Chun v. City and County of Honolulu et al

Filing 103

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF NO. 71 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 7/13/2020. For the foregoing reasons, the court GRANTS the City's motion for summary judgment, as Plaintiff's claims are time-barred. The Clerk of Court is instructed to close the case file. (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CURTIS CHUN,

Civ. No. 18-00131 JMS-RT
Plaintiff,

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, ECF NO.
71

vs.
CITY AND COUNTY OF HONOLULU,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, ECF NO. 71
I. INTRODUCTION
Plaintiff Curtis Chun (“Chun” or “Plaintiff”) initiated this
employment discrimination action stemming from his termination by Defendant
City and County of Honolulu. (“the City”). Before the court is the City’s Motion
for Summary Judgment seeking dismissal based on the filing of the complaint past
the applicable statute of limitations. See ECF No. 71. For the foregoing reasons,
the court GRANTS the City’s Motion.
II. BACKGROUND
By letter dated July 25, 2012, Plaintiff, an engineer, was terminated
by the City, with his last day being August 6, 2012. Aylett Decl. ¶ 35, ECF No.
72-1 at PageID #242.

On April 10, 2018, Plaintiff filed this suit against the City, alleging
claims of hazardous work environment and wrongful termination. See ECF No. 1
at PageID #4-6. On January 9, 2019, the court granted the City’s motion to
dismiss, with leave to amend. See ECF No. 49. On February 15, 2019, Plaintiff
filed his First Amended Complaint (“FAC”), asserting claims under the American
with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, and the
Hawaii Whistleblower Protection Act (“HWPA”). ECF No. 50. The FAC alleges
that there were times Plaintiff was adjudicated unfit to proceed in criminal cases in
2014 and 2015, and thus based on mental disability, “the statutes of limitations
may be tolled.” Id. at PageID #140.1
On January 15, 2020, the City filed its Motion for Summary
Judgment, seeking to dismiss all of Plaintiff’s claims. See ECF No. 71. On April
29, 2020, the parties stipulated to dismissing with prejudice the ADA claims. See
ECF No. 88. On May 15, 2020, after two extensions, Plaintiff filed an Opposition
that included defending an argument not raised in the City’s Motion—that is,
Plaintiff argued that his claims were not barred by the statute of limitations because

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In State of Hawaii courts, a defendant found “unfit” to proceed to trial is the equivalent
of a finding of a lack of competence to stand trial in federal court. See Haw. Rev. Stat. (“HRS”)
§§ 704-403 to 405; State v. Tierney, 127 Haw. 157, 277 P.3d 251 (2012); State v. Castro, 93
Haw. 424, 426, 5 P.3d 414, 416 (2000).
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he is entitled to equitable tolling. See ECF No. 100 at PageID #663-66.2 In its
May 22, 2020 Reply, the City addressed the statute of limitations argument in
detail, and requested that the court grant summary judgment based on the running
of the statute of limitations for both of the FAC’s remaining claims. 3 ECF No. 101
at PageID #687-93. Given this unusual procedural posture, on June 12, 2020, the
court entered an order inviting Plaintiff to file a sur-reply, informing Plaintiff that
the court would consider the City’s statute of limitations argument pursuant to
Federal Rule of Civil Procedure 56(f). 4 See ECF No. 102. Despite this invitation,
Plaintiff failed to file a sur-reply. The court finds this matter suitable for
disposition without a hearing pursuant to Local Rule 7.1(c). See ECF No. 83.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Federal Rule of Civil Procedure (“FRCP”) 56(a) mandates

2

In its Motion, the City discussed tolling only in the context of the 300-day time period
for Plaintiff to exhaust his administrative remedies. See ECF No. 71-1 at PageID #215-18.
Nowhere in its opening brief, however, did the City argue that it should be granted summary
judgment based on the running of the statute of limitations for the Rehabilitation Act or the
HWPA claim.
3

The City did raise the statute of limitations as a defense in its Answer to the FAC. See
ECF No. 54 at PageID #156 (Seventeenth Defense).
4

Under Rule 56(f)(2), “after giving notice and a reasonable time to respond,” the court
may grant summary judgment “on grounds not raised by a party.”
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summary judgment “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252,
1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323). “When the moving party has carried
its burden under Rule 56[(a)], its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts [and] come forward with
specific facts showing that there is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is

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‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
IV. DISCUSSION
Plaintiff argues that the court should equitably toll the statute of
limitations as to both claims because he was mentally impaired until February
2018, approximately two months before his initial complaint was filed. 5 See ECF
No. 100 at PageID #663-66. The court first addresses the applicable statute of
limitations for both the § 504 claim and the HWPA claim, and then discusses
whether Plaintiff has shown that the statutes should be tolled based on mental
impairment.

Both parties assume that the doctrine of equitable tolling applies to both § 504 of the
Rehabilitation Act and the HWPA. For purposes of this Order, the court likewise assumes
(without making a determination) that equitable tolling applies to both of these statutes.
5

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The statute of limitations for the Rehabilitation Act is governed by the
most analogous state law statute of limitations. See Ervine v. Desert View Reg’l
Med. Ctr. Holdings, LLC, 753 F.3d 862, 869 (9th Cir. 2014) (“The statute of
limitations for claims under Section 504 of the Rehabilitation Act is provided by
analogous state law.”); Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 823
(9th Cir.), amended, 271 F.3d 910 (9th Cir. 2001) (same). And, in Hawaii, the
two-year personal injury statute of limitations is most analogous to a § 504 action.
See Toma v. Univ. of Haw., 2017 WL 4782629, at *5 (D. Haw. Oct. 23, 2017)
(finding that Hawaii’s two-year statute of limitations under HRS § 657-7 applies to
claims under § 504 of the Rehabilitation Act); Jefferies v. Albert, 2009 WL
4064799, at *5 (D. Haw. Nov. 24, 2009) (same); Wiles v. Dep’t of Educ. Haw.,
2006 WL 8436133, at *15 n.7 (D. Haw. Dec. 19, 2006) (same). The statute of
limitation for the HWPA is also two years. See HRS § 378-63(a); Lalau v. City
and Cty. of Honolulu, 938 F. Supp. 2d 1000, 1021 (D. Haw. 2013). Thus, unless
Plaintiff can show the statute of limitations should be tolled, his claims are clearly
time-barred.
A federal court also “borrows the state’s equitable tolling rules” when
an analogous state law statute of limitation applies, “absent a reason not to do so.”
See Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135 (9th Cir.

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2001); see also Ahmed v. Regents of Univ. of Cal., 2018 WL 3969699, at *7 (S.D.
Cal. Aug. 20, 2018) (applying California state equitable tolling rules to a claim
under the Rehabilitation Act). Thus, Hawaii’s doctrine of equitable tolling applies
to both the Rehabilitation Act claim (which borrows Hawaii’s statute of limitation)
and the HWPA claim.
Hawaii has adopted federal equitable tolling principles:
In order to toll a statute of limitations for a complaint
filed after its expiration, a plaintiff must demonstrate
“(1) that he . . . has been pursuing his right diligently, and
(2) that some extraordinary circumstance stood in his
way.” Felter v. Norton, 412 F. Supp. 2d 118, 126
(D.D.C. 2006) (citing Pace v. DiGuglielmo, 544 U.S.
408, 417, 125 S. Ct. 1807, 1814, 161 L.Ed.2d 669
(2005); Zerilli-Edelglass v. N.Y. City Transit Auth., 333
F.3d 74, 80-81 (2d Cir. 2003)). Extraordinary
circumstances are circumstances that are beyond the
control of the complainant and make it impossible to file
a complaint within the statute of limitations. Id.
(citing United States v. Cicero, 214 F.3d 199, 203 (D.C.
Cir. 2000)).
Office of Hawaiian Affairs v. State, 110 Haw. 338, 360, 133 P.3d 767, 789 (2006).
See also Reyes v. HSBC Bank USA, Nat’l Ass’n, 135 Haw. 407, 2015 WL
3476371, at *6 (Haw. Ct. App. May 29, 2015) (applying federal equitable tolling
principles to fraudulent concealment); Paco v. Myers, 143 Haw. 330, 2018 WL

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6177430, at *2 (Haw. Ct. App. Nov. 27, 2018).6 This test “is a very high bar, and
is reserved for rare cases.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th
Cir. 2014).
And in the specific context of mental impairments, the following test
applies to equitable tolling:
[W]e conclude that eligibility for equitable tolling due to
mental impairment requires the petitioner to meet a twopart test:
(1) First, a petitioner must show his mental impairment
was an “extraordinary circumstance” beyond his control
by demonstrating the impairment was so severe that either
(a) petitioner was unable rationally or factually to
personally understand the need to timely file, or
(b) petitioner’s mental state rendered him unable
personally to prepare a habeas petition and effectuate its
filing.
(2) Second, the petitioner must show diligence in pursuing
the claims to the extent he could understand them, but that
the mental impairment made it impossible to meet the
filing deadline under the totality of the circumstances,
including reasonably available access to assistance.
To reiterate: the “extraordinary circumstance” of mental
impairment can cause an untimely habeas petition at
different stages in the process of filing by preventing
petitioner from understanding the need to file,
effectuating a filing on his own, or finding and utilizing
assistance to file. The “totality of the circumstances”
inquiry in the second prong considers whether the
Because Hawaii has largely adopted the federal standard for equitable tolling, the court
relies on federal cases discussing equitable tolling as it relates to a mental impairment.
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petitioner’s impairment was a but-for cause of any delay.
Thus, a petitioner’s mental impairment might justify
equitable tolling if it interferes with the ability to
understand the need for assistance, the ability to secure it,
or the ability to cooperate with or monitor assistance the
petitioner does secure. The petitioner therefore always
remains accountable for diligence in pursuing his or her
rights.
Bills v. Clark, 628 F.3d 1092, 1099-100 (9th Cir. 2010) (internal footnote and
citations omitted) (stating the test in the context of the filing of a habeas petition).
This test “reiterates the stringency of the overall equitable tolling test: the mental
impairment must be so debilitating that it is the but-for cause of the delay, and
even in cases of debilitating impairment the petitioner must still demonstrate
diligence.” Yow Ming Yeh, 751 F.3d at 1078. See also Conroy v. Thompson, 929
F.3d 818, 820 (7th Cir. 2019) (“Mental incompetency may constitute an
extraordinary circumstance that justifies equitable tolling, but only if the illness in
fact prevents the sufferer from managing his affairs and thus from understanding
his legal rights and acting upon them.”) (internal quotation marks omitted).
“With respect to the necessary diligence, the petitioner must diligently
seek assistance and exploit whatever assistance is reasonably available. The court
should examine whether the petitioner’s mental impairment prevented him from
locating assistance or communicating with or sufficiently supervising any
assistance actually found.” Bills, 628 F.3d at 1101; see also Milam v. Harrington,
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953 F.3d 1128, 1132 (9th Cir. 2020).
Here, Plaintiff relies heavily on: (1) an April 17, 2015 report by Dr.
Dennis Donovan, a State of Hawaii psychological consultant, regarding Plaintiff’s
competency to stand trial in state criminal proceedings, ECF No. 99-5; and (2) a
January 19, 2016 forensic neuropsychological evaluation report prepared by Dr.
Roger L. Likewise (“Likewise Report”) relating to Plaintiff’s workers’
compensation claim, ECF No. 82.
In his April 17, 2015 report, Dr. Donovan noted that he had seen
Plaintiff “several times for similar cases” including in August 2012,7 and March
and May of 2014. See ECF No. 99-5 at PageID #639. Dr. Donovan’s 2015 report
found that Plaintiff may suffer from a “psychotic disorder [not otherwise
specified]” and possibly “delusional disorder or paranoia schizophrenia.” Id. at
PageID #640. Based on the review of Plaintiff’s file, his interview with Plaintiff,
and his “overall impression of [Plaintiff] as well as [Dr. Donovan’s] discussion

7

Plaintiff argues that his mental incompetence, as determined by Dr. Donovan, started
“March and May of 2014,” and thus, tolling should commence at that time. See Pl.’s Opp’n,
ECF No. 100 at PageID #663. The record submitted by Plaintiff in support of his opposition to
summary judgment, however, appears to contradict his own stated position. Specifically,
Plaintiff’s own evidence shows that in September 2012, Dr. Donovan opined that Plaintiff was
unfit to stand trial. See ECF No. 99-5 at PageID #636-38 (Dr. Donovan’s Sept. 24, 2012 letter
for Case No. 1P511-487); id. at PageID #643-44 (Oct. 12, 2012 court order finding Plaintiff unfit
to proceed and seeking reexamination). As set forth below, regardless of when Plaintiff was first
determined unfit to stand trial, his mental incompetency did not prohibit him from pursuing his
present claims, and accordingly, he is not entitled to equitable tolling.
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with the leader of the fitness restoration program,” Dr. Donovan concluded that
Plaintiff was “not fit to proceed” in his criminal case. Id.
The Likewise Report sets forth in detail Plaintiff’s history of mental
health issues. The Likewise Report cited excerpts of Dr. Donovan’s April 17,
2015 letter, noting that Dr. Donovan “evaluated [Plaintiff] on 1/5/15 and
previously, in March and May of 2014. Each time, Dr. Donovan opined that Mr.
Chun was not fit to proceed and this remained his opinion today.” See ECF No. 82
at PageID #406, 448 (sealed). In another entry, the Likewise Report states that on
May 12, 2015, “[c]ourt was extended as Mr. Chun was unfit.” Id. at PageID #408.
The record before the court, however, is silent as to Plaintiff’s
condition between 2015 and 2018. On February 21, 2018, Plaintiff was
determined by the state court to be “fit to proceed” on a pending criminal charge
and that pursuant HRS § 704-411(1)(c), he “is no longer affected by physical or
mental disease, disorder or defect . . . .” ECF No. 72-29 at PageID #353-54.
Plaintiff now argues, without analysis or legal authority, that the fact
that he was found incompetent (unfit) to stand trial in several criminal cases
automatically entitles him to equitable tolling of the statute of limitations. See
ECF No. 100 at PageID # 663-64. Thus, he argues, the entire duration between

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March 2014 until February 21, 2018 should be tolled. Ultimately, given the record
before the court, this assumption ultimately fails. 8
Even assuming that Plaintiff was mentally incompetent from 2012
through February 21, 2018, Plaintiff has not come forward with evidence showing
that his mental incompetence prohibited him from filing the present action within
the two-year statute of limitations. See, e.g., Yow Ming Yeh, 751 F.3d at 1078
(stating that a mental impairment must be “so debilitating that it is the but-for
cause of the delay, and even in cases of debilitating impairment the petitioner must
still demonstrate diligence.”); Kitchen v. Bauman, 629 F. App’x 743, 747-48 (6th
Cir. 2015) (presuming incompetency to stand trial, litigant nevertheless is not
entitled to equitable tolling because he failed to show that the mental incompetency
“hindered his ability to assist his trial counsel”).
In fact, the record shows the contrary. Plaintiff was capable of filing
and pursuing claims in judicial and administrative proceedings, both pro se and
with the assistance of counsel. For example, on June 29, 2015 (during the period
he was found incompetent to stand trial), Plaintiff filed a pro se worker’s

8

The court is not determining whether a finding of incompetence to stand trial is by
itself sufficient to support a finding that Plaintiff suffered from the sort of mental impairment
that justifies tolling. This issue was not properly briefed by either party, and case law suggests
otherwise. See Mayberry v. Dittmann, 904 F.3d 525, 530 (7th Cir. 2018) (stating that
incompetence to stand trial, standing alone, is “unlikely” to justify equitable tolling).

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compensation claim against the City with the State of Hawaii Department of Labor
and Industrial Relations. See ECF No. 72-23. In part, that claim alleged that
Plaintiff was terminated from employment by the City based on retaliation for
being a “whistle blower due to major serious violation.” Id. at PageID #338.
Although Plaintiff filed his worker’s compensation claim pro se, Honolulu attorney
Edmund Lee represented Plaintiff in that matter as of April 2016—evidence that
Plaintiff was able to seek and obtain counsel to prosecute his claims. Tashima
Decl., ECF No. 101-1 at PageID #699. 9
Further, again acting pro se, Plaintiff initiated a March 2015 action in
this court before Judge Leslie E. Kobayashi. That complaint claimed that
Plaintiff’s neighbors allowed harmful emissions to travel to his home, and
attempted to allege violations of several federal statutes including the ADA and the
Rehabilitation Act. Chun v. Simpson, et. al, Civ. No. 15-00102 LEK-RLP
(“Simpson Dkt”),10 ECF No. 54 at PageID #675-77 (order dismissing second
amended complaint, noting that Plaintiff attempted to allege a claim under the

9

Edmund Lee filed the initial complaint in the instant case, but later withdrew as
counsel. Shawn Luiz, Plaintiff’s current counsel, filed the FAC. See ECF Nos. 1, 33 & 50.
10

The court takes judicial notice of Plaintiff’s prior actions in state and federal court, as
referenced throughout this Order. See Fed. R. Evid. 201(b)(2) & (c)(1); see, e.g., RosalesMartinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014) (“It is well established that we may take
judicial notice of judicial proceedings in other courts.”).

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ADA, and his prior complaint “attempted to allege claims” including Section 504
of the Rehabilitation Act). And Plaintiff vigorously litigated the case, submitting
multiple filings and being responsive to court orders. For example, Plaintiff sought
various extensions from the court (Simpson Dkt, ECF Nos. 13, 45), and worked
with the court to schedule status conferences (Simpson Dkt, ECF Nos. 5, 7). He
also filed numerous other motions including a: request for temporary restraining
order (Simpson Dkt, ECF No. 21); motion for preliminary injunction (Simpson
Dkt, ECF No. 22); motion seeking clarification on various orders (Simpson Dkt,
ECF No. 38); and motion for reconsideration (Simpson Dkt, ECF Nos. 55, 57).
Accordingly, even assuming that Plaintiff was mentally incompetent
for a period of time, he has not shown the required but-for causation or that he was
sufficiently diligent. Given that Plaintiff was able to prosecute a worker’s
compensation claim and a civil case in this court—both relating to the claims
before the court now—Plaintiff has failed to come forward with evidence to show
that any mental incompetence prevented him from initiating this instant lawsuit.
See, e.g., Hipp v. Stephan, 2018 WL 3653178, at *19 (D.S.C. May 21, 2018)
(litigant not entitled to equitable tolling, in part, because the record shows he was
able to file other “timely and cogent” prison claims); Hargrave v. Smith, 2008 WL
4179441, at *4 (S.D. Tex. Sept. 8, 2008) (finding petitioner is not entitled to

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equitable tolling for mental incompetency purposes, in part, because “his ability to
file his federal petition and response are some evidence he is competent”); Kitchen,
629 F. App’x at 748 (noting that litigant filed a civil suit during time which he
alleged should have been equitably tolled). Thus, Plaintiff is not entitled to
equitable tolling. And, because the court declines to apply the doctrine of equitable
tolling to Plaintiff’s claims, Plaintiff’s claims are time-barred. The parties agree
that Plaintiff’s claims began accruing, at the very latest, on August 6, 2012 when
he left his position with the City. But Plaintiff did not file his original complaint in
this court until April 10, 2018, almost six years later. Accordingly, these claims
are time-barred.
V. CONCLUSION
For the foregoing reasons, the court GRANTS the City’s motion for
summary judgment, as Plaintiff’s claims are time-barred. The Clerk of Court is
instructed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 13, 2020.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Chun v. City and Cty. of Honolulu, Order Granting Defendant’s Motion for Summary Judgment,
ECF No. 71.
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