Escalante v. City and County of Honolulu

Filing 26

ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS COUNT THREE, WITHOUT LEAVE TO AMEND, ECF 11 . Excerpt of conclusion: "[T]he City's Motion to Dismiss is GRANT ED as to Count Three without leave to amend, and the court declines jurisdiction of the remaining state-law claims contained in the Complaint. [citation omitted] The Clerk of Court is directed to close the case file." IT IS SO ORDERED. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 4/11/2018. (afc) WRITTEN ORDER follows hearing held April 9, 2018. Minutes of hearing: ECF 24 and minute order: ECF (25).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JONARD P. ESCALANTE,

CIV. NO. 17-00578 JMS-RLP

Plaintiff,
vs.
CITY AND COUNTY OF HONOLULU,
et al.,

ORDER GRANTING
DEFENDANT CITY AND
COUNTY OF HONOLULU’S
MOTION TO DISMISS COUNT
THREE, WITHOUT LEAVE TO
AMEND, ECF NO. 11

Defendants.

ORDER GRANTING DEFENDANT CITY AND COUNTY OF
HONOLULU’S MOTION TO DISMISS COUNT THREE, WITHOUT
LEAVE TO AMEND, ECF NO. 11
I. INTRODUCTION
The question before the court is whether Plaintiff Jonard P. Escalante
(“Escalante”) has stated a viable 42 U.S.C. § 1983 claim against Defendant the
City and County of Honolulu (the “City”) for the assault he suffered at the hands of
an off-duty Honolulu Police Department (“HPD”) Officer, Co-Defendant Keoki
Kamuela Duarte (“Duarte”). Because the court finds no plausible causal
connection between the assault and the alleged acts or omissions of the City, the
Motion to Dismiss is GRANTED.
///
///

II. BACKGROUND
A.

Factual Background
The facts alleged regarding the underlying assault are straightforward.

On December 7, 2015, Escalante and Duarte were involved in a minor traffic
accident. Compl. ¶¶ 11-13, ECF No. 1. Both drivers pulled to the side of the road,
whereupon Duarte pulled Escalante from his truck, threw him to the asphalt, and
punched, kicked, and choked him until a third party intervened. Id. ¶¶ 14-16.
Duarte was not on duty at the time, and he was not driving a patrol car. Id. ¶ 12.
There are no allegations that Escalante knew or believed that Duarte was a police
officer or that Duarte did, said, or wore anything implying his position. Duarte
was later convicted of assault and unauthorized entry of a motor vehicle. Id. ¶ 17.
The factual allegations in the Complaint regarding the City, however,
are more complex. They center on an alleged “de facto policy, practice, or custom
of abstaining from reporting instances of misconduct of other officers” — what
Escalante calls in his Opposition “HPD’s unofficial ‘brotherhood’ culture of
silence” — which he alleges is “continuing, persistent, and widespread throughout
the [HPD]” and results in the City’s “failure to discover and/or take appropriate
remedial actions.” Id. ¶¶ 21-22, 25-33; Opp’n at 3, ECF No. 19. The Complaint
further alleges that HPD encourages its officers’ behavior by failing to combat it,

2

including by failing to establish appropriate policies and procedures for doing so.
See id. ¶¶ 21-22, 25-27.
Specifically, the Complaint states that, before the December 7 assault,
Duarte “had a history of emotional distress and/or anger management issues
resulting in the inappropriate use of excessive and violent force which was or
should have been known” to HPD. Compl. ¶ 19. It claims that the City failed to
properly counsel Duarte or “limit his encounters with potential victims of
excessive force and violence,” id. ¶20; failed to investigate incidents involving
Duarte and properly discipline him, including for a 2012 incident involving a
“mistaken arrest,” violence, and excessive force, and an attempt to cover up the
same, id. ¶ 20, 26; and failed to take proper action after the December 7 assault, id.
¶ 24.
Besides the 2012 incident, the Complaint refers generally to four other
“attempt[s] to conceal misconduct or criminal wrongdoing” of other HPD officers
(one incident occurring in 2009-2010, two in 2014, and one in 2015).1 Id. ¶ 27.
And finally, it alleges that the City failed to adopt policies (1) requiring officers to
report the misconduct of other officers, (2) protecting those who do report, and
1

In his Opposition, however, Escalante withdraws his reliance on one of the 2014
incidents, stating that he discovered after filing the Complaint “that a Hawaii state grand jury . . .
declined to issue an indictment” against the individual involved. Opp’n at 4 n.3.

3

(3) requiring records be kept of misconduct and consequences.2 Id. ¶¶ 28-29, 31.
B.

Procedural Background
Escalante filed his Complaint on December 1, 2017, alleging various

claims against the City, Duarte, and other unnamed individuals. ECF No. 1.
Against the City, he alleges in Count Three a violation of 42 U.S.C. § 1983 and in
Count Six a state-law negligence claim. Id. at 15-18.
The City filed its Motion to Dismiss on January 2, 2018, arguing that
Counts Three and Six of the Compliant should be dismissed for failure to state a
claim upon which relief can be granted.3 ECF No. 11. Escalante filed his
Opposition on March 19, 2018.4 ECF No. 19. And the City replied on March 26,
2018. ECF No. 21. The Motion was heard on April 9, 2018.

2

The Complaint also alleges that the City failed to “provide its supervising officers with
the proper training and supervisory tools . . . to identify concerning behavioral patterns and
prevent officer misconduct from developing, occurring, or persisting.” Id. ¶ 30. But this
allegation has been withdrawn. See Opp’n at 4 n.2.
3

The Motion is brought only as to the claims against the City. As explained below,
however, Escalante has agreed to the dismissal of his § 1983 claims against Duarte. Given the
court’s ruling on Count Three, it declines jurisdiction of the supplemental state-law claims and
does not address the Motion as to Count Six.
4

The Opposition attaches various exhibits that are not part of the Complaint. The court
elects not to convert the City’s Motion to one for summary judgment and strikes these exhibits.
See Fed. R. Civ. P. 12(b)(6). (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”) (emphasis added); see also Hamilton Materials, Inc. v.
Dow Chem. Corp., 494 F.3d 1203, 1207 (9th Cir. 2007) (“Federal Rule of Civil Procedure
12(b)(6) specifically gives courts the discretion to accept and consider extrinsic materials offered
(Continued . . .)
4

III. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock,
Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Review is limited to the contents
of the complaint. Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d
381, 385 (9th Cir. 1995). To survive a motion to dismiss for failure to state a
claim, a complaint generally must satisfy the requirements of Federal Rule of Civil
Procedure Rule 8, which requires that a complaint include a “short and plain
statement of the claim showing that the pleader is entitled to relief.”
This pleading standard “does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Aschcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). And a pleading that offers “labels and
conclusions or a formulaic recitation of the elements of a cause of action will not
do.” Id. In other words, the allegations in the complaint “must be enough to raise
a right to relief above the speculative level.” Id. (citations and quotations omitted).

(. . . continued)
in connection with these motions, and to convert the motion to one for summary judgment when
a party has notice that the district court may look beyond the pleadings.”).

5

A complaint may be dismissed under Rule 12(b)(6) for failure to state
a claim if the plaintiff fails to state a cognizable legal theory or has not alleged
sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729
F.3d 953, 959 (9th Cir. 2013). While the court is to accept as true all the factual
allegations in the complaint, legally conclusory statements, not supported by actual
factual allegations, need not be accepted. Iqbal, 556 U.S. at 678-79; see also In re
Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
A motion to dismiss should be granted if the complaint does not
proffer enough facts to state a claim for relief that is plausible on its face. See
Twombly, 550 U.S. at 558-59. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation
omitted). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged — but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679.
///
///
///
///

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IV. DISCUSSION
A.

Monell Liability under § 1983
“To state a claim under § 1983, a plaintiff must allege the violation of

a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). Although municipalities and other
local government units are “persons to whom § 1983 applies,” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690 (1978), a municipality can only be liable “for its
own” constitutional violations. City of Okla. City v. Tuttle, 471 U.S. 808, 818
(1985) (quoting Monell, 436 U.S. at 683). That is, § 1983 does not impose liability
on municipalities for constitutional violations committed by its employees under
the theory of respondeat superior. Id.
Rather, “Monell teaches that [a municipality] may only be held
accountable if the deprivation was the result of municipal ‘custom or policy.’” Id.
at 817. “[T]he constitutional violation must be caused by ‘a policy, practice, or
custom of the entity,’ or be the result of an order by a policy-making officer.”
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (citations
omitted). “Liability for improper custom may not be predicated on isolated or
sporadic incidents; it must be founded upon practices of sufficient duration,

7

frequency and consistency that the conduct has become a traditional method of
carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citations
omitted).
In other words,
Local governing bodies can be held liable . . . where “the
action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that
body’s officers,” or where the action is made “pursuant
to governmental ‘custom’ even though such a custom has
not received formal approval through the body’s official
decision making channels.”
Jackson v. Barnes, 749 F.3d 755, 762-63 (9th Cir. 2014) (quoting Monell, 436 U.S.
at 690-91). “An official municipal policy . . .‘includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of law.’” Tsao, 698 F.3d
at 1144 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).
Moreover, “a local government body can be held liable under § 1983
for policies of inaction as well as policies of action.” Jackson, 749 F.3d at 763.
“[A] policy of inaction is based on a government body’s ‘failure to implement
procedural safeguards to prevent constitutional violations.’” Id. (quoting Tsao, 698
F.3d at 1143).

8

To state a claim based the “inaction” theory, a plaintiff must show that
the policy amounts to “deliberate indifference to the plaintiff’s constitutional
right.” Id. (quoting Tsao, 698 F.3d at 1143). “This requires showing that the
defendant ‘was on actual or constructive notice that its omission would likely
result in a constitutional violation.’” Id. (quoting Tsao, 698 F.3d at 1145). Under
this theory, a plaintiff must also show that “these policies were the moving force
behind the employee’s violation of [Plaintiff’s] constitutional rights, in the sense
that the [municipality] could have prevented the violation with an appropriate
policy.” Gibson v. Cty. of Washoe, 290 F.3d 1175, 1194 (9th Cir. 2002), overruled
on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir.
2016); see Oviatt v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992) (same) (citing
City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)).
First, the City contends that Escalante has not plausibly alleged that
Duarte was acting under color of state law. Mot. at 6-8. The Complaint clearly
states that Duarte was off-duty at the time of the assault, and it includes no
allegations whatsoever that he used, attempted to use, or pretended to use his status
as a police officer — let alone that any such action influenced Escalante or any
witness. See Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006)
(holding that to have acted under color of law a defendant must have “pretended to

9

act in the performance of his official duties . . . with the purpose and effect of
influencing the behavior of others,” and the actions must have meaningfully related
to his governmental status or official duties). And in fact, at the April 9 hearing,
Escalante conceded that Duarte was not acting under color of law.
Escalante contends, however, that his claim may proceed nonetheless
under Monell based on his allegation that the “City, by and through HPD’s final
policymaker (the Chief of Police), is responsible for causing [Escalante] to be
subjected to an unlawful assault.” Opp’n at 11.
The Ninth Circuit first addressed this argument in Van Ort v. Estate of
Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (acknowledging the novelty of
plaintiff’s argument that county could be held liable under Monell for an off-duty
officer’s private actions — whether or not taken under color of state law — so long
as those actions were caused by the county’s policies and procedures). There,
during an apparently legal but fruitless narcotics search of the plaintiffs’ home, a
San Diego County Sheriff’s deputy learned that the plaintiffs kept cash and jewelry
in a safe. Id. at 833. He returned to the home weeks after the search, when he was
off duty, and robbed and assaulted the residents. Id. at 833-34. The plaintiffs
brought a § 1983 claim premised on Monell, contending that the Sheriff’s
Department’s policies and procedures caused the plaintiffs’ injuries. Id. at 835-36.

10

In considering the plaintiffs’ claim, the court first stated that “[i]f a
government officer does not act within the scope of employment or under color of
state law, then that government officer acts as a private citizen.” Id. at 835 (citing
Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) (finding that “acts of state
officials in the ambit of their personal pursuits are not state action”)). And one
does not have a “constitutional right” to be free from deprivations — even of
constitutional rights — by private citizens. Id. at 836. Nor, absent narrow
exceptions,5 does one have a “constitutional right ‘to governmental aid [from
private deprivations of constitutional rights] even where such aid may be necessary
to secure life, liberty, or property.’” Id. (quoting DeShaney v. Winnebago Cty.
Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (alterations in Van Ort)). The court
acknowledged the “possible interaction between the identification of state action
and causation,” stating that “although state action and causation are separate

5

“There are two exceptions to the general rule that ‘a State’s failure to protect an
individual against private violence . . . does not constitute a violation of the Due Process Clause.”
Huffman v. Cty. of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) (quoting Deshaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)). The first is when the
government has a special relationship with the individual (usually when the individual is in
government custody). See id. at 1058-59. And the second is the state-created danger doctrine
under which liability “exists where the state affirmatively places the plaintiff in a dangerous
situation.” Id. at 1059. Escalante has not argued that either exception applies here, nor could he
under the facts as alleged.

11

concepts, elements of the causation analysis have been used in determining state
action.” Id. (internal citation omitted).
But it resolved the case on causation grounds. It emphasized that
“[t]he requisite causal connection can be established not only by some kind of
direct personal participation in the deprivation but also by setting in motion a series
of acts by others which the actor knows or reasonably should know would cause
others to inflict the constitutional injury.” Id. (quoting Bateson v. Geisse, 857 F.2d
1300, 1304 (9th Cir. 1988)). It held that a plaintiff must show a “municipal policy
[of] action or inaction” was the proximate cause (not merely a but-for cause) of the
§ 1983 injury: “[w]ithout proximate cause, there is no section 1983 liability.” Id.
at 837. Because the court found as a matter of law that the county could not have
foreseen its deputy’s actions and specifically “could not reasonably have foreseen
that [the deputy] would become a free-lance criminal and attack the [plaintiffs] as
he did,” it affirmed judgment for the county. Id. The court concluded: “Thus,
whether we need to borrow elements of proximate cause analysis to determine the
state action issue under Bateson is irrelevant. The [plaintiffs] failed to prove
causation.” Id.
Following Van Ort, the Ninth Circuit has resolved other cases
involving off-duty officers in a similar fashion. See Snyder v. City &

12

Cty. of San Francisco, 288 F. App’x 346, 347-48 (9th Cir. 2008) (affirming
summary judgment for defendant based on insufficient evidence of causation on
claim that it was liable under Monell for assault by off-duty officer); see also
Huffman v. Cty. of Los Angeles, 147 F.3d 1054, 1061 (9th Cir. 1998) (applying
state-created danger doctrine, and finding district court had erred by denying
County’s motion for judgment as a matter of law when shooting by off-duty officer
neither occurred under color of law nor was “foreseeable by the County.”). 6
And, in a case involving an on-duty sheriff’s deputy, the Ninth Circuit
recognized the implausibility of a claim that assault (in that case a sexual assault)
was caused by a failure to train. See Flores v. Cty. of Los Angeles, 758 F.3d 1154,
1156 (9th Cir. 2014). There, in affirming the dismissal of the plaintiff’s Monell
claim, the court stated: “[g]iven that the penal code prohibits sexual battery, it is
6

Other courts have held, as a matter of law, that the acts of an employee not acting under
color of law can never support a Monell claim. See, e.g., Bustos v. Martini Club, Inc., 599 F.3d
458, 467 (5th Cir. 2010) (“Because [Plaintiff] has alleged no constitutional injury attributable to
the [off-duty] Officers, [Plaintiff] has failed to state a claim that a City policy was the moving
force behind a violation of his constitutional rights.”); Roe v. Humke, 128 F.3d 1213, 1218 (8th
Cir. 1997) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has
suffered no constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally excessive force is
quite beside the point.”)); Claudio v. Sawyer, 409 F. App’x 464, 466 (2nd Cir. 2011) (holding
that plaintiff’s failure to sufficiently allege off-duty officer had shot plaintiff’s decedent while
acting under color of state law “doomed plaintiffs’ Monell claim . . . as such a claim must be
based on an independent constitutional violation by a state actor”); Fate v. Harper, 558 F. App’x
250, 253 (3d Cir. 2014) (“We find no error in the District Court’s instruction requiring the jury to
find that Detective . . . acted under color of law before imposing liability against the City.”).

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not plausible that inclusion in the [County’s] Manual of the language that
[Plaintiff] proposes would have prevented the assault on [her.]” Id. at 1160.
Escalante’s claim that HPD’s alleged practices caused the assault in
this case (or that stricter reporting and discipline policies would have prevented it)
is equally implausible. Cf. Hyun Ju Park v. City & Cty. of Honolulu, 2018 WL
832839, at *9-10 (D. Haw. Feb. 12, 2018) (finding plaintiff had not plausibly
alleged HPD’s “‘brotherhood’ culture of silence” was the “moving force” behind
plaintiff’s injury from accidental shooting by off-duty officer at bar). Escalante
has merely alleged in conclusory fashion that, based upon Duarte’s “previous
conduct and actions . . . it was a foreseeable consequence that absent corrective
action and the existence and implementation of appropriate policies and procedures
[Duarte] would cause serious bodily injury to others and/or use excessive force and
violence if his employment as a police officer was permitted to continue, and his
suffering from emotional and/or anger management issues remained unaddressed.”
Compl. ¶ 23. Even assuming, as the court must at this motion-to-dismiss stage, the
truth of Escalante’s factual allegations regarding HPD’s practices of lax discipline
and inadequate policies about reporting officer misconduct, he has not alleged such
a plausible link. With no plausible causal connection, the Complaint is — in

14

essence — an attempt to impose respondeat-superior liability for Duarte’s private
actions, something not allowed under Monell.7
Nor does the Complaint contain plausible allegations that the City
acted with deliberate indifference. Like causation, deliberate indifference involves
an element of foreseeability. See Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008)
(describing deliberate indifference as a “‘conscious’ or ‘deliberate’ choice by the
[municipality] to risk a ‘likely’ violation of constitutional rights”). Even assuming
the truth of Escalante’s factual allegations, he has not plausibly alleged the City’s
deliberate indifference because he has not plausibly alleged that an assault such as
that which occurred here was foreseeable. Cf. Flores, 758 F.3d at 1160 (finding
“no basis from which to conclude that the unconstitutional consequences of failing
to train police officers not to commit sexual assault are so patently obvious that the
County . . . [was] deliberately indifferent”).
Accordingly, the City’s Motion is GRANTED as to Escalante’s
§ 1983 claim.

7

Likewise, although Escalante does not rely on these allegations in his Opposition, the
same is true regarding his allegations about Duarte’s mental state. Escalante alleges that Duarte
was “suffering from emotional distress and/or anger management problems related to his
employment” and that the City “did nothing to provide [Duarte] with counseling.” Compl.
¶¶ 18, 20. But even assuming both of these allegations are true, no facts in the Complaint create
a plausible link between the City’s inaction and the assault such that the former could be
considered the proximate cause of the latter.
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B.

Supplemental Jurisdiction Over State-Law Claims
“[D]istrict courts may decline to exercise supplemental jurisdiction

over [state-law claims] if . . . the district court has dismissed all claims over which
it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[W]hen deciding
whether to exercise supplemental jurisdiction, ‘a federal court should consider and
weigh in each case, and at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity.’” City of Chicago v. Int’l Coll. of
Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988)). And “in the usual case in which all federal-law claims are
eliminated before trial, the balance of factors . . . will point towards declining to
exercise jurisdiction over the remaining state-law claims.” Acri v. Varian Assocs.,
Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (quotation marks and citation
omitted).
At the hearing, the court offered Escalante leave to amend his
Complaint, but Escalante declined and expressed his preference to pursue his
claims in state court. He also agreed to the dismissal of his federal claims against
Defendant Duarte. See ECF No. 25. Thus, because no federal claim remains and
the Complaint fails to allege any basis for diversity jurisdiction, the court declines
jurisdiction over it and the remaining state-law claims and does not address the

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City’s Motion as to Count Six.
V. CONCLUSION
For the reasons stated above, the City’s Motion to Dismiss is
GRANTED as to Count Three without leave to amend, and the court declines
jurisdiction of the remaining state-law claims contained in the Complaint.8 The
Clerk of Court is directed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 11, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Escalante v. City & Cty. of Honolulu, Civ. No. 17-00578 JMS-RLP, Order Granting Motion to
Dismiss Count Three, Without Leave to Amend, ECF No. 11.
8

“The period of limitations for any [state] claim [joined with a claim within federal-court
competence] shall be tolled while the claim is pending [in federal court] and for a period of 30
days after it is dismissed unless State law provides for a longer tolling period.” Artis v. Dist. of
Columbia, 138 S. Ct. 594, 598 (2018) (quoting 28 U.S.C. § 1367(d) and interpreting “the word
‘tolled’ . . . [to] mean the state limitations period is suspended during the pendency of the
federal suit,” as opposed to meaning that a 30-day “grace period” is granted) (alterations in
Artis).
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