Sterling Naki, Ewa Beach, HI, Pro Se.
Joshua Omoso, Honolulu, HI, Pro Se.
ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
Alan C. Kay, Sr. United States District Judge
(1) As to Defendant City and County of Honolulu and Defendants Naki and Omoso, the Court GRANTS the Motion to Dismiss as to Counts 1-3 and 6. Counts 1-3 and 6 in regard to Defendant City and County of Honolulu and Defendants Naki and Omoso are DISMISSED WITHOUT PREJUDICE.
(2) As to Defendants Naki and Omoso, the Court GRANTS the Motion to Dismiss as to Plaintiff's official capacity claims. These claims are construed against the City and County of Honolulu and are DISMISSED against the officers in their official capacity WITH PREJUDICE.
The Court notes that, as discussed in more detail herein, Counts 4 and 5 were dismissed pursuant to a stipulation, ECF No. 97, and no longer remain in this case.
PROCEDURAL BACKGROUND
On March 30, 2017, Plaintiff Hyun Ju Park ("Plaintiff") filed a Complaint against the following entities and individuals: (1) City and County of Honolulu ("Honolulu"); (2) Honolulu Police Department ("HPD") officer Anson Kimura ("Kimura")
The Complaint asserted six causes of action. Counts 1 through 3, arising under
On May 11, 2017, Defendant Honolulu filed a Motion to Dismiss Complaint Filed April 20, 2017 Pursuant to FRCP 12(b)(6) ("Motion"). ECF No. 14. On June 2, 2017, Dongbu Insurance Co. ("Intervenor Plaintiff" or "Dongbu") filed a Motion to Intervene to protect its subrogation rights as the lien holder for the worker's compensation benefits it provided Plaintiff and to assert claims against Defendants. ECF No. 25. On August 31, 2017, Magistrate Judge Kevin Chang granted the Motion to Intervene. ECF Nos. 52, 68. On September 11, 2017, both Plaintiff and Intervenor Plaintiff filed Oppositions to Defendant Honolulu's Motion to Dismiss ("Pl. Opp." and "Int. Pl. Opp."). ECF Nos. 60, 62. On September 18, 2017, Defendant Honolulu filed replies to these oppositions. ECF Nos. 71, 72.
On October 3, 2017, the Court entered an Order Granting in Part and Denying in Part Defendant City and County of Honolulu's Motion to Dismiss Complaint ("October 3, 2017 Order"). ECF No. 79. Specifically,
(1) As to Defendants Kimura, Naki, and Omoso, the Court granted the Motion to Dismiss as to Plaintiff's official capacity claims. The Court construed these claims against the City and County of Honolulu and dismissed them against the officers in their official capacity with prejudice.
(2) As to the Doe Defendants, the Court denied the Motion to Dismiss.
(3) As to Defendant City and County of Honolulu, the Court granted the Motion to Dismiss as to Counts 1-3 and 6 and dismissed these counts without prejudice.
On November 2, 2017, Plaintiff filed her First Amended Complaint ("FAC"). ECF No. 90. The FAC alleges claims against the same Defendants as the Complaint. The FAC also alleges the same claims as the Complaint, except Count 6's negligence claim also alleges a theory of negligent training and/or supervision.
On November 22, 2017, Defendant Honolulu filed a Motion to Dismiss the First Amended Complaint. ECF No. 98. On December 6, 2017, Defendants Omoso and Naki filed a Joinder to Defendant Honolulu's Motion to Dismiss. ECF Nos. 103, 104. On January 12, 2018, Plaintiff filed an Opposition to Defendant's Motion. ECF No. 120. On that same date, Plaintiff-Intervenor Dongbu filed a Joinder to Plaintiff's Opposition. ECF No. 122. On January 22, 2018, Defendant Honolulu filed a Reply to Plaintiff's Oppositiоn. ECF No. 124. The Court held a hearing on Defendant's Motion on February 5, 2018.
FACTUAL BACKGROUND
At approximately 1:45 a.m. on April 3, 2015, Plaintiff was performing her duties as a bartender and manager at the Kings Sports Bar in Honolulu, Hawaii. FAC ¶ 12. At that same time and place, Kimura was drinking alcoholic beverages and socializing with Defendants Naki and Omoso, among others, while on "off-duty" status as HPD officers.
While Kimura was drinking, he took out his supplemental firearm issued by the HPD and then handled the weapon in a reckless and dangerous manner.
Defendants Naki and Omoso were aware that Kimura was handling his firearm in a reckless and dangerous manner prior to its discharge but failed to intervene.
Pursuant to HPD Policy Number 2.38, effective on the date of the incident, entitled "Uniforms, Equipment, and Firearms," police officers are required to possess their HPD issued firearm at all times but are prohibited from such possession when an officer's "physical and/or mental processes are impaired because of consumption
Plaintiff alleges that Policy Number 2.38, as it was effective on the date of the incident, was deficient as it permitted officers to possess firearms while consuming alcohol up to the point of intoxication, rather than expressly prohibiting the possession of a firearm while consuming alcohol in any amount.
Plaintiff alleges that there was a "brotherhood" culture of silence at the HPD, in which officers were known to abstain from reporting misconduct by their fellow officers, which was a de facto policy of the HPD.
STANDARD
Federal Rule of Civil Procedure 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). The Court may dismiss a complaint either because it lacks a cognizable legal theory or because it lacks sufficient factual allegations to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't,
In resolving a Rule 12(b)(6) motion, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Sateriale v. R.J. Reynolds Tobacco Co.,
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,
DISCUSSION
I. Claims Against Individual Officers in their Official Capacity
The Court's October 3, 2017 Order dismissed Plaintiff's official capacity claims against the individual officers with prejudice. ECF No. 79. The Court held the following:
Personal capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See Hafer v. Melo,, 25, 502 U.S. 21 , 112 S.Ct. 358 (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." 116 L.Ed.2d 301
Monell v. N.Y.C. Dep't of Soc. Servs., , 690 n. 55, 436 U.S. 658 , 98 S.Ct. 2018 (1978). Therefore, courts should treat such suits as suits against the governmental entity. Kentucky v. Graham, 56 L.Ed.2d 611 , 166, 473 U.S. 159 , 105 S.Ct. 3099 (1985) ; see Carnell v. Grimm, 87 L.Ed.2d 114 , 752 (D. Haw. 1994) (dismissing claims against officials in their official capacity as duplicative where the municipality had also been sued). Acсordingly, the Court dismisses the claims against the individual officers in their official capacity with prejudice. 872 F.Supp. 746
October 3, 2017 Order at 12. The FAC still pursues official capacity claims against the individual officers. FAC ¶¶ 9-10. In light of the Court's prior ruling, the Court again dismisses official capacity claims against the individual officers with prejudice.
II. Section 1983 Claims (Counts 1-3) Against Defendant Honolulu and Defendants Naki and Omoso
Section 1983 provides relief against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... causes ... any citizen of the United States ... the deprivation of any rights, privileges, or immunities secured by the Constitution."
For an individual capacity suit under Section 1983, plaintiff must allege personal participation in the constitutional violation on the part of the individual to subject that pеrson to individual liability. Jones v. Williams,
To establish a Section 1983 claim for municipal liability, the plaintiff must show: "(1) that [she] possessed a constitutional right of which [she] 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,
Defendant Honolulu argues that Plaintiff fails to plausibly allege that Defendants were acting under color of state law and each of these four requirements. The Court discusses each of these arguments in turn.
a. Whether the FAC Plausibly Alleges that Defendants were Acting Under Color of State Law
Defendant Honolulu argues that the Court should dismiss the FAC because Defendants did not act under the color of state law.
i. Whether the Acts Complained of Were Performed While the Officers were Acting, Purporting, or Pretending to Act in the Performance of Their Official Duties
The FAC does not allege that the individual officers were acting, purporting, or pretending to act in the performance of their official duties. Rather, Plaintiff alleges that the individual officers were "off-duty" at the time of the incident, FAC ¶ 14, and that Kimura was drinking alcohol and socializing with Dеfendants Naki and Omoso, among others when he handled his HPD issued firearm. Id. ¶ 13. In fact, as regards to Kimura, Plaintiff specifically alleges that he acted "outside the scope of his employment as a police officer" with the HPD. Id. ¶ 63.
In addition, the FAC does not contain any facts to support a claim that the individual officers were acting in performance of their official duties. Plaintiff has not amended her complaint to allege that the individual officers were in uniform, carried official identification, or identified themselves as a member of law enforcement. See Silva,
ii. Whether the Officers' Pretense of Acting in the Performance of their Duties Must Have Had the Purpose and Effect of Influencing the Behavior of Others
The FAC does not allege any facts to support a claim that the individual officers acted with the purpose and effect of influencing others. Instead, the FAC states that Kimura took out his HPD issued firearm in a reckless and dangerous manner leading to one bullet being discharged and striking Plaintiff. Id. ¶ 16. The same allegations are absent with respect to Defendants Naki and Omoso. The only new allegation in the FAC that touches on this issue states that Plaintiff was aware that the individual officers were police and that she "remained silent due to her fear and awe" of them. Id. ¶ 18. "The mere fact that [Plaintiff] knew that his attackers were police officers, however, does not mean that those officers acted under color of state law." Lyons v. Adams,
iii. Whether the Officers' Conduct was Related in Some "Meaningful" Way to Either the Officer's Governmental Status or to the Performance of His Duties
Third, as previously discussed, the FAC does not allege that the individual officers' conduct was related in some meaningful way to the individual officers' governmental status or to the performance of their duties. The only relationship between Kimura's actions and his official duties was that he was carrying his unloaded HPD issued firearm and was attempting to reload it when the bullet fired. This is insufficient on its own to plausibly allege that Kimura was acting under color of state law. See Martinez v. Colon,
Accordingly, because the Court finds that Plaintiff has failed to adequately allege
b. Whether the Complaint Plausibly Alleges that Plaintiff Possessed a Constitutional Right of Which She was Deprived
i. Fourth Amendment Violation
Defendant argues that Plaintiff's Monell claims predicated upon the Fourth Amendment are not plausible because Plaintiff was not "seized." As the Court discussed in its October 3, 2017 Order, a Fourth Amendment seizure does not occur "whenever there is a governmentally caused termination оf an individual's freedom of movement ... nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied." Brower v. Cty. of Inyo,
In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.
The Court finds that the FAC fails to remedy the deficiencies the Court discussed in Plaintiff's original Complaint. The FAC merely alleges that Kimura took оut his HPD issued firearm, which he proceeded to handle in a reckless and dangerous manner until one bullet was discharged, striking Plaintiff. FAC ¶ 16. Although the Court notes that Counts 4 and 5 of the FAC contain allegations that Kimura acted intentionally, the Court does not find these allegations of intent sufficient to withstand a motion to dismiss because they are conclusory. Under the circumstances alleged in the FAC, the Court again concludes that Plaintiff's allegation of recklessness fails to plausibly allege a seizure under the Fourth Amendment. Plaintiff does not allege that Kimura intended for the firearm to discharge a bullet let alone to discharge a bullet at Plaintiff.
In addition, the Court finds that no constitutional violation occurred because, as previously discussed, there was no government action; there was no governmentally caused termination of Plaintiff's freedom of movement. The individual officers' conduct, if any was alleged, was in their capacity as privatе citizens. See Van Ort,
ii. Fourteenth Amendment Violation
The right to be secure in one's person is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. McRorie v. Shimoda,
"Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." Daniels v. Williams,
The Supreme Court has stated that "[w]hether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or
In Count 2 of the FAC, which is entitled "Fourteenth Amendment and/or 42 U.S.C. 1983 Violations," Plaintiff does not identify any specific conduct that violated her Fourteenth Amendment rights. FAC ¶¶ 51-54. Although Count 2 incorporates all of the preceding allegations, none of these allegations discuss an intentional act by any of the Defendants. Rather, the allegations more closely resemble a tort claim and not a constitutional violation. As previously discussed, Plaintiff only alleges that Kimura handled his HPD issued firearm in a reckless manner. Id. ¶ 16.
In addition, the Court finds that no constitutional violation occurred because, as previously discussed, there was no governmental interference in Plaintiff's bodily movements. The individual officers' conduct, if any was alleged, was in their capacity as private citizens. The Court, therefore, dismisses Count 2 without prejudice as to all Defendants.
c. Whether the Complaint Plausibly Alleges that the City and County of Honolulu Had a Policy, Practice, or Custom that Amounts to Deliberate Indifference to Plaintiff's Constitutional Rights that was the Moving Force Behind the Constitutional Violation
A municipality is responsible for its officials' unconstitutional conduct under Section 1983 only if the conduct was caused by a municipal policy, practice, or custom. Menotti v. City of Seattle,
In addition to pleading the existence of a policy, practice, or custom, Plaintiff must plead sufficient facts to demonstrate that such policies amount to "deliberate indifference" by Defendant Honolulu to the rights with whom it comes into contact. Deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bd. of Cty. Comm'rs v. Brown,
The FAC alleges that HPD Policy Number 2.38, entitled "Uniforms, Equipment, and Firearms," effective on the date of the incident, "required off-duty officers to possess a pistol at all times, but prohibited such possession when an officer's 'physical and/or mental processes are impaired because of consumption or use of alcohol, medication, or any other substance which could impair a person's physical or mental processes ...' " FAC ¶ 23 (emphasis in original). The Court, therefore, finds that Plaintiff has plausibly alleged a policy, practice, or custom based on HPD Policy Number 2.38 under the second prong of Oviatt as previously discussed.
However, the Court finds that Plaintiff has failed to plausibly allege that HPD Policy Number 2.38 amounted to deliberate indifference of Plaintiff's constitutional rights. Plaintiff appears to argue that the HPD policy-permitting HPD officers to possess their firearm while consuming alcohol but only to the point when their physical and/or mental processes are impaired-amounted to deliberate indifference because some level of intoxication would likely occur from any consumption and was reasonably likely to cause death or bodily injury. Opposition at 12-13. Plaintiff cites to police policies in other jurisdictions prohibiting officers from carrying their firearm while consuming alcohol. Opposition at 13 n.6. Whatever the deficiencies HPD Policy Number 2.38 may have, the Court finds that the FAC fails to plausibly allege the "stringent standard" that the HPD "disregarded a known or obvious consequence" of Policy Number 2.38 that is actionable under Section 1983. Brown,
With regards to whether HPD Policy Number 2.38 was the moving force behind the alleged constitutional violation, Plaintiff merely pleads that HPD "implemented a deficient policy that permitted officers to handle a firearm while consuming alcohol up to the point of intoxication, which was а policy reasonably likely to cause death or serious bodily injury." FAC ¶ 57. The Court finds this allegation conclusory and therefore insufficient to survive a motion to dismiss.
ii. HPD's "Brotherhood" Culture of Silence
Plaintiff has plausibly alleged a policy, practice, or custom based on HPD's "brotherhood" culture of silence under the second prong of Oviatt. The FAC alleges
However, the Court finds that Plaintiff has failed to plead non-conclusory allegations that the "brotherhood" culture of silence amounted to deliberate indifference to Plaintiff's constitutional rights. Instead, the FAC alleges that Defendant Honolulu's de facto policy of "concealing and condoning officer misconduct ... encouraged and emboldened [the individual officers to] act with reckless disregard and/or deliberate indifference to Plaintiff's constitutional rights." Id. ¶ 59. Defendant Honolulu was "deliberately indifferent to the de facto'brotherhood' culture of silence existing within the Honolulu Police Department." Id. ¶ 60. Neither of these allegations address that, pursuant to Monell, the brotherhood culture of silence itself amounted to deliberate indifference to Plaintiff's constitutional rights. The Court further finds these allegations to be vague and conclusory and therefore insufficient to survive a motion to dismiss. See Iqbal,
The Court finds the same with regard to Plaintiff's allegations about the "brotherhood" culture of silence. Plaintiff merely alleges that the "brotherhood" culture of silence was "the moving force behind the deprivation of Plaintiff's constitutional rights." FAC ¶ 59. The Court finds this allegation to be conclusory and therefore insufficient to survive a motion to dismiss. In addition, the Court finds that as currently pled in the FAC, the connection between the "brotherhood" culture of silence and Plaintiff's injury are too tenuous for the culture to constitute a moving force behind the injury.
Plaintiff also alleges that the individual officers were not adequately trained. To allege Section 1983 municipal liability based on a failure to train, Plaintiff must claim that: (1) the existing training program is inadequate in relation to the tasks the particular officers must perform; (2) the failure to train amounts to deliberate indifference tо the rights of persons with whom the police come into contact; and (3) the inadequacy of the training actually caused the deprivation of the alleged constitutional right. Merritt v. Cty. of Los Angeles,
"Under this standard, [Plaintiff] must allege facts to show that the [Defendant] disregarded the known or obvious consequence that a particular omission in their training program would cause [municipal] employees to violate citizens' constitutional rights." Flores v. Cty. of Los Angeles,
The first issue is whether Plaintiff has adequately alleged that the HPD's existing trаining program is inadequate in relation to the tasks the particular officers must perform. Plaintiff alleges that Defendant Honolulu "failed to adequately train Defendant KIMURA in the usage and handling of revolvers, as the Honolulu Police Department did not provide officers with specific training courses tailored to the usage and handling of revolvers during officers' annual recall training, while nevertheless permitting officers to use revolvers as their supplemental firearms." FAC ¶ 20.
The Court finds that this allegation fails to plausibly allege that the training regarding the officers' use of HPD's supplemental firearms was inadequate. The fact that the HPD failed to provide specific training courses tailored to the usage and handling of revolvers during annual recall training is insufficient on its own to state a plausible claim that HPD's existing training program is inadequate. The HPD could have given other training at another time during the year or when the officers initially were given their service weapons. Plaintiff's allegations regarding the need for more or different training are not "so obvious." See Canton,
The second issue is whether Plaintiff has adequately alleged that Defendant Honolulu's failure to train amounts to deliberate indifference to her constitutional rights. "Only where a failure to train reflects a 'deliberate' or 'conscious' choice by a municipality-a 'policy' as defined by our prior cases-can a city be liable for such a failure under § 1983." Canton,
The FAC is devoid of any claims that Defendant Honolulu's policy not to train officers in regard to their supplemental firearm at the HPD's annual recall training amounted to deliberate indifference. There are no allegations that HPD's training was a deliberate choice or that there was a pattern of similar violations. Nor are there any allegations that the individual officers' actions were a highly predictable consequence of any alleged lack of training. The Court, therefore, finds that Plaintiff has failed to adequately allеge the second element of Section 1983 municipal liability based on a failure to train.
The Court further finds that Plaintiff has not adequately alleged that any inadequate training actually caused the deprivation of Plaintiff's constitutional rights. There are no non-conclusory allegations on this issue in the FAC. The Court, therefore, finds that Plaintiff has failed to adequately allege a Monell claim based on a failure to train.
In sum, the Court finds that Plaintiff has failed to plausibly allege a Monell claim based on any of the aforementioned policies, practices, or customs.
III. Plaintiff's State Law Claims
a. Assault and Battery (Count 4) and IIED (Count 5)
The FAC only states a claim for assault and battery and IIED against Kimura and not Defendant Honolulu or Defendants Naki and Omoso. FAC ¶¶ 62-65. All of the claims against Kimura were dismissed on November 16, 2017, pursuant to a settlement agreement. See ECF No. 97. Therefore,
b. Negligence (Count 6)
The FAC's negligence count is entitled "Negligence Claims: General Negligence, Negligent Training and/or Supervision, Respondeat Superior." It incorporates the preceding allegations and states, "Defendants KIMURA, NAKI, OMOSO, DOE DEFENDANTS, and CITY AND COUNTY OF HONOLULU acted herein negligently thereby proximately and directly causing Plaintiff to suffer serious physical injuries, pain, mental anguish ..." FAC ¶ 69.
i. Negligence Claims Against Defendants Naki and Omoso
To establish a negligence claim under Hawaii law, Plaintiff must show: "(1) [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 to [Plaintiff]." Pourny v. Maui Police Dep't, Cty. of Maui,
The FAC alleges that Defendants Naki and Omoso were socializing with Kimura at the Kings Sports Bar when Kimura recklessly handled his HPD issued firearm. FAC ¶¶ 13-16. The FAC further states that Defendants Naki and Omoso failed to take appropriate actions to intercede in Kimura's conduct. Id. ¶ 21. The Court finds that these allegations fail to state a plausible negligence claim because they do not adequately allege any of the requisite elements. The FAC does not allege that Defendants Naki and Omoso had a duty to Plaintiff that they breached.
ii. Negligence Claims Against Defendant Honolulu
Defendant Honolulu argues that Count 6 should be dismissed for the following reasons: (1) the claims alleged are insufficient to support a direct negligence claim against the Defendant Honolulu; and (2) Defendant Honolulu is not vicariously liable for the conduct of Defendants Kimura, Naki, and Omoso. The Court discusses each of these arguments in turn.
1. Whether Plaintiff Adequately Alleges a Direct Negligence Claim
The FAC alleges a direct negligence claim against Defendant Honolulu
Here, the only allegation that suggests that the HPD had been put on notice of any alleged deficiencies in their training and supervision relates to the "brotherhood" culture of silеnce. Plaintiff alleges that Defendant Honolulu had knowledge of prior instances of HPD officers' attempts to conceal misconduct and criminal wrongdoing. See FAC ¶ 36. However, the Court finds that it is not clear whether this allegation relates to any alleged failure to train or supervise. In addition, although Plaintiff alleges that Kimura handled his firearm in the Kings Sports Bar previously, FAC ¶ 34, Plaintiff does not state that his HPD supervisors became aware or explain how or why HPD supervisors should have been aware of this history.
The Court further notes that the FAC does not sufficiently allege that a deficiency in Defendant Honolulu's training and/or supervision was the legal cause of Plaintiff's injuries. Plaintiff's allegation related to causation is conclusory and therefore insufficient to survive a motion to dismiss. See FAC ¶ 69 ("Defendants ... acted herein negligently, and thereby proximately and directly causing Plaintiff to suffer serious physical injuries ..."). Accordingly, the Court finds that Plaintiff fails to plausibly allege a direct negligence claim against Defendant Honolulu for negligent supervision and/or training and dismisses this claim without prejudice.
2. Whether Plaintiff Adequately Alleges a Negligencе Claim Based on Respondeat Superior
Defendant Honolulu argues that the negligence count against it should be dismissed because it is not liable for the individual officers' actions under respondeat superior.
The Hawaii Supreme Court has adopted the test from the Restatement (Second) Agency § 228 to determine whether an individual is acting within the scope of his employment. Henderson v. Prof'l Coatings Corp.,
The Court finds that the allegations in the FAC fail to plausibly allege that Kimura was acting under the scope of his employment when he was handling his firearm. First, the Complaint fails to plausibly allege that Kimura's conduct was the kind he was employed to perfоrm. Here, Kimura's alleged conduct-handling his HPD firearm to reload what he believed to be an unloaded firearm while off-duty drinking and socializing in a bar-is not of the kind Kimura was employed to perform as a police officer. FAC ¶¶ 16-17.
Plaintiff argues that Kimura's action-reloading his firearm-was of the type of conduct he was required to perform under the scope of his employment with the HPD. Opposition at 20. Plaintiff states that because Kimura's firearm must be loaded in order to effectuate the purpose of HPD's policy requiring officers to carry their firearm at all times, Kimura's attempt to reload his firearm was within the scope of his employment with the HPD. The Court does not find Plaintiff's argument persuasive. Plaintiff's argument fails to take into account the context of Kimura's actions-that he was off-duty drinking and socializing in a bar when he attempted to reload his firearm. The HPD did not employ Kimura to engage in such conduct.
Second, Plaintiff has not plausibly alleged that Kimura's conduct occurred within authorized time and space limits. Specifically, Hawaii courts look at whether the conduct at issue occurred within аuthorized work hours and while the individual was on duty at a place he was required to be. See State v. Hoshijo ex rel. White,
Third, the FAC does not claim that the individual officers were acting, at least in part, to serve the HPD. Rather, the allegations in the FAC-that the individual officers were drinking and socializing while off-duty in a bar when Kimura took out his HPD firearm unrelated to any specific law enforcement duty-reflect just the opposite. The Court, therefore, finds that Plaintiff has failed to adequately allege a negligence claim against Defendant Honolulu based on respondeat superior.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant City and County of Honolulu's Motion to Dismiss the First Amended Complaint, ECF No. 98, to which Defendants Joshua Omoso and Sterling
(1) As to Defendant City and County of Honolulu and Defendants Naki and Omoso, the Court GRANTS the Motion to Dismiss as to Counts 1-3 and 6. Counts 1-3 and 6 in regard to Defendant City and County of Honolulu and Defendants Naki and Omoso are DISMISSED WITHOUT PREJUDICE.
(2) As to Defendants Naki and Omoso, the Cоurt GRANTS the Motion to Dismiss as to Plaintiff's official capacity claims. These claims are construed against the City and County of Honolulu and are DISMISSED against the officers in their official capacity WITH PREJUDICE.
The Court notes that, as discussed in more detail herein, Counts 4 and 5 were dismissed pursuant to a stipulation, ECF No. 97, and no longer remain in this case.
Plaintiff must file an amended complaint within thirty days of the entry of this Order or else judgment will be entered against her. Any amended complaint must correct the deficiencies noted in this Order or Plaintiff's claims will likely be dismissed with prejudice.
IT IS SO ORDERED.
Notes
On November 16, 2017, the parties stipulated to dismiss all claims against Kimura with prejudice, so he is no longer a defendant in this case. ECF No. 97.
The Court also notes that on December 22, 2017, Dongbu filed a Complaint in Intervention. ECF No. 110. On January 11, 2018, Defendant Honolulu filed a Motion to Dismiss the Complaint. ECF No. 118. Defendants Naki and Omoso have filed Joinders to Defendant Honolulu's Motion. ECF Nos. 127, 128. The Court has scheduled a separate hearing on this motion to dismiss for March 19, 2018.
Plaintiff's only argument in her Opposition addressing this issue states in a footnote that with respect to claims against Defendant Honolulu, it dоes not matter whether the individual officers were acting under color of state law. Opposition at 11 n.5. Plaintiff discusses a case from the Seventh Circuit, Gibson v. City of Chicago,
However, in general, the Ninth Circuit requires the employee to be acting under color of state law. See Van Ort v. Estate of Stanewich,
Plaintiff again argues that reckless conduct may serve as a basis for an unconstitutional seizure in violation of the Fourth Amendment. The Court's October 3, 2017 Order previously discussed and rejected Plaintiff's argument as it applies to the facts of this case. October 3, 2017 Order at 21 n.10. The Order states:
Plaintiff states that the Ninth Circuit has found that "reckless disregard" may serve as a basis for an unconstitutional seizure in violation of the Fourth Amendment in other contexts. Plaintiff cites to Galbraith v. Cty. of Santa Clara,(9th Cir. 2002) where the court held that plaintiff stated a plausible claim under the Fourth Amendment because he alleged that the police violated the Fourth Amendment for falsely arresting him where officials madе deliberately false statements or recklessly disregarded the truth in a warrant affidavit on issues that were material to the finding of probable cause. Because the facts in Galbraith relate to a different circumstance than the facts alleged here, the Court does not find it persuasive. 307 F.3d 1119
The Court finds no reason to depart from the law of the case here. A court may have discretion to depart from the law of the case where: (1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Alexander,
The Court notes that the FAC has conclusory allegations of intent in another section, which, as previously discussed, the court finds are insufficient to withstand a motion to dismiss. See FAC ¶ 64 ("Defendant KIMURA intentionally, willfully ... assaulted and attacked Plaintiff ...").
In Huffman, parents of a bar patron who was fatally shot during a brawl with an intoxicated off-duty sheriff's deputy brought suit against the county under Section 1983. Similar to Plaintiff's arguments in this case, plaintiffs in Huffman argued that the County was liable under the "danger-creation theory" by demonstrating: (1) that the sheriff's department had a policy of requiring deputies to carry guns at all times while off duty; and (2) that the department failed to warn its deputies about the dangers of carrying firearms while intoxicated.
In Huffman, the Ninth Circuit, however, held that the county could not be held liable for the individual officer's private acts under Section 1983 because plaintiffs could not demonstrate that the state acted affirmatively, with deliberate indifference, in creating a foreseeable danger to plaintiff, leading to the deprivation of the constitutional rights of plaintiffs' son. Id. at 1061. The Ninth Circuit further held that the county could not have foreseen the deputy's private acts when it required him to carry a gun off duty; the deputy's private acts were unforeseeable and therefore broke the chain of proximate cause connecting action under color of law to the alleged constitutional violation. Id. at 1059-60. Given the similarities between the facts of the present case and the facts in Huffman, the Court finds Huffman persuasive here.
The Court further notes that in Van Ort the Ninth Circuit discusses traditional tort law, which defines intervening causes that break the chain of proximate causation, and applies it to Section 1983 actions. Van Ort,
The Court notes that the FAC also discusses HPD Policy 2.21 but does not specifically plead municipal liability related to that policy in Count 3. Even if the FAC could be interpreted to plead a municipal liability claim based on HPD Policy 2.21, the Court finds that it cannot plausibly allegе such liability as a matter of law. As alleged in the FAC, HPD Policy 2.21 required Defendants Naki and Omoso to take action when they observed Kimura's handling of his firearm. The FAC appears to allege that Defendants Naki and Omoso violated Section 1983 by failing to adhere to this policy. Therefore, the policy, as alleged in the FAC, cannot possibly be the moving force behind the constitutional violation.
Plaintiff claims that to withstand a motion to dismiss in the Ninth Circuit with regard to municipal liability under Section 1983, Plaintiff need not plead more than a bare allegation that the individual officers' conduct conformed to an official policy, practice, or custom. Plaintiff cites to AE ex. rel. Hernandez v. Cty. of Tulare,
Furthermore, the Court notes that the FAC does not allege whether or not Kimura was impaired at the time of incident. If Kimura was not impaired, then the significance of HPD Policy Number 2.38 is not entirely clear.
Defendant Honolulu states that HPD Policy Number 2.38 requires officers to possess their "pistol" at all times and does not mention a "revolver," as is alleged in the FAC, and states that therefore Kimura was not required to possess his revolver pursuant to HPD policy. Reply at 8-9. The Court finds Defendant Honolulu's distinction between a pistol and revolver to be immaterial. Even if the Court were to find this distinction material, the Court dismisses the FAC for the reasons discussed herein.
Defendant Honolulu appears to argue that these additional incidents are of no consequence because Plaintiff fails to allege that these events were similar to the incident in the present case. Motion at 20. The Court disagrees as it relates to the issue of whether Plaintiff has adequately alleged a policy, practice, or custom. As Plaintiff argues, "any factual disparities ... are irrelevant to the point at issue ... These cases demonstrate that the City was aware of various groups of officers (on multiple prior occasions) had felt that they were at liberty to engage in mutual misconduct without reporting their colleagues to their supervising officers ..." Opposition at 16-17 n. 7.
Plaintiff discusses LaPorta v. City of Chicago,
However, the Court finds this case distinguishable. In LaPorta, plaintiff also alleged facts supporting a connection between the City's policy of condoning officer misconduct and the constitutional injury, including the fact that fifteen complaints had been filed against the officer at issue alleging excessive force and other misconduct.
"The general rule is that a person does not have a duty to act affirmatively to protect another person from harm. 'The fact that the actor realizes or should realize that action on his [or her] part is necessary for another's aid or protection does not of itself impose upon him [or her] a duty to take such action.' " Lee v. Corregedore,
Plaintiff has not alleged that Defendants Naki and Omoso had a legal duty to take affirmative action to stop Kimura's conduct or plead any facts to show that such duty exists. Plaintiff only alleges that pursuant to HPD Policy Number 2.21, Defendants Naki and Omoso were required to take action as soon as they observed Kimura's conduct. FAC ¶ 22. However, HPD policies do not necessarily create a duty. See Dowkin v. Honolulu Police Dep't, No. CIV. 10-00087 SOM,
Although, as previously discussed, Hawaii courts require plaintiff to establish foreseeability for a negligent training claim, the Court notes that Hawaii law has not yet clearly established thе elements of a negligent training claim. Dowkin v. Honolulu Police Dep't, Civ. No. 10-00087 SOM,
Defendant Honolulu also argues that in order for Plaintiff to plausibly allege that Defendant Honolulu is liable for the alleged negligent acts of the individual officers, Plaintiff was required to plead that the individual officers acted maliciously. However, the Court finds that this argument misreads Hawaii law. Municipalities can be liable on the basis of respondeat superior for intentional and negligent torts committed by employees within the scope of their employment. Freeland v. Cty. of Maui, Civ. No. 11-00617 ACK-KS,