Garcia v. City and County of Honolulu
Filing
93
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS re: 76 and 77 "For the foregoing reasons, the Officer Defendants' Motion and Defendant Honolulu's Moti on are GRANTED IN PART AND DENIED IN PART as follows: 1. The Officer Defendants' Motion is DENIED with respect to the individual capacity § 1983 equal protection claims and GRANTED with respect to the official capacity § ; 1983 claims and the negligence claims. The official capacity § 1983 claims are DISMISSED WITH PREJUDICE and the negligence claims are DISMISSED WITHOUT PREJUDICE. The Court declines to address the § 1983 substantive due process claims at this time because the Officer Defendants failed to address those claims in their Motion. 2. Defendant Honolulu's Motion is DENIED with respect to the § 1983 equal protection municipal liability claim and GRANTED with respect to the negl igent supervision claims. The negligent supervision claims are DISMISSED WITHOUT PREJUDICE. The Court declines to address the § 1983 substantive due process municipal liability claim at this time because Defendant Honolulu failed to address that claim in its Motion. Plaintiff Garcia shall have 30 days to file an amended complaint that attempts to cure the pleading deficiencies identified herein-that is, the deficiencies identified in her negligence claims. If Plaintiff Garcia chooses to file a second amended complaint, she may not assert additional claims absent the Court's permission." Signed by JUDGE ALAN C. KAY on 5/3/2019 (jo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
DONNA GARCIA, Individually
and As Guardian Ad Litem for
Her Minor Children,
J.L. and G.L.
Plaintiff,
v.
CITY AND COUNTY OF HONOLULU;
RONALD J. LOMBARDI;
LANELL ARAKAWA; NATHAN HEE;
PAUL LEE; and JOHN and/or
JANE DOES 1-10,
Defendants.
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Civ. No. 18-00100 ACK-RLP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS
For the reasons that follow, the Court GRANTS IN PART
AND DENIES IN PART the Motion to Dismiss filed by Defendants
Lanell Arakawa, Nathan Hee, and Paul Lee, ECF No. 77, and GRANTS
IN PART AND DENIES IN PART the Motion to Dismiss filed by
Defendant City and County of Honolulu, ECF No. 76, as follows:
1. The Officer Defendants’ Motion is DENIED with respect
to the individual capacity § 1983 equal protection
claims and GRANTED with respect to the official
capacity § 1983 claims and the negligence claims. The
official capacity § 1983 claims are DISMISSED WITH
PREJUDICE and the negligence claims are DISMISSED
WITHOUT PREJUDICE. The Court declines to address the
§ 1983 substantive due process claims at this time
because the Officer Defendants failed to address those
claims in their Motion.
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2. Defendant Honolulu’s Motion is DENIED with respect to
the § 1983 equal protection municipal liability claim
and GRANTED with respect to the negligent supervision
claims. The negligent supervision claims are
DISMISSED WITHOUT PREJUDICE. The Court declines to
address the § 1983 substantive due process municipal
liability claim at this time because Defendant
Honolulu failed to address that claim in its Motion.
PROCEDURAL BACKGROUND
On March 15, 2018, Plaintiff Donna Garcia,
individually and as guardian ad litem for her minor children,
J.L. and G.L. (“Plaintiff Garcia”), filed a Complaint, ECF No.
1, against (1) the City and County of Honolulu (“Defendant
Honolulu”); (2) twenty-one Honolulu Police Department (“HPD”)
officers; 1/ and (3) John and/or Jane Does 1–10 (“Doe
Defendants”).
Compl. ¶¶ 11–14.
The HPD officers were sued in
their individual and official capacities.
Id. ¶ 13.
The Complaint asserted five causes of action.
Counts
I, II, and III asserted claims against each of the Defendants
under 42 U.S.C. § 1983 for violations of the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution.
Id. ¶¶ 145–160.
Count IV asserted a state law
claim against HPD officer Ronald J. Lombardi (“Defendant
1/
The HPD officers named in the Complaint were Ronald J.
Lombardi, Robert A. Cravalho, Benjamin Moszkowicz, April
Daniels, Arlynn Orpilla, Bonnie McKewen, Harold Uehara, Timothy
Slovak, Mikel Frederick, Darrien Thornley, Gary Daniels, Thomas
Nitta, Leonard Nishimura, Alan Rodrigues, Keith Vegas, Lanell
Arakawa, Brian Blackwell, Nathan Hee, Brandon Lau, Ryan
Hironaka, and Paul Lee. Compl. ¶ 13.
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Lombardi”) for intentional infliction of emotional distress
(“IIED”).
Id. ¶ 161–162.
Count V asserted state law negligence
claims against each of the Defendants except Defendant Lombardi.
Id. ¶ 163–164.
On May 4, 2018, Defendant Honolulu filed a Motion to
Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(6).
ECF No. 20.
Thereafter, the HPD officers filed three
motions to dismiss as follows:
(1) Robert A. Cravalho filed a
Motion to Dismiss on May 14, 2018, ECF No. 25; (2) Benjamin
Moszkowicz filed a Motion to Dismiss on June 19, 2018, ECF No.
40; and (3) the remaining HPD officers (except for Defendant
Lombardi) filed a Motion to Dismiss on July 31, 2018, ECF No.
45.
On October 11, 2018, Plaintiff Garcia filed an Omnibus
Memorandum in Opposition to the motions filed by Defendant
Honolulu and HPD officers Cravalho and Moszkowicz.
ECF No. 54.
Plaintiff Garcia filed a Memorandum in Opposition to the motion
filed by the remaining HPD officers on October 15, 2018.
No. 57.
On October 18, 2018, Defendant Honolulu and HPD
officers Cravalho and Moszkowicz filed Replies.
59.
ECF
ECF Nos. 58 and
On October 22, 2018, the remaining HPD officers filed a
Reply.
ECF No. 60.
The Court held a hearing on all four
motions on November 9, 2018.
ECF No. 63.
On November 16, 2018, the Court issued an Order
Granting Defendants’ Motions to Dismiss (the “11/16/2018
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Order”).
ECF No. 64.
Given that the Complaint alleged events
dating back to 2008, the parties initially disputed the extent
to which Plaintiff Garcia’s claims were time-barred by the
relevant two-year statute of limitations.
14.
11/16/2018 Order at
The Court found that Plaintiff Garcia’s claims against
Defendant Honolulu were based on an ongoing policy of
discrimination, and that she had alleged numerous acts within
the limitations period taken in furtherance of the
discriminatory policy.
Id. at 21–22.
Accordingly, the Court
ruled that Plaintiff Garcia’s claims against Defendant Honolulu
constituted a continuing violation and were not time-barred.
Id. at 22.
With respect to the claims against the individual
HPD officers, the Court ruled that only those claims involving
non-time-barred acts taken in furtherance of the discriminatory
policy could advance.
Id. at 24.
In dismissing Plaintiff Garcia’s claims, the Court
held the following:
1. As to HPD officers Cravalho, Moszkowicz, Daniels,
Orpilla, McKewen, Uehara, Slovak, Frederick, Thornley,
Daniels, Nitta, Nishimura, Rodrigues, Vegas,
Blackwell, Lau, and Hironaka, the Court dismissed all
of Plaintiff Garcia’s claims with prejudice because
the Court found that the claims were time-barred.
2. As to HPD officers Arakawa, Hee, and Lee, the Court
construed the official capacity § 1983 claims against
Defendant Honolulu and dismissed those claims with
prejudice; and the Court found that the individual
capacity § 1983 claims and negligence claims against
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HPD officers Arakawa, Hee, and Lee were not timebarred, but dismissed those claims without prejudice.
3. As to Defendant Honolulu, the Court found that
Plaintiff Garcia’s § 1983 municipal liability claim
and negligence claim were not time-barred, but
dismissed the claims without prejudice. 2/
4. The Court granted Plaintiff Garcia leave to file an
amended complaint in order to cure the pleading
deficiencies the Court identified with respect to the
claims that were dismissed without prejudice.
Specifically, the Court noted pleading deficiencies
with respect to Plaintiff Garcia’s failure to plead
plausible constitutional violations, municipal
liability, and state law negligence claims.
On December 14, 2018, Plaintiff Garcia filed her First
Amended Complaint (“FAC”).
ECF No. 70.
The FAC alleges claims
against Defendant Honolulu, Defendant Lombardi, HPD officer
Lanell Arakawa (“Defendant Arakawa”), HPD officer Nathan Hee
(“Defendant Hee”), HPD officer Paul Lee (“Defendant Lee”), and
the Doe Defendants.
The FAC alleges nearly the same claims as
the Complaint, except that the FAC alleges an additional
constitutional deprivation 3/—violation of the substantive due
process right to bodily integrity, which is protected by the Due
Process Clause of the Fourteenth Amendment.
2/
FAC ¶¶ 213–233.
The 11/16/2018 Order did not address Count IV for IIED because
it was asserted solely against Defendant Lombardi, and Defendant
Lombardi did not file a motion. Compl. ¶ 161–162
3/ Plaintiff Garcia’s original Complaint alleged only one
constitutional deprivation—violation of the right to equal
protection of enforcement of the law, which is guaranteed by the
Equal Protection Clause of the Fourteenth Amendment.
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On January 7, 2019, Defendant Honolulu filed a Motion
to Dismiss First Amended Complaint (“Defendant Honolulu’s
Motion”).
ECF No. 76.
On that same date, Defendants Arakawa,
Hee, and Lee (collectively, the “Officer Defendants”) filed a
Motion to Dismiss First Amended Complaint (“Officer Defendants’
Motion”).
ECF No. 77.
On April 2, 2019, Plaintiff Garcia filed
an Omnibus Memorandum in Opposition to Defendants’ Motions.
No. 88.
ECF
On April 9, 2019, Defendant Honolulu and the Officer
Defendants filed Replies to Plaintiff Garcia’s Opposition.
Nos. 89 and 90.
ECF
The Court held a hearing on Defendants’ Motions
on April 23, 2019.
FACTUAL BACKGROUND
According to the FAC, Plaintiff Garcia is employed as
an officer with the Department of Homeland Security, Customs and
Border Protection, and currently resides in Georgia, having left
Honolulu in 2009.
FAC ¶¶ 9–10.
Defendants Lombardi, Arakawa,
Hee, and Lee are all currently employed as HPD officers and
reside in Honolulu.
Id. ¶¶ 12–13.
Defendant Honolulu is a
municipal corporation of the State of Hawai`i.
Id. ¶ 11.
Plaintiff Garcia and Defendant Lombardi were married
in November 1999, separated in November 2007, and divorced on
February 14, 2011.
Id. ¶¶ 15, 17.
together, J.L. and G.L.
Id. ¶ 16.
They have two children
Plaintiff Garcia was awarded
temporary sole legal and physical custody of the children on
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July 15, 2008, a custody arrangement that was made permanent in
the divorce decree dated February 14, 2011.
Id. ¶ 19.
The 73-page FAC features allegations spanning a tenyear period from 2008 to 2018 that describe how Defendant
Lombardi engaged in abusive and harassing conduct over that
period.
The FAC also describes how Defendant Honolulu and
numerous HPD officers allegedly failed to do anything to stop
Defendant Lombardi and other HPD officers that Plaintiff Garcia
alleges aided him in his harassment campaign.
The thrust of
Plaintiff Garcia’s claims is that the HPD has a “de facto”
longstanding practice or custom of mishandling complaints of
domestic abuse filed by victims against HPD officers.
The Court
outlines below the various events that Plaintiff Garcia believes
are symptomatic of the alleged longstanding practice or custom.
I.
Assaults
Plaintiff Garcia alleges that on February 28, 2008,
Defendant Lombardi sexually assaulted G.L., and that G.L.
reported the sexual assault on March 2, 2008.
Id. ¶¶ 20–21.
At
some point prior to or in March 2008, Defendant Lombardi
physically and sexually assaulted J.L., the other daughter.
¶¶ 22, 25.
Id.
In October 2008, G.L. reported to her treating
therapist at the Sex Abuse Treatment Center that Defendant
Lombardi sexually assaulted her on another occasion.
Id. ¶ 54.
In August 2009, J.L. and G.L. both reported to their therapist
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that Defendant Lombardi committed additional sexual assaults.
Id. ¶ 79.
II.
Protective Orders
Plaintiff Garcia obtained three separate protective
orders and one order for pre-decree relief due to Defendant
Lombardi’s conduct.
Plaintiff Garcia obtained the first
protective order on March 7, 2008, having stated in the petition
for the order that Defendant Lombardi threatened her with
physical harm if she attempted to end their marriage, physically
assaulted J.L., and sexually assaulted G.L.
Id. ¶¶ 24–25.
The
order prohibited Defendant Lombardi from threatening or abusing
Plaintiff Garcia, J.L., and G.L.; prohibited Defendant Lombardi
from coming within 100 feet of Plaintiff Garcia, her residence
and workplace; and prohibited Defendant Lombardi from contacting
Plaintiff Garcia or damaging or disturbing her property.
26.
Id. ¶
Defendant Lombardi was also required to surrender his
firearms to the HPD.
June 5, 2008.
Id.
The order remained in effect until
Id.
On June 17, 2008, after divorce proceedings were
underway, Plaintiff Garcia requested pre-decree relief
prohibiting Defendant Lombardi from contacting her (other than
to schedule visitation with the children), prohibiting him from
coming near her residence or automobile absent an invitation,
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and prohibiting him from possessing firearms while in her
presence and while in the presence of the children.
Id. ¶ 38.
On June 18, 2008, Plaintiff Garcia obtained a second
protective order with substantially the same terms as the first
protective order, but also prohibiting Defendant Lombardi from
contacting Plaintiff Garcia or anyone else in her household.
Id. ¶ 41.
Plaintiff Garcia sought the second protective order
because Defendant Lombardi made threats involving firearms and
attempted to gain access to her residence in contravention of
the first protective order.
Id. ¶ 40.
The second protective
order remained in effect until July 9, 2008, when it was
superseded by a pre-decree relief order dated July 15, 2008.
Id. ¶¶ 39, 41.
The July 15, 2008 pre-decree relief order granted
Plaintiff Garcia sole legal and physical custody of the
children, and prohibited Defendant Lombardi from contacting her
for any purpose other than scheduling visitation, 4/ prohibited
him from coming near her residence or automobile absent an
4/
The custody arrangement was made permanent in the divorce
decree dated February 14, 2011. FAC ¶ 19. The visitation terms
in the divorce decree permitted Defendant Lombardi phone
visitation with the children, as well as in-person visitation
under the supervision and approval of their therapist and
Plaintiff Garcia. Id. It is unclear whether this is the
visitation arrangement that the FAC alludes to in the
allegations concerning the pre-decree relief order, or whether
the pre-decree relief order involved a different visitation
arrangement.
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invitation, and prohibited him from possessing firearms in her
presence or in the presence of the children.
Id. ¶¶ 19, 38–39.
On September 26, 2008, Plaintiff Garcia obtained a
third protective order with substantially the same terms as the
first and second protective orders.
Id. ¶ 50.
Plaintiff Garcia
sought the third protective order because Defendant Lombardi
violated the pre-decree relief order in various ways, including
stalking Plaintiff Garcia and the children, attempting to have
unsupervised visitation with the children, initiating
unauthorized communications with Plaintiff Garcia, possessing a
firearm in the presence of the children, and attempting to
manipulate G.L. when she was undergoing treatment at the Sex
Abuse Treatment Center.
Id. ¶ 49.
The third protective order
was set to expire on December 25, 2008 but was extended until
March 26, 2009.
III.
Id. ¶ 50.
Incident Reports
Plaintiff Garcia filed seven incident reports with the
HPD throughout 2008 documenting Defendant Lombardi’s violations
of the three protective orders and pre-decree relief orders.
Id. ¶ 60.
Plaintiff Garcia’s FAC contains allegations about six
of the incident reports.
The first incident report, dated June 20, 2008,
detailed Defendant Lombardi having visited and entered Plaintiff
Garcia’s residence and vehicle without her permission and while
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armed.
Id. ¶ 61.
The second incident report, dated September
12, 2008, detailed Defendant Lombardi having visited J.L. at
elementary school and delivering her books about murders, crime
scene investigations, and autopsies.
Id. ¶ 63.
Plaintiff
Garcia filed a third incident report on September 13, 2008
because Defendant Lombardi, in full uniform and armed with his
service firearm, threatened and harassed Plaintiff Garcia and
the children at a Jamba Juice in Kailua.
Id. ¶ 64.
Plaintiff
Garcia filed the fourth incident report on September 15, 2008
because Defendant Lombardi had harassed and threatened her, and
again attempted to have unsupervised visitation with the
children.
Id. ¶ 65.
Plaintiff Garcia filed the fifth incident report on
September 25, 2008 because Defendant Lombardi violated the July
15, 2008 pre-decree relief order by visiting G.L. at her
preschool.
Id. ¶ 66.
On that date, Defendant Lombardi told
Plaintiff Garcia that “he could get to her with a gun, that he
would visit the children wherever and whenever he wanted, and
that he would prove to her that he could do whatever he wanted
regardless of the court order because he was part of the
Honolulu Police Department ‘ohana.’” 5/
5/
Id. ¶ 67.
Defendant
The English translation of the Hawaiian word `ohana is
“Family, relative, kin group; related.” M. Kawena Pukui and
S.H. Elbert, Hawaiian Dictionary (1986) at p. 276.
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Lombardi then called G.L.’s preschool and stated his intention
of visiting G.L. during lunch.
Id. ¶ 68.
The preschool
informed Plaintiff Garcia and building security of Defendant
Lombardi’s plan, both of whom in turn notified the HPD.
Id.
An
HPD officer then called Defendant Lombardi to warn him that the
HPD had been notified of his plan to visit the preschool.
69.
Id. ¶
Defendant Lombardi explained that the June 18, 2008
protective order was no longer in effect, and that he was
therefore allowed to visit G.L.
Id.
Responding officers
confronted Defendant Lombardi after he arrived at the preschool
in full uniform but took no further action against him, despite
the fact that the pre-decree relief order was in effect.
Id. ¶¶
66, 70.
Plaintiff Garcia filed the sixth incident report on
November 18, 2008 after Defendant Lombardi left her a threating
voicemail from an HPD telephone.
Id.
¶¶ 71–72.
Plaintiff Garcia alleges that after she filed each of
the aforestated incident reports, Defendant Honolulu, pursuant
to a longstanding custom or policy, failed to adequately
investigate the incidents because they concerned allegations of
abuse and harassment involving an HPD officer.
Id. ¶ 73.
Plaintiff Garcia alleges that Defendant Honolulu’s inadequate
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investigations violated several internal HPD policies. 6/
Id. ¶
74.
IV.
False Police Reports
Plaintiff Garcia alleges that Defendant Lombardi
engaged in a campaign of harassment against her that involved
filing six false police reports beginning in June 2008.
85.
Id. ¶
The false police reports involved accusations that
Plaintiff Garcia committed criminal contempt, violated the child
custody arrangement, and made false allegations against
Defendant Lombardi.
Id. ¶ 86.
Defendant Lombardi filed reports
on June 17, 2008, July 10, 2008, January 7, 2009, October 22,
2009, June 9, 2011, and June 22, 2011.
Id. ¶¶ 88–92; 100–101.
Plaintiff Garcia alleges that Defendant Lombardi
resumed his campaign of harassment in November 2015 by filing
four more false police reports.
Id. ¶ 113.
Each of these
reports falsely accused Plaintiff Garcia of custodial
interference despite the fact that she was granted sole physical
and legal custody of the children.
Id. ¶¶ 113–114.
These
reports were dated November 20, 2015, December 22, 2015, January
14, 2016, and March 18, 2016.
Id. ¶¶ 113, 116–119.
The last of
these reports was authored by Defendant Arakawa and approved by
6/
The internal HPD policies are discussed infra where relevant.
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Defendant Hee, both of whom worked with Defendant Lombardi in
the HPD’s Traffic Division.
Id. ¶ 119.
Plaintiff Garcia alleges that in filing these reports,
Defendant Lombardi and the HPD officers who assisted him
violated various internal HPD policies.
Id. ¶ 115.
Defendant
Lombardi used these police reports as evidence in a show cause
action he filed in a Virginia Family Court in May 2016
attempting to have Plaintiff Garcia held in contempt.
Id. ¶
124.
V.
Professional Standards Office (“PSO”) Complaints
Plaintiff Garcia filed four 7/ PSO complaints with the
HPD.
The first was dated June 25, 2015 and concerned Defendant
Lombardi’s continued harassment of Plaintiff Garcia by violating
the protective orders and other Family Court orders obtained in
Virginia and Hawai`i.
Id. ¶ 108.
The complaint also detailed
Defendant Lombardi having made threats to resort to self-help to
visit J.L. and G.L. unsupervised, as well as threats of
retaliation against Plaintiff Garcia for accusing him of
domestic violence and sexually assaulting G.L.
Id.
Defendant
Lee was one of the officers who conducted the PSO investigation,
which Plaintiff Garcia alleges was deficient and violated
7/
The FAC indicates that Plaintiff Garcia filed four PSO
complaints, however, it only features allegations regarding two
PSO complaints. FAC ¶¶ 161, 176, 200.
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various internal HPD policies.
Id. ¶ 111–112.
Defendant Lee
notified Plaintiff Garcia on May 11, 2017 that the investigation
had been closed on November 9, 2015 because it was determined
“to be more of a civil matter.”
Id. ¶¶ 109–110.
Plaintiff Garcia filed another PSO complaint with
Defendant Lee on March 15, 2017 in response to Defendant
Lombardi’s having filed four false police reports against her.
Id. ¶¶ 126–127.
Plaintiff Garcia also named in this complaint
the HPD officers who helped Defendant Lombardi file the false
police reports, including Defendants Arakawa and Hee.
Id. ¶
127.
Id. ¶
That complaint was sustained on August 9, 2017.
129.
STANDARD OF REVIEW
Rule 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be
granted.”
Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires only “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Although Rule 8
does not require detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic
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recitation of the elements of a cause of action will not do.’”
Id. (quoting Twombly, 550 U.S. at 555).
To survive a motion to dismiss, the complaint “must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
(2009) (quoting Twombly, 550 U.S. at 570).
Id. at 678
“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.”
Twombly, 550 U.S. at 556).
Id. (quoting
“[T]he tenet that a court must
accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.”
Id. (citing Twombly, 550
U.S. at 555).
Accordingly, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do
not suffice.”
Id.
“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.’”
557).
Id. (quoting Twombly, 550 U.S. at
The Court must “accept as true all well-pleaded
allegations of material fact, and construe them in the light
most favorable to the non-moving party.”
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Sateriale v. R.J.
Reynolds Tobacco Co., 697 F.3d 777, 784 (9th Cir. 2012)
(citation omitted).
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
Defendants Honolulu, Arakawa, Hee, and Lee urge the
Court to dismiss Plaintiff Garcia’s claims because she has
failed to plead non-conclusory allegations that, if accepted as
true, state plausible claims for relief.
The Court first
addresses the § 1983 claims and then turns to the negligence
claims.
I.
Official Capacity Claims Against the Individual Officer
Defendants (Counts I–II)
As an initial matter, the Court notes that its
11/16/2018 Order dismissed Plaintiff Garcia’s official capacity
§ 1983 claims against the individual officers with prejudice.
The Court held the following:
Personal capacity suits, on the one hand, seek to
impose personal liability upon a government official
for actions it takes under color of state law. See
Hafer v. Melo, 502 U.S. 21, 5 (1991). Official
capacity suits, on the other hand, “generally
represent only another way of pleading an action
against an entity of which an officer is an agent.”
Monell, 436 U.S. at 690 n. 55. Courts, therefore,
generally treat such suits as suits against the
governmental entity. Kentucky v. Graham, 473 U.S.
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159, 166 (1985); see also Carnell v. Grimm, 872 F.
Supp. 746, 752 (D. Haw. 1994) (dismissing claims
against officials in their official capacity as
duplicative where the municipality had also been
sued); Freeland v. Cty. of Maui, Civ. No. 11-00617
ACK-KSC, 2013 WL 6528831, at *5 (D. Haw. Dec. 11,
2013) (“[T]he official-capacity claims ‘duplicate[ ]
the claims asserted against the [County of Maui]’ and
are therefore dismissed” (alterations in original)
(citations omitted)).
For the foregoing reasons, the Court dismisses with
prejudice all of Plaintiff’s official capacity claims
against Officers Arakawa, Hee, and Lee.
11/16/2018 Order at 49.
The FAC still pursues official capacity
claims against the individual Officer Defendants.
FAC ¶ 13.
In
light of the Court’s prior ruling, the Court again dismisses the
official capacity claims against the individual Officer
Defendants with prejudice.
II.
Section 1983 Claims Against the Officer Defendants (Counts
I and II) and Against Defendant Honolulu (Count III)
Plaintiff Garcia asserts § 1983 claims against the
Officer Defendants for depriving her of two constitutional
rights:
(1) the right to equal protection of enforcement of the
law; and (2) the substantive due process right to bodily
integrity.
She also asserts a § 1983 claim against Defendant
Honolulu for municipal liability under Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658 (1978).
As an initial matter, the Court notes the Officer
Defendants’ argument that, at the hearing held on November 16,
2018, Plaintiff Garcia conceded that “she did not have any
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viable claims against the Officer Defendants.”
Defendants’ Motion at 8.
Garcia’s concession.
Officer
This argument misrepresents Plaintiff
Plaintiff Garcia conceded only that she
did not have viable claims against the individual HPD officers
who did not undertake any acts within the two-year statute of
limitations period.
ECF No. 66, Tr. 31:2–16.
Accordingly, this
argument is without merit.
Section 1983 provides that “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage of
any State . . . subjects, or causes to be subjected any citizen
of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured . . . .”
42 U.S.C. § 1983.
“To state a claim under § 1983, a plaintiff [(1)] must allege
the violation of a right secured by the Constitution and laws of
the United States, and [(2)] must show that the alleged
deprivation was committed by a person acting under color of
state law.”
omitted).
West v. Atkins, 487 U.S. 42, 48 (1988) (citations
A “person” includes “state and local officials sued
in their individual capacities . . . and local government
entities.”
Park v. City and Cty. of Honolulu, 292 F. Supp. 3d
1080, 1090 (D. Haw. 2018) (citing Vance v. Cty. of Santa Clara,
928 F. Supp. 993, 995–96 (N.D. Cal. 1996)); see also Monell, 436
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U.S. at 690 (holding that a local government is a person for
purposes § 1983).
To hold a municipality liable under Monell, the
plaintiff must show the municipality caused an employee or agent
to violate the plaintiff’s constitutional rights “under color of
some official policy.”
436 U.S. at 692.
Specifically, the
plaintiff must allege “(1) that he possessed a constitutional
right of which he was deprived; (2) that the municipality had a
policy; (3) that this policy ‘amounts to deliberate
indifference’ to the plaintiff’s constitutional right; and (4)
that the policy is the ‘moving force behind the constitutional
violation.’”
Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389–91
(1989)); see also Long v. Cty. of Los Angeles, 442 F.3d 1178,
1185–86 (9th Cir. 2006) (citing Gibson v. Cty. of Washoe, 290
F.3d 1175, 1193–94 (9th Cir. 2002), cert. denied, 537 U.S. 1106
(2003)).
Plaintiff Garcia’s Monell claim is premised on a
longstanding practice or custom theory. 8/
8/
Absent a formal policy, a municipality may be liable for
constitutional deprivations “visited pursuant to governmental
‘custom’ even though such a custom has not received formal
approval through the body’s official decisionmaking channels.”
Monell, 436 U.S. at 690. The Supreme Court observed that
Congress included “customs and usages” in § 1983 because state
officials engaged in persistent and widespread discriminatory
practices that, although not authorized by written law, “could
well be so permanent and well-settled as to constitute a ‘custom
(Continued...)
- 20 -
The Officer Defendants and Defendant Honolulu argue
that Plaintiff Garcia has failed to plausibly allege
constitutional deprivations 9/ and the requirements for municipal
liability under Monell.
The Court discusses each of these
arguments in turn.
A.
Constitutional Deprivations
Plaintiff Garcia alleges that Defendants deprived her
of two constitutional rights.
First, she alleges that
Defendants violated her right to equal protection of the
enforcement of the law, which is guaranteed by the Equal
Protection Clause of the Fourteenth Amendment. 10/
Second, she
or usage’ with the force of law.” Id. (citing Adickes v. S.H.
Kress & Co., 383 U.S. 144, 167–68, 90 (1970)).
9/ In its 11/16/2018 Order the Court ruled that Plaintiff
Garcia’s original Complaint had plausibly alleged that
Defendants Arakawa, Hee, and Lee acted under color of state law
for purposes of § 1983. See 11/16/2018 Order at 54–55; see also
West, 487 U.S. at 50 (holding that public employees who act in
their official capacities or exercise their responsibilities
pursuant to state law act under color of state law).
Accordingly, the Court need not further analyze this element of
a § 1983 claim. Furthermore, the Court’s 11/16/2018 Order
declined to address the parties’ arguments regarding whether
Defendant Lombardi acted under color of state law because
Defendant Lombardi had not yet filed a motion. 11/16/2018 Order
at 54. Defendant Lombardi has still not filed a motion, and the
parties have not briefed the point, so the Court again declines
to address whether Defendant Lombardi acted under color of state
law.
10/ As the Court noted in its 11/16/2018 Order, the Equal
Protection Clause applies to enforcement of the law. See
11/16/2018 Order at 30 n. 7; Navarro v. Block, 72 F.3d 712, 717
(9th Cir. 1996) (finding that an equal protection claim for a
police department’s custom of treating domestic violence 911
(Continued...)
- 21 -
alleges that Defendants violated her right to bodily integrity,
which is a substantive due process right guaranteed by the Due
Process Clause of the Fourteenth Amendment.
“A person ‘subjects’ another to the deprivation of a
constitutional right . . . if he does an affirmative act,
participates in another’s affirmative acts, or omits to perform
an act which he is legally required to do that causes the
deprivation of which the complaint is made.”
Johnson v. Duffy,
588 F.2d 740, 743 (9th Cir. 1978) (citing Sims v. Adams, 537
F.2d 829 (5th Cir. 1976)).
The causal connection can be
established by direct personal participation in the deprivation
or “by setting in motion a series of events by others which the
actor knows or reasonably should know would cause others to
inflict the constitutional injury.”
1.
Id. at 743–44.
Equal Protection Violations (Count I)
The Equal Protection Clause of the Fourteenth
Amendment prohibits a state from denying to “any person within
its jurisdiction the equal protection of the laws.”
amend. XIV § 1.
U.S. Const.
The Equal Protection Clause essentially
calls differently from non-domestic violence 911 calls was
subject to rational basis review); see also DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 n. 3
(1989) (“The State may not . . . selectively deny its protective
services to certain disfavored minorities without violating the
Equal Protection Clause” (citing Yick Wo v. Hopkins, 118 U.S.
356 (1886)).
- 22 -
mandates that state and local governments treat alike all
persons that are similarly situated.
City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
The Equal
Protection Clause applies to enforcement of the law.
See
Navarro, 72 F.3d at 717; DeShaney, 489 U.S. at 197 n. 3.
A
class-based equal protection violation requires a plaintiff to
allege intentional discrimination on the basis of the
plaintiff’s membership in an identifiable class.
Flores v.
Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir.
2003) (citation omitted); see also Gallinger v. Becerra, 898
F.3d 1012, 1017 (9th Cir. 2018). 11/
To state a class-based equal protection claim, a
plaintiff must allege: (1) membership in an identifiable class;
Flores, 324 F.3d at 1134–35 (citations omitted); and (2) the
existence of a similarly-situated class against which the
plaintiff’s class can be compared.
Freeman v. City of Santa
Ana, 68 F.3d 1180, 1187 (9th Cir. 1995).
11/
If the classification
In its 11/16/2018 Order, the Court discussed at length the
other theory that can be used to plead an equal protection
violation, which is known as the class-of-one doctrine. See
11/16/2018 Order at 28–29, 33–37; see also Vill. of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Hyland v.
Office of Hous. & Cmty. Dev., Civ. No. 15-00504 LEK-RLP, 2018 WL
4119903, at *4, (D. Haw. Aug. 29, 2018). The Court’s 11/16/2018
Order addressed the class-of-one doctrine because it was unclear
whether Plaintiff Garcia’s original Complaint advanced a classbased theory, a class-of-one theory, or perhaps both. However,
it is clear that Plaintiff Garcia’s FAC does not advance a
class-of-one equal protection theory.
- 23 -
involves a protected class, such as race or gender, or if the
classification implicates a fundamental right, the court applies
a heightened level of scrutiny in order to determine whether the
government’s conduct is constitutional.
at 1017; Freeman, 68 F.3d at 1187.
See Gallinger, 898 F.3d
If the classification is not
inherently invidious, or does not implicate a fundamental right,
the court applies rational basis review.
717 (citation omitted).
Navarro, 72 F.3d at
Under rational basis review, the
government classification must be rationally related to
legitimate government objectives.
Id. (citing Schweiker v.
Wilson, 450 U.S. 221, 230 (1981)).
a.
Whether Plaintiff Garcia Has Alleged
Membership in an Identifiable Class and the
Existence of a Similarly-Situated Class
In its 11/16/2018 Order, the Court found that
Plaintiff Garcia adequately alleged membership in an
identifiable class—victims of domestic abuse whose abusers are
HPD officers—but that her equal protection violation was
inadequately plead because she failed to identify a similarlysituated group of individuals.
11/16/2018 Order at 31–32.
Defendants argue that the Court should dismiss
Plaintiff Garcia’s claims because she has not alleged membership
in a suspect class or the existence of a similarly-situated
class.
Defendant Honolulu’s Motion at 4–7; Officer Defendants’
Motion at 4–6.
Defendants’ first argument fails because the
- 24 -
Court already found in its 11/16/2018 Order that Plaintiff
Garcia adequately alleged membership in an identifiable class. 12/
Defendants’ second argument fails because the FAC
adequately identifies a similarly-situated class against which
Plaintiff Garcia’s class can be compared—that is, domestic abuse
victims whose abusers are not HPD officers. 13/
FAC ¶¶ 170–173.
The FAC identifies two incidents in which the HPD responded
appropriately to domestic abuse situations where the abuser was
an ordinary citizen.
Id. ¶¶ 172–173.
12/
The first incident
Moreover, as the Court noted in its 11/16/2018 Order, and
again supra, it is not necessary for a plaintiff to allege
membership in a suspect class in order to state a class-based
equal protection claim. The plaintiff need only allege
membership in an identifiable class. See Flores 324 F.3d at
1134–35 (“[t]he plaintiffs are members of an identifiable class
for equal protection purposes because they allege discrimination
on the basis of sexual orientation”); see also Davis v. Prison
Health Servs., 679 F.3d 433, 441 (6th Cir. 2012) (explaining
that when the identifiable group has been recognized as a
suspect or quasi-suspect class, courts examine the
classification under heightened scrutiny, whereas when the
identifiable group has not been recognized as a suspect or
quasi-suspect class, courts examine the classification under
rational basis review).
13/ The FAC appears to use the phrases “domestic violence” and
“domestic abuse” interchangeably. On certain occasions, the FAC
refers to instances of “domestic violence and abuse” and also
refers to Defendant Lombardi’s repeated violations of protective
orders, harassment, threats, and related types of misconduct.
See, e.g., FAC ¶¶ 3–4, 30, 58, 73, 170–173. For purposes of
this Order, the Court will use only the phrase “domestic abuse”
except where referring to a source that uses the phrase
“domestic violence.” Moreover, as the Court discusses infra,
Plaintiff Garcia’s purported class and similarly-situated class
do not appear to be limited to physical domestic abuse within
the meaning of HRS § 709-906, which governs abuse of family or
household members. See Haw. Rev. Stat. § 709–906.
- 25 -
occurred on November 18, 2018 and involved an abusive husband
who assaulted his wife.
Id. ¶ 172.
HPD arrested the abuser and
he was charged with second-degree assault shortly thereafter.
Id.
The second incident occurred on November 24, 2018 and
involved a man who threatened his domestic partner in violation
of a protective order.
Id. ¶ 173.
He was arrested the
following day for violating that order.
Id.
Accepting these factual allegations as true, the Court
finds that they give rise to a plausible inference that a
similarly-situated class of victims exists for purposes of
Plaintiff Garcia’s equal protection claim.
The distinguishing
factor between these classes of victims is the identity of the
abusers.
For one class the abusers are HPD officers, and for
the other class the abusers are ordinary citizens.
Although Defendants argue that two incidents are not
enough to plausibly allege the existence of a similarly-situated
class, they offer no authority in support of this argument.
Moreover, the purpose of identifying a similarly-situated group
is so the court can have a “control group” and determine whether
“unequal treatment of people in similar circumstances” has taken
place.
See Freeman, 68 F.3d at 1187 (internal quotations
omitted) (citing Attorney general v. Irish People, Inc., 684
F.2d 929, 946 (D.C. Cir. 1982); United States v. Aguilar, 883
F.2d 662, 706 (9th Cir. 1989)).
The Court finds that the
- 26 -
incidents involving the similarly-situated class adequately
illustrate the disparate treatment that Plaintiff Garcia
complains about.
Accordingly, Defendants’ argument is without
merit. 14/
Moreover, the Hawai`i State Legislature’s findings in
H.B. No. 2133 bolster the Court’s conclusion that Plaintiff
Garcia has plausibly alleged the existence of a similarlysituated class.
H.B. No. 2133 is a state law that relieves
14/
The Court also notes several cases from another district
court in the Ninth Circuit, one of which is very similar to the
case at bar. In Martinez v. Pennington, the plaintiff pursued
equal protection claims against two municipalities and several
individual police officers, alleging that the municipalities and
officers violated her right to equal protection by enforcing
domestic violence laws differently from other types of laws.
No. 1:15-cv-00683-JAM-MJS, 2016 WL 40181881, at *2 (E.D. Cal.
Aug. 9, 2016). The court denied the defendants’ motion to
dismiss and ruled that the plaintiff stated plausible equal
protection claims in part because some of the facts needed to
support her claims were solely controlled and possessed by the
defendants. Id. (citing Estate of Duran v. Chavez, No. 2:14-cv02048-TLN-CKD, 2015 WL 8011685, at *9 (E.D. Cal. Dec. 7, 2015)
(“where most of the information needed to support a claim is in
the defendants’ custody and not available to plaintiffs prior to
discovery, a more conclusory and formulaic approach to pleadings
is acceptable”); Phillips v. Cty. of Fresno, No. 1:13-cv-0538AWI-BAM, 2013 WL 6243278, at *10 (E.D. Cal. Dec. 3, 2013)
(“Plaintiffs need only provide information sufficient to supply
notice to Defendants as to the sorts of information they will
need to refute, if they can, Plaintiffs’ allegations in a
subsequent motion for summary judgment”)). At the hearing held
on April 23, 2019, counsel for Plaintiff Garcia noted that
disciplinary records concerning HPD officers are not subject to
disclosure under state law. Accordingly, the Court finds that
these cases lend additional support to its conclusion that the
allegations in the FAC are sufficient for purposes of
establishing a similarly-situated class.
- 27 -
domestic abuse victims whose abusers are police officers from
having to file a notarized or sworn written statement when
filing an administrative complaint against the abusive
officer. 15/
See Haw. Rev. Stat. § 52D-17; H.B. No. 2133, 29th
Leg., Reg. Sess. (Haw. 2018); FAC ¶¶ 164–170.
The Legislature
found that a pervasive problem exists within the HPD of
mishandling domestic abuse complaints, in particular where the
abuser is an HPD officer.
170.
H.B. No. 2133; see also FAC ¶¶ 164–
The Legislature noted that between May 2013 and September
2014 the Hawai`i State Commission on the Status of Women
received 38 complaints in which victims accused HPD officers of
mishandling domestic abuse reports.
¶ 166.
H.B. No. 2133; see also FAC
One-third of these complaints involved abusers who were
HPD officers or relatives of HPD officers.
H.B. No. 2133; see
also FAC ¶ 166.
15/
A court may consider certain materials, including documents
attached to the complaint, documents incorporated by reference
in the complaint, or matters of judicial notice, without
converting a motion to dismiss into a motion for summary
judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)
(citations omitted). The Court finds that H.B. No. 2133 is
subject to review under both the incorporation by reference
doctrine and as a matter of judicial notice because it is a
matter of public record. See Lee v. City of Los Angeles, 250
F.3d 668, 689 (9th Cir. 2001) (noting that the court may take
judicial notice of “matters of public record”). H.B. No. 2133
is accessible via the Hawai`i State Legislature’s official
government website.
- 28 -
The Legislature’s findings also discuss a domestic
abuse incident that occurred in September 2014 in which the HPD
took no action against the abuser, an HPD officer named Darren
Cachola.
H.B. No. 2133 at p. 1–2; see also FAC ¶¶ 165.
The HPD
did not arrest the offending officer at the scene, no officer
filed an incident report, and no investigation was initiated
until an ordinary citizen presented surveillance footage of the
incident to the media.
H.B. No. 2133 at p. 2; see also FAC ¶
165.
Defendants argue that the incident with Officer
Cachola is not relevant to Plaintiff Garcia’s equal protection
claim because the incident involved an “on the scene” abuse
complaint, whereas the FAC does not allege Plaintiff Garcia ever
made such a complaint.
Officer Defendants’ Motion at 4–5;
Defendant Honolulu’s Motion at 5.
At the hearing held on April
23, 2019, defense counsel raised a similar argument—that because
the FAC does not allege physical abuse within the meaning of
Hawai`i Revised Statutes § 709–906, the section of the Hawai`i
Penal Code governing abuse of family or household members,
Plaintiff Garcia’s equal protection claim fails.
See also
Officer Defendants’ Reply at 4.
The Court finds that these arguments are without merit
for several reasons.
First, Defendants misconstrue the
allegations concerning Plaintiff Garcia’s class.
- 29 -
It is clear
from the FAC that Plaintiff Garcia is concerned with the HPD’s
response to complaints by victims concerning violations of
protective orders, threats, and harassment where the perpetrator
is an HPD officer—not solely the HPD’s response to on-the-scene
incidents of domestic abuse.
Second, even assuming that
Plaintiff Garcia needed to allege acts of physical abuse by
Defendant Lombardi, the FAC features such allegations
prominently.
The FAC alleges that Defendant Lombardi sexually
and physically assaulted his daughters, and children are
included in Hawai`i’s abuse of family or household members
statute.
See Haw. Rev. Stat. § 709–906(1)(a).
Finally,
Defendants first raised the argument regarding allegations of
physical abuse within the meaning of HRS § 709–906 in the
Officer Defendants’ Reply. 16/
Accordingly, the Court concludes that Plaintiff Garcia
has plausibly alleged membership in an identifiable class, as
well as the existence of a similarly-situated class, for
purposes of stating an equal protection claim.
b.
Whether Plaintiff Garcia Has Plausibly
Alleged that an HPD Officer Deprived Her of
the Right to Equal Protection
In its 11/16/2018 Order, the Court noted that
Plaintiff Garcia failed to allege with sufficient particularity
16/
Local Rule 7.4 states in relevant part that “[a]ny argument
raised for the first time in the reply shall be disregarded.”
- 30 -
how the Officer Defendants’ actions constituted equal protection
violations.
11/16/2018 Order at 52.
Now, Plaintiff Garcia
argues that Defendant Lee deprived her of her right to equal
protection, and that Defendants Arakawa and Hee deprived her of
her substantive due process rights. 17/
Plaintiff Garcia argues that Defendant Lee deprived
her of her right to equal protection because he failed to
adequately investigate Defendant Lombardi’s misconduct in
violation of numerous internal HPD policies.
34.
Opposition at 33–
Plaintiff Garcia argues that because Defendant Lee works as
an officer in Internal Affairs/Professional Standards, he was
required to conduct appropriate investigations into Defendant
Lombardi regarding the alleged sexual assaults of his daughters,
the protective orders and the pre-decree relief order that
Plaintiff Garcia obtained, and the incident reports and PSO
complaints that Plaintiff Garcia filed.
Id. at 33–34.
This
argument is perplexing, however, because the FAC features
17/
The Officer Defendants’ Motion only discusses equal
protection violations and misreads Plaintiff Garcia’s FAC as
alleging that Defendants Arakawa and Hee also violated Plaintiff
Garcia’s right to equal protection. Officer Defendants’ Motion
at 4–6. Count I of the FAC concerns equal protection violations
and Count II of the FAC concerns substantive due process
violations. FAC ¶¶ 204–220. Counts I and II both contain
paragraphs naming all three of the Officer Defendants; however,
the specific factual allegations in the FAC relating to equal
protection violations concern only Defendant Lee, and the
allegations relating to substantive due process violations
concern only Defendants Arakawa and Hee.
- 31 -
allegations connecting Defendant Lee to only two PSO
investigations.
In that regard, Plaintiff Garcia alleges that she
filed a complaint with the HPD PSO on June 25, 2015.
FAC ¶ 108.
The complaint accused Defendant Lombardi of harassment,
including that he made threats to resort to self-help to have
unsupervised visitation with the children and threats to
retaliate against Plaintiff Garcia for accusing him of domestic
violence and sexually assaulting G.L., all in violation of
existing Family Court orders.
Id.
Plaintiff Garcia alleges
that Defendant Lee was one of the PSO detectives assigned to her
complaint and that he conducted an inadequate investigation in
violation of HPD Policies 3.26, 18/
4.18, 19/ 5.01, 20/ and 7.09. 21/
18/
HPD Policy Number 3.26 is titled “Employees Involved in
Domestic Violence.” The policy provides procedures concerning
the PSO’s obligation to investigate and hold accountable HPD
officers involved in domestic violence disputes. See Honolulu
Police Department, Policy Number 3.26 (Oct. 12, 2015); see also
FAC ¶¶ 143–145.
19/ HPD Policy Number 4.18 is titled “Abuse of Family or
Household Members.” The policy requires HPD officers responding
to a domestic violence incident to conduct a detailed
investigation and prepare a written report regarding the
incident. See Honolulu Police Department, Policy Number 4.18
(July 1, 2016); see also FAC ¶¶ 146–149.
20/ HPD Policy Number 5.01 is titled “Complaints and Internal
Investigations.” The policy governs administrative and criminal
complaints against the HPD and its employees and requires the
PSO to expeditiously investigate any such complaints absent
exceptional circumstances. See Honolulu Police Department,
Policy Number 5.01 (Feb. 26, 2016); see also FAC ¶¶ 150–151.
- 32 -
Id. ¶¶ 111–112.
She also alleges that on May 11, 2017,
Defendant Lee notified her that her complaint was closed on
November 9, 2015 because it had been determined “to be more of a
civil matter.”
Id. ¶¶ 109–110.
The FAC also alleges that Plaintiff Garcia filed
another PSO complaint with Defendant Lee on March 15, 2017
regarding Defendant Lombardi’s having filed four false police
reports with the assistance of other HPD officers, which he
later used against Plaintiff Garcia in custodial interference
proceedings.
Id. ¶ 126.
The FAC alleges that Defendant Lee
tried to discourage Plaintiff Garcia from including other
officers in her complaint and “only relented after he was told
that a Police Commissioner had expressed concern about
Plaintiff’s complaint.”
Id. ¶ 127.
Accepting these factual allegations as true and
drawing all reasonable influences in favor of the non-movant,
the Court finds that these allegations give rise to plausible
claims that Defendant Lee violated Plaintiff Garcia’s right to
equal protection.
Given the disparity between the allegations
21/
HPD Policy Number 7.09 is titled “Court Orders for
Protection.” The policy requires the PSO to conduct an
investigation when an HPD officer who is the subject of a
protective order is suspected of violating that protective
order. The policy sets forth extremely detailed procedures to
be followed. See Honolulu Police Department, Policy Number 7.09
(Apr. 6, 2015); see also FAC ¶¶ 152–158.
- 33 -
in the first PSO complaint, which involved threats by a domestic
abuser, and the outcome of the investigation (which was
disclosed over 18 months after the investigation had concluded)
determining the complaint “to be more of a civil matter,” it is
plausible that Defendant Lee conducted a cursory or inadequate
investigation into Plaintiff Garcia’s PSO complaint in violation
of HPD Policy Numbers 3.26, 4.18, 5.01, and 7.09.
It is also
plausible that Plaintiff Garcia was treated this way because of
her status as a victim who filed a complaint against an HPD
officer, and that there was no rational basis for treating her
differently from victims who file complaints against ordinary
citizens.
Plaintiff Garcia’s second PSO complaint was ultimately
sustained on August 9, 2017.
FAC ¶ 129.
However, the FAC
alleges that Defendant Lombardi continued harassing Plaintiff
Garcia after that complaint was sustained, and therefore, that
whatever disciplinary action was taken against Defendant
Lombardi was insufficient.
Id. ¶¶ 130–131.
Accordingly, the
Court finds that Defendant Lee’s conduct concerning the
investigation of the second PSO complaint also gives rise to a
plausible equal protection violation.
The Officer Defendants argue that Plaintiff Garcia has
failed to allege that they caused or participated in the alleged
equal protection violation.
Officer Defendants’ Motion at 5.
- 34 -
The Officer Defendants are correct that for a person acting
under color of state law to be liable under § 1983 there must be
a showing of personal participation in the alleged
constitutional deprivation.
Park, 292 F. Supp. 3d at 1090
(citing Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)).
Here, however, the allegations concern inadequate investigations
that Defendant Lee conducted and later discussed with Plaintiff
Garcia.
Accordingly, the FAC has adequately alleged that
Defendant Lee participated in a constitutional deprivation and
the Officer Defendants’ argument is without merit.
For the foregoing reasons, the Court finds that
Plaintiff Garcia has plausibly alleged constitutional
deprivations under the Equal Protection Clause.
2.
Substantive Due Process Violations (Count II)
The Due Process Clause of the Fourteenth Amendment
provides that “[n]o State shall . . . deprive any person of
life, liberty, or property, without due process of law.”
Const. amend. XIV, § 1.
U.S.
The substantive due process rights
guaranteed by the Fourteenth Amendment include protection
against the government’s interference with “an individual’s
bodily integrity.”
P.B. v. Koch, 96 F.3d 1298, 1303 (9th Cir.
1996) (citations omitted).
“The relevant inquiry in
distinguishing simple tort actions from substantive due process
violations is ‘whether the deprivation is sufficiently serious
- 35 -
that the constitutional line has been crossed.’”
Cullum v.
Teton Cty., No. 4:10-CV-293-BLW, 2011 WL 841431, at *3 (D. Idaho
Mar. 7, 2011) (quoting Wood v. Ostrander, 879 F.2d 583, 589 (9th
Cir. 1989)).
The standard for judging a substantive due process
claim is whether the challenged government conduct is “so
egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.”
Park, 292 F. Supp. 3d at 1094
(citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998)).
Plaintiff Garcia alleges that Defendant Lombardi
violated her right to bodily integrity by repeatedly harassing
and threatening her in violation of protective orders, filing
false police reports against her, and trying to have her
prosecuted for custodial interference.
FAC ¶¶ 184–187.
Plaintiff Garcia alleges that by assisting Defendant Lombardi in
filing a false police report against her on March 18, 2016,
Defendants Arakawa and Hee also engaged in constitutional
deprivations of Plaintiff Garcia’s substantive due process
rights.
Id. ¶¶ 213–233.
As Plaintiff Garcia correctly notes in her Opposition,
neither Defendant Honolulu nor the Officer Defendants appear to
contest the plausibility of Plaintiff Garcia’s substantive due
process claims.
Opposition at 19.
Accordingly, any objections
to those claims are barred at this time.
- 36 -
See Fed. R. Civ. P.
12(g)(2). 22/
The Court will therefore not address Plaintiff
Garcia’s substantive due process claims at this time.
B.
Monell Liability (Count III)
Having determined that Plaintiff Garcia has plausibly
alleged constitutional deprivations, the Court must consider
whether Plaintiff Garcia has plausibly alleged municipal
liability for those deprivations under Monell.
Plaintiff Garcia
pursues municipal liability under a longstanding practice or
custom theory. 23/
1.
Longstanding Practice or Custom
To establish Monell liability absent a formal
government policy, a plaintiff “must show a longstanding
practice or custom which constitutes the standard operating
procedure of the local government entity.”
Trevino v. Gates, 99
F.3d 911, 918 (9th Cir. 1996) (internal quotation marks omitted)
(citing Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir.
22/
The Court notes that although Defendants failed to contest
Plaintiff Garcia’s substantive due process claims in the instant
Motions, they have not waived the failure-to-state-a-claim-uponwhich-relief-can-be-granted defense with respect to these
claims. See Fed. R. Civ. P. 12(h)(2). They are simply barred
from raising this defense in these Motions or in another preanswer motion. Fed. R. Civ. P. 12(g)(2).
23/ Plaintiff Garcia’s original Complaint appeared to assert
Monell liability based on a failure to train theory, which the
Court addressed in its 11/16/2018 Order. 11/16/18 Order at 44–
47. Plaintiff Garcia’s FAC does not appear to advance a failure
to train theory, nor does she address this theory in her
Opposition. Accordingly, the Court will not address Monell
liability on the basis of this theory.
- 37 -
1992), cert. denied, 510 U.S. 932 (1993)).
“The custom must be
so ‘persistent and widespread’ that it constitutes a ‘permanent
and well-settled city policy.’”
Monell, 436 U.S. at 691).
Trevino, 99 F.3d at 918 (citing
“Liability for improper custom may
not be predicated on isolated or sporadic incidents; it must be
founded upon practices of sufficient duration, frequency and
consistency that the conduct has become a traditional method of
carrying out policy.”
Trevino, 99 F.3d at 918 (citations
omitted). 24/
In its 11/16/2018 Order, the Court addressed Plaintiff
Garcia’s argument that “a plaintiff may prove the existence of a
custom or informal policy with evidence of repeated
constitutional violations for which the errant municipal
officials were not discharged or reprimanded.”
Navarro, 72 F.3d
at 714 (internal quotation marks omitted) (citing Gillette, 979
F.2d at 1348); see 11/16/2018 Order at 42.
The Court noted that
Plaintiff Garcia’s argument in this respect failed because she
24/
The Ninth Circuit has had little occasion to address Monell
liability pursuant to a longstanding practice or custom.
Another district court aptly described how an unconstitutional
practice or custom originates, stating that “[u]nlike a
‘policy’, which comes into existence because of the top-down
affirmative decision of a policymaker, a custom develops from
the bottom-up. Thus, the liability of the municipality for
customary constitutional violations derives not from its
creation of the custom, but from its tolerance or acquiescence
in it.” Britton v. Maloney, 901 F. Supp. 444, 450 (D. Mass.
1995).
- 38 -
had not alleged any plausible constitutional violations.
Id.
Now that Plaintiff Garcia has cured that pleading deficiency and
plausibly alleged constitutional deprivations, the Court finds
Plaintiff Garcia’s reliance on Navarro is appropriate for
alleging the existence of a longstanding practice or custom.
Accepting the well-pleaded allegations in the FAC as
true, it is clear that Plaintiff Garcia has alleged the
existence of a longstanding practice or custom—that is,
Defendant Honolulu’s alleged custom of mishandling domestic
abuse complaints filed against HPD officers.
Indeed, the FAC is
replete with numerous allegations spanning a ten-year period 25/
which give rise to a reasonable inference that the such a
practice or custom exists.
25/
As the Court noted supra, the Court’s 11/16/2018 Order found
that the claims against Defendant Honolulu constituted a
continuing violation and were not subject to the relevant twoyear statute of limitations. 11/16/2018 Order at 21–22.
Specifically, Plaintiff Garcia complains about Defendant
Honolulu’s response to the sexual assault of G.L. in 2008, FAC
¶¶ 20–21, the HPD’s failure to enforce protective orders
throughout 2008 and 2009, id. ¶¶ 60–74; the HPD’s failure to
enforce its own internal policies by allowing Defendant
Lombardi, with the assistance of other officers, to file false
police reports throughout 2009, 2011, 2015, and 2016, id. ¶¶ 88–
92, 100–101, 113–119; the HPD’s failure to properly respond to
an inquiry from the Ottawa Police Service regarding its criminal
investigation of Defendant Lombardi in 2012, which Plaintiff
Garcia initiated while living in Canada, id. ¶ 103–107; and the
HPD’s inadequate investigations in response to Plaintiff
Garcia’s PSO complaints filed in 2015 and 2017, id.
Accordingly, the Court’s consideration of all of the allegations
in the FAC against Defendant Honolulu is proper.
- 39 -
Defendant Honolulu argues that the Court should
dismiss Plaintiff Garcia’s claims because she has failed to
introduce evidence to establish the existence of a longstanding,
persistent, and widespread practice or custom.
Honolulu’s Motion at 8–9.
Defendant
This argument is premature given the
fact that Defendant Honolulu filed a motion to dismiss and not a
motion for summary judgment.
At this stage of litigation, where
the pleadings have not yet closed, Plaintiff Garcia need not
introduce evidence sufficient to establish the existence of a
longstanding practice or custom—she just needs to plead facts
sufficient for the Court to draw the reasonable inference that
the practice or custom exists.
However, under Monell, the practice or custom must be
more than longstanding—it must be “so persistent and widespread
that it constitutes a permanent and well-settled city policy.”
Monell, 436 U.S. at 691 (internal quotation marks and citation
omitted).
In its 11/16/2018 Order, the Court noted that even if
Plaintiff Garcia had plausibly alleged equal protection
violations due to a longstanding practice or custom, she had not
plausibly alleged that the custom was widespread.
Order at 46.
11/16/2018
Based upon the FAC’s discussion of other instances
where HPD officers responded inappropriately to complaints filed
against HPD officers, as well as instances where the HPD
responded appropriately to complaints filed against ordinary
- 40 -
citizens, the Court finds that Plaintiff Garcia has cured this
pleading deficiency and has plausibly alleged that the custom
she complains of is sufficiently widespread for purposes of
Monell.
The Court described these instances in detail supra in
its discussion of the similarly-situated class and will not
repeat that discussion here.
The Court also reiterates that
between May 2013 and September 2014 the Hawai`i State Commission
on the Status of Women received 38 complaints wherein victims
accused HPD officers of mishandling domestic abuse reports.
¶ 166.
Id.
One-third of these complaints involved abusers who were
HPD officers or relatives of HPD officers.
Id.
Accordingly, the Court finds that the allegations in
the FAC indicate that the custom of mishandling domestic abuse
complaints against HPD officers is so persistent and widespread
as to constitute well-settled policy, see Trevino, 99 F.3d at
918 (citing Monell, 436 U.S. at 691), and that Plaintiff Garcia
has therefore plausibly alleged this element of municipal
liability.
The Hawai`i State Legislature’s findings in H.B. No.
2133 also support the Court’s finding that the FAC has plausibly
alleged the existence of a longstanding, widespread custom.
As
the Court noted supra, H.B. No. 2133 is a state law designed to
make it easier for victims of domestic abuse to file complaints
- 41 -
against HPD officers who commit domestic abuse.
See H.B. No.
2133.
In Section 1 of H.B. No. 2133, the Hawai`i State
Legislature made several findings, including that there exists
within the HPD a “pattern of inappropriate handling by some
police officers in response to allegations of domestic
violence.”
H.B. No. 2133 at p. 3.
The Legislature also noted a significant disparity in
the degree of disciplinary actions taken against HPD officers
involved in domestic abuse incidents as opposed to other
misconduct, the former warranting much less severe disciplinary
responses than the latter. 26/
Id.
The Legislature found that
the “disciplinary disparity leads the legislature to question
whether the Honolulu police department is minimizing the problem
of domestic abuse, particularly when incidents involve a police
officer.”
Id. at p. 5.
It further found that “there are also
police officers who do not respond to domestic abuse situations
26/
As the Court noted supra, counsel for Plaintiff Garcia stated
at the hearing held on April 23, 2019 that disciplinary records
of HPD officers are privileged under state law. Where some of
the facts needed to support a plaintiff’s claim are solely
controlled and possessed by the defendants, a more conclusory
and formulaic pleading approach is acceptable. Martinez, 2016
WL 40181881, at *2 (citing Estate of Duran, 2015 WL 8011685, at
*9). Accordingly, the Court finds that this principle lends
additional support to its conclusion that the FAC plausibly
alleges the existence of a longstanding and widespread custom or
practice for purposes of Plaintiff Garcia’s Monell claim.
- 42 -
appropriately when the perpetrator is a fellow police officer.”
Id. at p. 6.
Accordingly, the Legislature’s findings lend
additional support to the Court’s conclusion that the FAC
plausibly alleges the existence of a longstanding, widespread
practice or custom.
2.
Deliberate Indifference
The existence of a policy (or, in this case, a
longstanding practice or custom), without more, is insufficient
to trigger Monell liability.
89.
City of Canton, 489 U.S. at 388–
The plaintiff must also allege that the practice or custom
evidences a deliberate indifference to the plaintiff’s
constitutional rights.
Id. at 389.
The Ninth Circuit has
explained that deliberate indifference “occurs when the need for
more or different action is ‘so obvious, and the inadequacy [of
the current procedure] so likely to result in the violation of
constitutional rights, that the policymakers . . . can
reasonably be said to have been deliberately indifferent to the
need.”
Oviatt, 954 F.2d at 1477–78 (alterations in original,
internal quotation marks omitted) (citing City of Canton, 489
U.S. at 390).
Once the plaintiff has established the existence
of a longstanding practice or custom, “a municipality may be
liable for its custom irrespective of whether official policy-
- 43 -
makers had actual knowledge of the practice at issue.” 27/
Navarro, 72 F.3d at 714–15 (citing Thompson v. City of Los
Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989), overruled on other
grounds by Bull v. City and Cty. of San Francisco, 595 F.3d 964
(9th Cir. 2010)). 28/
Defendant Honolulu’s sole argument regarding
deliberate indifference is that the FAC fails to allege that
Defendant Honolulu had any knowledge of Defendant Lombardi’s
constitutional violations.
11.
Defendant Honolulu’s Motion at 10–
However, as the Court noted, a plaintiff need not show that
official policymakers had actual knowledge of the custom at
issue when the Monell theory of liability is an unconstitutional
27/
The Fourth Circuit follows a similar approach, which it has
thoroughly explicated. See Spell v. McDaniel, 824, F.2d 1380
(4th Cir. 1987). The Fourth Circuit has explained that
municipal fault for allowing an unconstitutional custom to
continue requires (1) actual or constructive knowledge of its
existence by responsible policymakers, and (2) their failure, as
a matter of specific intent or deliberate indifference,
thereafter to correct or stop the practices.” Id. at 1391.
Moreover, “[c]onstructive knowledge may be inferred from the
widespread extent of the practices, general knowledge of their
existence, manifest opportunities and official duty of
responsible policymakers to be informed, or combinations of
these.” Id.
28/ In Thompson, the Ninth Circuit noted that the existence of
custom as a basis for Monell liability serves a critical role in
ensuring that local governments are held responsible for
widespread abuses or practices that cannot be affirmatively
attributed to the decisions or ratification of an official
government policymaker but are so pervasive as to have the force
of law. 885 F.2d at 1444 (citing City of St. Louis v.
Prapotnik, 495 U.S. 112, 126–27 (1988)).
- 44 -
longstanding practice or custom. 29/
15.
See Navarro, 72 F.3d at 714–
It appears that Defendant Honolulu focuses solely on the
violations of Defendant Lombardi and not on the equal protection
violations committed by the other HPD officers—equal protection
violations visited pursuant to the longstanding practice or
custom that Plaintiff Garcia complains about.
In any event, the
Court finds that Defendant Honolulu had, at the very least,
constructive knowledge of the longstanding practice or custom
given the volume of complaints Plaintiff Garcia filed between
2008 and 2018. 30/
Here, Plaintiff Garcia complains about a longstanding
practice or custom where the HPD handles domestic abuse
complaints against ordinary citizens appropriately but
mishandles domestic abuse complaints against HPD officers.
29/
Her
As Plaintiff Garcia points out, Opposition at 32, Defendant
Honolulu’s argument that it was without knowledge of Defendant
Lombardi’s constitutional violations is quite surprising given
the fact that Plaintiff Garcia obtained four court orders and
filed at least six police reports and two PSO complaints over a
ten-year period detailing Defendant Lombardi’s threatening
behavior and harassment.
30/ In the aftermath of the domestic violence incident involving
HPD officer Darren Cachola, which occurred in September 2014,
the Hawai`i State Legislature held an informational briefing at
which the HPD’s police chief and two of his deputies were
questioned about the HPD policies regarding domestic violence
investigations. See H.B. 2133 at p. 2–3. At that briefing, the
HPD’s record on disciplining officers for domestic violencerelated misconduct was called into question. Id. at p. 3.
Accordingly, it appears likely that after this informational
briefing was held, Defendant Honolulu had actual knowledge of
the alleged longstanding practice or custom.
- 45 -
allegations span a ten-year period and detail numerous instances
of plausible constitutional deprivations, including those
discussed supra.
She alleges that the HPD officers consistently
violated internal HPD policies when dealing with her complaints
about Defendant Lombardi, and that Defendant Honolulu and did
nothing to remedy the HPD policy violations that caused
Plaintiff Garcia constitutional deprivations.
It is plausible that the widespread failure to remedy
HPD policy violations could have been due to Defendant
Honolulu’s deliberate indifference.
See Spell, 824 F.2d at 1391
(holding that an unconstitutional custom requires policymakers’
failure, as a matter of specific intent or deliberate
indifference, to correct or stop the practice once they have
actual or constructive knowledge of it). 31/
It is also plausible
that, like the custom in Navarro of treating domestic violence
911 calls differently from non-domestic violence 911 calls, the
HPD’s custom of handling domestic abuse complaints against HPD
officers differently from domestic abuse complaints against
ordinary citizens might fail rational basis review.
72 F.3d at
717.
31/
Indeed, the question of whether a local government’s
longstanding practice or custom amounts to deliberate
indifference is normally reserved for the jury. Oviatt, 954
F.2d at 1478.
- 46 -
Moreover, the FAC refers to the Gun Ban for
Individuals Convicted of a Misdemeanor Crime of Domestic
Violence (informally known as the “Lautenberg Amendment”), which
is codified at 18 U.S.C. § 922(g)(9).
FAC ¶ 167.
The
Lautenberg Amendment, inter alia, prohibits any person who has
been convicted of a misdemeanor crime of domestic violence from
possessing a firearm.
18 U.S.C. 922(g)(9).
At the hearing held on April 23, 2019, counsel for
Plaintiff Garcia echoed the Hawai`i State Legislature’s findings
that the Lautenberg Amendment may cause the HPD to minimize
alleged incidents of domestic violence involving HPD officers.
See H.B. 2133 at p. 5.
Counsel for Plaintiff Garcia argued that
the HPD has a strong incentive to ensure that its officers are
not convicted of domestic violence crimes because, pursuant to
the Lautenberg Amendment, any police officer so convicted would
be barred from carrying a firearm and contribute to an existing
manpower shortage within the HPD.
Counsel for Plaintiff Garcia
noted that the Lautenberg Amendment might serve as motivation
for the HPD to look the other way when HPD officers engage in
domestic abuse, and that by doing so Defendant Honolulu exhibits
deliberate indifference to the rights of victims.
Although the Court expresses no opinion as to the
HPD’s motivation behind the alleged longstanding practice or
custom, the Court finds that the FAC has plausibly alleged that
- 47 -
Defendant Honolulu’s failure to correct a custom so likely to
result in constitutional violations could constitute deliberate
indifference under Monell.
3.
Moving Force
Finally, a plaintiff alleging Monell liability is
required to show that the policy is the moving force behind the
ultimate injury.
Oviatt, 954 F.2d at 1481 (citing City of
Canton, 489 U.S. at 391).
“For a policy to be the moving force
behind the deprivation of a constitutional right, the identified
deficiency in the policy must be closely related to the ultimate
injury.”
Long, 442 F.3d at 1190 (quotation marks omitted,
citing Gibson, 290 F.3d at 1196).
The plaintiff must establish
that the injury would have been avoided if the proper policies
had been implemented.
954 F.2d at 1478).
Long, 442 F.3d at 1190 (citing Oviatt,
Thus, because Plaintiff Garcia’s Monell
claim is based on a longstanding practice or custom and not a
formal policy, she must plead facts demonstrating that the
practice or custom is the moving force behind her constitutional
deprivation.
Neither party addresses this element of Monell
liability.
However, it seems obvious that Plaintiff Garcia’s
constitutional deprivations were closely related to the
longstanding practice or custom.
Indeed, had Defendant Honolulu
and the Officer Defendants handled her complaints appropriately,
- 48 -
Plaintiff Garcia would not have been deprived of her
constitutional rights.
Accordingly, the Court finds that
Plaintiff Garcia has adequately alleged that the longstanding
practice or custom was the moving force behind the
constitutional violations.
For the foregoing reasons, the Court finds that the
FAC states a plausible claim for municipal liability under
Monell.
III.
Negligence Claims (Count V)
The FAC’s negligence count appears to assert direct
negligence claims against Defendants Arakawa, Hee, and Lee, and
negligent supervision claims against Defendant Honolulu.
FAC ¶¶
236–247.
A.
Negligence Claims Against the Individual Officer
Defendants
To state a claim for negligence under Hawai`i law, a
plaintiff must allege: “(1) [the defendant’s] duty to conform to
a certain standard of conduct; (2) breach of the duty; (3)
causal connection between the breach and the injury; and (4)
damage[s].”
Park, 292 F. Supp. 3d 1080, 1101 (citing Pourny v.
Maui Police Dep’t, Cty. of Maui, 127 F. Supp. 2d 1129, 1145 (D.
Haw. 2000)).
The FAC alleges that Defendant Lee violated duties
imposed upon him by internal HPD Policy Numbers 3.26, 4.18,
- 49 -
5.01, and 7.09 by failing to timely and adequately investigate
Plaintiff Garcia’s PSO complaints against Defendant Lombardi.
FAC ¶ 245.
The FAC alleges that Defendants Arakawa and Hee
violated duties imposed upon them by internal HPD Policy Number
2.21 by authoring and approving a false police report filed by
Defendant Lombardi accusing Plaintiff Garcia of custodial
interference.
Id. ¶ 243.
The Officer Defendants argue that Plaintiff Garcia
failed to adequately plead that they owed her a legal duty.
Officer Defendants’ Motion at 7–8.
The Court agrees.
Indeed,
Plaintiff Garcia offers no authority establishing that the HPD
internal policies themselves create a legal duty.
This Court
has noted that HPD internal policies in fact do not create legal
duties for purposes of negligence claims, as has another court
in this District.
See Park, 292 F. Supp. 3d at 1101 n. 13
(noting that HPD policies do not necessarily create a duty);
Dowkin v. Honolulu Police Dep’t, Civ. No. 10-00087 SOM-RLP, 2012
WL 3012643, at *4 (D. Haw. July 23, 2012) (citations omitted)
(finding that the HPD’s Code of Conduct did not by itself create
a legal duty).
Plaintiff Garcia cites two cases in support of her
assertion that internal HPD policies impose a legal duty on
police officers with respect to the general public.
Opposition
at 37; see Doe Parents No. 1 v. State of Haw., Dep’t of Educ.,
- 50 -
100 Haw. 34, 58 P.3d 545 (Haw. 2002); Seibel v. City and Cty. of
Honolulu, 61 Haw. 253, 602 P.2d 532 (Haw. 1979).
In Doe Parents No. 1, the Hawai`i Supreme Court held
that the Hawai`i State Department of Education owed a duty to
students and parents to take necessary precautions to ensure the
safety and welfare of students in its custody, and that this
duty arose from a special relationship between the DOE and its
students and their parents.
100 Haw. at 81, 58 P.3d at 592.
In
Seibel, the Hawai`i Supreme Court discussed another form of
special relationship that gives rise to a duty—a city’s duty to
supervise a prisoner who has been conditionally released.
Haw. at 260, 602 P.2d at 538.
61
It is unclear how either of these
cases support Plaintiff Garcia’s argument that the Officer
Defendants owed her a legal duty arising from internal HPD
policies.
Accordingly, the Court finds that the FAC fails to
state plausible negligence claims against the Officer Defendants
because it does not adequately allege that the Officer
Defendants owed her a legal duty that they breached.
The Court
therefore dismisses the negligence claims against the Officer
Defendants without prejudice.
B.
Negligence Claims Against Defendant Honolulu
The FAC alleges negligence claims against Defendant
Honolulu on the basis of negligent supervision of Defendant
- 51 -
Lombardi and the Officer Defendants. 32/
“Under Hawai`i law,
before a plaintiff can establish a claim for negligent training
and/or supervision, the plaintiff must establish that ‘the
employer knew or should have known of the necessity and
opportunity for exercising such control.’”
Park, 292 F. Supp.
3d at 1102 (citing Otani v. City & Cty. of Hawai`i, 126 F. Supp.
2d 1299, 1308 (D. Haw. 1998), aff’d sub nom. Otani v. Hawai`i
Cty. Police Dep’t, 246 F.3d 675 (9th Cir. 2000) (quoting Abraham
v. S.E. Onorato Garages, 50 Haw. 628, 639, 446 P.2d 821
(1968))).
The key to a negligent supervision claim is
foreseeability.
Id.
“If an employer has not been put on notice
of the necessity for exercising a greater degree of control or
supervision over a particular employee, the employer cannot be
held liable as a matter of law.”
Id.
The Court first addresses
Plaintiff Garcia’s claims concerning the negligent supervision
of the Officer Defendants and then turns to the negligent
supervision of Defendant Lombardi.
1.
Negligent Supervision of the Officer Defendants
To state a claim for negligent failure to supervise
the Officer Defendants, the FAC must include allegations that
32/
The FAC does not appear to allege that Defendant Honolulu
should be held liable for the Officer Defendants’ or Defendant
Lombardi’s actions on a respondeat superior theory of vicarious
liability. Accordingly, the Court does not address this theory
of liability.
- 52 -
Defendant Honolulu was on notice of the necessity to exercise a
greater degree of control or supervision over the Officer
Defendants.
See Park, 292 F. Supp. 3d at 1102.
The FAC alleges that on March 15, 2017, Plaintiff
Garcia filed a complaint with the PSO regarding Defendant
Lombardi having filed four false police reports against her.
FAC ¶¶ 124–126.
She named Defendants Arakawa and Hee in that
complaint because they authored and approved the report.
Id.
While these allegations might be sufficient to put Defendant
Honolulu on notice of the need to exercise better supervision
over Defendants Arakawa and Hee, the FAC is devoid of
allegations attributable to those HPD officers occurring after
the date on which Plaintiff Garcia filed the PSO complaint—a
complaint that was ultimately sustained.
Id. ¶ 129.
Moreover,
nothing in the FAC indicates that Plaintiff Garcia ever reported
wrongdoing on the part of Defendant Lee.
Accordingly, Plaintiff Garcia has failed to plausibly
allege that Defendant Honolulu was negligent in its supervision
of the Officer Defendants and those claims are dismissed.
2.
Negligent Supervision of Defendant Lombardi
With respect to Defendant Lombardi, the parties do not
appear to dispute that Defendant Honolulu was on notice of
Defendant Lombardi’s misconduct.
Consequently, Defendant
Honolulu argues that it had no means or opportunity to control
- 53 -
Defendant Lombardi during his private interactions with
Plaintiff Garcia.
An employer is liable for negligent supervision of an
employee only where the employee, while under the employer’s
control, commits an act that is outside the scope of his
employment.
See Dairy Road Partners v. Island Ins. Co., Ltd.,
92 Haw. 398, 427, 992 P.2d 93, 122 (Haw. 2000); Wong-Leong v.
Hawaiian Independent Refinery, Inc., 76 Haw. 433, 444–45 879
P.2d 538, 549–50 (Haw. 1994).
Thus an employer owes no general
duty to the public to supervise or control an employee while
that employee is not under the employer’s control.
There are at least three incidents alleged in the FAC
where Defendant Lombardi may have been acting outside the scope
of his employment while on duty.
The first incident, which
occurred on September 13, 2008, involved Defendant Lombardi
harassing and threatening Plaintiff Garcia and her children at a
Jamba Juice while on duty and while in uniform and armed with
his service firearm.
FAC ¶ 64.
The second incident, which
occurred on September 25, 2008, involved Defendant Lombardi
visiting G.L. at preschool in contravention of a protective
order—he did so in full uniform and used his official
identification to enter the building.
Id. ¶ 66.
The third
incident, which occurred on or around November 18, 2008,
- 54 -
involved Defendant Lombardi calling Plaintiff Garcia from an HPD
telephone and leaving her a threating voicemail.
Id. ¶ 72.
It well may be that many of Defendant Lombardi’s
interactions with Plaintiff Garcia were as a private citizen
where Defendant Honolulu had no means to control his actions.
Although at least the three aforestated interactions occurred
while Defendant Lombardi was on duty and, therefore, Defendant
Lombardi acted outside the scope of his employment while under
the control of his employer, these interactions occurred in
2008—well outside the two-year Hawai`i statute of limitations
for personal injury actions.
See Haw. Rev. Stat. § 657-7.
In order for the continuing violation doctrine to
apply to a claim concerning the negligent supervision of
Defendant Lombardi, the FAC needs to include allegations of nontime-barred acts undertaken within the limitations period.
11/16/2018 Order at 21–22.
See
While the FAC contains some
allegations about threats that Defendant Lombardi made within
the limitations period, 33/ it is unclear whether Defendant
33/
For example, Defendant Lombardi filed a false police report
on March 16, 2016 alleging that Plaintiff Garcia engaged in
custodial interference (it is unclear from the pleading whether
Defendant Lombardi filed this report while acting as a duty
officer, or if in fact he filed a complaint in his capacity as a
private citizen); on May 24, 2017, Defendant Lombardi emailed
Plaintiff Garcia and threatened to file additional police
reports alleging custodial interference; on January 30, 2018
Defendant Lombardi sent another email to Plaintiff Garcia
(Continued...)
- 55 -
Lombardi was acting as a private citizen or acting outside the
scope of his employment while under the control of HPD.
Accordingly, the Court concludes that Plaintiff
Garcia’s factual allegations are insufficient to support her
claim against Defendant Honolulu for the negligent supervision
of Defendant Lombardi and that claim is dismissed.
CONCLUSION
For the foregoing reasons, the Officer Defendants’
Motion and Defendant Honolulu’s Motion are GRANTED IN PART AND
DENIED IN PART as follows:
1. The Officer Defendants’ Motion is DENIED with respect
to the individual capacity § 1983 equal protection
claims and GRANTED with respect to the official
capacity § 1983 claims and the negligence claims. The
official capacity § 1983 claims are DISMISSED WITH
PREJUDICE and the negligence claims are DISMISSED
WITHOUT PREJUDICE. The Court declines to address the
§ 1983 substantive due process claims at this time
because the Officer Defendants failed to address those
claims in their Motion.
2. Defendant Honolulu’s Motion is DENIED with respect to
the § 1983 equal protection municipal liability claim
and GRANTED with respect to the negligent supervision
claims. The negligent supervision claims are
DISMISSED WITHOUT PREJUDICE. The Court declines to
address the § 1983 substantive due process municipal
liability claim at this time because Defendant
Honolulu failed to address that claim in its Motion.
threatening to file custodial interference charges against her
and copying the email to his Honolulu.gov work email address.
FAC ¶¶ 119, 128, 130.
- 56 -
Plaintiff Garcia shall have 30 days to file an
amended complaint that attempts to cure the pleading
deficiencies identified herein—that is, the deficiencies
identified in her negligence claims.
If Plaintiff Garcia
chooses to file a second amended complaint, she may not
assert additional claims absent the Court’s permission.
IT IS SO ORDERED:
DATED:
Honolulu, Hawai`i, May 3, 2019.
________________________________
Alan C. Kay
Sr. United States District Judge
Garcia v. City and County of Honoulu, et al., Civ. No. 18-00100 ACK-RLP Order
Granting in Part and Denying in Part Defendants’ Motions to Dismiss.
- 57 -
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