Park v. City and County of Honolulu
Filing
158
ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT re: 138 . Excerpt of conclusion:1. Counts 1-3 of the Second Amended Complaint are DIS MISSED WITH PREJUDICE. 2. The Court declines to exercise supplemental jurisdiction over Count 4 of the Second Amended Complaint (asserting state-law negligence claims) and accordingly Count 4 is DISMISSED WITHOUT PREJUDICE, and Plaintiff may re-f ile this claim in Hawaii state court. IT IS SO ORDERED. Signed by JUDGE ALAN C. KAY on 8/8/2018. WRITTEN ORDER follows hearing held August 6, 2018; minutes: ECF 155 . MOTIONS TERMINATED: 138 Defendant City & County of Honolulu's MOTION to Dismiss Second Amended Complaint, 141 Defendant Sterling Naki's JOINDER to defendant C&C of Honolulu's Motion to Dismiss, 142 Defendant Joshua Omoso's JOINDER to defendant C&C of Ho nolulu's Motion to Dismiss. COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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 SECOND AMENDED COMPLAINT
For the reasons discussed below, the Court GRANTS
Defendant City and County of Honolulu’s Motion to Dismiss the
Second Amended Complaint, ECF No. 134, to which Defendants
Sterling Naki and Joshua Omoso have filed joinders, ECF Nos.
141, 142, as follows:
1) Counts 1-3 of the Second Amended Complaint are
DISMISSED WITH PREJUDICE.
2) The Court declines to exercise supplemental
jurisdiction over Count 4 of the Second Amended
Complaint (asserting state-law negligence claims)
and accordingly Count 4 is DISMISSED WITHOUT
PREJUDICE, and Plaintiff may re-file this claim
in Hawaii state court.
1
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”).
Compl. ¶¶ 8-11, ECF No. 1.
The Complaint asserted six causes of action.
Counts 1
through 3, arising under 42 U.S.C. § 1983, alleged that
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
1
On November 16, 2017, the parties stipulated to dismiss all
claims against Kimura, who fired the bullet that injured
Plaintiff, with prejudice, and he is no longer a defendant in
this case. ECF No. 97.
2
12(b)(6).
ECF No. 14.
Dongbu Insurance Co. (“Intervenor
Plaintiff” or “Dongbu”) filed a Motion to Intervene on June 2,
2017, 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, ECF Nos. 60, 62, to which Defendant Honolulu later
filed replies, 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.
In the October 3, 2017 Order, the Court:
1) Granted the Motion to Dismiss Plaintiff’s
official capacity claims against Defendants
Kimura, Naki, and Omoso.
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) Denied the Motion to Dismiss as to the Doe
Defendants; and
3) Granted the Motion to Dismiss as to Counts 1-3
3
and 6 against Defendant City and County of
Honolulu, and dismissed these counts without
prejudice.
On November 2, 2017, Plaintiff filed her First Amended
Complaint (“FAC”).
ECF No. 90.
The FAC alleged the same claims
against the same Defendants as the Complaint, except the FAC’s
negligence claim in Count 6 added a negligent training and/or
supervision theory.
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 joinders 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.
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
Plaintiff’s Opposition.
ECF No. 124. 2
2
On December 22, 2017, Dongbu filed a Complaint in Intervention.
ECF No. 110. On January 11, 2018, Defendant Honolulu filed a
Motion to Dismiss Dongbu’s Complaint. ECF No. 118. Defendants
Naki and Omoso filed Joinders to Defendant Honolulu’s Motion.
ECF Nos. 127, 128. The Court scheduled a hearing on Defendant
Honolulu’s motion to dismiss for March 19, 2018, but on February
20, 2018, Dongbu notified the Court that Defendant Honolulu
agreed to stay or continue the hearing since the complaint in
intervention would require amendment in light of the February
12, 2018 Order’s dismissal of Plaintiff’s FAC. See ECF No. 133.
Thus, by minute order entered February 21, 2018, the Court
administratively withdrew Defendant Honolulu’s motion and gave
4
On February 12, 2018, the Court issued an Order
Granting Defendant City and County of Honolulu’s Motion to
Dismiss the First Amended Complaint (“February 12, 2018 Order”).
ECF No. 132.
The February 12, 2018 Order:
1) Granted the Motion to Dismiss as to Counts 1-3
and 6 against Defendant City and County of
Honolulu and Defendants Naki and Omoso, and
dismissed those claims without prejudice; and
2) Granted the Motion to Dismiss as to Plaintiff’s
official capacity claims against Defendants Naki
Dongbu thirty days from the filing of Plaintiff’s Second Amended
Complaint to file an amended complaint in intervention. Id.
After Plaintiff filed her Second Amended Complaint on March 13,
2018, ECF No. 133, Defendant Honolulu moved to dismiss it, ECF
No. 138. On April 9, 2018, Dongbu requested by email an
extension of time to file its amended complaint in intervention
until after the Court ruled on Defendant Honolulu’s motion to
dismiss the Second Amended Complaint. ECF No. 156. Dongbu’s
email stated: “We believe that if Plaintiff’s second amended
complaint is ultimately dismissed by the federal court, Dongbu
will voluntarily withdraw/dismiss its intervening complaint,
since we will likely follow the Plaintiff to state court.
Alternatively, if the second amended complaint is allowed by the
court, we would still need to amend our complaint in
intervention, for consistency.” Id.
By minute order entered April 10, 2018, the Court granted
Dongbu’s request. ECF No. 140. The Court stated that it would
specify the time in which Dongbu may file any amended complaint
in intervention in its order ruling on the motion to dismiss the
Second Amended Complaint. Id. However, because the Court now
dismisses Plaintiff’s Second Amended Complaint without prejudice
to Plaintiff refiling her state-law claims in state court,
Dongbu’s request to file an amended complaint in intervention is
moot.
5
and Omoso.
See id. at 1-2. 3
On March 13, 2018, Plaintiff filed a Second Amended
Complaint (“SAC”).
ECF 134.
The SAC alleges four causes of
action against the same Defendants as the FAC, but Defendants
Naki and Omoso are named only in their individual capacities.
Id. ¶ 8.
On April 3, 2018, Defendant Honolulu filed a Motion to
Dismiss the SAC, ECF No. 138, and a supporting memorandum
(“MTD”), ECF No. 138-2.
On April 12, 2018, Defendants Naki and
Omoso filed substantive joinders to Defendant Honolulu’s Motion
to Dismiss the SAC.
ECF Nos. 141, 142.
On July 16, 2018,
Plaintiff filed an Opposition to Defendant’s Motion (“Opp.”).
ECF No. 149.
On July 16, 2018, Plaintiff-Intervenor Dongbu
filed a substantive joinder to Plaintiff’s Opposition.
150.
ECF No.
On July 23, 2018, Defendant Honolulu filed a Reply to
Plaintiff’s Opposition (“Reply”).
ECF No. 151.
The Court held
a hearing on Defendant Honolulu’s Motion to Dismiss the SAC on
August 6, 2018.
FACTUAL BACKGROUND
At approximately 1:45 a.m. on April 3, 2015, Plaintiff
3
As noted above, on November 16, 2017, all of the claims against
Kimura were dismissed pursuant to a settlement agreement. ECF
No. 97. Counts 4 and 5 of the First Amended Complaint were
against Kimura only, and the February 12, 2018 Order thus
explained that these counts no longer remained in this case.
February 12, 2018 Order at 35.
6
was performing her duties as a bartender and manager at the
Kings Sports Bar (“Kings”) in Honolulu, Hawaii.
SAC ¶ 10.
Kimura and Defendants Naki and Omoso had been consuming
alcoholic beverages and socializing at Kings for approximately
two hours.
Id. ¶¶ 11, 14.
During this time, Kimura consumed
approximately seven 12-ounce bottles of Coors Light beer.
Id. ¶
15.
While “mental[ly] and/or physical[ly] impaired due to
his consumption of alcohol,” Kimura brandished his HPD
supplemental firearm for the purpose of reloading it.
21-22.
Id. ¶¶
One bullet discharged from Kimura’s firearm and struck
Plaintiff.
Id. at 27.
Defendants Naki and Omoso observed Kimura mishandling
his firearm prior to its discharge but did not intervene. 4
id.
¶¶ 25-26.
See
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 when they
observed Kimura’s reckless and dangerous handling of his
4
Plaintiff and others present at Kings were aware that Kimura
and Defendants Naki and Omoso, who were regular customers at
Kings, were HPD officers. Id. ¶ 17. Nevertheless, on previous
visits to Kings, Kimura: (1) consumed alcohol and brandished a
firearm against Plaintiff; and (2) stabbed a knife into a wooden
table due to his anger with Plaintiff. Id. ¶ 19. Plaintiff
alleges that Defendants Naki and Omoso “and/or DOE DEFENDANTS
deliberately failed to report Kimura’s prior misconduct . . .
due to their willful adherence to a known ‘brotherhood’ culture
of silence among HPD officers . . . .” Id. ¶ 20.
7
firearm.
Id. ¶ 43.
Nevertheless, and despite being trained in
accordance with HPD Policy Number 2.21, Defendants Naki and
Omoso “deliberately failed to perform their duties.”
Id. ¶¶ 44-
45
Kimura was carrying his HPD supplemental firearm at
the time of the incident “in furtherance of HPD Policy Number
2.38.”
Id. ¶ 34.
Pursuant to HPD Policy Number 2.38, effective
on the date of the incident and 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.”
34.
Id. ¶
2.38.
Kimura was trained in accordance with HPD Policy Number
Id. ¶ 36.
His attempt to reload his HPD supplemental
firearm while impaired at Kings “was performed in accordance
with his official training and duties as an HPD officer . . .
[and] Kimura knew it was necessary that his firearm be loaded to
achieve the intended purpose of HPD Policy Number 2.38,” Id. ¶
37.
The SAC alleges that HPD Policy Number 2.38 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.
8
Id. ¶ 42.
Policy
Number 2.38, in the form effective on the date of the incident,
was allegedly deficient because it permitted officers to possess
firearms while consuming alcohol until the point of mental or
physical impairment.
Id. ¶ 39.
Policy Number 2.38 allegedly
should have contained an express prohibition on the possession
of a firearm while consuming any amount of alcohol.
Id.
Other
alleged deficiencies in Policy Number 2.38 include its lack of
guidance as to: (1) how an officer should determine whether he
or she is “impaired”; (2) how to prevent firearm mismanagement
if an officer is “about to become impaired”; and (3) how to
prevent an armed and impaired officer from injuring another
person.
Id. ¶ 35.
In addition, the SAC alleges that there was a
“brotherhood” culture of silence at the HPD pursuant to which
officers abstained from reporting their fellow officers’
misconduct.
Id. ¶¶ 46-47.
This “brotherhood” culture of
silence was a de facto policy of the HPD, evidenced during the
April 3, 2015 incident at Kings when officers failed to “report
and/or take appropriate action against Kimura.”
51.
Id. ¶¶ 46-47,
The SAC alleges that this “brotherhood” culture was further
shown during prior incidents in which the HPD concealed and
condoned officer misconduct.
Id. ¶¶ 50, 52.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes
9
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
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).
10
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.
Section 1983 Claims (Counts 1-3)
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
entities.”
Vance v. Cnty. of Santa Clara, 928 F. Supp. 993,
995-96 (N.D. Cal. 1996).
For an official capacity suit,
municipalities and their agents must cause the violation of a
federal constitutional or statutory right 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
11
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).
Defendant Honolulu argues that the SAC does not
plausibly allege that Defendants acted under color of state law
or establish any of these four requirements.
The Court
discusses each of these arguments in turn.
a. The SAC Does Not Plausibly Allege that Defendants
Acted Under Color of State Law
Defendant Honolulu argues that the Court should
dismiss the SAC because Defendants did not act under the color
of state law.
MTD at 5-10.
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.
12
2006) (internal quotation marks and citation omitted); see also
Silva v. City & Cnty. of Honolulu, Civ. No. 11-00561 LEK-RLP,
2013 WL 2420902, at *12 (D. Haw. May 31, 2013).
The Court finds
that, like the Complaint and the FAC before it, the SAC fails to
plausibly allege that the individual officers acted under color
of state law. 5
i.
The Acts Complained of Were Not Performed
While the Officers Were Acting, Purporting,
or Pretending to Act in the Performance of
Their Official Duties
A police officer’s acts can fairly be said to be under
color of state law only where they “were in some way related ‘to
the performance of his official duties.’”
Van Ort v. Estate of
Stanewich, 92 F.3d 831, 838 (9th Cir. 1996) (quoting Martinez v.
Colon, 54 F.3d 980, 986 (1st Cir. 1995)).
Accordingly, the
Ninth Circuit has explained that “an officer who is pursuing his
own goals and [i]s not in any way subject to control by [his
public employer] . . . does not act under color of law, unless
5
Additionally, the Court finds that the SAC does not adequately
allege that any municipal policy, custom, or practice at issue
“in and of itself violated [Plaintiff’s] constitutional rights .
. . .” See City of Oklahoma City v. Tuttle, 471 U.S. 808, 822
(1985) (“The ‘policy’ of the New York City Department of Social
Services that was challenged in Monell . . . . in and of itself
violated the constitutional rights of pregnant employees . . . .
but the ‘policy’ that respondent seeks to rely upon is far more
nebulous, and a good deal further removed from the
constitutional violation, than was the policy in Monell.”).
13
he purport[s] or pretend[s] to do so.”
Huffman v. Cnty. of Los
Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) (citation and
internal quotation marks omitted).
Acts that are “purely
private” and “not furthered by any actual or purported state
authority[,] are not acts under color of state law.”
Barna v.
City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994) (holding
that “unauthorized use of a police-issued nightstick is simply
not enough to color [a] clearly personal family dispute with the
imprimatur of state authority”); see also Martinez, 54 F.3d at
988 (1st Cir. 1995) (“[W]hile a police officer’s use of a stateissue[d] weapon in the [on-duty] pursuit of private activities
will have furthered the § 1983 violation in a literal sense, a
court needs additional indicia of state authority to conclude
that the officer acted under color of state law.” (citation
omitted)).
Here, the SAC fails to allege that the individual
officers were acting, purporting, or pretending to act in the
performance of their official duties.
The act that forms the
crux of Plaintiff’s allegations—Kimura’s off-duty discharge of
his personal firearm while drinking and socializing at Kings—is
a “purely private” act.
Although the SAC no longer explicitly
alleges that Kimura was “off-duty” at the time of the incident,
it does allege that he was handling his “personal firearm that
HPD had authorized [him] to carry for official use wh[en] ‘off14
duty.’”
SAC ¶¶ 13-14.
Further, the SAC does not allege, for
example, that Kimura identified himself as a police officer,
wore his uniform, or carried official identification while at
Kings.
E.g., Hechavarria v. City & Cnty. of San Francisco, 463
F. App’x 632, 633 (9th Cir. 2011) (finding that individual’s
conduct was not under color of state law where he “did not
represent himself as a City employee; rather, he was off-duty,
wearing street clothes, and driving in his own personal
vehicle.”); see also Pete v. Olsen, No. CV-09-54-EFS, 2010 WL
996408, at *3 (E.D. Wash. Mar. 15, 2010) (holding that off-duty
police officer not acting under color of state law where he shot
a bar patron because, inter alia, officer was “off duty and not
in uniform . . . . [and] never identified himself as a police
officer or gave any commands other than “stop[.]”).
The SAC alleges that Plaintiff and others at Kings knew
that Kimura was a police officer, but generally recognizing an
off-duty police officer as an officer does not convert his
conduct into action taken under color of state law.
E.g., Van
Ort, 92 F.3d at 839 (reasoning that plaintiffs’ recognition of
defendant as an off-duty police officer “does not alone
transform private acts into acts under color of state law”); Roe
v. Humke, 128 F.3d 1213, 1217 (8th Cir. 1997) (explaining that
knowledge of an off-duty officer’s status as an officer is
insufficient to convert actions taken in the pursuit of private
15
interests into actions taken under color of state law); Lyons v.
Adams, 257 F. Supp. 2d 1125, 1132-33 (N.D. Ill. 2003) (holding
that there was no evidence that the incident in question
involved the officers’ performance of their official duties
because, inter alia, they did not wear police uniforms, identify
themselves as police officers, or display their badges).
Neither does HPD authorizing Kimura to carry a firearm
under Policy Number 2.38, nor Kimura’s alleged attempt to reload his weapon at the time of the incident (in violation of
Policy Number 2.38), id. ¶ 21; Opp. at 12, transform his private
act into one taken under the color of state law.
Kimura was
off-duty and drinking at Kings “in a state of mental and/or
physical impairment” when he improperly attempted to reload his
firearm, id. ¶ 21.
Under these circumstances, Kimura’s conduct
was not an act in the performance of his official duties.
Naffe
v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (“[W]hen the state
employee is off duty, whether he or she is acting under color of
state law turns on the nature and circumstances of the
[employee’s] . . . conduct and the relationship of that conduct
to the performance of his official duties.” (citation and
internal quotation marks omitted)); Reply at 4.
The same is true as to Defendants Naki and Omoso.
The
SAC alleges that Defendants Naki and Omoso were drinking alcohol
with Kimura at Kings.
Id. ¶ 11.
16
While the two officers had
“openly and verbally stated on prior occasions that they were
HPD officers,” id. at 17, the SAC does not plausibly allege
that, at the time of the incident, they were acting, purporting,
or pretending to act in performance of their official duties.
As with Kimura, the SAC contains no allegations that Defendants
Naki and Omoso were in uniform, carried official identification,
or identified themselves as a member of law enforcement prior to
or during the incident.
See e.g., Hechavarria, 463 F. App’x at
633; Silva, 2013 WL 2420902, at *12.
Moreover, the SAC alleges in conclusory fashion that
Defendants Naki and Omoso “were effectively on-duty pursuant to
HPD Policy Number 2.21” when they observed Kimura recklessly and
dangerously handling of his firearm. 6
at 12-13.
SAC ¶ 60; see also Opp.
But Defendants Naki and Omoso allegedly violated this
policy by failing to prevent Kimura from discharging his
6
The Court notes that HPD Policy Number 2.21 states that HPD
officers are always “subject” to duty, not that they are always
“on duty.” Even where an officer is on-duty, however, his
conduct is not automatically performed under color of state law.
Anderson, 451 F.3d at 1068 (“[W]hether a[n] . . . officer is
acting under color of state law turns on the nature and
circumstances of the officer’s conduct and the relationship of
that conduct to the performance of his official duties.”
(quoting Martinez, 54 F.3d at 986)). For example, in Martinez,
the First Circuit held that a police officer’s unintentional
shooting of another officer was not under color of state law
because the on-duty officer was engaged in a “personal frolic:
tormenting an acquaintance. . . . Though on duty and in uniform,
[the officer]’s status as a police officer simply did not enter
into his benighted harassment of his fellow officer.” 54 F.3d
at 987; see also Reply at 7 & n.2.
17
firearm.
E.g., SAC ¶¶ 60, 61.
Defendants Naki and Omoso’s
alleged conduct—failing to follow official policy while offduty, drinking at a bar at 1:45 a.m., wearing street clothes,
and not identifying themselves as police officers—is not
plausibly an act taken under color of state law. 7
See February
12, 2018 Order at 13-14.
ii.
The Officers Did Not Act with the Purpose
and Effect of Influencing the Behavior of
Others
The SAC again fails to plausibly allege that either
Kimura or Defendants Naki and Omoso acted with the purpose and
effect of influencing others.
First, Kimura is alleged to have
been drinking and socializing at Kings with Defendants Naki and
Omoso when he recklessly and dangerously handled his personal
firearm.
SAC ¶¶ 14, 27.
The SAC does not allege that Kimura’s
discharge of his firearm was purposeful.
7
Id. ¶¶ 21, 24, 27.
Plaintiff cites McCollum v. Mayfield, 130 F. Supp. 112 (N.D.
Cal. 1955) for the proposition that Defendants Naki and Omoso’s
failure to prevent Kimura’s conduct at Kings was an omission
that occurred in the performance of their official duties. Opp.
at 12-13. The Court finds McCollum distinguishable. In that
out-of-district case from the 1950s, the plaintiff “allege[d]
that while in the custody of defendants awaiting trial, he was
forced to perform labor in the County Jail and suffered personal
injuries of a serious nature; that defendants refused him
medical care and placed him in a vermin infested cell; and that
such conduct and omissions caused him to become permanently
paralyzed and disabled.” McCollum, 130 F. Supp. 112 at 113.
Defendants Naki and Omoso’s alleged failure to intervene in
Kimura’s reckless conduct while they were off-duty and drinking
at a bar is not analogous to the McCollum defendants’ refusal to
provide medical care made necessary after they forced the
plaintiff to perform hard labor while in custody.
18
Second, the only allegation regarding Defendants Naki and
Omoso’s conduct is that they failed to act despite being dutybound to prevent Kimura’s conduct.
E.g., id. ¶¶ 26, 27, 60, 61.
The SAC is silent as to any intentional act Defendants Naki and
Omoso took with the purpose and effect of influencing others.
Despite this context, Plaintiff contends that the
individual officers’ acted under color of state law because
Plaintiff knew they were police officers but allegedly “remained
silent and continued to perform her duties . . . due to her fear
and awe of” their status as law enforcement officers.
Id. ¶ 23.
The Court rejected this same allegation in the February 12, 2018
Order.
In that Order, the Court explained that “[t]he mere fact
that [Plaintiff] knew that [her] attackers were police officers
. . . does not mean that those officers acted under color of
state law.”
February 12, 2018 Order at 14-15 (second alteration
in original) (quoting Lyons v. Adams, 257 F. Supp. 2d 1125, 1132
N.D. Ill. 2003)); see also Van Ort, 92 F.3d at 839 (“The
[Plaintiff’s] argument rests largely upon [the fact that] that
he recognized [the law enforcement officer] as a police officer,
and the conjecture that this recognition somehow rendered his
acts under color of state law. . . . however, [merely
recognizing somebody as an police officer] would not make the
attack under color of law.”).
The SAC adds no non-conclusory
factual allegations to alter the Court’s prior analysis.
19
See
Reply at 5.
The SAC similarly alleges that “Kimura, NAKI, and OMOSO
regularly flaunted their status as HPD officers with the
affirmative purpose and effect of influencing others.”
18.
SAC ¶
This allegation is nothing more than a thinly veiled legal
conclusion.
As the Supreme Court has explained, “threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements” are not entitled to a presumption of
truth.
Iqbal, 556 U.S. at 678.
Given these deficiencies,
Plaintiff has failed to plausibly allege that the individual
officers acted with the purpose and effect of influencing
others.
iii. The Officers’ Conduct Was Not Related in a
“Meaningful” Way to Their Governmental
Status or the Performance of Their Duties
The SAC does not adequately allege that Kimura or
Defendants Naki and Omoso’s conduct was related in some
meaningful way to their governmental status or the performance
of their duties.
The Court previously stated that “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.”
(citing cases).
February 12, 2018 Order at 15
The SAC does not contain any new factual
20
allegations that compel a different conclusion.
Further,
Defendants Naki and Omoso’s alleged failure to prevent Kimura
from discharging his firearm at Kings is private conduct that
bears no meaningful relationship to their law enforcement status
or official duties.
Perhaps recognizing that she has alleged purely
private conduct, Plaintiff also asserts that Kimura and
Defendants Naki and Omoso “established a special relationship
between [her] and themselves by deliberately and affirmatively
flaunting their status as law enforcement officers” at Kings.
SAC ¶ 62.
Because of this special relationship, Plaintiff
alleges, the individual officers had “a duty to protect” her.
Id.
Plaintiff appears to be attempting to fit this case into
one of the limited exceptions the Ninth Circuit has recognized
under which municipal liability may attach based on a
government’s failure to protect a claimant from a private
individual.
However, the Court has previously addressed
Plaintiff’s “duty to protect” theory and found it misplaced in
this case.
As the February 12, 2018 Order explained:
In Van Ort v. Estate of Stanewich, 92 F.3d
831 (9th Cir. 1996), the Ninth Circuit
recognized 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. at 836. In such
21
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.
February 12, 2018 Order at 11 n.3.
This analysis remains
applicable to the SAC’s “duty to protect” allegations, and
Plaintiff’s conclusory use of labels like “special relationship”
does not “nudge[] [her] claims across the line from conceivable
to plausible.”
Twombly, 550 U.S. at 570; see MTD at 10 n.8.
As with the Complaint and the FAC before it, the SAC
fails to adequately allege that the individual officers acted
under the color of state law.
Consequently, the Court dismisses
Counts 1, 2, and 3 with prejudice.
b. The SAC Does Not Plausibly Allege that Plaintiff
Possessed a Federal Constitutional or Statutory Right
of Which She was Deprived
Even if the SAC plausibly alleged that the individual
officers acted under color of state law, Plaintiff’s Monell
claims would fail for the reasons set forth below.
22
i.
Fourth Amendment Violation
Plaintiff’s Monell claims predicated upon alleged
Fourth Amendment violations are not plausible because Plaintiff
was never “seized.”
See MTD at 11.
As the Court discussed in
its October 3, 2017 Order and February 12, 2018 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.” 8
Brower v. Cnty. of Inyo, 489 U.S. 593,
596-97 (1989) (emphasis in original); see also February 12, 2018
Order at 17.
In other words, “[v]iolation of the Fourth
Amendment requires an intentional acquisition of physical
control.”
Brower, 489 U.S 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 SAC does not allege an intentional seizure.
8
It
Plaintiff “acknowledges” this established law but nevertheless
repeats her contention that “reckless conduct may serve as a
basis for an unconstitutional seizure in violation of the Fourth
Amendment.” Opp. at 17 n. 1; see also Reply at 6. The Court
rejected this argument in both the October 3, 2017 Order and
February 12, 2018 Order, e.g., February 12, 2018 Order at 18
n.4, and finds no reason to depart from the law of the case
here.
23
instead alleges that Kimura “recklessly and dangerously
handle[d] his firearm without just cause until one bullet was
discharged, striking Plaintiff.”
SAC ¶ 27.
Nothing in the SAC
indicates that Kimura discharged his weapon intentionally or
intended the bullet to strike Plaintiff.
As the Court has
previously explained, allegations of recklessness do not
plausibly allege a seizure under the Fourth Amendment.
February 12, 2018 Order at 17.
E.g.,
The SAC, moreover, does not
allege that Defendants Naki and Omoso took any intentional
action to limit Plaintiff’s freedom of movement.
Quite the
opposite, the SAC alleges that Defendants Naki and Omoso took no
action to prevent Kimura’s reckless and dangerous handling of
his firearm.
SAC ¶ 26.
The SAC also contains no new factual allegations
establishing that governmental action caused Plaintiff’s freedom
of movement to be terminated.
Kimura and Defendants Naki and
Omoso’s conduct, where 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.”).
Since a governmentally caused termination of
Plaintiff’s freedom of movement is lacking, Plaintiff’s Monell
claims predicated upon an alleged Fourth Amendment violation
fails.
24
ii.
Fourteenth Amendment Violation
Similarly, the SAC does not plausibly allege a Monell
claim predicated on a Fourteenth Amendment violation.
The Due
Process Clause of the Fourteenth Amendment protects the right to
be secure in one’s person.
785 (9th Cir. 1986).
McRorie v. Shimoda, 795 F.2d 780,
The Fourteenth Amendment thus protects
against governmental interference with one’s bodily integrity.
P.B. v. Koch, 96 F.3d 1298, 1303 (9th Cir. 1996).
A substantive
due process claim under the Fourteenth Amendment turns on
whether the challenged governmental action is “so egregious, so
outrageous, that it may fairly be said to shock the contemporary
conscience.”
n.8 (1998).
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847
What shocks the conscience under certain
circumstances may not shock the conscience under others.
id. at 850.
See
As the Court explained in its February 12, 2018
Order:
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
25
U.S. at 848 (internal quotation marks and
citation omitted). 9 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.
ECF No. 132 at 20 (emphasis in original).
Here, the SAC’s allegations are insufficient to allege
a plausible violation of substantive due process under the
Fourteenth Amendment.
The SAC alleges no intentional
governmental action meant to interfere with Plaintiff’s bodily
integrity.
Reply at 6-7.
First, Kimura did not intentionally
interfere with Plaintiff’s bodily integrity when, while off-duty
in a state of mental impairment, he discharged one bullet after
“recklessly and dangerously handl[ing] his firearm . . . .”
¶ 27.
SAC
Defendants Naki and Omoso’s alleged failure to act to
prevent Kimura’s unintentional conduct is not the equivalent of
governmental interference with Plaintiff’s bodily integrity.
E.g., February 12, 2018 Order at 21-22.
9
And Plaintiff fails to
In Lewis, the Supreme Court addressed the issue of whether a
police officer violates the Fourteenth Amendment’s substantive
due process clause by causing death through deliberate or
reckless indifference to life in a high-speed automobile chase
aimed at apprehending a suspected offender. 523 U.S. 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.
26
plead any non-conclusory allegations indicating that Defendants
Naki and Omoso deliberately meant to deprive her of her life,
liberty, or property.
Under these circumstances, the Court does
not find that any of Defendants’ the alleged conduct “shocks the
conscience.”
Second, for the reasons discussed above, the Court
finds that no constitutional violation occurred because there
was no governmental interference in Plaintiff’s bodily
movements.
Accordingly, Plaintiff has not plausibly alleged a
Monell claim predicated on a Fourteenth Amendment violation.
c. The SAC Does Not Plausibly Allege that the City and
County of Honolulu Had a Policy, Practice, or Custom
that Amounted to Deliberate Indifference to
Plaintiff’s Constitutional Rights and was the Moving
Force Behind the Constitutional Violation
The SAC also fails to plausibly allege a Monell claim
based on Defendant Honolulu’s policies, practices, or customs.
Under Section 1983, municipalities are responsible for the
unconstitutional conduct of their officials only where the
conduct was caused by a municipal policy, practice, or custom.
Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005).
To establish a municipal policy, practice, or custom, a
plaintiff may allege that a municipal employee committed an
alleged constitutional violation in accordance with a formal
government policy or a longstanding practice or custom which
constitutes the standard operating procedure of the local
27
municipality.
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)).
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. Cnty. of Los Angeles, 442
F.3d 1178, 1185-86 (9th Cir. 2006).
Moreover, a plaintiff is required to plead sufficient
facts to show that the policy, practice, or custom amounted to
“deliberate indifference” by the municipality to the rights of
those with whom it comes into contact.
Establishing deliberate
indifference is a high bar, “requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.”
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997).
Finally, a plaintiff must plead that the policy,
practice, or custom was the moving force behind the
constitutional violation.
A policy, practice, or custom will be
the moving force behind the constitutional deprivation only
where the deficiency the plaintiff alleges is closely related to
her injury.
Long, 442 F.3d at 1190.
Thus, the plaintiff must
establish that the injury would not have occurred if proper
policies were in place.
Id.
The SAC pleads four theories
predicated on Defendant Honolulu’s policies, practices, or
customs, which the Court discusses below.
28
i.
HPD Policy Number 2.38
The SAC alleges that HPD Policy Number 2.38 “required
Kimura to possess a pistol at all times, but prohibited such
possession when an officer’s ‘physical and/or mental processes
are impaired because of consumption or use of alcohol . . . .’”
SAC ¶ 34 (emphasis in original).
The Court finds that Plaintiff
has plausibly alleged a policy, practice, or custom based on HPD
Policy Number 2.38, which was entitled “Uniforms, Equipment, and
Firearms” and was effective on the date of the incident.
Plaintiff has failed, however, to plausibly allege
that HPD Policy Number 2.38 amounted to deliberate indifference
to her constitutional rights.
Plaintiff seems to argue that HPD
Policy Number 2.38 amounted to deliberate indifference because
it provided no guidance as to:
(i) how an armed officer should determine
that he or she is ‘impaired,’ (ii) what
course of action an armed officer should
take to prevent firearm mismanagement upon
recognizing that he or she has or is about
to become impaired, and (iii) what course of
action another officer should take to
prevent an armed and impaired officer from
causing injury to another person.
Id. ¶ 35; see also Opp. at 18-20.
Plaintiff alleges that Kimura
acted pursuant to HPD Policy Number 2.38 because he “did not
believe himself to be mentally and/or physically impaired due to
alcohol consumption,” and he “knew it was necessary that his
firearm be loaded to achieve the intended purpose of” the
29
policy.
SAC ¶ 37.
According to Plaintiff, HPD Policy Number
2.38 was defective because it “directed officers to possess
firearms while consuming alcohol until the point of mental
and/or physical impairment, rather than expressly prohibiting
the possession of a firearm while consuming alcohol in any
amount.
Id. ¶ 39.
However, HPD Policy Number 2.38 (as effective on the
date of the incident) prohibited Kimura’s conduct at Kings.
Even if Kimura was subjectively acting to achieve the policy’s
purpose, his conduct objectively violated the policy.
That
Defendant Honolulu later implemented a different policy
governing the possession of firearms while consuming alcohol
does not change that Kimura’s conduct was barred under the prior
version of the policy. 10
Moreover, the policy did not, as
Plaintiff alleges, direct off-duty officers to possess firearms
while consuming alcohol until impaired.
Id. ¶ 39.
It flatly
prohibited possession of a firearm when impaired, and the
10
Plaintiff cites to various police departments’ policies
regulating off-duty officers’ possession of firearms while
consuming alcohol. Opp. at 20 n.3. In so doing, Plaintiff
attempts to argue that HPD Policy Number 2.38, which was not as
strict as these various policies at the time of the incident,
constituted deliberate indifference to her constitutional
rights. Id. However, the Court finds that these limited
examples of departments changing their policies close to, or
even after, the incident does not establish that Defendant
Honolulu’s policy was clearly deficient at the time of the
incident.
30
alleged omissions in the policy that Plaintiff claims do not
show that Defendant Honolulu “disregarded a known or obvious
consequence” in a manner actionable under Section 1983.
Brown,
520 U.S. at 410; see also February 12, 2018 Order at 24-25 n.6
(discussing Huffman and noting that its similarities to this
case make it persuasive).
In addition, HPD Policy Number 2.38 was not the moving
force behind the alleged constitutional violation.
U.S. at 694.
Monell, 436
Plaintiff alleges that the policy was the moving
force because it “directed officer to possess firearms while
consuming alcohol until the point of mental and/or physical
impairment, rather than expressly prohibiting the possession of
a firearm while consuming alcohol in any amount.”
(emphasis in original).
The Court rejected these same
allegations in the February 12, 2018 Order.
Order at 25-26.
SAC ¶ 39
February 12, 2018
As explained in that Order, Kimura consumed
seven alcoholic beverages within two hours and became impaired
before allegedly attempting to load his firearm to “achieve the
intended purpose of HPD Policy Number 2.38.”
SAC ¶¶ 15, 37.
Under these circumstances, and considering that Kimura was
impaired at the time of the incident, HPD Policy Number 2.38 was
not “closely related to [Plaintiff’s] ultimate injury.”
Long
442 F.3d at 1190.
Accordingly, the Court finds that Plaintiff has not
31
adequately alleged that HPD Policy Number 2.38 amounted to
deliberate indifference and was the moving force behind any
violation of her constitutional rights.
ii.
HPD Policy Number 2.21
The SAC alleges that Defendants Naki and Omoso were
effectively on-duty pursuant to HPD Policy Number 2.21 when they
observed Kimura recklessly and dangerously handling his
firearm. 11
SAC ¶ 43.
According to the SAC, Defendants Naki and
Omoso were required to take action under the policy upon
observing Kimura’s conduct but “deliberately failed to perform
their duties.”
Id. ¶¶ 44-45.
The Court finds that the SAC does
not adequately allege facts showing that HPD Policy Number 2.21
amounted to deliberate indifference, because the policy
allegedly required Defendants Naki and Omoso to intervene in the
incident and prevent Kimura’s reckless conduct.
Id.
¶ 43.
Defendants Naki and Omoso’s purported failure to intervene shows
possible deficient performance, not a deficient policy.
Similarly, HPD Policy Number 2.21 was not the moving
force behind any violation of Plaintiff’s federal constitutional
or statutory rights.
The SAC alleges that Defendants Naki and
Omoso violated the policy when they deliberately failed to act,
11
In her opposition brief, Plaintiff does not address whether
HPD Policy Number 2.21 constituted a policy amounting to
deliberate indifference to her constitutional rights and was the
moving force behind the alleged constitutional violation.
32
and that their inaction caused the alleged constitutional
violation.
Said differently, Plaintiff does not allege that HPD
Policy Number 2.21 allegedly caused the conduct about which she
complains.
iii. HPD’s “Brotherhood” Culture of Silence
Plaintiff has plausibly alleged a policy, practice, or
custom based on HPD’s “brotherhood” culture of silence.
See
Cook v. City of Fairfield, No. 215-CV-02339 KJM-KJN, 2017 WL
4269991, at *6 (E.D. Cal. Sept. 26, 2017).
The SAC alleges that
a “‘brotherhood’ culture of silence was prevalent among officers
at HPD, in which officers were known to abstain from reporting
the misconduct of their fellow officers, resulting in Defendant
[Honolulu]’s willful failure to adequately discover and
investigate instances of officer misconduct.”
SAC ¶ 46.
Through allegations that are nearly identical to those
found deficient in the February 12, 2018 Order, the SAC further
states that the actions taken by HPD members after the incident
at Kings evidenced the “brotherhood” culture of silence and its
effects.
Id. ¶ 49.
These actions include: (1) sequestering
Kimura and Defendants Naki and Omoso from questioning during the
investigation; (2) initially misclassifying the incident as a
non-criminal matter; (3) failing to subject Kimura to a
breathalyzer test; and (4) failing to ask basic investigative
questions to determine the nature and circumstances leading to
33
Plaintiff’s injury.
Id.
The SAC, like the FAC, further alleges
that the “brotherhood” culture of silence was shown through
prior incidents of HPD misconduct (by on-duty officers) in 20092010, 2012, and 2014, as well as other incidents at Kings
involving Kimura.
Id. ¶¶ 19, 51-53.
The SAC does not, however, add any non-conclusory
factual allegations showing that the “brotherhood” culture of
silence amounted to deliberate indifference to Plaintiff’s
federal constitutional or statutory rights.
Those allegations
the SAC does add about the “brotherhood” culture of silence
remain 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.”).
For example, the SAC alleges that, “[i]n failing to
intervene and prevent Kimura from causing injury to Plaintiff, .
. . [Defendants Naki and Omoso] knowingly and willfully adhered
to HPD’s “brotherhood” culture of silence with the purpose and
effect of influencing the behavior of others present at Kings
Sports Bar.”
SAC ¶ 66.
The SAC further alleges that HPD “acted
with deliberate indifference and under color of law by
perpetuating the ‘brotherhood’ culture of silence that
34
encourages and emboldened” Kimura and Defendants Naki and Omoso
to “flaunt their status as law enforcement officers, and . . .
engage in and/or tolerate the reckless and dangerous handling of
a firearm by Kimura.”
Id. ¶ 67.
Neither of these conclusory
allegations plausibly shows that the “brotherhood” culture of
silence itself amounted to deliberate indifference to
Plaintiff’s constitutional rights. 12
In addition, Plaintiff’s allegations about the
“brotherhood” culture of silence fail to establish that it was
the moving force behind her constitutional injury.
Plaintiff
alleges that the “brotherhood” culture of silence was the moving
force behind her injuries because her injuries would not have
occurred “had[:] (i) [Defendant Honolulu] established policies
to subvert the ‘brotherhood’ culture of silence by mandating the
12
Plaintiff again cites to Laporta v. City of Chicago, 102 F.
Supp. 3d 1014 (N.D. Ill. 2015) to support the proposition that a
police department’s alleged “code of silence” may constitute a
custom, policy, or practice that amounts to deliberate
indifference and was the moving force behind the constitutional
violation. Opp. at 23 n.7. In the February 12, 2018 Order,
however, the Court found Laporta distinguishable. February 12,
2018 Order at 30 n.12. The Court explained that the Laporta
plaintiff, unlike Plaintiff here, “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.
(citing Laporta, 102 F. Supp. 3d at 1021). The SAC does not
establish the connection between HPD’s “brotherhood” culture of
silence and Plaintiff’s constitutional injury found missing in
the FAC. Accordingly, the Court will not depart from the law of
the case here.
35
reporting of misconduct; and (ii) [Defendants Naki and Omoso]
reported Kimura’s prior acts of firearm mishandling to HPD
administrators so that Kimura would be disciplined for his prior
firearm-related misconduct . . . .”
Id. ¶ 68.
As an initial
matter, Plaintiff’s allegations regarding these supposed
omissions remain conclusory.
See Iqbal, 556 U.S. at 678.
In
addition, Plaintiff’s allegations focus on supposed omissions in
Defendant Honolulu’s policies that permitted the “brotherhood”
culture of silence to persist, rather than plausibly alleging
that the culture itself was the moving force behind her
injuries.
See February 12, 2018 Order at 29.
Moreover, as explained in the February 12, 2018 Order,
Plaintiff’s allegations assert that Kimura’s reckless handling
of a firearm while impaired was a violation of HPD Policy Number
2.38, and Defendants Naki and Omoso’s failure to intervene
allegedly violated HPD Policy Number 2.21.
2018 Order at 30.
See February 12,
According to Plaintiff, these violations of
HPD policy caused her constitutional injury.
Given these
alleged violations of HPD policy, the Court finds any supposed
connection between the “brotherhood” culture of silence and
Plaintiff’s injuries too tenuous for the culture to be a moving
force behind Plaintiff’s injuries.
iv.
Failure to Train
The SAC seemingly attempts to state a Monell claim
36
predicated on allegations that the individual officers were not
adequately trained. 13
See SAC ¶¶ 71-80.
To do so, the SAC must
plausibly allege that: (1) the existing training program is
inadequate based on the tasks the particular officers must
perform; (2) the failure to train constitutes deliberate
indifference to the rights of individuals with whom the police
come into contact; and (3) the inadequacy of the training
actually caused the alleged deprivation of the constitutional
right. 14
Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th
13
The Court notes that Plaintiff’s opposition brief does not
contain a section analyzing her section 1983 claim premised on a
failure to train, although there are several general conclusory
references to that claim.
14
As the Court explained in the February 12, 2018 Order:
“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
37
Cir. 1989).
First, the SAC must adequately allege that the HPD’s
existing training program is inadequate in relation to the tasks
particular officers must perform.
In an attempt to do so, the
SAC alleges that Kimura and Defendants Naki and Omoso were
trained in accordance with HPD Policy Numbers 2.38 and 2.21 at
the time of the incident.
SAC ¶¶ 36, 44.
The SAC then
(inaccurately) alleges that “Kimura’s attempt to reload his HPD
supplemental firearm was performed in accordance with his
official training and duties as an HPD officer under Policy
Number 2.38 . . . .”
Id. ¶ 37.
According to Plaintiff, her
injuries could have been avoided if Defendant Honolulu
“implemented and enforced a policy that established clear
guidelines with regard to identifying and responding to
‘impairment’ by armed officers, and/or . . . implemented and
enforced a policy that prohibited the possession of a firearm .
. . while consuming alcohol in any amount.”
Id. ¶ 77 (emphasis
omitted).
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 .
. . for failure to train.” Bini v. City of
Vancouver, 218 F. Supp. 3d 1196, 1203 (W.D.
Wash. 2016).
ECF No. 132 at 31-32.
38
The Court finds that these allegations do not
plausibly allege that Defendant Honolulu’s training program
regarding the use of supplemental firearms was inadequate in
relation to the tasks that the individual officers had to
perform.
The fact that Kimura, while off-duty and in a state of
impairment at a bar, allegedly attempted to reload his firearm
in furtherance of HPD policy does not show that HPD’s training
program concerning the use of supplemental firearms was
inadequate.
Kimura was barred from handling his firearm at the
time of the incident pursuant to explicit HPD policy, and the
Court cannot find that the need for different training to
prevent Kimura’s conduct under those circumstances was “so
obvious.”
See Canton, 489 U.S. at 390.
As to Defendants Naki and Omoso, the SAC alleges that
Defendant Honolulu “showed deliberate indifference by failing to
adequately train, investigate, supervise, discipline, counsel,
and/or retrain” defendants Naki and Omoso to, among other
things, “take appropriate and necessary action under color of
law to intercede against and/or report any and all instances of
firearm mismanagement and/or other threatening conduct by HPD
officers.”
SAC ¶ 83.
The Court finds these generalized
allegations vague and conclusory and therefore insufficient to
survive a motion to dismiss.
See Iqbal, 556 U.S. at 678.
Second, the SAC must adequately allege that Defendant
39
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 demonstrate deliberate indifference for purposes
of failure to train.”
Connick v. Thompson, 563 U.S. 51, 62
(2011) (quoting Bd. of Cnty. Com’rs v. Brown, 520 U.S. 397, 409
(1997)).
However, a “plaintiff also might succeed in proving a
failure-to-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).
In an attempt to establish deliberate indifference,
the SAC alleges that HPD “acted with deliberate indifference . .
. by implementing an official HPD policy that directed officer
to possess a firearm while consuming alcohol until the point of
40
mental and/or physical impairment, thereby creating a
foreseeable risk of death or serious bodily injury.”
SAC ¶ 75.
In addition, the SAC alleges that HPD “failed to implement an
adequate training program that prohibited the handling of
firearms while consuming alcohol.”
Id. ¶ 78.
The Court notes that the focus of these allegations is
supposed deficiencies in HPD’s policies, rather than any
allegedly inadequate training Kimura and Defendants Naki and
Omoso received under those policies.
For example, Plaintiff
contends that HPD’s Policy Number 2.38 was inadequate because it
did not prohibit the handling of firearms while consuming
alcohol, but Plaintiff does not allege how or why HPD’s training
program with respect to HPD Policy Number 2.38 was inadequate or
amounted to deliberate indifference.
Moreover, the Court finds
that Plaintiff’s allegations that HPD’s training program
amounted to deliberate indifference remain vague and conclusory.
And, as explained in the February 12, 2018 Order, the SAC lacks
any allegations plausibly showing that Kimura or Defendants Naki
and Omoso’s actions were a highly predictable consequence of any
alleged lack of training.
See February 12, 2018 Order at 34.
Finally, the SAC must plausibly allege that HPD’s
inadequate training caused the deprivation of Plaintiff’s
federal constitutional or statutory rights.
The SAC alleges
only that HPD “proximately and directly exposed Plaintiff to the
41
foreseeable risk of serious harm” because she was “deprived of
her constitutional right[s] against unreasonable seizures . . .
and substantive due process—including her right to bodily
integrity . . . .”
SAC ¶¶ 78, 79.
The Court has already found,
however, that Plaintiff failed to plausibly allege a deprivation
of her constitutional rights under the Fourth or Fourteenth
Amendments.
Accordingly, Plaintiff cannot state a Monell claim
based on a failure to train.
II.
Plaintiff’s State Law Negligence Claim (Count 4)
The SAC’s negligence count is entitled “Negligence
claims against all Defendants under Hawaii state law: Ordinary
negligence, gross negligence, negligent training and/or
supervision, and/or negligence based upon respondent superior
liability.”
SAC at 26.
Given the Court’s dismissal of Counts
1-3 above (the federal law claims), the Court will dismiss Count
4 without prejudice to Plaintiff re-filing that claim in Hawaii
state court.
A district court “may decline to exercise supplemental
jurisdiction” if it “has dismissed all claims over which it has
original jurisdiction.” See 28 U.S.C. § 1367(c)(3).
The United
States Supreme Court has noted that “in the usual case in which
all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—
42
will point toward declining to exercise jurisdiction over the
remaining state-law claims.”
Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n.7 (1988), superseded on other grounds by
statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d
553, 557 (10th Cir. 2000).
“Needless decisions of state law
should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a surerfooted reading of applicable law.” United Mine Workers v. Gibbs,
383 U.S. 715, 726 (1966).
The Court has considered the appropriate factors and
finds that they weigh in favor of declining jurisdiction over
Plaintiff’s state-law negligence claims.
Accordingly, the Court
declines to exercise supplemental jurisdiction over those claims
and dismisses them without prejudice to Plaintiff refiling them
in Hawaii state court.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant
City and County of Honolulu’s Motion to Dismiss the Second
Amended Complaint, ECF No. 134, to which Defendants Sterling
Naki and Joshua Omoso have filed joinders, ECF Nos. 141, 142 as
follows:
1. Counts 1-3 of the Second Amended Complaint are
DISMISSED WITH PREJUDICE.
2. The Court declines to exercise supplemental
43
jurisdiction over Count 4 of the Second Amended
Complaint (asserting state-law negligence claims)
and accordingly Count 4 is DISMISSED WITHOUT
PREJUDICE, and Plaintiff may re-file this claim
in Hawaii state court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 8, 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 Second
Amended Complaint.
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