Mueller v. State of Hawaii Department of Public Safety, et al.

Filing 394

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER RE: EVIDENTIARY HEARING ON STATUTE OF LIMITATIONS AND EQUITABLE TOLLING - Signed by SENIOR JUDGE HELEN GILLMOR on 7/20/2021. Based on the above Findings of F act and Conclusions of Law, the Court hereby rules as follows: IT IS HEREBY ORDERED, ADJUDGED and DECREED that Plaintiff Elizabeth A. Mueller's Complaint, filed on October 30, 2017, is timely. (jo)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELIZABETH A. MUELLER,
Plaintiff,
vs.
STATE OF HAWAII DEPARTMENT OF
PUBLIC SAFETY; FREDDIE
CARABBACAN, in his individual
capacity and official capacity
as Deputy Sheriff; NOLAN
ESPINDA, in his individual and
official capacity as Director
of the Department of Public
Safety; DOE DEFENDANTS 1-10,
Defendants.

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CIVIL NO. 17-00571 HG-WRP

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
RE: EVIDENTIARY HEARING ON STATUTE OF LIMITATIONS AND EQUITABLE
TOLLING
Plaintiff Elizabeth A. Mueller (“Plaintiff Mueller”) alleges
that on July 3, 2014, she was sexually assaulted by Deputy
Sheriff Freddie Carabbacan (“Defendant Carabbacan”) while in the
custody of the Department of Public Safety, State of Hawaii.
On July 3, 2014, Plaintiff Mueller was in the Department of
Public Safety’s custody in the cellblock for the Circuit Court of
the First Circuit, State of Hawaii, following a court hearing.
She claims that Deputy Sheriff Carabbacan performed a strip
search of her that was sexually violative.
On October 30, 2017, more than three years after the July 3,
2014 search, Plaintiff Mueller filed her Complaint in this case
against: (1) the State of Hawaii Department of Public Safety,
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(2) Defendant Carabbacan, (3) former Director of the Department
of Public Safety Nolan Espinda, and (4) the warden of the Oahu
Community Correctional Center Francis Sequeira.
The Parties stipulated to dismiss the case against Warden
Sequeira.

(Stipulation for Dismissal of Plaintiff's Complaint

Against Defendant Francis Sequeira, ECF No. 106).
The Complaint alleges a claim for Cruel and Unusual
Punishment in violation of the Eighth Amendment to the United
States Constitution pursuant to 42 U.S.C. § 1983 against
Defendants Carabbacan and Espinda in both their individual and
official capacities and the Department of Public Safety arising
from the alleged sexual assault on July 3, 2014.
The Complaint also alleges state law tort claims of
negligence, intentional and negligent infliction of emotional
distress, and assault and battery against the Defendants.
The Parties agree that a two-year statute of limitations
applies to Plaintiff’s Section 1983 Eighth Amendment claims and
her state law tort claims.

Owens v. Okure, 488 U.S. 235, 249-51

(1989).
Defendants State of Hawaii Department of Public Safety and
Nolan Espinda filed a Motion for Summary Judgment.
198).

2

(ECF No.

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On March 18, 2020, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, DEFENDANTS STATE OF HAWAII,
DEPARTMENT OF PUBLIC SAFETY AND NOLAN ESPINDA’S MOTION FOR
SUMMARY JUDGMENT.

(ECF No. 236).

In their Motion, Defendants Espinda and Department of Public
Safety argued that Plaintiff Mueller’s Section 1983 Eighth
Amendment claims and her state law tort claims are barred by the
two-year statute of limitations.

Defendants assert that the

statute of limitations bars Plaintiff’s claims because the
alleged assault from which the case arose occurred on July 3,
2014, and Plaintiff Mueller did not file her lawsuit until
October 30, 2017.
Plaintiff Mueller argued that she exercised diligence in
pursuing her lawsuit and that extraordinary circumstances should
equitably toll the statute of limitations.

She asserted that her

October 30, 2017 Complaint is timely.
In its March 18, 2020 Order, the Court denied Defendants’
Motion as to their statute of limitations defense.

The Court set

an evidentiary hearing on the question of equitable tolling of
the statute of limitations given the disputes of fact in the
record.
On May 6 and 7, 2021, the Court conducted a two-day
evidentiary hearing on Defendants’ statute of limitations defense
and Plaintiff’s request for equitable tolling.
The Court makes the following findings of fact and
conclusions of law regarding the Defendants’ statute of
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limitations defense and Plaintiff’s request for equitable
tolling.
To the extent any findings of fact are more properly
characterized as conclusions of law, or any conclusions of law
are more properly characterized as findings of fact, they shall
be so construed.
FINDINGS OF FACT
THE PARTIES
1.

Plaintiff Elizabeth A. Mueller is a female who was in

the custody of the State of Hawaii Department of Public Safety on
July 3, 2014.
2.

Defendant Department of Public Safety, State of Hawaii,

is the State agency responsible for maintaining the custody and
care of inmates in the State’s prison and jail system and
oversees the State’s Sheriff Division which employs Defendant
Carabbacan.

Defendant Department of Public Safety was

responsible for both the transportation of Plaintiff Mueller and
the investigation into her complaint of sexual assault by
Defendant Carabbacan.
3.

Defendant Freddie Carabbacan is a male Deputy Sheriff

with the State’s Sheriff Division.

Defendant Carabbacan is

employed by the State of Hawaii Department of Public Safety, and
he is sued in both his individual and official capacities.
4.

Defendant Nolan Espinda is the former Director of the

Department of Public Safety and is sued in both his individual
4

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and official capacities.
PLAINTIFF ALLEGES THAT ON JULY 3, 2014 SHE WAS SEXUALLY ASSAULTED
BY DEFENDANT CARABBACAN WHILE IN THE CUSTODY OF THE DEPARTMENT OF
PUBLIC SAFETY
5.

On July 3, 2014, Plaintiff Mueller was in the custody

of the State of Hawaii Department of Public Safety and was
transported from the Circuit Court of the First Circuit, State of
Hawaii to Oahu Community Correctional Center (“OCCC”).

(May 6,

2017 Transcript (“5/6/21 Tr.”) at 8:02-11).
6.

Plaintiff claims that on July 3, 2014, she was sexually

assaulted by Defendant Carabbacan while in the cell block at the
Circuit Court, and she was then transported to OCCC.

(Complaint,

attached as Ex. A to Def.’s Notice of Removal, ECF No. 1-1).
PLAINTIFF ATTEMPTED TO REPORT THE ALLEGED SEXUAL ASSAULT
IMMEDIATELY AFTER RETURNING TO THE OAHU COMMUNITY CORRECTIONAL
CENTER ON JULY 3, 2014
7.

On July 3, 2014, Plaintiff Mueller verbally reported to

staff members of the Department of Public Safety that she was
sexually assaulted by Defendant Carabbacan at the Circuit Court
cellblock.

(Plaintiff's Depo. at 108:6-109:17, Exhibit 1013;

5/6/21 Tr. at 57:02-07).
8.

Plaintiff told the Lieutenant in charge, Adult

Correctional Officer Toucay, that she was sexually assaulted by
Carabbacan.

(See 5/6/21 Tr. at 34:4-8-37:8).
---

Officer Toucay

told Plaintiff that she “should take one for the team” and that

5

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the OCCC Adult Correctional Officers “protect their own and it's
not that serious.”
9.

(Id.; Plaintiff's Decl. at ¶ 14, Exhibit 19).

Plaintiff Mueller attempted to file a written report

against Defendant Carabbacan on July 3, 2014.

Officer Toucay did

not allow Plaintiff to file a written report against Defendant
Carabbacan on July 3, 2014.
10.

Also on July 3, 2014, Plaintiff asked Department of

Public Safety staff to file a criminal report with the Honolulu
Police Department regarding the alleged sexual assault.
(Plaintiff's Depo. at 108:6-109:17, Exhibit 1013; Plaintiff's
Decl. ¶¶ 14, 17, Exhibit 19; 5/6/21 Tr. at 11:09-11, 51:21-25).
11.

The OCCC Adult Correctional Officers refused to contact

the Honolulu Police Department and did not allow Plaintiff
Mueller to report the alleged sexual assault to police on July 3,
2014.

(Plaintiff's Depo. at 108:6-109:17, Exhibit 1013;

Plaintiff's Decl. at ¶¶ 14, 17, Exhibit 19; 5/6/21 Tr. at
12:13-16, 30:10-30:21, 33:25-34:16, 35:23-37:08, 51:21-52:09,
59:16-24).
12.

On July 3, 2014, Plaintiff spoke with the duty Prison

Rape Elimination Act Officer at OCCC named Officer Anzai.
(5/6/21 Tr. at 36:2-21).

Officer Anzai did not allow Plaintiff

to file a written report against Defendant Carabbacan on July 3,
2014.

(Id.)

6

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ON JULY 24, 2014, PLAINTIFF FILED A WRITTEN REPORT ALLEGING SHE
WAS SEXUALLY ASSAULTED BY DEFENDANT CARABBACAN
13.

Following the alleged sexual assault on July 3, 2014,

Plaintiff continued to attempt to make a written report against
Defendant Carabbacan.

Department of Public Safety employees

continued to deny Plaintiff Mueller the opportunity to file a
written report. (Plaintiff's Decl. at ¶ 16, Exhibit 19).
14.

On July 24, 2014, Plaintiff was finally able to

formally file a written report with the Department of Public
Safety for the alleged sexual assault by Defendant Carabbacan on
July 3, 2014.

(Plaintiff's July 24, 2014 Administrative Remedy

Form, Exhibit 1006; Plaintiff's July 24, 2014 Individual
Statement, Exhibit 1004; 5/6/21 Tr. at 52:07-14, 57:02-08; May 7,
2021 Hearing Transcript (“5/7/21 Tr.”) at 74:06-13).
THE DEPARTMENT OF PUBLIC SAFETY VIOLATED ITS OWN POLICIES AND
PROCEDURES THAT WERE DESIGNED TO COMPLY WITH THE PRISON RAPE
ELIMINATION ACT
15.

Sergeant Maria Tom, a Prison Rape Elimination Act

Trainer and an Adult Correctional Officer for the Department of
Public Safety, testified that as of July 18, 2014, Department of
Public Safety staff are required to fill out a form PSD 8313 if
an inmate reports an incident of sexual assault.
82:9-25).

(5/6/21 at

The Department of Public Safety violated its own

policies and procedures because none of its staff members
completed a form PSD 8313 following Plaintiff’s report of sexual
assault by Defendant Carabbacan on or after July 18, 2014.
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16.

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Sergeant Tom testified that the Department of Public

Safety is required to provide inmates with an educational session
by video or classroom as to the inmate’s rights pursuant to the
Prison Rape Elimination Act.

(Id. at 84:14-85:9).

Sergeant Tom

testified that the Department of Public Safety’s policies and
procedures require that the Department of Public Safety maintain
electronic or written documentation of an inmate’s participation
in the educational session video or classroom.
86:19).

(Id. at 85:10-

The Department of Public Safety violated its own

policies and procedures because there is no electronic or written
documentation of Plaintiff Mueller’s participation in the
educational video allegedly shown to inmates at OCCC regarding
their rights pursuant to the Prison Rape Elimination Act.
17.

The policies and procedures of the Defendant Department

of Public Safety, State of Hawaii, require that complaints of
sexual assault by inmates, while in custody, be investigated
internally by the Department of Public Safety.

The investigation

is conducted as part of the Inmate Grievance Program.

The

policies and procedures of the Department of Public Safety also
require that sexual assault claims be investigated criminally by
the Honolulu Police Department.

(5/7/21 at 28:19-31:19, 58:9-

60:17).
18.

The Department of Public Safety did not refer

Plaintiff’s allegations of sexual assault to the Honolulu Police
Department in violation of its own policies and procedures.
DPS PREA Policy at 18, § 17.3, Exhibit 1011, which requires
8

(See

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Department of Public Safety staff to immediately refer a
complaint of sexual assault by an inmate to the Honolulu Police
Department; see 5/6/21 Tr. at 83:01-15).
PLAINTIFF MUELLER WAS DILIGENT IN PURSUING HER RIGHTS BUT
DEPARTMENT OF PUBLIC SAFETY EMPLOYEES TOLD PLAINTIFF MUELLER SHE
COULD NOT FILE A CIVIL LAWSUIT UNTIL THE INVESTIGATION INTO HER
SEXUAL ASSAULT CLAIM WAS COMPLETED
19.

Department of Public Safety employees, including

Officer Toucay and Officer Anzai, told Plaintiff Mueller on
multiple occasions that she needed to wait to file a civil
lawsuit until after the investigation into her sexual assault
claim was completed by the Department of Public Safety.

(5/6/21

Tr. at 30:12-13, 35:23-36:07, 36:22-37:08).
20.

Plaintiff met with multiple lawyers in order to pursue

her civil lawsuit as a result of the alleged July 3, 2014
incident.
21.

(5/6/21 Tr. at 14:23-24, 21:19-22).
Plaintiff Mueller did not hire an attorney prior to

2017 as she believed she was required to wait until after the
Department of Public Safety completed its investigation for her
to file a civil lawsuit.

(Id. at 34:15-16).

THE DEPARTMENT OF PUBLIC SAFETY TOOK MORE THAN A YEAR TO COMPLETE
ITS INVESTIGATION INTO PLAINTIFF’S SEXUAL ASSAULT COMPLAINT
22.

Plaintiff Mueller verbally reported that she was

sexually assaulted by Defendant Carabbacan on July 3, 2014, and
she filed a written report regarding the alleged sexual assault

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on July 24, 2014.

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It was not until September 10, 2014 that the

Department of Public Safety assigned Deputy Sheriff Sergeant
Michael Murota to conduct an administrative investigation into
Plaintiff’s allegations of sexual assault by Defendant
Carabbacan.

(September 10, 2014 Memorandum re: Complaint

Investigation - SDA Log No. 14-012, Exhibit 6).

Sergeant Murota

did not interview Plaintiff Mueller about her claims until
December 2014.
23.

On July 24, 2015, more than a year after Plaintiff’s

alleged sexual assault on July 3, 2014, Sergeant Murota completed
the Department of Public Safety’s investigation.

It was one year

from the date of Plaintiff’s July 24, 2014 written report until
the Department of Public Safety completed its internal
administrative investigation into Plaintiff’s allegations of
sexual assault by Defendant Carabbacan.

(5/7/21 Tr. at 23:4-6,

31:4-6, 75:04-08).
24.

Pursuant to the Department of Public Safety’s own

policies and procedures, the Department was required to notify
Plaintiff Mueller if it needed more than 90 days to complete the
investigation into her sexual assault complaint and the cause for
the need of additional time.

(DPS PREA Policy at 29, § 29.4,

Exhibit 1011; 5/6/21 Tr. at 90:08-92:17, 5/7/21 Tr. at 8:5610:17).

The Department of Public Safety violated its own

policies and procedures by failing to notify Plaintiff Mueller of
the need for an extension beyond 90 days and the reasons for the
extension.
10

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THE DEPARTMENT OF PUBLIC SAFETY WITHHELD THE RESULTS OF THE JULY
24, 2015 INVESTIGATION REPORT THAT SUBSTANTIATED PLAINTIFF’S
CLAIM OF SEXUAL ASSAULT AGAINST DEFENDANT CARABBACAN
25.

On July 24, 2015, Director of the Department of Public

Safety Nolan Espinda received Sergeant Murota's investigation
report regarding Plaintiff Mueller’s allegations of sexual
assault by Defendant Carabbacan.

(See Internal Affairs Office's

Investigation Report SDA14-012, Exhibit 17; 5/7/21 Tr. at
23:19-25).

The report substantiated Plaintiff’s claim of sexual

assault while she was in the custody of the Department of Public
Safety by Defendant Carabbacan on July 3, 2014.
26.

(Id.)

Director Espinda withheld the July 24, 2015 report from

Plaintiff Mueller.
27.

Sergeant Murota testified that based on his

investigation he believed the Department of Public Safety was
“covering up” for Defendant Carabbacan.

(5/7/21 Tr. at 33:23-

34:18).
28.

The Department of Public Safety was required to provide

Plaintiff Mueller with Sergeant Murota’s July 24, 2015
investigation report on July 24, 2015 because Plaintiff Mueller
was in the custody of the State of Hawaii Department of Public
Safety on that date.

(5/7/21 Tr. at 67:15-68:07; Espinda Depo.

at 132:19-133:15, 180:12-24, Exhibit 16; July 21, 2017 Letter
from Marlene Mier, Clerical Supervisor for the Department of
Public Safety to Elizabeth Mueller re: Ms. Mueller's Dates of
Confinement, Exhibit 10; 5/6/21 Tr. at 9:18-23).
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29.

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The Department of Public Safety and Nolan Espinda did

not inform Plaintiff Mueller of the July 24, 2015 report until
July 3, 2017, in violation of its own policies and procedures.
(5/7/21 Tr. at 67:15-68:07).
DEPARTMENT OF PUBLIC SAFETY STAFF MISLEAD PLAINTIFF ABOUT THE
STATUS OF ITS INVESTIGATION INTO HER SEXUAL ASSAULT COMPLAINT
30.

For years following Plaintiff’s sexual assault

complaint, Plaintiff Mueller was repeatedly told by Department of
Public Safety employees that she could not file a civil lawsuit
until the Department’s administrative investigation into the
alleged sexual assault was complete and she received the results
of the investigation.

(5/6/21 Tr. at 30:12-13, 32:11-15, 33:4-7,

36:22-24, 37:4-6).
31.

Plaintiff Mueller repeatedly asked Department Public

Safety staff about the status of the investigation of her sexual
assault claim against Defendant Carabbacan.

(Id. at 54:10-24,
---

122:17-124:18, 134:01-136:09).
32.

Plaintiff asked Department of Public Safety staff about

the status of the investigation of her sexual assault claim a
minimum of seven times on approximately the following dates:
(1)

November 17, 2014,

(2)

March 30, 2015,

(3)

November 10, 2015,

(4)

December 28, 2015,

(5)

July 6, 2016,
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(6)

March 1, 2017, and

(7)

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June 28, 2017.

(5/6/21 Tr. at 54:10-24; Exhibit 10, listing dates when
Plaintiff was confined at OCCC; Plaintiff’s Decl. at ¶ 42,
Exhibit 19).
33.

At a minimum, on four occasions between November 2015

and June 2017, Department of Public Safety staff provided false
and incorrect information to Plaintiff Mueller that the
investigation into her sexual assault claim was still pending
when in fact the investigation was completed and substantiated on
July 24, 2015.
34.

(5/6/21 Tr. at 54:21-24).

On June 28, 2017, Plaintiff Mueller was again brought

into custody at OCCC and again inquired into the status of her
sexual assault complaint against Defendant Carabbacan.

(Decl. of

Cheyenne Evans at ¶ 10, Exhibit 1015).
35.

On June 30, 2017, Plaintiff again reported to Shannell

L. Smith, Pretrial Officer at the Department’s Intake Service
Center, that she had been sexually assaulted on July 3, 2014, and
she inquired about the status of the investigation.
36.

(Id.)
---

On June 30, 2017, at 10:22 a.m., Shannell Smith emailed

Kimberly Ayala, another Department of Public Safety employee, to
inform her that Plaintiff had reported that she was sexually
assaulted “by a sheriff while at Circuit Court in 2014, and
stated the incident was reported to the police.”

(E-mail from

Shanell Smith to Kimberly Ayala, dated June 30, 2017 at 10:22 am,
Exhibit 1008).
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37.

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On the same date at 10:28 a.m., Kimberly Ayala sent an

e-mail to Department of Public Safety employees Shelley Nobriga
and Cheyenne Evans to inform them that Plaintiff Mueller had
inquired about the July 3, 2014 sexual assault investigation and
reported it to Shanell Smith.

(E-mail from Kimberly Ayala to

Shelley Nobriga and Cheyenne Evans dated June 30, 2017 at 10:28
am, Exhibit 1008).
38.

Kimberly Ayala’s e-mail stated that she had conducted a

search of the facility’s records and according to OCCC’s Prison
Rape Elimination Act records, Plaintiff Mueller had reported the
incident on “7/24/2014” and it “looks like it is still under
investigation.”
39.

(Id.)

Later that same day on June 30, 2017, at 2:26 p.m.,

Cheyenne Evans sent an e-mail to the Warden of OCCC and copied
the e-mail to Shelley Nobriga and Kimberly Ayala, informing them
that, “This case was substantiated, can you please have the
inmate notified of the outcome and forward the mandatory report
form to me.”
40.

(Id.)

Cheyenne Evans, who works as a Prison Rape Elimination

Act auditor for the Department of Public Safety, testified that
the Department of Public Safety did not maintain its sexual
assault investigation records consistently.

She explained that

the Department of Public Safety maintained separate logs
regarding its pending investigations into sexual assault
complaints.

(5/6/21 Tr. at 122:8-123:4).

Ms. Evans explained

that if an inmate inquired with a staff member at the intake
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service center regarding a Prison Rape Elimination Act
investigation or with a sheriff, the inmate may receive false
information that the investigation was still pending.
122:17-124:18).

(Id. at

Ms. Evans testified that the intake and sheriff

records may not match the Department of Public Safety’s central
Prison Rape Elimination Act records regarding ongoing
investigations into sexual assaults because the status logs were
not synched and were not automatically updated when an
investigation was completed but were only updated based on
inquiries to certain Prison Rape Elimination Act staff members.
(Id.)
41. Shelley Harrington (née Nobriga), the Department of
Public Safety’s Prison Rape Elimination Act Coordinator,
testified that she believed Prison Rape Elimination Act staff
conducted “periodic status updates” regarding the investigation
into Plaintiff Mueller’s sexual assault complaint but there were
issues with the records regarding the investigation into
Defendant Carabbacan because of an ongoing arbitration case
involving his employment.

(5/6/21 Tr. at 134:01-136:13).

PLAINTIFF MUELLER WAS NOT PROVIDED THE RESULTS OF THE DEPARTMENT
OF PUBLIC SAFETY’S INVESTIGATION INTO HER CLAIM OF SEXUAL ASSAULT
ON JULY 3, 2014 UNTIL JULY 3, 2017
42.

On July 3, 2017, three years to the day of the alleged

sexual assault, Sergeant Allen Octavio, an Adult Correctional
Officer with the Department of Public Safety and the Prison Rape
Elimination Act compliance manager, presented Plaintiff with the
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Department’s report finding written substantiation of her
allegations of sexual assault against Defendant Carabbacan.
(July 3, 2017 PREA Mandated Reporting Form provided to Plaintiff
by Sgt. Octavio, Exhibit 1009; 5/6/21 Tr. at 55:10-56:23,
136:06-13, 139:10-18).
43.

The Department of Public Safety violated its own

policies and procedures by misleading Plaintiff Mueller about the
status of the investigation and withholding the results of the
investigation from her for nearly two years after the
investigation was completed.

(Espinda Depo. at 132:19-133:15,

180:12-24, 181:24-182:7, Exhibit 16; 5/7/21 Tr. at 67:15-68:07,
84:18-85:10;

(5/7/21 Tr. at 67:15-68:07; July 21, 2017 Letter

from Marlene Mier, Clerical Supervisor for the Department of
Public Safety to Elizabeth Mueller re: Ms. Mueller's Dates of
Confinement, Exhibit 10; 5/6/21 Tr. at 9:21-9:23, 54:21-24).
CONCLUSIONS OF LAW
1.

The Court has subject-matter jurisdiction pursuant to

28 U.S.C. §§ 1331, 1343, and 1441.
2.

Venue is proper in the United States District Court for

the District of Hawaii.
3.

Defendants have the burden of proof on all affirmative

defenses, including the statute of limitations.

Carvalho v.

Raybestos-Manhattan, Inc., 794 F.2d 454, 456 (9th Cir. 1986)
(applying Hawaii state law); Briggs v. Montgomery, 2019 WL
2515950, *20-*21 (D. Ariz. June 18, 2019) (explaining defendants
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bear the burden of proof as to each element of a statute of
limitations affirmative defense in a Section 1983 case).
4.

The burden shifts to a plaintiff to establish that

equitable tolling applies if a defendant raises a statute of
limitations defense.

Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052

(9th Cir. 2013).
5.

An evidentiary hearing was conducted on May 6 and 7,

2021, to develop the record and to evaluate Defendants’ statute
of limitations defense and whether equitable tolling applies.
See Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003); Jones v.
Cal. Dept. of Corrs., 584 Fed. Appx. 496, 497 (9th Cir. 2014).
THE APPLICABLE STATUTE OF LIMITATIONS FOR PLAINTIFF’S CLAIMS IS
TWO YEARS
6.

42 U.S.C. § 1983 does not contain its own statute of

limitations, and actions brought pursuant to 42 U.S.C. § 1983 are
governed by the forum state's statute of limitations for personal
injury actions.

Knox v. Davis, 260 F.3d 1009, 1012-13 (9th Cir.

2001) (citing Wilson v. Garcia, 471 U.S. 261, 276, (1985)).
7.

In Hawaii, the statute of limitations for personal

injury actions is two years.

See Haw. Rev. Stat. § 657-7; Bird

v. Dep't of Human Servs., 935 F.3d 738, 743 (9th Cir. 2019).
8.

The applicable statute of limitations for Plaintiff's

federal and state law claims alleged in the Complaint is two (2)
years.

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PLAINTIFF’S CLAIMS BEGAN TO ACCRUE ON JULY 3, 2014
9.

The determination of when a federal law Section 1983

cause of action accrues turns on federal law.

Wallace v. Kato,

549 U.S. 384, 388 (2007).
10.

Federal common law applies the discovery rule that a

cause of action accrues when the plaintiff knows or has reason to
know of the injury that is the basis of the action and the cause
of that injury.

Gregg v. Hawaii, Dep't of Pub. Safety, 870 F.3d

883, 887 (9th Cir. 2017).
11.

Plaintiff was aware of the injuries forming the basis

for her action and their cause on the date of the alleged sexual
assault on July 3, 2014.
12.

The statute of limitations began to accrue on July 3,

2014.
EQUITABLE TOLLING OF THE STATUTE OF LIMITATIONS APPLIES IN THIS
CASE
13.

In a federal law action, the federal court must give

effect to a state’s tolling provisions and laws, including
provisions regarding equitable tolling, except to the extent any
of these laws conflict with federal law.

Jones v. Blanas, 393

F.3d 918, 927 (9th Cir. 2004).
14.

Hawaii law provides that the statute of limitations may

be equitably tolled for extraordinary circumstances.

Office of

Hawaiian Affairs v. State, 133 P.3d 767, 789 (Haw. 2006).
extraordinary circumstances to apply, the plaintiff must
18

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demonstrate: (1) that she has been pursuing her rights
diligently; and, (2) that some extraordinary circumstances stood
in her way.

Id.; Annan-Yartey v. Muranaka, Civ. No. 16-00590

JMS-KJM, 2017 WL 1243499, *5 (D. Haw. Apr. 3, 2017).
15.

Plaintiff Mueller diligently pursued her rights

following the alleged sexual assault on July 3, 2014:
a.

Plaintiff Mueller immediately reported the alleged
sexual assault by Defendant Carabbacan to
Department of Safety staff after she was returned
to OCCC on July 3, 2014;

b.

Plaintiff Mueller attempted to file a written
report and to report the incident to the Honolulu
Police Department on July 3, 2014;

c.

Plaintiff Mueller filed a written complaint as
soon as she was allowed to on July 24, 2014;

d.

Plaintiff Mueller attempted to obtain counsel to
bring a lawsuit while she was in and out of
incarceration following the incident;

e.

Plaintiff Mueller cooperated with the
investigation and gave an interview to Department
of Public Safety staff;

f.

Plaintiff was not told about the completion of the
investigation into her sexual assault claim on
July 24, 2015;

g.

Plaintiff Mueller was not told when she inquired
about the status of the investigation because the
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Department of Public Safety records were not
maintained properly and the system was not updated
after the investigation was completed on July 24,
2015;
h.

Plaintiff Mueller was not told about the results
of the investigation until July 3, 2017; and,

i.

Plaintiff Mueller retained current counsel and
filed her lawsuit on October 30, 2017 after
receiving the substantiation of her sexual assault
complaint on July 3, 2017.

16.

Extraordinary circumstances are circumstances beyond

the control of the plaintiff which make it impossible to file a
complaint within the statute of limitations.

See Huynh v. Chase

Manhattan Bank, 465 F.3d 992, 1004 (9th Cir. 2006).
17.

Here, extraordinary circumstances exist that toll the

statute of limitations in this case.
18.

The extraordinary circumstances include government

conduct that lulled a complainant into inaction.

Curtiss v. Mt.

Pleasant Corr. Facility, 338 F.3d 851, 855 (8th Cir. 2003).
Plaintiff Mueller was lulled into inaction by Department of
Public Safety employees who failed to timely comply with
Department of Public Safety policies in documenting, reporting,
and investigating Plaintiff’s allegations of sexual assault.
19.

Plaintiff was also lulled into inaction by Department

of Public Safety employees who told her she could not file a
civil lawsuit until after she received notice that the
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investigation into her sexual assault claim was finished.
20.

Extraordinary circumstances include providing incorrect

information to a plaintiff which misled her from timely asserting
her rights.

Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015);

Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001).

The

Department of Public Safety did not maintain its sexual assault
investigation records consistently.

The Department of Public

Safety maintained separate logs regarding its pending
investigations into sexual assault complaints that resulted in
misinformation being given to Plaintiff Mueller about the status
of the investigation into her complaint.
21.

Each time Plaintiff was incarcerated after July 24,

2015, Plaintiff inquired with the OCCC facility and intake staff
about the status of the investigation into her sexual assault
complaint against Defendant Carabbacan.

Plaintiff was repeatedly

told that the investigation was ongoing despite the fact that the
investigation was completed on July 24, 2015.

Plaintiff was

misinformed that the investigation was not concluded, because the
status logs regarding her sexual assault complaint were not
updated when the investigation was completed.

Plaintiff only

received notice that the investigation was completed after
Plaintiff inquired with Department of Public Safety employee
Shanell Smith on June 30, 2017, and Ms. Smith inquired about the
investigation up the chain of command.
22.

Plaintiff did not receive the July 24, 2015 report

until July 3, 2017.

The written report substantiating
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Plaintiff’s sexual assault claim had been provided to Nolan
Espinda, the former Director of the Department of Public Safety,
on July 24, 2015.

Nolan Espinda withheld the report from

Plaintiff Mueller until July 3, 2017.
23.

Based on the totality of the circumstances, equitably

tolling of the two-year statute of limitations is warranted.

The

Court finds that the statute of limitations is equitably tolled
in this case from July 3, 2014, the date when her claim began to
accrue, until July 3, 2017, the date when Plaintiff was provided
with the results of the Department of Public Safety’s report of
its investigation.
24.

Plaintiff's Complaint (ECF No. 1-1), filed on October

30, 2017, is timely filed because it was filed within two (2)
years of July 3, 2017.
THE PRISON LITIGATION REFORM ACT ALSO TOLLS THE APPLICABLE TWOYEAR STATUTE OF LIMITATIONS
25.

Federal law provides a separate and consistent basis

for tolling the statute of limitations in this case.
26.

A prisoner's Section 1983 claim is tolled while the

prisoner complies with the mandatory exhaustion requirements
pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e.
Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005); Ross v.
Blake, 136 S. Ct. 1850 (2016) (the PLRA imposes a mandatory
exhaustion requirement); cf. Does 8-10 v. Snyder, 945 F.3d 951,
955-56 (6th Cir. 2019).
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27.

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Prisoners must complete the institution’s own

administrative review process in accordance with its applicable
procedural rules in order to properly exhaust their
administrative remedies pursuant to the Prison Litigation Reform
Act before they may file a civil lawsuit.

Jones v. Bock, 549

U.S. 199, 922-23 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88
(2006)).
28.

The Department of Public Safety’s administrative

grievance process is the applicable procedure that must be
completed before a plaintiff can file a civil complaint in
federal court, including for claims involving sexual assault. See
Department of Public Safety’s Policy COR.12.03, COR 23.03, and
ADM.08.08, which provide enhanced requirements for investigations
of a sexual assault complaint.
29.

Plaintiff was required to exhaust the Department of

Public Safety’s administrative grievance procedure before filing
suit and the procedure was not exhausted until Plaintiff was
provided with the July 24, 2015 report on July 3, 2017.
30.

The statute of limitations for Plaintiff's Section 1983

claims is tolled from July 3, 2014 until July 3, 2017, the date
upon which Plaintiff received the report that exhausted her
administrative remedies.
31.

Plaintiff's Complaint (ECF No. 1-1) in this case, filed

on October 30, 2017, is timely filed because it was filed within
two (2) years of July 3, 2017.

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DECISION AND ORDER
Based on the above Findings of Fact and Conclusions of Law,
the Court hereby rules as follows:
IT IS HEREBY ORDERED, ADJUDGED and DECREED that Plaintiff
Elizabeth A. Mueller's Complaint, filed on October 30, 2017, is
timely.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, July 20, 2021.

Elizabeth A. Mueller v. State of Hawaii, Department of Public
Safety; Freddie Carabbacan, in his individual capacity and
official capacity as Deputy Sheriff, Department of Public Safety,
State of Hawaii; Nolan Espinda, in his individual capacity and
official capacity as Director of the Department of Public Safety,
State of Hawaii; Doe Defendants 1-10; Civ. No. 17-00571 HG-WRP;
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER RE: EVIDENTIARY
HEARING ON STATUTE OF LIMITATIONS AND EQUITABLE TOLLING
24