Puana v. Kealoha

Filing 444

ORDER DENYING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT re 371 , 413 - Signed by JUDGE LESLIE E. KOBAYASHI on 1/25/2023. (eta)COURT'S CERTIFICATE OF SERVICE - Katherine P. Kea loha shall be served by First Class Mail at FCI VICTORVILLE MEDIUM I FEDERAL CORRECTIONAL INSTITUTION P. O. BOX 3725, ADELANTO, CA 92301 and Louis M. Kealoha shall be served at the address of record on January 26, 2023. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (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 DENYING DEFENDANT CITY AND COUNTY
OF HONOLULU’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant City and County of
Honolulu’s (“the City”) Motion for Summary Judgment (“Motion”),
filed on September 28, 2022.

[Dkt. no. 371.]

On November 25,

2022, Plaintiffs Gerard K. Puana (“Puana”) and Ricky L. Hartsell
as Trustee of the Florence M. Puana Trust (collectively
“Plaintiffs”) filed their memorandum in opposition.

[Dkt.

no. 393.]

The City filed its reply on December 2, 2022.

no. 405.]

The Motion came on for hearing on December 16, 2022.

[Minutes, filed 12/16/22 (dkt. no. 413).]
denied for the reasons set forth below.

[Dkt.

The Motion is hereby

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BACKGROUND
The parties are familiar with the facts of the case
and, therefore, the Court does not repeat them in detail here.
Relevant to the Motion, Plaintiffs allege the City is liable for
malicious prosecution under 42 U.S.C. § 1983 for former Chief of
Police Louis Kealoha’s (“Louis”) conduct (“Count I”).

[Third

Amended Complaint for Damages, filed 5/13/22 (dkt. no. 307), at
¶¶ 185–192.]

The Motion seeks summary judgment as to certain

elements of Plaintiffs’ malicious prosecution claim against the
City stemming from Louis’s conduct.1
DISCUSSION
The City only seeks summary judgment as to the City’s
liability based on Louis’s conduct on the grounds that Louis’s
orders did not constitute Honolulu Police Department’s (“HPD”)
policy and his actions were self-serving.
Supp. at 5, 11.

See Motion, Mem. in

The Court concludes as a matter of law that

Louis had final policymaking authority in the area where the
alleged constitutional violation occurred.

Further, the Court

finds that there is a genuine issue of material fact as to

On November 17, 2022, the City filed its Notice of
Withdrawal Without Prejudice of Sections 3 and 4 of Defendant
City and County of Honolulu’s Motion for Summary Judgment
(“Notice of Withdrawal”). [Dkt. no. 389.] In light of the
Notice of Withdrawal, the Court only addresses the portion of
Plaintiffs’ malicious prosecution claim against the City
stemming from Louis’s conduct.
1

2

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whether Louis’s actions constituted as policies.

PageID.6018

The parties

did not address or brief the issues as to whether: (1) Louis
deprived Puana of his constitutional rights; and (2) such a
deprivation was intentional.

The Court, therefore, does not

rule on those issues but assumes, for purposes of the instant
Motion only, that Louis intentionally deprived Puana of his
constitutional rights.
A.

Relevant Law
The United States Supreme Court has relied on four

principles when determining whether a single decision may be
sufficient to establish an unconstitutional municipal policy:
First, . . . municipalities may be held liable
under § 1983 only for acts for which the
municipality itself is actually responsible,
“that is, acts which the municipality has
officially sanctioned or ordered.” [Pembaur v.
City of Cincinnati, 475 U.S. 469,] 480 [(1986)].
Second, only those municipal officials who have
“final policymaking authority” may by their
actions subject the government to § 1983
liability. Id., at 483 (plurality opinion).
Third, whether a particular official has “final
policymaking authority” is a question of state
law. Ibid. (plurality opinion). Fourth, the
challenged action must have been taken pursuant
to a policy adopted by the official or officials
responsible under state law for making policy in
that area of the city’s business. Id., at 482–
483, and n.12 (plurality opinion).
City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)
(emphases in Praprotnik).

The determination of whether the

person who committed the constitutional violation had final

3

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policymaking authority must be decided by the court “as a matter
of state law and before the case may be submitted to the
jury[.]”

Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003)

(citation omitted).
The Supreme Court has also 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.
Where a plaintiff claims that a particular
municipal action itself violates federal law, or
directs an employee to do so, resolving these
issues of fault and causation is straightforward.
Section 1983 itself “contains no state-of-mind
requirement independent of that necessary to
state a violation” of the underlying federal
right. Daniels v. Williams, 474 U.S. 327, 330
(1986). In any § 1983 suit, however, the
plaintiff must establish the state of mind
required to prove the underlying violation.
Accordingly, proof that a municipality’s
legislative body or authorized decisionmaker has
intentionally deprived a plaintiff of a federally
protected right necessarily establishes that the
municipality acted culpably. Similarly, the
conclusion that the action taken or directed by
the municipality or its authorized decisionmaker
itself violates federal law will also determine
that the municipal action was the moving force
behind the injury of which the plaintiff
complains.

4

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. . . .
. . . To the extent that we have recognized
a cause of action under § 1983 based on a single
decision attributable to a municipality, we have
done so only where the evidence that the
municipality had acted and that the plaintiff had
suffered a deprivation of federal rights also
proved fault and causation. For example, Owen v.
Independence, 445 U.S. 622 (1980), and Newport v.
Fact Concerts, Inc., 453 U.S. 247 (1981),
involved formal decisions of municipal
legislative bodies. In Owen, the city council
allegedly censured and discharged an employee
without a hearing. 445 U.S., at 627–629, 633,
and n.13. In Fact Concerts, the city council
canceled a license permitting a concert following
a dispute over the performance’s content. 453
U.S., at 252. Neither decision reflected
implementation of a generally applicable rule.
But we did not question that each decision, duly
promulgated by city lawmakers, could trigger
municipal liability if the decision itself were
found to be unconstitutional. Because fault and
causation were obvious in each case, proof that
the municipality’s decision was unconstitutional
would suffice to establish that the municipality
itself was liable for the plaintiff’s
constitutional injury.
Similarly, Pembaur v. Cincinnati concerned a
decision by a county prosecutor, acting as the
county’s final decisionmaker, 475 U.S., at 485,
to direct county deputies to forcibly enter
petitioner’s place of business to serve capiases
upon third parties. Relying on Owen and Newport,
we concluded that a final decisionmaker’s
adoption of a course of action “tailored to a
particular situation and not intended to control
decisions in later situations” may, in some
circumstances, give rise to municipal liability
under § 1983. 475 U.S., at 481. In Pembaur, it
was not disputed that the prosecutor had
specifically directed the action resulting in the
deprivation of petitioner’s rights. The
conclusion that the decision was that of a final
municipal decisionmaker and was therefore
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properly attributable to the municipality
established municipal liability. No questions of
fault or causation arose.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404–
06 (1997) (emphases in Brown).
B.

Whether Louis Possessed Final Policymaking Authority
The Court must first identify the actions Plaintiffs

assert were constitutional violations and determine whether
Louis was the final policymaker in the area of those alleged
violations.

The parties admit that Louis “authorized or

approved [HPD Criminal Intelligence Unit’s (‘CIU’)] surveillance
of [Puana] in an effort to frame [him].”

[The City’s Separate

and Concise Statement of Facts, filed 9/28/22 (dkt. no. 373)
(“City’s CSOF”), at ¶ 34; Plaintiffs’ Reply to Defendant City
and County of Honolulu’s Concise Statement of Material Facts in
Support of Motion for Summary Judgment (“Plaintiffs’ Responsive
CSOF”), filed 11/25/22 (dkt. no. 394), at ¶ 34 (admitting City’s
CSOF ¶ 34).]

Louis also “diverted law enforcement attention

from legitimate police work to serve [Louis]’s personal
avarice.”
¶ 37.]

[City’s CSOF at ¶ 37; Plaintiffs’ Responsive CSOF at

“In 2020, then-HPD Chief of Police Susan Ballard

(‘Ballard’) submitted a declaration relating to [Louis]’s
sentencing in a criminal matter.”

[City’s CSOF at ¶ 38;

Plaintiffs’ Responsive CSOF at ¶ 38.]

“Ballard declared to the

Court that prolonged surveillance, particularly of non-violent
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theft offense, diverts resources and significantly disrupts
HPD’s operations, particularly in District 6 in Waikiki.”
[City’s CSOF at ¶ 39; Plaintiffs’ Responsive CSOF at ¶ 39.]
“The surveillance of Puana resulted in significant loss of
resources to HPD.”

[City’s CSOF at ¶ 42; Plaintiffs’ Responsive

CSOF at ¶ 42.]
The Court must therefore determine whether Louis’s
authorization and approval of CIU’s surveillance of Puana and
diversion of resources to presumably frame Puana in the mailbox
theft fell under Louis’s final policymaker authority.

This

Court previously outlined the relevant Hawai`i law and City
charter provisions as it relates to the chief of police:
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).

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Puana v. Kealoha, 587 F. Supp. 3d 1035, 1059 (D. Hawai`i 2022)
(alterations in Puana).
Under the City Charter, Louis was solely responsible
for the administrative affairs of HPD.
1601.

See City Charter § 6-

This included the authority to “detect[] and arrest . . .

offenders.”

§ 6-1604(a).

The City appears to argue that,

because Puana was not an “offender,” given that he was innocent,
Louis’s actions did not fall under his final policymaking
authority and, therefore, the City was not the moving force
behind the constitutional violation.
Supp. at 11–12.

See, e.g., Motion, Mem. in

The City’s argument is not persuasive.

Sometimes law enforcement investigates and arrests the wrong
person.

If a final policymaker violates a wrongfully arrested

person’s constitutional rights, it would not make sense that the
municipal could escape liability if it turns out that the person
is eventually deemed innocent, i.e., they were not technically
an “offender” under a strict construction of § 6-1604(a).
Presuming that Louis knew from the beginning that Puana did not
commit the mailbox theft, the principle still holds true because
Louis abused his authority to “detect[] and arrest” Puana –
power given to him and him alone by the City Charter.

Puana

arguably became an “offender” because Louis presumably framed
Puana and Puana was eventually arrested and indicted.

The fact

that Puana was subsequently determined not to be culpable is not
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material to whether Louis was a final decisionmaker under the
single-decision theory of municipal liability.

See Brown, 520

U.S. at 405.
Moreover, Louis’s authority included the maintenance
and supervision of the force of police officers.
Charter § 6-1604(b).

See City

Under this provision of the City Charter

and the chief of police’s general authority as the
administrative head of the force, see § 6-1601, Louis had
authority to divert police resources and order the surveillance
of Puana.

The Police Commission could not interfere with

Louis’s orders, see § 6-1606(h), though it had the authority to
terminate his employment if it determined that Louis’s orders
were illegal, see § 6-1603(1), (2).

In other words, Louis

possessed final policymaking authority when it came to the
authorization and approval of CIU’s surveillance of Puana and
the diversion of resources to the mailbox theft investigation.
The decision in Pembaur further supports the ruling
that Louis was the final policymaker when he ordered and
authorized the surveillance of Puana.

There, the Supreme Court

held “that municipal liability under § 1983 attaches where—and
only where—a deliberate choice to follow a course of actions is
made from among various alternatives by the official or
officials responsible for establishing final policy with respect
to the subject matter in question.”
9

Pembaur, 475 U.S. at 483-84

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(citation omitted).

PageID.6025

In that case, the county prosecutor “made a

considered decision based on his understanding of the law and
commanded the officers forcibly to enter petitioner’s clinic.
That decision directly caused the violation of petitioner’s
[constitutional] rights.”

Id. at 484.

The Supreme Court

rejected the argument that the county prosecutor lacked final
policymaking authority because, under Ohio law, the county
prosecutor could instruct other county officers in matters
connected with their official duties.

See id. at 484–85.

The

record established that it was standard procedure for the
sheriff to seek the advice from the county prosecutor to
determine the best course of action.

See id. at 485.

Thus,

“[i]n ordering the Deputy Sheriffs to enter petitioner’s clinic
the County Prosecutor was acting as the final decisionmaker for
the county, and the county may therefore be held liable under
§ 1983.”

Id.
Here, Louis made the decision to divert HPD resources

to surveil Puana.

Under Hawai`i law, that decision fell under

Louis’s authority as the Chief of Police.

Put differently, no

one could have overridden Louis’s order to divert certain HPD
resources.

As such, Louis possessed final policymaking

authority for the actions that lead to the presumed deprivation
of Puana’s constitutional rights.

10

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Finally, the Court must also discuss causation in
relation to Plaintiffs’ theory. “The ‘first inquiry in any case
alleging municipal liability under § 1983 is the question
whether there is a direct causal link between a municipal policy
or custom and the alleged constitutional deprivation.’”

Castro

v. Cnty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016)
(quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct.
1197 (1989)).

“It is not sufficient for a plaintiff to identify

a . . . policy, attributable to the municipality, that caused
his injury.

A plaintiff must also demonstrate that the . . .

policy was adhered to with ‘deliberate indifference to the
constitutional rights of [the plaintiff].’”

Id. at 1076

(quoting City of Canton, 489 U.S. at 392, 109 S. Ct. 1197).
When a plaintiff alleges that a policy caused the constitutional
violation, liability is permitted “on a showing of notice[.]”
Id. at 1076 (citing City of Canton, 489 U.S. at 396, 109 S. Ct.
1197).

In cases of failure to train, for example, if “‘a § 1983

plaintiff can establish that the facts available to city
policymakers put them on actual or constructive notice that the
particular omission is substantially certain to result in the
violation of the constitutional rights of their citizens, the
dictates of Monell [v. Department of Social Services, 436 U.S.
658 (1978),] are satisfied.’”

Id. (emphasis omitted) (quoting

City of Canton, 489 U.S. at 396, 109 S. Ct. 1197).
11

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Notice, however, is not required for a single decision
theory of § 1983 municipal liability.

This is because “proof

that a municipality’s . . . authorized decisionmaker has
intentionally deprived a plaintiff of a federally protected
right necessarily establishes that the municipality acted
culpably.”

Brown, 520 U.S. at 405 (emphasis added).

Indeed, a

notice requirement for single decision theories would be
superfluous since “the conclusion that the action taken or
directed by the . . . authorized decisionmaker itself violates
federal law will also determine that the municipal action was
the moving force behind the injury of which the plaintiff
complains.”

See id.

As such, the City did not need actual or

constructive notice of Louis’s conduct because, as the final
policymaker in the administrative affairs of HPD, Louis’s
presumed intentional deprivation of Puana’s federal rights is
sufficient to establish that the City had the requisite state of
mind.
C.

Whether Louis’s Actions Constituted HPD Policies
The City argues the actions Louis authorized did not

comply with HPD policy and he did not follow the procedure to
change the policy or adopt a new policy, and therefore his
actions did not create final HPD policy.
Supp. at 7.

See Motion, Mem. in

The City cites HPD Policy Number 2.19, which

states, in pertinent part: “Department directives are issued by
12

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the Chief of Police or on the Chief’s authority” and the
directives “apply to the entire department.”

[Motion, Decl. of

Counsel, signed by Page C.K. Ogata (“Ogata Decl.”), Exh. C (HPD
Policy – Organization, Management, and Administration, Policy
Number 2.19, dated April 6, 2015 (“Policy Number 2.19”)) at
PageID.4091.]

Policy Number 2.19 also states:

A.
Policies are issued to establish or revise
departmental organization or policy. A policy
remains in effect until rescinded by order of the
Chief of Police.
B.
Policies are prepared in final form on white
paper and issued by the [Information Technology
Division]. . . .
[Id.]

The City’s argument appears to be that, because Louis did

not authorize his orders in final form pursuant to Policy
Number 2.19, Louis’s actions cannot be policies and therefore
his actions are not attributable to the City.

The City’s

argument is unconvincing.
As an initial matter, the Supreme Court has noted that
the term “policy” as used in relation to the single decision
theory of municipal liability “is consistent with the word’s
ordinary definition[,]” meaning “‘a specific decision or set of
decisions designed to carry out such a chosen course of
action.’”

Pembaur, 475 U.S. at 481 n.9 (emphasis added)

(quoting Webster’s Third New International Dictionary 1754
(1981)).

Thus, the Supreme Court has uniformly rejected such a

13

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narrow interpretation of the term “policy” as applied to a
single decision theory.

Additionally, neither party provides

evidence regarding how Louis ordered members of the CIU.
Regardless, although the HPD policies are prepared in final form
by following certain procedures, policies can be “rescinded by
order of the Chief of Police.”

See Ogata Decl., Exh. C (Policy

Number 2.19) at PageID.4091 (emphasis added).
contention would lead to absurd results.

The City’s

In effect, the chief

of police could issue orders within his or her authority, but if
he or she does not implement the orders as “policies” under
Policy Number 2.19, then the orders are not “official” or
otherwise attributable to the municipality.

Such a rigid view

of municipal culpability would incentive issuing orders or
policies contrary to any formal procedure because the
municipality would be free from liability.

The single decision

theory for municipality liability does not support the City’s
view.
The City also points to the HPD Standards of Conduct
to show the extent that Louis’s actions deviated from HPD’s
written policies.

[Motion, Mem. in Supp. at 11.]

For instance,

the City relies on the standard of conduct that states:
The Chief of Police shall:
1.
Be responsible for the preservation of
public peace, the protection of the rights
of person and property, the prevention of
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PageID.6030

crime, the detection and arrest of
offenders, and the enforcement of all state
laws and city ordinances and all rules and
regulation made pursuant thereto[.]
[Ogata Decl., Exh. E (HPD Policy - Organization, Management, and
Administration, Policy Number 2.21, dated 12/1/16, with attached
Standards of Conduct of the Honolulu Police Department) at
PageID.4133.]

The City also cites Policy Number 7.01, which

states in pertinent part: “The detention of an arrestee is
permissible only as long as there is probable cause to believe
that the person has committed an offense.

As soon as

circumstances no longer justify such a belief, the person must
be released.”

[Id., Exh. I (HPD Policy – Prisoner and Court-

Related Activities, Policy Number 7.01, dated January 1, 2003)
at 22.]
The evidence submitted suggests that Louis violated
Policy Number 2.21, but there is insufficient evidence in the
record to conclude that the release provision in Policy Number
7.01 was violated because the City has provided no evidence to
suggest that HPD arrested and detained Puana for the federal
mailbox charge.
The question, then, is whether Louis’s actions are
attributable to the City despite breaking at least one of HPD’s
policies.

Again, Louis’s actions are attributable to the City

if he was “the individual who had authority in the particular

15

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area where the constitutional violation occurred.”

PageID.6031

See Barone

v. City of Springfield, 902 F.3d 1091, 1108 (9th Cir. 2018)
(citation omitted).
written policies.

This is true even if those actions violated

That is, if the unconstitutional action falls

within Louis’s final policymaking authority, it does not matter
that the action violated written HPD policy.

To hold otherwise

would shield unconstitutional acts that fall under the authority
of final policymakers as long as municipalities implement
written policies stating that a final policymaker cannot commit
constitutional violations or otherwise contravene the law.

Such

a position would make the final policymaker theory of liability
meaningless under § 1983.

Furthermore, such a position runs

counter to Supreme Court precedent stating that “proof that a
municipality’s . . . authorized decisionmaker has intentionally
deprived a plaintiff of a federally protected right necessarily
establishes that the municipality acted culpably.”

See Brown,

520 U.S. at 405 (emphasis added).
The City further argues it cannot be held liable for
Louis’s actions because his actions served his own personal
agenda.

See Motion, Mem. in Supp. at 11–13.

The City, however,

does not cite to any case law stating that the single decision
theory requires the action to be made in the municipality’s
interest or that the action cannot be made in the policymaker’s
personal interest.

Indeed, what matters is if the conduct falls
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within the final policymaker’s authority.

PageID.6032

“The fact that a

particular official—even a policymaking 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

(citation omitted).

But, here, Louis did not just have discretion to order the CIU
to investigate Puana.

Rather, Louis’s actions were within his

final policymaking authority as the Chief of Police, and
therefore whether the actions were intended to serve solely his
own personal agenda is not material.

Even if Louis’s agenda was

personal, his actions affected the City insofar as it resulted
in significant lost resources to HPD.

See City’s CSOF at ¶ 42;

Plaintiffs’ Responsive CSOF at ¶ 42.
Even viewing “the evidence in the light most favorable
to Plaintiffs as the nonmoving parties,” see Harris v. Cnty. of
Orange, 17 F.4th 849, 855 (9th Cir. 2021) (brackets, quotation
marks, and citation omitted), there is a genuine issue of
material fact as to whether Louis’s actions constituted as HPD
policies and, therefore, the City is not entitled to summary
judgment as to that issue.

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PageID.6033

CONCLUSION
On the basis of the foregoing, the Court DENIES the
City’s Motion for Summary Judgment, filed September 28, 2022.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 25, 2023.

GERARD K. PUANA, ET AL. VS. KATHERINE P. KEALOHA, ET AL; CV 1600659 LEK-WRP; ORDER DENYING DEFENDANT CITY AND COUNTY OF
HONOLULU’S MOTION FOR SUMMARY JUDGMENT

18