. in Opp. to City Motion at 22-24.
Whether an Official with Final Policymaking
Authority Committed the Constitutional Violation
“Municipal liability attaches only where the
decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.
The fact that a
particular official . . . has discretion in the exercise of
particular functions does not, without more, give rise to
municipal liability based on an exercise of that discretion.”
Pembaur, 475 U.S. at 481–82 (footnote and citation omitted).
“Whether an official has final policymaking authority is a
question for the court to decide based on state law.”
Christie
v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (citing Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct. 2702,
105 L. Ed. 2d 598 (1989)).
Plaintiffs only allege Louis was an official with
final policymaking authority who committed a constitutional
violation.
See Second Amended Complaint at ¶ 15.
37
“As to
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matters of police policy, the chief of police under some
circumstances may be considered the person possessing final
policy-making authority.”
Trevino v. Gates, 99 F.3d 911, 920
(9th Cir. 1996) (citing Larez v. City of Los Angeles, 946 F.2d
630, 646 (9th Cir. 1991)).
Under Haw. Rev. Stat. § 52D-3,
“[t]he chief of police shall have the powers and duties as
prescribed by law, the respective county charter, and as
provided by this chapter.”
Section 6-1601 of the Revised
Charter of the City and County of Honolulu 1973 (Amended 2017
Edition) (“City Charter”) states “[t]he chief of police shall be
the administrative head of the police department.”
City Charter
§ 6-1604 governs the powers, duties, and functions of the chief
of police.
“The chief of police shall . . . detect[] and arrest
. . . offenders” and “[t]rain, equip, maintain and supervise the
force of police officers.”
City Charter § 6-1604(a), (b).
Although the “chief [of police] shall serve at the pleasure of
the police commission,” City Charter § 6-1603(1), “neither the
[police] commission nor its members shall interfere in any way
with the administrative affairs of the department,” City Charter
§ 6-1606(h).
Plaintiffs plausibly allege Louis had final
policymaking authority as the police chief to direct the other
police officer defendants to investigate and implicate Puana in
the mailbox theft.
Plaintiffs allege that, under Louis’s
38
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orders: (1) Nguyen falsely identified Puana as the person who
stole the mailbox; (2) Calistro and Akagi, who were originally
assigned to HPD’s Homicide Division, were reassigned to
investigate the mailbox theft; and (3) Hahn, Sellers, Nguyen,
Silva, Calistro, and Akagi mishandled evidence, fabricated
evidence, falsified reports, and otherwise failed to perform
their normal duties in a professional manner.
Amended Complaint at §§ 88–89, 94–95.
See Second
Louis’s alleged orders to
investigate and implicate Puana in the mailbox theft fell within
the purview of the chief of police’s authority - authority
beginning and ending with him.
Put differently, once Louis made
the alleged orders, no one – not even the police commission –
could overrule his orders.
The City states Louis did not possess final
policymaking authority as to his alleged actions because his
actions were in direct conflict with his authority to enforce
the laws.
See Mem. in Supp. of City Motion at 13.
Specifically, the City contends that, because the City Charter
required Louis to be responsible for the preservation of the
peace and protection of the rights of persons and property, his
actions violated the City Charter and, therefore, the City
cannot be held liable.
untenable.
[Id. at 13-14.]
The City’s position is
Under the City’s view, any illegal act by an
official would, in effect, preclude municipal liability because
39
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the acts necessarily contravene the law.
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Additionally, a
municipality could shield itself from liability for the
constitutional violations of its officials by implementing broad
policy statements forbidding illegal acts.
Such a position
would defeat the intended purpose of § 1983.
Furthermore, the City relies on Roe v. City of
Waterbury, 542 F.3d 31 (2d Cir. 2008), to argue that it is not
liable for Louis’s conduct.
[City Reply at 11-13.]
In Roe, the
Second Circuit held that the City of Waterbury was not liable
for the mayor’s sexual abuse of a minor because such actions
“[were] not made for practical or legal reasons and [were] not
in any way related to the City[ of Waterbury’s] interests.”
Roe, 542 F.3d at 38 (internal quotation marks omitted).
The
Second Circuit also held that the mayor “acted neither pursuant
to nor within the authority delegated to him when he committed
the acts of sexual abuse.”
binding on this Court.
Id. at 41.
First, Roe is not
Second, the reasoning in Roe does not
necessarily conflict with this Court’s ruling.
Here, Plaintiffs
adequately allege Louis acted both pursuant to and within the
authority delated to him as the chief of police when he directed
officers to investigate Puana.
See Second Amended Complaint at
¶¶ 13–15, 88–89, 94–95; see also City Charter § 6-1604(b).
Also, unlike in Roe where the mayor’s sexual abuse of a minor
was not related to the City of Waterbury’s interests and,
40
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instead, was “to advance a purely personal agenda,” Roe, 542
F.3d at 41, in the instant case Louis’s conduct was conceivably
related to the City’s interests insofar as its policing power
was invoked to investigate an allege crime and to arrest a
suspect.
Regardless, Pembaur supports the ruling that
Plaintiffs have plausibly alleged that Louis acted with final
policymaking authority in ordering officers to investigate and
implicate Puana in the mailbox theft.
In Pembaur, the United
States Supreme Court held that “municipal liability under § 1983
attaches where—and only where—a deliberate choice to follow a
course of action is made from among various alternatives by the
official or officials responsible for establishing final policy
with respect to the subject matter in question.”
483–84 (citation omitted).
475 U.S. at
The Supreme Court concluded that the
municipality was liable for the conduct of the country
prosecutor because the county prosecutor, who possessed final
decision-making authority to establish county policy, directed
law enforcement to forcibly enter the plaintiff’s premises.
at 484–85.
Id.
Similarly, Louis, as the final decision-making
authority concerning the administration of HPD, allegedly chose
a deliberate course of action which included reassigning
officers to investigate Puana, diverting police resources to
investigate Puana, and otherwise ordering officers to implicate
41
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Puana in the mailbox theft.
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Accordingly, Plaintiffs have
sufficiently alleged that Louis acted with final policymaking
authority in directing officers to investigate and implicate
Puana in the mailbox theft.
2.
Ratification
The “ratification test is satisfied if a plaintiff can
prove that an official with final policy-making authority
ratified a subordinate’s decision or action and the basis for
it.”
Trevino, 99 F.3d 911, 920 (9th Cir. 1996) (citations and
internal quotation marks omitted).
“The policymaker must have
knowledge of the constitutional violation and actually approve
of it.”
Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004).
“[A]
policymaker’s mere refusal to overrule a subordinate’s completed
act does not constitute approval.”
(citations omitted).
Christie, 176 F.3d at 1239
The Supreme Court has stated:
As our § 1983 municipal liability
jurisprudence illustrates, however, it is not
enough for a § 1983 plaintiff merely to identify
conduct properly attributable to the
municipality. The plaintiff must also
demonstrate that, through its deliberate conduct,
the municipality was the “moving force” behind
the injury alleged. That is, a plaintiff must
show that the municipal action was taken with the
requisite degree of culpability and must
demonstrate a direct causal link between the
municipal action and the deprivation of federal
rights.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404
(1997) (emphasis in Brown).
In other words, a § 1983 plaintiff
42
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must establish “both but for and proximate causation.”
PageID #:
See Tsao
v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012)
(citation omitted).
Plaintiffs allege the Police Commission, HPD, the
Ethics Commission, Kaneshiro, Corporation Counsel Donna Leong
(“Leong”), and Mayor Kirk Caldwell ratified either Katherine or
Louis’s unconstitutional actions.
See Second Amended Complaint
at ¶¶ 110, 129, 136, 159.
As to the Police Commission, Plaintiffs allege that,
even though the Ethic’s Commission had ongoing investigations
into Louis, the Police Commission: (1) reappointed Louis to a
five-year term in February 2014; (2) gave Louis an “exceeds
expectations” rating in his annual reviews in 2012, 2013, and
2014; (3) expressed confidence in Louis’s character and
abilities in February 2015; and (4) refused to investigate Louis
in 2015 and 2016 even after the mistrial in Puana’s mailbox
theft prosecution and Silva’s guilty plea.
102–104.
See id. at ¶¶ 98,
Plaintiffs allege the Police Commission had final
policymaking authority under the City Charter.
at ¶¶ 36–38, 159.
See, e.g., id.
But, even if the Police Commission had final
policymaking authority to investigate and remove Louis, see City
Charter § 6-1603(1), (2), Plaintiffs fail to allege that the
Police Commission knew of Louis’s alleged unconstitutional
actions.
For example, according to Plaintiffs, a day after
43
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Louis received a target letter from the United States Attorney’s
Office informing him that he was the target of a federal grand
jury corruption investigation, the Police Commission placed
Louis on paid administrative leave.
at ¶¶ 105–06.]
[Second Amended Complaint
Further, Plaintiffs fail to adequately allege
how the Police Commission’s approval of Louis’s severance
package, which included a “good standing” rating with HPD,
constitutes ratification of Louis’s conduct and the basis for
it.
Also fatal to Plaintiffs’ claim is the lack of
allegations that the Police Commission engaged in “deliberate
action[s]” that “directly caused a deprivation of [Puana’s]
federal rights.”
Brown).
See Brown, 520 U.S. at 415 (emphasis in
The federal mailbox theft charge against Puana was
dismissed with prejudice on December 15, 2014.
Complaint at ¶ 100.]
[Second Amended
Thus, any statements or actions after that
date could not have caused, or contributed to, the malicious
prosecution of Puana.
The only alleged actions the Police
Commission engaged in prior to that date were the reappointment
of Louis as chief of police in February 2014 and the rating of
“exceeds expectations” on Louis’s annual evaluation. 9
See id. at
Plaintiffs do not allege when the annual evaluation took
place other than claiming it occurred sometime in 2014, but the
Court assumes, for purposes of the City Motion, that it occurred
(. . . continued)
9
44
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¶¶ 98, 102.
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Yet, Plaintiffs do not allege that the Police
Commission either knew of Louis’s misconduct at the time of
those events or that Louis’s reappointment and annual evaluation
rating was connected to his misconduct in any way.
Any actions
occurring after the dismissal of Puana’s charge could not be a
but for or proximate cause of the malicious prosecution.
To
hold the Police Commission liable for Louis’s actions under
these circumstances would be a “fail[ure] to adhere to rigorous
requirements of culpability and causation” such that “municipal
liability [would] collapse[] into respondeat superior
liability.”
See Brown, 520 U.S. at 415.
Plaintiffs’
ratification argument regarding the Police Commission therefore
fails.
Plaintiffs’ ratification arguments regarding the
others fair no better, for similar reasons.
Plaintiffs fail to
allege HPD had final policymaking authority to ratify any
conduct.
Furthermore, the alleged actions constituting
ratification by the Ethics Commission, Kaneshiro, and Leong,
occurred after Puana’s federal charge was dismissed.
See Second
Amended Complaint at ¶¶ 115, 118, 124, 129 (alleging the Ethics
Commission started to investigate Louis in 2015 and allegedly
frustrated further investigations); ¶¶ 135–36 (alleging
before Puana’s federal mailbox theft charge was dismissed in
December 2014.
45
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Kaneshiro made statements supporting Katherine in 2016); ¶¶ 107–
08 (alleging Leong approved of Louis’s severance package in
2017).
As such, Plaintiffs fail to allege these actors were the
but for and proximate cause of Puana’s constitutional violation.
Finally, other than stating in a conclusory fashion that Mayor
Caldwell ratified Louis and Katherine’s conduct, Plaintiffs do
not allege any facts relating to Mayor Caldwell either
possessing final policymaking authority or ratifying a
constitutional violation and the basis for it.
¶ 159.
See id. at
Accordingly, Plaintiffs’ claim that the City is liable
under a theory of ratification fails.
3.
Malicious Prosecution Claim
Because Plaintiffs only plausibly allege the City is
potentially liable for Louis’s actions under § 1983, the Court
analyzes Plaintiffs’ malicious prosecution claim as it relates
to Louis’s involvement in Puana’s 2013 federal charge for
mailbox theft.
Section 1983
creates a cause of action for “the deprivation of
any right[], privilege[], or immunit[y] secured
by the Constitution” by individuals acting “under
color of” law. 42 U.S.C. § 1983. “To state a
claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by
the Constitution or laws of the United States was
violated, and (2) that the alleged violation was
committed by a person acting under the color of
State law.” Long v. County of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006) (citing West v.
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Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L.
Ed. 2d 40 (1988)).
Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir.
2021) (alterations in Benavidez).
This district court has stated:
In order to prevail on a § 1983 claim of
malicious prosecution, a plaintiff must show
“that the defendants prosecuted [him] with malice
and without probable cause, and that they did so
for the purpose of denying [him] equal protection
or another specific constitutional right.” Lacey
v. Maricopa Cnty., 693 F.3d 896, 919 (9th Cir.
2012) (quoting Freeman v. City of Santa Ana, 68
F.3d 1180, 1189 (9th Cir. 1995)). “In general, a
claim of malicious prosecution is not cognizable
under § 1983 ‘if process is available within the
state judicial systems’ to provide a remedy,”
although the Ninth Circuit has “held that an
exception exists . . . when a malicious
prosecution is conducted with the intent to . . .
subject a person to a denial of constitutional
rights.” Id. (quoting Bretz v. Kelman, 773 F.2d
1026, 1031 (9th Cir. 1985) (en banc)).
“Malicious prosecution actions are not limited to
suits against prosecutors but may be brought, as
here, against other persons who have wrongfully
caused the charges to be filed.” Awabdy v. City
of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)
(citing Galbraith v. Cnty. of Santa Clara, 307
F.3d 1119, 1126–27 (9th Cir. 2002)).
The court must look to Hawaii law “to
determine the legal effect of the state court’s
action because [the Ninth Circuit has]
incorporated the relevant elements of the common
law tort of malicious prosecution into [the]
analysis under § 1983.” Id. “Under Hawaii law,
a grand jury [] functions to determine whether
probable cause exists [and] [t]here is also a
presumption that the grand jury acted upon
sufficient and legal evidence.” McCarthy v.
Mayo, 827 F.2d 1310, 1317 (9th Cir. 1987) (citing
Hawaii v. Jenkins, 1 Haw. App. 430, 620 P.2d 263,
47
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267 (1980)); see also Hawaii v. Apao, 59 Haw.
625, 637–38, 586 P.2d 250, 259 (1978) (providing
that the burden is on the plaintiff to present
evidence that the grand jury deliberations were
so infected as to invalidate the indictment).
Andrews v. Hawaii Cnty., Civil No. 11-00512 JMS/BMK, 2013 WL
5276533, at *9 (D. Hawai`i Sept. 18, 2013) (alterations in
Andrews) (footnote omitted).
Additionally, “[a]n individual
seeking to bring a malicious prosecution claim must generally
establish that the prior proceedings terminated in such a manner
as to indicate his innocence.”
Awabdy, 368 F.3d at 1068 (citing
Heck v. Humphrey, 512 U.S. 477, 484–85, 114 S. Ct. 2364 (1994)).
Plaintiffs have plausibly alleged a malicious
prosecution claim.
Plaintiffs allege Puana’s prosecution was
not based on probable cause because the mailbox theft was staged
by Louis and Katherine, and the evidence implicating Puana was
fabricated.
Although Puana was indicted by a federal grand jury
in the mailbox theft, which presents a presumption of probable
cause, Plaintiffs adequately allege the indictment was based on
false statements or reports and fabricated evidence.
Amended Complaint at ¶¶ 95–96.
See Second
Plaintiffs have met their burden
at this stage to allege “that the grand jury deliberations were
so infected as to invalidate the indictment.”
See Apao, 59 Haw.
at 637, 586 P.2d at 259 (quotation marks and citations omitted),
superseded by statute on other grounds as stated in State v.
Kato, 147 Hawai`i 478, 499, 465 P.3d 925, 946 (2020).
48
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Plaintiffs sufficiently allege Puana was prosecuted with malice
because they allege Louis implicated Puana in the mailbox theft
to discredit him regarding the 2009 reverse mortgage civil suit.
See Second Amended Complaint at ¶¶ 85, 101.
Plaintiffs also allege Puana was prosecuted for the
purpose of denying him a specific constitutional right.
“The
Fourth Amendment protects ‘[t]he right of the people to be
secure in their persons . . . against unreasonable . . .
seizures.’”
Manuel v. City of Joliet, 137 S. Ct. 911, 917
(2017) (alterations in Manuel).
More specifically, “the Fourth
Amendment governs a claim for unlawful pretrial detention even
beyond the start of legal process[.]”
Id. at 920.
Here,
Plaintiffs plausibly allege Puana’s Fourth Amendment rights were
violated because he was unlawfully seized and detained until his
case was dismissed with prejudice.
at ¶ 2; id. at pg. 40, ¶ 118.
See Second Amended Complaint
Finally, Plaintiffs adequately
allege Puana’s federal case terminated in such a manner as to
indicate his innocence.
According to Plaintiffs, Louis
knowingly and deliberately gave perjured testimony causing a
mistrial in Puana’s federal criminal case.
[Id. at ¶ 99.]
After the mistrial, the United States Attorney’s Office filed a
motion to dismiss Puana’s federal charge with prejudice, and the
motion was granted.
[Id. at ¶ 100.]
Plaintiffs therefore
plausibly allege the City is liable for a malicious prosecution
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claim stemming from Louis’s conduct to implicate Puana in the
federal mailbox theft charge.
D.
Summary
Plaintiffs’ § 1983 claims related to the 2009 reverse
mortgage and 2011 UED conviction are dismissed without
prejudice.
Plaintiffs’ § 1983 access-to-courts claim stemming
from the 2013 mailbox theft charge is also dismissed without
prejudice. 10
Plaintiffs’ § 1983 malicious prosecution claim
related to Puana’s 2013 mailbox theft charge is dismissed
without prejudice, insofar as Plaintiffs seek liability against
the City for conduct by anyone other than Louis.
However, the
City’s Motion is denied as to Plaintiffs’ malicious prosecution
claim against the City arising from Louis’s conduct related to
Puana’s 2013 mailbox theft charge.
CONCLUSION
On the basis of the foregoing, the Court GRANTS IN
PART AND DENIES IN PART: Hahn’s Motion to Dismiss, filed
August 16, 2021; Nguyen’s Motion to Dismiss Second Amended
Complaint [Doc. 207], filed September 23, 2021; and the City’s
Because the § 1983 claims related to the 2009 reverse
mortgage and 2011 UED conviction, and the § 1983 access-tocourts claim related to the 2013 mailbox theft charge were
dismissed without addressing municipal liability, the Court
makes no findings or conclusions about municipal liability as to
those claims at this stage.
10
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Motion to Dismiss Second Amended Complaint (ECF 207), filed
August 24, 2021.
The Hahn Motion is GRANTED to the extent that the
IIED, civil RICO, and defamation claims against Hahn are
dismissed, but the Hahn Motion is DENIED insofar as the claims
are dismissed WITHOUT PREJUDICE.
The Nguyen Motion is GRANTED to the extent that the
civil RICO claim and the IIED claim relating to Nguyen’s 2011
conduct are DISMISSED WITHOUT PREJUDICE, but the Nguyen Motion
is DENIED as to Plaintiffs’ defamation claim and their IIED
claim based on Nguyen’s 2013 false identification of Puana.
The City Motion is GRANTED to the extent that: (1) the
§ 1983 claims based on the 2009 reverse mortgage and the 2011
UED conviction are DISMISSED; (2) the § 1983 access-to-courts
claim related to the 2013 mailbox theft charge is DISMISSED; and
(3) the § 1983 malicious prosecution claims related to the 2013
mailbox theft charge, except for the claim based on Louis’s
conduct, are DISMISSED.
The City Motion is DENIED, however,
insofar as the dismissals of the § 1983 access-to-courts and
malicious prosecution claims are WITHOUT PREJUDICE, and the City
Motion is DENIED as to Plaintiffs’ § 1983 claim for malicious
prosecution against the City based on Louis’s conduct related to
in the 2013 mailbox theft charge.
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Plaintiffs are GRANTED leave to file their third
amended complaint by March 30, 2022.
Plaintiffs’ leave to amend
is limited to addressing the defects in the claims addressed in
this Order.
If Plaintiffs choose not to file a third amended
complaint, the case will proceed as to the remaining claims in
the Second Amended Complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 28, 2022.
GERARD K. PUANA, ET AL. VS. KATHERINE P. KEALOHA, ET AL.; CV 1600659 LEK-WRP; ORDER GRANTING IN PART AND DENYING IN PART THE
MOTIONS TO DISMISS
52
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