Park v. City and County of Honolulu
Filing
132
ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT re 98 Motion to Dismiss; re 103 Motion for Joinder; re 104 Motion for Joinder. Signed by JUDGE ALAN C. KAY on 02/12/2 018. Plaintiff must file an amended complaint within thirty days of the entry of this Order or else judgment will be entered against her. Any amended complaint must correct the deficiencies noted in this Order or Plaintif f's claims will likely be dismissed with prejudice. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HYUN JU PARK,
Plaintiff,
vs.
CITY AND COUNTY OF HONOLULU;
ANSON KIMURA, STERLING NAKI;
JOSHUA OMOSO; DOE
ASSOCIATIONS 1-5; and JOHN
and/or JANE DOES 1-10,
Defendants.
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ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION TO
DISMISS THE FIRST AMENDED COMPLAINT
For the reasons set forth below, the Court GRANTS
Defendant City and County of Honolulu’s Motion to Dismiss the
First Amended Complaint, ECF No. 98, to which Defendants Joshua
Omoso and Sterling Naki have filed a Joinder, ECF Nos. 103, 104,
as follows:
(1)
As to Defendant City and County of Honolulu and
Defendants Naki and Omoso, the Court GRANTS the Motion
to Dismiss as to Counts 1-3 and 6.
Counts 1-3 and 6
in regard to Defendant City and County of Honolulu and
Defendants Naki and Omoso are DISMISSED WITHOUT
PREJUDICE.
(2)
As to Defendants Naki and Omoso, the Court GRANTS the
Motion to Dismiss as to Plaintiff’s official capacity
1
claims.
These claims are construed against the City
and County of Honolulu and are DISMISSED against the
officers in their official capacity WITH PREJUDICE.
The Court notes that, as discussed in more detail herein, Counts
4 and 5 were dismissed pursuant to a stipulation, ECF No. 97,
and no longer remain in this case.
PROCEDURAL BACKGROUND
On March 30, 2017, Plaintiff Hyun Ju Park
(“Plaintiff”) filed a Complaint against the following entities
and individuals: (1) City and County of Honolulu (“Honolulu”);
(2) Honolulu Police Department (“HPD”) officer Anson Kimura
(“Kimura”)1 in his individual and official capacity; (3) HPD
officer Sterling Naki (“Defendant Naki”) in his individual and
official capacity; (4) HPD officer Joshua Omoso (“Defendant
Omoso”) in his individual and official capacity (collectively
with Kimura and Defendant Naki, the “individual officers”); and
(5) John and/or Jane Does 1-10 and Doe Associations 1-5
(collectively with the John and Jane Does, the “Doe
Defendants”).
Complaint ¶¶ 8-11.
The Complaint asserted six causes of action.
Counts 1
through 3, arising under 42 U.S.C. § 1983, stated that
1
On November 16, 2017, the parties stipulated to dismiss
all claims against Kimura with prejudice, so he is no longer a
defendant in this case. ECF No. 97.
2
Defendants violated Plaintiff’s rights under the Fourth and
Fourteenth Amendments.
Id. ¶¶ 31-43.
Counts 4 through 6
alleged claims of assault and battery; intentional infliction of
emotional distress (“IIED”); and negligence.
Id. ¶¶ 44-51.
On May 11, 2017, Defendant Honolulu filed a Motion to
Dismiss Complaint Filed April 20, 2017 Pursuant to FRCP 12(b)(6)
(“Motion”).
ECF No. 14.
On June 2, 2017, Dongbu Insurance Co.
(“Intervenor Plaintiff” or “Dongbu”) filed a Motion to Intervene
to protect its subrogation rights as the lien holder for the
worker’s compensation benefits it provided Plaintiff and to
assert claims against Defendants.
ECF No. 25.
On August 31,
2017, Magistrate Judge Kevin Chang granted the Motion to
Intervene.
ECF Nos. 52, 68.
On September 11, 2017, both
Plaintiff and Intervenor Plaintiff filed Oppositions to
Defendant Honolulu’s Motion to Dismiss (“Pl. Opp.” and “Int. Pl.
Opp.”).
ECF Nos. 60, 62.
On September 18, 2017, Defendant
Honolulu filed replies to these oppositions.
ECF Nos. 71, 72.
On October 3, 2017, the Court entered an Order
Granting in Part and Denying in Part Defendant City and County
of Honolulu’s Motion to Dismiss Complaint (“October 3, 2017
Order”).
ECF No. 79.
Specifically, in its October 3, 2017
Order, the Court held the following:
(1)
As to Defendants Kimura, Naki, and Omoso, the
Court granted the Motion to Dismiss as to
3
Plaintiff’s official capacity claims.
The Court
construed these claims against the City and
County of Honolulu and dismissed them against the
officers in their official capacity with
prejudice.
(2)
As to the Doe Defendants, the Court denied the
Motion to Dismiss.
(3)
As to Defendant City and County of Honolulu, the
Court granted the Motion to Dismiss as to Counts
1-3 and 6 and dismissed these counts without
prejudice.
On November 2, 2017, Plaintiff filed her First Amended
Complaint (“FAC”).
ECF No. 90.
The FAC alleges claims against
the same Defendants as the Complaint.
The FAC also alleges the
same claims as the Complaint, except Count 6’s negligence claim
also alleges a theory of negligent training and/or supervision.
On November 22, 2017, Defendant Honolulu filed a
Motion to Dismiss the First Amended Complaint.
ECF No. 98.
On
December 6, 2017, Defendants Omoso and Naki filed a Joinder to
Defendant Honolulu’s Motion to Dismiss.
ECF Nos. 103, 104.
On
January 12, 2018, Plaintiff filed an Opposition to Defendant’s
Motion.
ECF No. 120.
On that same date, Plaintiff-Intervenor
Dongbu filed a Joinder to Plaintiff’s Opposition.
ECF No. 122.
On January 22, 2018, Defendant Honolulu filed a Reply to
4
Plaintiff’s Opposition.
ECF No. 124.
The Court held a hearing
on Defendant’s Motion on February 5, 2018.2
FACTUAL BACKGROUND
At approximately 1:45 a.m. on April 3, 2015, Plaintiff
was performing her duties as a bartender and manager at the
Kings Sports Bar in Honolulu, Hawaii.
FAC ¶ 12.
At that same
time and place, Kimura was drinking alcoholic beverages and
socializing with Defendants Naki and Omoso, among others, while
on “off-duty” status as HPD officers.
Id. ¶¶ 13-14.
Plaintiff
and other persons present at the Kings Sports Bar were aware
that Kimura, Naki, and Omoso were HPD officers.
Id. ¶ 15.
While Kimura was drinking, he took out his
supplemental firearm issued by the HPD and then handled the
weapon in a reckless and dangerous manner.
Id. ¶ 16.
One
bullet was discharged from Kimura’s firearm and struck
Plaintiff.
Id.
The FAC alleges that Kimura purports to have
handled his weapon in order to reload what he believed to be an
unloaded firearm.
Id. ¶ 17.
Defendants Naki and Omoso were aware that Kimura was
2
The Court also notes that on December 22, 2017, Dongbu
filed a Complaint in Intervention. ECF No. 110. On January 11,
2018, Defendant Honolulu filed a Motion to Dismiss the
Complaint. ECF No. 118. Defendants Naki and Omoso have filed
Joinders to Defendant Honolulu’s Motion. ECF Nos. 127, 128.
The Court has scheduled a separate hearing on this motion to
dismiss for March 19, 2018.
5
handling his firearm in a reckless and dangerous manner prior to
its discharge but failed to intervene.
Id. ¶ 21.
Pursuant to
HPD Policy Number 2.21, entitled “Standards of Conduct,”
effective on the date of the incident, Defendants Naki and Omoso
were required to take action as soon as they observed Kimura’s
reckless and dangerous handling of his firearm.
Id. ¶ 22.
Pursuant to HPD Policy Number 2.38, effective on the
date of the incident, entitled “Uniforms, Equipment, and
Firearms,” police officers are required to possess their HPD
issued firearm at all times but are prohibited from such
possession when an officer’s “physical and/or mental processes
are impaired because of consumption or use of alcohol.”
23.
Id. ¶
The FAC further alleges that this policy was modified
around January 6, 2016, after the date of the incident, to
prohibit officers from physically handling HPD issued firearms
while consuming alcohol or any other substance likely to impair
their physical or mental processes.
Id. ¶ 24.
Plaintiff alleges that Policy Number 2.38, as it was
effective on the date of the incident, was deficient as it
permitted officers to possess firearms while consuming alcohol
up to the point of intoxication, rather than expressly
prohibiting the possession of a firearm while consuming alcohol
in any amount.
Id. ¶ 25.
The individual officers were trained
in accordance with Policy Number 2.21 and 2.38—the versions that
6
were in place on the date of the incident.
Id. ¶ 26.
Plaintiff alleges that there was a “brotherhood”
culture of silence at the HPD, in which officers were known to
abstain from reporting misconduct by their fellow officers,
which was a de facto policy of the HPD.
Id. ¶¶ 29-30.
Plaintiff alleges that this “brotherhood” culture was exhibited
in many different ways.
See id. ¶¶ 31-39.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes
the Court to dismiss a complaint that fails “to state a claim
upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
8(a)(2).
Fed. R. Civ. P.
The Court may dismiss a complaint either because it
lacks a cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1988).
In resolving a Rule 12(b)(6) motion, the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as
true.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783
(9th Cir. 2012).
The complaint “must contain sufficient factual
7
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
“The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Id.
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
When the Court dismisses a complaint pursuant to Rule
12(b)(6) it should grant leave to amend unless the pleading
cannot be cured by new factual allegations.
OSU Student All. v.
Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
DISCUSSION
I.
Claims Against Individual Officers in their Official
Capacity
The Court’s October 3, 2017 Order dismissed
Plaintiff’s official capacity claims against the individual
officers with prejudice.
ECF No. 79.
The Court held the
following:
Personal capacity suits seek to impose
personal liability upon a government
official for actions he takes under color of
state law. See Hafer v. Melo, 502 U.S. 21,
25 (1991). Official capacity suits, on the
other hand, “generally represent only
another way of pleading an action against an
entity of which an officer is an agent.”
8
Monell v. N.Y.C. Dep’t of Soc. Servs., 436
U.S. 658, 690 n. 55 (1978). Therefore,
courts should treat such suits as suits
against the governmental entity. Kentucky
v. Graham, 473 U.S. 159, 166 (1985); see
Carnell v. Grimm, 872 F. Supp. 746, 752 (D.
Haw. 1994) (dismissing claims against
officials in their official capacity as
duplicative where the municipality had also
been sued). Accordingly, the Court
dismisses the claims against the individual
officers in their official capacity with
prejudice.
October 3, 2017 Order at 12.
The FAC still pursues official
capacity claims against the individual officers.
FAC ¶¶ 9-10.
In light of the Court’s prior ruling, the Court again dismisses
official capacity claims against the individual officers with
prejudice.
II.
Section 1983 Claims (Counts 1-3) Against Defendant
Honolulu and Defendants Naki and Omoso
Section 1983 provides relief against “[e]very person
who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . causes
. . . any citizen of the
United States . . . the deprivation of any rights, privileges,
or immunities secured by the Constitution.”
42 U.S.C. § 1983.
Parties can seek relief under § 1983 against persons acting
under the color of state law.
(1988).
West v. Atkins, 487 U.S. 42, 48
“Persons” covers “state and local officials sued in
their individual capacities, private individuals and entities
which acted under color of state law, and local governmental
9
entities.”
Vance v. Cty. of Santa Clara, 928 F. Supp. 993, 995-
96 (N.D. Cal. 1996).
For an individual capacity suit under Section 1983,
plaintiff must allege personal participation in the
constitutional violation on the part of the individual to
subject that person to individual liability.
297 F.3d 930, 934 (9th Cir. 2002).
Jones v. Williams,
For a municipal liability
suit, municipalities and their agents must cause the
constitutional violation through a policy or custom.
Monell,
436 U.S. at 694.
To establish a Section 1983 claim for municipal
liability, the plaintiff must show: “(1) that [she] possessed a
constitutional right of which [she] was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to
deliberate indifference to the plaintiff’s constitutional right;
and (4) that the policy is the moving force behind the
constitutional violation.”
Oviatt v. Pearce, 954 F.2d 1470,
1474 (9th Cir. 1992) (internal quotation marks omitted).
In
addition, as discussed in more detail in footnote 3, the
government official generally must act under state law.
Defendant Honolulu argues that Plaintiff fails to
plausibly allege that Defendants were acting under color of
state law and each of these four requirements.
discusses each of these arguments in turn.
10
The Court
a. Whether the FAC Plausibly Alleges that Defendants
were Acting Under Color of State Law
Defendant Honolulu argues that the Court should
dismiss the FAC because Defendants did not act under the color
of state law.3
3
Plaintiff’s only argument in her Opposition addressing
this issue states in a footnote that with respect to claims
against Defendant Honolulu, it does not matter whether the
individual officers were acting under color of state law.
Opposition at 11 n.5. Plaintiff discusses a case from the
Seventh Circuit, Gibson v. City of Chicago, 910 F.2d 1510 (7th
Cir. 1990), to support this assertion. Gibson states, “On a
municipal liability claim, the City policy itself must cause the
constitutional deprivation. Therefore, the municipality itself
is the state actor and its action in maintaining the alleged
policy at issue supplies the ‘color of law’ requirement under §
1983.” 910 F.2d at 1519.
However, in general, the Ninth Circuit requires the
employee to be acting under color of state law. See Van Ort v.
Estate of Stanewich, 92 F.3d 831, 836 (9th Cir. 1996). The
Ninth Circuit recognizes two exceptions to the general
requirement that the employee must be acting under color of
state law. In Van Ort, the Ninth Circuit held that “[o]nly
under highly limited circumstances does the government have a
duty to protect individuals from deprivations of constitutional
rights by private individuals.” Id. In such cases, government
liability can only be found if there was a special relationship
between the individual and the state actor, giving rise to a
duty. Id. (citing DeShaney v. Winnebago Cy. Dep't of Social
Serv., 489 U.S. 189, 196-200 (1989)); Gazette v. City of
Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994)). Such special
relationships arise from affirmative government acts, “like
incarceration of criminals and institutionalization of the
mentally ill.” Van Ort, 92 F.3d at 836 (citing DeShaney, 489
U.S. at 198-200). Here, the Court finds that no such
relationship existed between Defendant Honolulu and Plaintiff to
warrant such a duty. In addition, the Ninth Circuit has held
that state officials are liable for private violence where the
state affirmatively places the plaintiff in a dangerous
situation. Huffman v. Cty. of Los Angeles, 147 F.3d 1054, 1059
(9th Cir. 1998). The Court finds that Plaintiff has not alleged
(continued . . . )
11
The Ninth Circuit has held that there are “three
critical requirements that must be satisfied” for conduct to be
considered state action: (1) the acts complained of must have
been “‘performed’ while the officer is acting, purporting, or
pretending to act in the performance of his or her official
duties”; (2) the “pretense of acting in the performance of his
duties must have had the purpose and effect of influencing the
behavior of others”; and (3) the acts complained of must be
“related in some meaningful way either to the officer’s
governmental status or to the performance of his duties.”
Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006)
(internal quotation marks and citation omitted); see Silva v.
City & Cty. of Honolulu, Civ. No. 11-00561 LEK-RLP, 2013 WL
2420902, at *12 (D. Haw. May 31, 2013).
The Court finds that
the FAC fails to plausibly allege that the individual officers
acted under color of state law.
i.
Whether the Acts Complained of Were
Performed While the Officers were Acting,
Purporting, or Pretending to Act in the
Performance of Their Official Duties
The FAC does not allege that the individual officers
were acting, purporting, or pretending to act in the performance
such affirmative actions in the FAC. The Court further finds
that even if the Court were to take into account the Gibson
ruling, Plaintiff still fails to plausibly plead municipal
liability under Monell for the reasons discussed herein.
12
of their official duties.
Rather, Plaintiff alleges that the
individual officers were “off-duty” at the time of the incident,
FAC ¶ 14, and that Kimura was drinking alcohol and socializing
with Defendants Naki and Omoso, among others when he handled his
HPD issued firearm.
Id. ¶ 13.
In fact, as regards to Kimura,
Plaintiff specifically alleges that he acted “outside the scope
of his employment as a police officer” with the HPD.
Id. ¶ 63.
In addition, the FAC does not contain any facts to
support a claim that the individual officers were acting in
performance of their official duties.
Plaintiff has not amended
her complaint to allege that the individual officers were in
uniform, carried official identification, or identified
themselves as a member of law enforcement.
See Silva, 2013 WL
2420902, at *12 (addressing whether an off-duty police officer
was acting pursuant to official authority and looking to, inter
alia, whether the officer was wearing a uniform, displaying a
badge, brandishing a weapon, identifying oneself as an officer,
issuing commands, or intervening in a dispute).
Plaintiff
alleges that Kimura was reloading his HPD firearm, which he
believed to be unloaded.
FAC ¶ 17.
However, the FAC does not
allege that his conduct was in performance of his official
duties or provide sufficient indication that such conduct—
reloading a firearm while drinking and off duty in a bar—was
part of Kimura’s official duties.
13
In regard to Defendants Naki
and Omoso, the FAC merely alleges that they were drinking
alcohol and socializing with Kimura when he took out his gun and
failed to take appropriate action to stop Kimura’s conduct.
¶¶ 13, 21.
Id.
The FAC similarly does not contain any allegations
to indicate that Defendants Naki and Omoso were acting in
performance of their official duties.
ii.
Whether the Officers’ Pretense of Acting in
the Performance of their Duties Must Have
Had the Purpose and Effect of Influencing
the Behavior of Others
The FAC does not allege any facts to support a claim
that the individual officers acted with the purpose and effect
of influencing others.
Instead, the FAC states that Kimura took
out his HPD issued firearm in a reckless and dangerous manner
leading to one bullet being discharged and striking Plaintiff.
Id. ¶ 16.
The same allegations are absent with respect to
Defendants Naki and Omoso.
The only new allegation in the FAC
that touches on this issue states that Plaintiff was aware that
the individual officers were police and that she “remained
silent due to her fear and awe” of them.
Id. ¶ 18.
“The mere
fact that [Plaintiff] knew that his attackers were police
officers, however, does not mean that those officers acted under
color of state law.”
Lyons v. Adams, 257 F. Supp. 2d 1125, 1132
(N.D. Ill. 2003) (holding that there was no evidence that the
incident in question involved the officers’ performance of their
14
official duties because, inter alia, they did not wear police
uniforms, did not identify themselves as police officers, and
did not display their badges).
In addition, these allegations
fail to address the requirement that the individual officers
acted with the purpose and effect of influencing others.
iii. Whether the Officers’ Conduct was Related in
Some “Meaningful” Way to Either the
Officer’s Governmental Status or to the
Performance of His Duties
Third, as previously discussed, the FAC does not
allege that the individual officers’ conduct was related in some
meaningful way to the individual officers’ governmental status
or to the performance of their duties.
The only relationship
between Kimura’s actions and his official duties was that he was
carrying his unloaded HPD issued firearm and was attempting to
reload it when the bullet fired.
This is insufficient on its
own to plausibly allege that Kimura was acting under color of
state law.
See Martinez v. Colon, 54 F.3d 980, 987-88 (1st Cir.
1995) (“We do not think it is reasonable to hold that every use
of a policeman’s gun, even in the course of purely personal
pursuits, creates a cause of action under section 1983 . . . the
context in which a service revolver is used . . . must be
consulted to determine the constitutional relevance of the
officer’s conduct.”); Cook v. Morrow, No. C06-04337 MJJ, 2007 WL
3022607, at *9 (N.D. Cal. Oct. 12, 2007) (holding that the
15
defendant police officer was not acting under color of state law
even though the defendant communicated that he was a member of
the police and wielded a gun issued by the police department
during the altercation).
Accordingly, because the Court finds that Plaintiff
has failed to adequately allege that the individual officers
acted under the color of state law, as well as the reasons
discussed herein, the Court dismisses Counts 1-3 as to the
Defendants without prejudice.
b. Whether the Complaint Plausibly Alleges that
Plaintiff Possessed a Constitutional Right of Which
She was Deprived
i.
Fourth Amendment Violation
Defendant argues that Plaintiff’s Monell claims
predicated upon the Fourth Amendment are not plausible because
Plaintiff was not “seized.”
As the Court discussed in its
October 3, 2017 Order, a Fourth Amendment seizure does not occur
“whenever there is a governmentally caused termination of an
individual’s freedom of movement . . . nor even whenever there
is a governmentally caused and governmentally desired
termination of an individual’s freedom of movement (the fleeing
felon), but only when there is a governmental termination of
freedom of movement through means intentionally applied.”
Brower v. Cty. of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in
original).
“Violation of the Fourth Amendment requires an
16
intentional acquisition of physical control.”
Id. at 596.
Although the person or object of the detention or taking can be
unintended, “the detention or taking itself must be willful.”
Id.
The Brower court further elaborated on the meaning of
intent, stating:
In determining whether the means that
terminates the freedom of movement is the
very means that the government intended we
cannot draw too fine a line, or we will be
driven to saying that one is not seized who
has been stopped by the accidental discharge
of a gun with which he was meant only to be
bludgeoned, or by a bullet in the heart that
was meant only for the leg. We think it
enough for a seizure that a person be
stopped by the very instrumentality set in
motion or put in place in order to achieve
that result.
Id. at 598-99 (emphasis in original).
The Court finds that the FAC fails to remedy the
deficiencies the Court discussed in Plaintiff’s original
Complaint.
The FAC merely alleges that Kimura took out his HPD
issued firearm, which he proceeded to handle in a reckless and
dangerous manner until one bullet was discharged, striking
Plaintiff.
FAC ¶ 16.
Although the Court notes that Counts 4
and 5 of the FAC contain allegations that Kimura acted
intentionally, the Court does not find these allegations of
intent sufficient to withstand a motion to dismiss because they
are conclusory.
Under the circumstances alleged in the FAC, the
Court again concludes that Plaintiff’s allegation of
17
recklessness fails to plausibly allege a seizure under the
Fourth Amendment.
Plaintiff does not allege that Kimura
intended for the firearm to discharge a bullet let alone to
discharge a bullet at Plaintiff.4
Likewise, the FAC contains no
4
Plaintiff again argues that reckless conduct may serve as
a basis for an unconstitutional seizure in violation of the
Fourth Amendment. The Court’s October 3, 2017 Order previously
discussed and rejected Plaintiff’s argument as it applies to the
facts of this case. October 3, 2017 Order at 21 n.10. The
Order states:
Plaintiff states that the Ninth Circuit has
found that “reckless disregard” may serve as
a basis for an unconstitutional seizure in
violation of the Fourth Amendment in other
contexts. Plaintiff cites to Galbraith v.
Cty. of Santa Clara, 307 F.3d 1119 (9th Cir.
2002) where the court held that plaintiff
stated a plausible claim under the Fourth
Amendment because he alleged that the police
violated the Fourth Amendment for falsely
arresting him where officials made
deliberately false statements or recklessly
disregarded the truth in a warrant affidavit
on issues that were material to the finding
of probable cause. Because the facts in
Galbraith relate to a different circumstance
than the facts alleged here, the Court does
not find it persuasive.
Id.
The Court finds no reason to depart from the law of the
case here. A court may have discretion to depart from
the law of the case where: (1) the first decision was clearly
erroneous; (2) an intervening change in the law has occurred;
(3) the evidence on remand is substantially different; (4) other
changed circumstances exist; or (5) a manifest injustice would
otherwise result. United States v. Alexander, 106 F.3d 874, 876
(9th Cir. 1997). Failure to apply the law of the case doctrine
absent one of the requisite conditions constitutes an abuse of
discretion. Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993).
(continued . . . )
18
allegations that Defendants Naki and Omoso displayed any conduct
to limit Plaintiff’s freedom of movement let alone intentional
conduct to achieve that result.
In addition, the Court finds that no constitutional
violation occurred because, as previously discussed, there was
no government action; there was no governmentally caused
termination of Plaintiff’s freedom of movement.
The individual
officers’ conduct, if any was alleged, was in their capacity as
private citizens.
See Van Ort, 92 F.3d at 835-37 (“Because
Stanewich acted as a private citizen, the Van Orts had no
constitutional right to be free from his deprivations of their
constitutional rights.”).
Therefore, the Court dismisses Count
1 as to all Defendants without prejudice.
ii.
Fourteenth Amendment Violation
The right to be secure in one’s person is a liberty
interest protected by the Due Process Clause of the Fourteenth
Amendment.
1986).
McRorie v. Shimoda, 795 F.2d 780, 785 (9th Cir.
The Fourteenth Amendment protects against the
government’s interference with an individual’s bodily integrity.
P.B. v. Koch, 96 F.3d 1298, 1303 (9th Cir. 1996).
The threshold
standard for judging a substantive due process claim is whether
the challenged governmental action is “so egregious, so
The Court does not find that any of these conditions applies
here and therefore again rejects Plaintiff’s argument.
19
outrageous, that it may fairly be said to shock the contemporary
conscience.”
(1998).
Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
As the Supreme Court has recognized, “the measure of
what is conscience shocking is no calibrated yard stick . . .”
Id. at 847.
What shocks the conscience in one situation may not
shock the conscience in another.
See id. at 850.
“Historically, this guarantee of due process has been
applied to deliberate decisions of government officials to
deprive a person of life, liberty, or property.”
Daniels v.
Williams, 474 U.S. 327, 331-32 (1986) (emphasis in original).
The Due Process Clause is not implicated by the lack of due care
of an official causing unintended loss or injury to life,
liberty, or property.
Id. at 332-33.
“The Fourteenth Amendment
is not a font of tort law to be superimposed upon whatever
systems may already be administered by the states.”
Lewis, 523
at 848 (internal quotation marks and citation omitted).
Rather,
“it is . . . behavior at the other end of the culpability
spectrum that would most probably support a substantive due
process claim; conduct intended to injure in some way
unjustifiable by any government interest is the sort of official
action most likely to rise to a constitutional violation.”
Id.
at 849.
The Supreme Court has stated that “[w]hether the point
of the conscience shocking is reached when injuries are produced
20
with culpability falling within the middle range, following from
something more than negligence but less than intentional
conduct, such as recklessness or gross negligence is a matter
for closer calls” and depends on the facts and circumstances of
each individual case.
marks omitted).
Id. (internal citation and quotation
In Lewis, the Supreme Court addressed the issue
of whether a police officer violates the Fourteenth Amendment’s
substantive due process guarantee by causing death through
deliberate or reckless indifference to life in a high-speed
automobile chase aimed at apprehending a suspected offender.
Id. at 836.
The Supreme Court held that such conduct did not
“give rise to liability under the Fourteenth Amendment,
redressible by an action under § 1983.”
Id. at 854.
In that
case, the complaint alleged that the police officers acted,
inter alia, recklessly and carelessly.
Id.
In Count 2 of the FAC, which is entitled “Fourteenth
Amendment and/or 42 U.S.C. 1983 Violations,” Plaintiff does not
identify any specific conduct that violated her Fourteenth
Amendment rights.
FAC ¶¶ 51-54.
Although Count 2 incorporates
all of the preceding allegations, none of these allegations
discuss an intentional act by any of the Defendants.
Rather,
the allegations more closely resemble a tort claim and not a
constitutional violation.
As previously discussed, Plaintiff
only alleges that Kimura handled his HPD issued firearm in a
21
reckless manner.
Id. ¶ 16.5
With regard to Defendants Naki and
Omoso, Plaintiff alleges that they failed to intercede in
Kimura’s actions.
Id. ¶ 21.
However, similarly, absent from
this allegation is any indication that Defendants Naki and Omoso
acted deliberately to deprive Plaintiff of her life, liberty, or
property.
Under the circumstances alleged in this case, the
Court finds that these allegations are insufficient to allege a
plausible violation of substantive due process under the
Fourteenth Amendment.
In addition, the Court finds that no constitutional
violation occurred because, as previously discussed, there was
no governmental interference in Plaintiff’s bodily movements.
The individual officers’ conduct, if any was alleged, was in
their capacity as private citizens.
The Court, therefore,
dismisses Count 2 without prejudice as to all Defendants.
c. Whether the Complaint Plausibly Alleges that the City
and County of Honolulu Had a Policy, Practice, or
Custom that Amounts to Deliberate Indifference to
Plaintiff’s Constitutional Rights that was the Moving
Force Behind the Constitutional Violation
A municipality is responsible for its officials’
unconstitutional conduct under Section 1983 only if the conduct
5
The Court notes that the FAC has conclusory allegations of
intent in another section, which, as previously discussed, the
court finds are insufficient to withstand a motion to dismiss.
See FAC ¶ 64 (“Defendant KIMURA intentionally, willfully . . .
assaulted and attacked Plaintiff . . .”).
22
was caused by a municipal policy, practice, or custom.
Menotti
v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005).
A
plaintiff may establish a municipal policy, practice, or custom
by, inter alia, proving that a city employee committed the
alleged constitutional violation pursuant to a formal government
policy or a longstanding practice or custom which constitutes
the standard operating procedure of the local government entity.
Hooper v. City of Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001)
(quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.
1992)) (internal quotation marks omitted).
A policy can be one
of action or inaction, such as a failure to train employees when
such omissions amount to the government’s policy.
Long v. Cty.
of Los Angeles, 442 F.3d 1178, 1185-89 (9th Cir. 2006) (“[A]
county’s lack of affirmative policies or procedures to guide
employees can amount to deliberate indifference.”); Bini v. City
of Vancouver, 218 F. Supp. 3d 1196, 1201 (W.D. Wash. 2016).
In addition to pleading the existence of a policy,
practice, or custom, Plaintiff must plead sufficient facts to
demonstrate that such policies amount to “deliberate
indifference” by Defendant Honolulu to the rights with whom it
comes into contact.
Deliberate indifference “is a stringent
standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.”
of Cty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997).
23
Bd.
Lastly,
Plaintiff must plead that the municipal policy or custom was the
moving force behind the constitutional violation.
For a policy
to be the moving force behind the deprivation of a
constitutional right, the identified deficiency in the policy
must be closely related to the ultimate injury.
at 1190.
Long, 442 F.3d
The plaintiff’s burden is to establish that the injury
would have been avoided had proper policies been implemented.6
6
In Huffman, parents of a bar patron who was fatally shot
during a brawl with an intoxicated off-duty sheriff’s deputy
brought suit against the county under Section 1983. Similar to
Plaintiff’s arguments in this case, plaintiffs in Huffman argued
that the County was liable under the “danger-creation theory” by
demonstrating: (1) that the sheriff’s department had a policy of
requiring deputies to carry guns at all times while off duty;
and (2) that the department failed to warn its deputies about
the dangers of carrying firearms while intoxicated. Id. The
plaintiffs further contended that the sheriff’s department knew
of eighty incidents from 1989 to 1994 in which off-duty deputies
discharged or brandished firearms, fifteen of which involved the
use of alcohol. Id. at 1060. According to plaintiffs, the
department failed to take adequate steps in investigating these
incidents or in disciplining the officers involved. Id.
In Huffman, the Ninth Circuit, however, held that the
county could not be held liable for the individual officer’s
private acts under Section 1983 because plaintiffs could not
demonstrate that the state acted affirmatively, with deliberate
indifference, in creating a foreseeable danger to plaintiff,
leading to the deprivation of the constitutional rights of
plaintiffs’ son. Id. at 1061. The Ninth Circuit further held
that the county could not have foreseen the deputy’s private
acts when it required him to carry a gun off duty; the deputy’s
private acts were unforeseeable and therefore broke the chain of
proximate cause connecting action under color of law to the
alleged constitutional violation. Id. at 1059-60. Given the
similarities between the facts of the present case and the facts
in Huffman, the Court finds Huffman persuasive here.
The Court further notes that in Van Ort the Ninth Circuit
discusses traditional tort law, which defines intervening causes
(continued . . . )
24
Id.
Plaintiff’s FAC pleads three main theories with regard to a
policy, practice, or custom.7
The Court discusses each of them
in turn.8
i.
HPD Policy Number 2.38
The FAC alleges that HPD Policy Number 2.38, entitled
“Uniforms, Equipment, and Firearms,” effective on the date of
the incident, “required off-duty officers to possess a pistol at
all times, but prohibited such possession when an officer’s
that break the chain of proximate causation, and applies it to
Section 1983 actions. Van Ort, 92 F.3d at 837. Specifically,
the Ninth Circuit states that a policy is a proximate cause if
intervening actions are within the scope of the original risk
and therefore foreseeable. See id. (citing Dodd v. City of
Norwich, 827 F.2d 1, 6 (2d Cir. 1987)).
7
The Court notes that the FAC also discusses HPD Policy
2.21 but does not specifically plead municipal liability related
to that policy in Count 3. Even if the FAC could be interpreted
to plead a municipal liability claim based on HPD Policy 2.21,
the Court finds that it cannot plausibly allege such liability
as a matter of law. As alleged in the FAC, HPD Policy 2.21
required Defendants Naki and Omoso to take action when they
observed Kimura’s handling of his firearm. The FAC appears to
allege that Defendants Naki and Omoso violated Section 1983 by
failing to adhere to this policy. Therefore, the policy, as
alleged in the FAC, cannot possibly be the moving force behind
the constitutional violation.
8
Plaintiff claims that to withstand a motion to dismiss in
the Ninth Circuit with regard to municipal liability under
Section 1983, Plaintiff need not plead more than a bare
allegation that the individual officers’ conduct conformed to an
official policy, practice, or custom. Plaintiff cites to AE ex.
rel. Hernandez v. Cty. of Tulare, 666 F.3d 631 (9th Cir. 2012)
to support her contention. However, Plaintiff only discusses
the beginning of Cty. of Tulare and fails to note that later in
the case, the Ninth Circuit held that the motion to dismiss
standard from the Supreme Court’s landmark decisions in Twombly
and Iqbal also applies to a Monell claim. See id. at 637.
25
‘physical and/or mental processes are impaired because of
consumption or use of alcohol, medication, or any other
substance which could impair a person’s physical or mental
processes . . .’”
FAC ¶ 23 (emphasis in original).
The Court,
therefore, finds that Plaintiff has plausibly alleged a policy,
practice, or custom based on HPD Policy Number 2.38 under the
second prong of Oviatt as previously discussed.
However, the Court finds that Plaintiff has failed to
plausibly allege that HPD Policy Number 2.38 amounted to
deliberate indifference of Plaintiff’s constitutional rights.
Plaintiff appears to argue that the HPD policy—permitting HPD
officers to possess their firearm while consuming alcohol but
only to the point when their physical and/or mental processes
are impaired—amounted to deliberate indifference because some
level of intoxication would likely occur from any consumption
and was reasonably likely to cause death or bodily injury.
Opposition at 12-13.
Plaintiff cites to police policies in
other jurisdictions prohibiting officers from carrying their
firearm while consuming alcohol.
Opposition at 13 n.6.
Whatever the deficiencies HPD Policy Number 2.38 may have, the
Court finds that the FAC fails to plausibly allege the
“stringent standard” that the HPD “disregarded a known or
obvious consequence” of Policy Number 2.38 that is actionable
under Section 1983.
Brown, 520 U.S. at 410.
26
With regards to whether HPD Policy Number 2.38 was the
moving force behind the alleged constitutional violation,
Plaintiff merely pleads that HPD “implemented a deficient policy
that permitted officers to handle a firearm while consuming
alcohol up to the point of intoxication, which was a policy
reasonably likely to cause death or serious bodily injury.”
¶ 57.
FAC
The Court finds this allegation conclusory and therefore
insufficient to survive a motion to dismiss.9
Accordingly, the
Court finds that Plaintiff has not adequately alleged that HPD
Policy Number 2.38 was closely related to Plaintiff’s injury to
be the moving force behind the alleged constitutional
violation.10
ii.
HPD’s “Brotherhood” Culture of Silence
Plaintiff has plausibly alleged a policy, practice, or
custom based on HPD’s “brotherhood” culture of silence under the
second prong of Oviatt.
The FAC alleges that a “‘brotherhood’
9
Furthermore, the Court notes that the FAC does not allege
whether or not Kimura was impaired at the time of incident. If
Kimura was not impaired, then the significance of HPD Policy
Number 2.38 is not entirely clear.
10
Defendant Honolulu states that HPD Policy Number 2.38
requires officers to possess their “pistol” at all times and
does not mention a “revolver,” as is alleged in the FAC, and
states that therefore Kimura was not required to possess his
revolver pursuant to HPD policy. Reply at 8-9. The Court finds
Defendant Honolulu’s distinction between a pistol and revolver
to be immaterial. Even if the Court were to find this
distinction material, the Court dismisses the FAC for the
reasons discussed herein.
27
culture of silence was prevalent among officers at the Honolulu
Police Department, in which officers were known to abstain from
reporting misconduct by their fellow officers, resulting in
Defendant CITY AND COUNTY OF HONOLULU’s failure to adequately
discover and investigate instances of officer misconduct.”
¶ 29.
FAC
The FAC then states that actions taken by HPD members
immediately following the incident demonstrate this brotherhood
culture of silence, including: (1) sequestering the individual
officers from questioning during the investigation about the
incident; (2) misclassifying the incident as a non-criminal
matter; and (3) failing to administer a breathalyzer test upon
Kimura.
Id. ¶¶ 31-32.
The FAC also alleges that the
brotherhood culture of silence was evident in other incidents of
HPD misconduct in 2009-2010, 2012, and 2014 and previous
incidents where Kimura engaged in similar behavior at Kings
Sports Bar.
Id. ¶¶ 34-35.11
However, the Court finds that Plaintiff has failed to
11
Defendant Honolulu appears to argue that these additional
incidents are of no consequence because Plaintiff fails to
allege that these events were similar to the incident in the
present case. Motion at 20. The Court disagrees as it relates
to the issue of whether Plaintiff has adequately alleged a
policy, practice, or custom. As Plaintiff argues, “any factual
disparities . . . are irrelevant to the point at issue . . .
These cases demonstrate that the City was aware of various
groups of officers (on multiple prior occasions) had felt that
they were at liberty to engage in mutual misconduct without
reporting their colleagues to their supervising officers . . .”
Opposition at 16-17 n. 7.
28
plead non-conclusory allegations that the “brotherhood” culture
of silence amounted to deliberate indifference to Plaintiff’s
constitutional rights.
Instead, the FAC alleges that Defendant
Honolulu’s de facto policy of “concealing and condoning officer
misconduct . . . encouraged and emboldened [the individual
officers to] act with reckless disregard and/or deliberate
indifference to Plaintiff’s constitutional rights.”
Id. ¶ 59.
Defendant Honolulu was “deliberately indifferent to the de facto
‘brotherhood’ culture of silence existing within the Honolulu
Police Department.”
Id. ¶ 60.
Neither of these allegations
address that, pursuant to Monell, the brotherhood culture of
silence itself amounted to deliberate indifference to
Plaintiff’s constitutional rights.
The Court further finds
these allegations to be vague and conclusory and therefore
insufficient to survive a motion to dismiss.
See Iqbal, 556
U.S. at 678 (“[T]he tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to
legal conclusions . . . Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”).
The Court finds the same with regard to Plaintiff’s
allegations about the “brotherhood” culture of silence.
Plaintiff merely alleges that the “brotherhood” culture of
silence was “the moving force behind the deprivation of
29
Plaintiff’s constitutional rights.”
FAC ¶ 59.
The Court finds
this allegation to be conclusory and therefore insufficient to
survive a motion to dismiss.
In addition, the Court finds that
as currently pled in the FAC, the connection between the
“brotherhood” culture of silence and Plaintiff’s injury are too
tenuous for the culture to constitute a moving force behind the
injury.12
iii. Failure to Train
Plaintiff also alleges that the individual officers
were not adequately trained.
To allege Section 1983 municipal
liability based on a failure to train, Plaintiff must claim
that: (1) the existing training program is inadequate in
12
Plaintiff discusses LaPorta v. City of Chicago, 102 F.
Supp. 3d 1014 (N.D. Ill. 2015), where the court held that the
plaintiff adequately alleged that the Chicago Police
Department’s practices—concealing officer misconduct, applying
lenient standards to complaints against off-duty officers,
failing to maintain accurate records of officer misconduct,
hiring and retaining unqualified officers, and permitting a
“code of silence” within the Chicago Police Department—was the
moving force behind the constitutional violation. Id. at 102122.
However, the Court finds this case distinguishable. In
LaPorta, plaintiff also alleged facts supporting a connection
between the City’s policy of condoning officer misconduct and
the constitutional injury, including the fact that fifteen
complaints had been filed against the officer at issue alleging
excessive force and other misconduct. Id. at 1021. In
addition, plaintiff alleged that after the incident, the officer
was belligerent and very irate and began swinging his arms at
the responding officers. Id. Here, however, allegations such
as these are absent from the FAC. Moreover, the Court is not
bound to follow the LaPorta decision.
30
relation to the tasks the particular officers must perform; (2)
the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact; and
(3) the inadequacy of the training actually caused the
deprivation of the alleged constitutional right.
Merritt v.
Cty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989).
“A
municipality’s culpability for a deprivation of rights is at its
most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 563 U.S. 51, 61 (2011).
“[T]he need for
more or different training [must be] so obvious, and the
inadequacy so likely to result in the violation of
constitutional rights, that policymakers . . . can reasonably be
said to have been deliberately indifferent to the need.”
City
of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
“Under this standard, [Plaintiff] must allege facts to
show that the [Defendant] disregarded the known or obvious
consequence that a particular omission in their training program
would cause [municipal] employees to violate citizens’
constitutional rights.”
Flores v. Cty. of Los Angeles, 758 F.3d
1154, 1159 (9th Cir. 2014) (emphasis added) (internal quotation
marks and citation omitted).
“Absent allegations of specific
shortcomings in the training . . . or facts that might place the
City on notice that constitutional deprivations were likely to
occur, Plaintiff [cannot] adequately [plead] a § 1983 claim . .
31
. for failure to train.”
Bini, 218 F. Supp. 3d at 1203.
The first issue is whether Plaintiff has adequately
alleged that the HPD’s existing training program is inadequate
in relation to the tasks the particular officers must perform.
Plaintiff alleges that Defendant Honolulu “failed to adequately
train Defendant KIMURA in the usage and handling of revolvers,
as the Honolulu Police Department did not provide officers with
specific training courses tailored to the usage and handling of
revolvers during officers’ annual recall training, while
nevertheless permitting officers to use revolvers as their
supplemental firearms.”
FAC ¶ 20.
The Court finds that this allegation fails to
plausibly allege that the training regarding the officers’ use
of HPD’s supplemental firearms was inadequate.
The fact that
the HPD failed to provide specific training courses tailored to
the usage and handling of revolvers during annual recall
training is insufficient on its own to state a plausible claim
that HPD’s existing training program is inadequate.
The HPD
could have given other training at another time during the year
or when the officers initially were given their service weapons.
Plaintiff’s allegations regarding the need for more or different
training are not “so obvious.”
See Canton, 489 U.S. at 390.
The FAC further alleges that Defendant Honolulu
“failed to adequately train . . . Defendant KIMURA in the
32
handling of his . . . revolver while on ‘off-duty’ status, and
that said lack of adequate training was reasonably likely to
cause death or serious bodily injury.”
FAC ¶ 56.
The FAC also
alleges a failure to train theory in regard to Defendants Naki
and Omoso’s conduct.
Specifically, the FAC states, Defendant
Honolulu “failed to adequately train . . . Defendants NAKI,
OMOSO, and DOE DEFENDANTS to take appropriate action to
intercede against and/or report Defendant KIMURA’s instances of
firearm mishandling.”
Id. ¶ 58.
The Court finds both of these
allegations to be vague and conclusory and therefore
insufficient to survive a motion to dismiss.
See Iqbal, 556
U.S. at 678.
The second issue is whether Plaintiff has adequately
alleged that Defendant Honolulu’s failure to train amounts to
deliberate indifference to her constitutional rights.
“Only
where a failure to train reflects a ‘deliberate’ or ‘conscious’
choice by a municipality—a ‘policy’ as defined by our prior
cases—can a city be liable for such a failure under § 1983.”
Canton, 489 U.S. at 389; see also Pembaur v. City of
Cincinatti, 475 U.S. 469, 483 (1986) (holding that municipal
liability attaches where a deliberate choice to follow a course
of action is made from various alternatives by the relevant
officials).
“A pattern of similar constitutional violations by
untrained employees is ‘ordinarily necessary’ to
33
demonstrate deliberate indifference for purposes of failure to
train.”
Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting
Bd. of Cty. Com’rs v. Brown, 520 U.S. 397, 409 (1997)).
However, a “plaintiff also might succeed in proving a failureto-train claim without showing a pattern of constitutional
violations where a violation of federal rights may be a highly
predictable consequence of a failure to equip law enforcement
officers with specific tools to handle recurring situations.”
Long, 442 F.3d at 1186 (internal quotation marks and citation
omitted).
The FAC is devoid of any claims that Defendant
Honolulu’s policy not to train officers in regard to their
supplemental firearm at the HPD’s annual recall training
amounted to deliberate indifference.
There are no allegations
that HPD’s training was a deliberate choice or that there was a
pattern of similar violations.
Nor are there any allegations
that the individual officers’ actions were a highly predictable
consequence of any alleged lack of training.
The Court,
therefore, finds that Plaintiff has failed to adequately allege
the second element of Section 1983 municipal liability based on
a failure to train.
The Court further finds that Plaintiff has not
adequately alleged that any inadequate training actually caused
the deprivation of Plaintiff’s constitutional rights.
34
There are
no non-conclusory allegations on this issue in the FAC.
The
Court, therefore, finds that Plaintiff has failed to adequately
allege a Monell claim based on a failure to train.
In sum, the Court finds that Plaintiff has failed to
plausibly allege a Monell claim based on any of the
aforementioned policies, practices, or customs.
III. Plaintiff’s State Law Claims
a. Assault and Battery (Count 4) and IIED (Count 5)
The FAC only states a claim for assault and battery
and IIED against Kimura and not Defendant Honolulu or Defendants
Naki and Omoso.
FAC ¶¶ 62-65.
All of the claims against Kimura
were dismissed on November 16, 2017, pursuant to a settlement
agreement.
See ECF No. 97.
Therefore, Counts 4 and 5 no longer
remain in this case.
b. Negligence (Count 6)
The FAC’s negligence count is entitled “Negligence
Claims: General Negligence, Negligent Training and/or
Supervision, Respondeat Superior.”
It incorporates the
preceding allegations and states, “Defendants KIMURA, NAKI,
OMOSO, DOE DEFENDANTS, and CITY AND COUNTY OF HONOLULU acted
herein negligently thereby proximately and directly causing
Plaintiff to suffer serious physical injuries, pain, mental
anguish . . .”
FAC ¶ 69.
35
i.
Negligence Claims Against Defendants Naki
and Omoso
To establish a negligence claim under Hawaii law,
Plaintiff must show: “(1) [Defendant’s] duty to conform to a
certain standard of conduct, (2) breach of the duty, (3) causal
connection between the breach and the injury, and (4) damage to
[Plaintiff].”
Pourny v. Maui Police Dep’t, Cty. of Maui, 127 F.
Supp. 2d 1129, 1145 (D. Haw. 2000) (internal quotation marks and
citation omitted).
The FAC alleges that Defendants Naki and Omoso were
socializing with Kimura at the Kings Sports Bar when Kimura
recklessly handled his HPD issued firearm.
FAC ¶¶ 13-16.
The
FAC further states that Defendants Naki and Omoso failed to take
appropriate actions to intercede in Kimura’s conduct.
Id. ¶ 21.
The Court finds that these allegations fail to state a plausible
negligence claim because they do not adequately allege any of
the requisite elements.
The FAC does not allege that Defendants
Naki and Omoso had a duty to Plaintiff that they breached.13
13
“The general rule is that a person does not have a duty
to act affirmatively to protect another person from harm. ‘The
fact that the actor realizes or should realize that action on
his [or her] part is necessary for another’s aid or protection
does not of itself impose upon him [or her] a duty to take such
action.’” Lee v. Corregedore, 83 Haw. 154, 159, 925 P.2d 324,
329 (1996) (quoting Restatement (Second) of Torts § 314 (1965))
(alterations in original).
Plaintiff has not alleged that Defendants Naki and Omoso
had a legal duty to take affirmative action to stop Kimura’s
(continued . . . )
36
Further, the FAC does not claim that any alleged breach by
Defendants Naki and Omoso caused Plaintiff’s injuries.
The
Court therefore dismisses the negligence claim against
Defendants Naki and Omoso without prejudice.
ii.
Negligence Claims Against Defendant Honolulu
Defendant Honolulu argues that Count 6 should be
dismissed for the following reasons: (1) the claims alleged are
insufficient to support a direct negligence claim against the
Defendant Honolulu; and (2) Defendant Honolulu is not
vicariously liable for the conduct of Defendants Kimura, Naki,
and Omoso.
The Court discusses each of these arguments in turn.
1. Whether Plaintiff Adequately Alleges a
Direct Negligence Claim
The FAC alleges a direct negligence claim against
Defendant Honolulu on the basis of negligent supervision or
training.
“Under Hawaii law, before a plaintiff can establish a
claim for negligent training and/or supervision, the plaintiff
conduct or plead any facts to show that such duty exists.
Plaintiff only alleges that pursuant to HPD Policy Number 2.21,
Defendants Naki and Omoso were required to take action as soon
as they observed Kimura’s conduct. FAC ¶ 22. However, HPD
policies do not necessarily create a duty. See Dowkin v.
Honolulu Police Dep’t, No. CIV. 10-00087 SOM, 2012 WL 3012643,
at *4 (D. Haw. July 23, 2012) (finding that the HPD’s Code of
Conduct did not by itself create a legal duty); Cox v. City of
Ft. Worth, Tex., 762 F. Supp. 2d 926, 941 (N.D. Tex. 2010) (“A
company’s internal policies or procedures will not create a
negligence duty where none otherwise exists.” (quoting Cleveland
Reg’l Med. Ctr., L.P. v. Celtic Props., L.C., 323 S.W.3d 322,
351 (Tex. App. 2010)).
37
must establish that ‘the employer knew or should have known of
the necessity and opportunity for exercising such control.’”
Otani v. City & Cty. of Haw., 126 F. Supp. 2d 1299, 1308 (D.
Haw. 1998), aff’d sub nom. Otani v. Hawai’i Cty. Police Dep’t,
246 F.3d 675 (9th Cir. 2000) (quoting Abraham v. S.E. Onorato
Garages, 50 Haw. 628, 639, 446 P.2d 821, 826 (1968)).
The key
to a negligent training and/or supervision claim is
foreseeability.
Id.
“If an employer has not been put on notice
of the necessity for exercising a greater degree of control or
supervision over a particular employee, the employer cannot be
held liable as a matter of law.”
Id.14
Here, the only allegation that suggests that the HPD
had been put on notice of any alleged deficiencies in their
training and supervision relates to the “brotherhood” culture of
silence.
Plaintiff alleges that Defendant Honolulu had
14
Although, as previously discussed, Hawaii courts require
plaintiff to establish foreseeability for a negligent training
claim, the Court notes that Hawaii law has not yet clearly
established the elements of a negligent training claim. Dowkin
v. Honolulu Police Dep’t, Civ. No. 10-00087 SOM, 2012 WL
3012643, at *3 (D. Haw. July 23, 2012). At least one court in
this district has followed California law, which requires a
plaintiff seeking relief on a negligent training cause of action
to allege that (1) the employer negligently trained the employee
regarding the performance of his job duties, (2) which led the
employee, in the course of executing his job duties, (3) to
cause an injury or damages to the plaintiff. See Ryder v.
Booth, Civ. No. 16-00065 HG-KSC, 2016 WL 2745809, at *11-12 (D.
Haw. May 11, 2016) (citing Garcia ex rel. Marin v. Clovis
Unified Sch. Dist., 627 F. Supp. 2d 1187, 1208 (E.D. Cal.
2009)).
38
knowledge of prior instances of HPD officers’ attempts to
conceal misconduct and criminal wrongdoing.
See FAC ¶ 36.
However, the Court finds that it is not clear whether this
allegation relates to any alleged failure to train or supervise.
In addition, although Plaintiff alleges that Kimura handled his
firearm in the Kings Sports Bar previously, FAC ¶ 34, Plaintiff
does not state that his HPD supervisors became aware or explain
how or why HPD supervisors should have been aware of this
history.
The Court further notes that the FAC does not
sufficiently allege that a deficiency in Defendant Honolulu’s
training and/or supervision was the legal cause of Plaintiff’s
injuries.
Plaintiff’s allegation related to causation is
conclusory and therefore insufficient to survive a motion to
dismiss.
See FAC ¶ 69 (“Defendants . . . acted herein
negligently, and thereby proximately and directly causing
Plaintiff to suffer serious physical injuries . . .”).
Accordingly, the Court finds that Plaintiff fails to plausibly
allege a direct negligence claim against Defendant Honolulu for
negligent supervision and/or training and dismisses this claim
without prejudice.
2. Whether Plaintiff Adequately Alleges a
Negligence Claim Based on Respondeat
Superior
Defendant Honolulu argues that the negligence count
39
against it should be dismissed because it is not liable for the
individual officers’ actions under respondeat superior.
The Hawaii Supreme Court has adopted the test from the
Restatement (Second) Agency § 228 to determine whether an
individual is acting within the scope of his employment.
Henderson v. Prof’l Coatings Corp., 72 Haw. 387, 392, 819 P.2d
84, 88 (1991).
This test states that an employee’s conduct is
within the scope of employment if: “(a) it is of the kind he is
employed to perform; (b) it occurs substantially within the
authorized time and space limits; [and] (c) it is actuated, at
least in part, by a purpose to serve the master.”
Id.
“Conduct
of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the
authorized time or space limits, or too little actuated by a
purpose to serve the master.”
Id.
The Court finds that the allegations in the FAC fail
to plausibly allege that Kimura was acting under the scope of
his employment when he was handling his firearm.
First, the
Complaint fails to plausibly allege that Kimura’s conduct was
the kind he was employed to perform.
Here, Kimura’s alleged
conduct—handling his HPD firearm to reload what he believed to
be an unloaded firearm while off-duty drinking and socializing
in a bar—is not of the kind Kimura was employed to perform as a
police officer.
FAC ¶¶ 16-17.
40
Plaintiff argues that Kimura’s action—reloading his
firearm—was of the type of conduct he was required to perform
under the scope of his employment with the HPD.
20.
Opposition at
Plaintiff states that because Kimura’s firearm must be
loaded in order to effectuate the purpose of HPD’s policy
requiring officers to carry their firearm at all times, Kimura’s
attempt to reload his firearm was within the scope of his
employment with the HPD.
argument persuasive.
The Court does not find Plaintiff’s
Plaintiff’s argument fails to take into
account the context of Kimura’s actions—that he was off-duty
drinking and socializing in a bar when he attempted to reload
his firearm.
The HPD did not employ Kimura to engage in such
conduct.
Second, Plaintiff has not plausibly alleged that
Kimura’s conduct occurred within authorized time and space
limits.
Specifically, Hawaii courts look at whether the conduct
at issue occurred within authorized work hours and while the
individual was on duty at a place he was required to be.
See
State v. Hoshijo ex rel. White, 102 Haw. 307, 320, 76 P.3d 550,
563 (2003); Henderson, 72 Haw. at 394, 819 P.2d at 89.
Here,
Plaintiff has not alleged that the individual officers were on
duty and in the bar for work purposes.
Rather, Plaintiff
alleges that they were drinking and socializing at a bar at
approximately 1:45 a.m.
41
Third, the FAC does not claim that the individual
officers were acting, at least in part, to serve the HPD.
Rather, the allegations in the FAC—that the individual officers
were drinking and socializing while off-duty in a bar when
Kimura took out his HPD firearm unrelated to any specific law
enforcement duty—reflect just the opposite.
The Court,
therefore, finds that Plaintiff has failed to adequately allege
a negligence claim against Defendant Honolulu based on
respondeat superior.15
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant
City and County of Honolulu’s Motion to Dismiss the First
Amended Complaint, ECF No. 98, to which Defendants Joshua Omoso
and Sterling Naki have filed a Joinder, ECF Nos. 103, 104, as
follows:
15
Defendant Honolulu also argues that in order for
Plaintiff to plausibly allege that Defendant Honolulu is liable
for the alleged negligent acts of the individual officers,
Plaintiff was required to plead that the individual officers
acted maliciously. However, the Court finds that this argument
misreads Hawaii law. Municipalities can be liable on the basis
of respondeat superior for intentional and negligent torts
committed by employees within the scope of their employment.
Freeland v. Cty. of Maui, Civ. No. 11-00617 ACK-KS, 2013 WL
6528831, at *25 (D. Haw. Dec. 11, 2013); Dawkins v. City of
Honolulu, 761 F. Supp. 2d 1080, 1094 (D. Haw. 2010). The cases
that Defendant Honolulu cites discuss the malice requirement in
the context of intentional tort claims or qualified immunity,
whereas the claims at issue here are based on negligence and
therefore do not require intent.
42
(1)
As to Defendant City and County of Honolulu and
Defendants Naki and Omoso, the Court GRANTS the Motion
to Dismiss as to Counts 1-3 and 6.
Counts 1-3 and 6
in regard to Defendant City and County of Honolulu and
Defendants Naki and Omoso are DISMISSED WITHOUT
PREJUDICE.
(2)
As to Defendants Naki and Omoso, the Court GRANTS the
Motion to Dismiss as to Plaintiff’s official capacity
claims.
These claims are construed against the City
and County of Honolulu and are DISMISSED against the
officers in their official capacity WITH PREJUDICE.
The Court notes that, as discussed in more detail herein, Counts
4 and 5 were dismissed pursuant to a stipulation, ECF No. 97,
and no longer remain in this case.
Plaintiff must file an amended complaint within thirty
days of the entry of this Order or else judgment will be entered
against her.
Any amended complaint must correct the
deficiencies noted in this Order or Plaintiff’s claims will
likely be dismissed with prejudice.
43
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 12, 2018.
________________________________
Alan C. Kay
Sr. United States District Judge
Park v. City and County of Honolulu, et al., Civ. No. 17-00142 ACK-KSC, Order
Granting Defendant City and County of Honolulu’s Motion to Dismiss the First
Amended Complaint
44
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