Harris et al v. County of Hawaii
MEMORANDUM AND OPINION AND ORDER GRANTING DEFENDANT COUNTY OF HAWAII'S MOTION TO DISMISS COUNTS 4-12 OF COMPLAINT FILED SEPTEMBER 8, 2017 RE Motion terminated: 8 MOTION to Dismiss Counts 4-12 of Complaint filed by County of H awaii.. Signed by MAGISTRATE JUDGE RICHARD L. PUGLISI on 11/07/2017. (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
DANIEL W. HARRIS, ESTHER
DONNA M. SEGUNDO,
COUNTY OF HAWAII, DOES 1-10,
CIVIL NO. 17-00449 RLP
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT COUNTY OF
HAWAII’S MOTION TO DISMISS
COUNTS 4-12 OF COMPLAINT FILED
SEPTEMBER 8, 2017
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
COUNTY OF HAWAII’S MOTION TO DISMISS COUNTS
4-12 OF COMPLAINT FILED SEPTEMBER 8, 2017
Before the Court is Defendant County of Hawaii’s Motion
to Dismiss Counts 4-12 of Complaint Filed September 8, 2017,
filed on October 9, 2017 (“Motion”).
ECF No. 8.
filed their Opposition on October 23, 2017.
ECF No. 15.
Defendant County of Hawaii (“the County”) filed its Reply on
November 2, 2017.
ECF No. 18.
The Court finds this matter
suitable for disposition without a hearing pursuant to Rule
7.2(d) of the Local Rules of Practice for the United States
District Court for the District of Hawaii and VACATES the hearing
set for November 17, 2017.
See ECF No. 11.
reviewing the parties’ submissions and the relevant legal
authority, the Court GRANTS the County’s Motion.
Plaintiffs filed their Complaint on September 8, 2017.
ECF No. 1.
In the Complaint, Plaintiffs allege that Plaintiff
Harris was shot with a Taser and beaten by Hawaii Police
Department officers on September 15, 2015, when he was mistakenly
arrested pursuant to a warrant for another individual who shared
his same name.
Id. ¶¶ 10-26.
Plaintiff Segundo is Plaintiff
Harris’ mother and witnessed his arrest; Plaintiff SantiagoHarris is Plaintiff Harris’ wife.
Id. ¶¶ 17, 27.
assert federal claims under 42 U.S.C. § 1983 (Counts I, II, and
III), and state law claims for assault and battery, for false
arrest, false imprisonment, negligent training and supervision,
negligence, gross negligence, intentional infliction of emotional
distress, negligent infliction of emotional distress, and loss of
consortium (Counts IV through XII1).
Id. ¶¶ 33-85.
In the present Motion, the County argues that all of
Plaintiffs’ state law claims2 must be dismissed because they are
barred by statute of limitations set forth in Hawaii Revised
Although Plaintiffs’ claim for loss of consortium is
labeled “COUNT XI,” it is the twelfth count listed in the
Complaint. See ECF No. 1 at 13.
The County’s Motion only seeks dismissal of Plaintiffs’
state law claims. The parties agree that Hawaii’s general
statute for personal injury actions, Hawaii Revised Statutes
Section 657-7, which does not contain a notice provision, applies
to Plaintiffs’ federal Section 1983 claims against the County.
See ECF Nos. 8-1, 15; see also Sadri v. Ulmer, Civ. No. 06-00430
ACK-KSC, 2007 WL 869192, at *3 (D. Haw. Mar. 21, 2007)
(discussing the Supreme Court’s decision in Owens v. Ukure, 488
U.S. 235 (1989), which requires courts to apply the “general or
residual” state law statute of limitations to Section 1983 claims
and holding that the statute of limitations in Section 46-72 does
not apply to Section 1983 claims because it is not the general
personal injury statute).
Statutes Section 46-72.
ECF No. 8-1.
Under Federal Rule of Civil Procedure 12(b)(6),
Defendant may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.”
Fed. R. Civ. P.
Dismissal is proper if there is either a “‘lack of a
cognizable legal theory or the absence of sufficient facts
UMG Recordings, Inc. v. Shelter Capital Partners,
LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
A statue of limitations defense can be the basis for a
motion to dismiss if it is apparent from the face of the
See Seven Arts Filmed Entm't Ltd. v. Content Media
Corp., 733 F.3d 1251, 1254 (9th Cir. 2013); see also Rivera v.
Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) (“When
an affirmative defense is obvious on the face of a complaint,
however, a defendant can raise that defense in a motion to
dismiss.”) (citation omitted). However, “a complaint cannot be
dismissed unless it appears beyond doubt that the plaintiff can
prove no set of facts that would establish the timeliness of the
Supermail Cargo, Inc. v. United States, 68 F.3d 1204,
1206-07 (9th Cir. 1995).
Hawaii Revised Statutes Section 46-72 provides that in
order to hold the County liable for tort claims, an injured
person must provide “notice in writing of the injuries and the
specific damages resulting” to the individual identified in the
county’s charter “within two years after the injuries accrued.”
Haw. Rev. Stat. § 46-72.
The County’s charter provides that
written notice must be provided to the county clerk.
18, Haw. Cty. Charter.
The Hawaii Supreme Court has held that
Section 46-72’s written notice provision operates as a statue of
Silva v. City & Cty. of Honolulu, 165 P.3d 247, 257
Here, there is no dispute that Plaintiffs did not
provide written notice to the county clerk as required by Section
See ECF No. 15.
However, Plaintiffs argue that their
state law claims are not barred because Section 46-72 violates
the Equal Protection Clause of the Hawaii Constitution and their
state law claims against the County should be governed by the
two-year general personal injury statute of limitations contained
in Hawaii Revised Statutes Section 657-7, which does not contain
a notice requirement.
Id. at 5-8.
In support of their argument,
Plaintiffs cite Silva v. City and County of Honolulu.
In Silva, the Hawaii Supreme Court held that “the prior
version” of Section 46-72, which required written notice to the
county within six months on an injury, violated the Equal
Protection Clause of the Hawaii Constitution because there was no
rational basis to have a six-month statute of limitations for
tort victims injured by the county and a two-year statute of
limitations for tort victims injured by private parties or the
165 P.3d at 257-60.
However, and as recognized in Silva,
the prior version of Section 46-72 was repealed and replaced with
a two-year statute of limitations.
See id. at 260.
There is no
support for Plaintiff’s argument that the Supreme Court’s
decision in Silva requires a finding that the revised version of
Section 46-72 violates the Equal Protection Clause of the Hawaii
The Hawaii Supreme Court expressly held that the
“six-month provision” was the only “constitutional error” in the
Section 46-72 now provides:
the person injured . . . within two years
after the injuries accrued shall give the
individual identified in the respective
county’s charter . . . notice in writing of
resulting, stating fully when, where, and how
the injuries or damage occurred, the extent of
the injuries or damages, and the amount
Haw. Rev. Stat. § 46-72.
When statutory language is “plain and unambiguous,” a
court’s “sole duty is to give effect to its plain and obvious
State v. Ribbel, 142 P.3d 290, 295 (Haw. 2006)
(quoting Peterson v. Hawaii Elec. Light Co., Inc., 944 P.2d 1265,
1270–71 (Haw. 1997)).
Under the plain language of Section 46-72,
written notice must be provided to the County within two years of
Haw. Rev. Stat. § 46-72.
Here, Plaintiff Harris was
injured on the night of September 15, 2015.
ECF No. 1 ¶ 10.
There is no dispute that Plaintiffs did not provide the required
written notice to the County’s clerk within two years as required
by Section 46-72.
Even if Plaintiffs’ Complaint was sufficient
written notice under Section 46-72, Plaintiffs did not serve a
copy of the Complaint on the County until September 18, 2017,
several days after the statute of limitations expired.
Because Plaintiffs failed to comply with the requirements
of Section 46-72, Plaintiffs’ state law claims are untimely and
must be DISMISSED.
The Court GRANTS Defendant County of Hawaii’s Motion to
Dismiss Counts 4-12 of Complaint Filed September 8, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, NOVEMBER 7, 2017.
Richard L. Puglisi
United States Magistrate Judge
HARRIS, ET AL. v. COUNTY OF HAWAII; CIVIL NO. 17-00449 RLP; MEMORANDUM
OPINION AND ORDER GRANTING DEFENDANT COUNTY OF HAWAII’S MOTION TO
DISMISS COUNTS 4-12 OF COMPLAINT FILED SEPTEMBER 8, 2017
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