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Richard A. Thourot v. Eric Tanuvasa and City and County of Honolulu

February 13, 2012

RICHARD A. THOUROT,
PLAINTIFF,
v.
ERIC TANUVASA AND CITY AND COUNTY OF HONOLULU, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER (1) GRANTING IN PART AND DENYING DEFENDANTS ERIC TANUVASA AND CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS FIRST AMENDED COMPLAINT; AND (2) GRANTING DEFENDANT LOUIS M. KEALOHA'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

Before the Court are two motions filed by Defendants Eric Tanuvasa ("Tanuvasa"), the City and County of Honolulu ("City"), and Louis M. Kealoha ("Kealoha") (collectively "Defendants"): (1) Tanuvasa and the City's Motion to Dismiss First Amended Complaint Filed August 12, 2011 Pursuant to FRCP, Rule 12(b)(6), filed September 2, 2011 ("Tanuvasa Motion") [dkt. no. 39]; and (2) Kealoha's Motion to Dismiss First Amended Complaint Filed August 12, 2011 Pursuant to FRCP, Rule 12(b)(6), filed on November 1, 2011 ("Kealoha Motion") [dkt. no. 46]. Plaintiff Richard A. Thourot ("Plaintiff") filed his memorandum in opposition on January 13, 2012, and Defendants filed their reply on January 19, 2012. These matters came on for hearing on February 6, 2012. Appearing on behalf of Plaintiff were Della Bellati, Esq., and Eric Seitz, Esq., and appearing on behalf of Defendants was Tracy Fukui, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the Tanuvasa Motion is HEREBY GRANTED IN PART AND DENIED IN PART, and the Kealoha Motion is HEREBY GRANTED the for the reasons set forth below.

BACKGROUND

The Court previously granted in part several motions to dismiss the Original Complaint. Plaintiff filed his First Amended Complaint on August 12, 2011, alleging that Tanuvasa, a Honolulu Police Department ("HPD") officer, assaulted him during an investigation and arrest. The First Amended Complaint states, in pertinent part:

(10) On or about February 7, 2009, Plaintiff was residing with his girlfriend at the Island Colony Condominium/Hotel located in Waikiki, Honolulu, Hawai'i.

(11) At approximately 6:00 am, Plaintiff was awakened by a hotel security officer who knocked on his unit's door and asked whether Plaintiff and his girlfriend were having problems because a noise complaint had been made with hotel security.

(12) Plaintiff opened the door to his unit to explain to the hotel security officer that the noise was due to his girlfriend.

(13) Plaintiff apologized to the hotel officer and proceeded to go to bed after the hotel security officer left.

(14) Shortly thereafter, Plaintiff was awakened by his girlfriend and Defendant Officer Erick A. Tanuvasa who had been dispatched to the Island Colony Condominium/Hotel because of the noise complaint and who had been escorted to Plaintiff's unit by the hotel security officer.

(15) Being in a half-awake state on his bed, 2 Plaintiff walked to the door from his bedroom to speak with Defendant Tanuvasa, inquire what was going on, and ask why Defendant Tanuvasa was in Plaintiff's residence.

(16) As Plaintiff was talking to Defendant Tanuvasa, for reasons unknown to Plaintiff, Defendant Tanuvasa announced that Plaintiff was under arrest, and Defendant Tanuvasa started berating, pushing, grabbing, slapping, punching, and kicking Plaintiff about his body and face.

(17) Plaintiff then was placed under arrest by another officer who had arrived and was transported to the Honolulu Police Department.

(18) Plaintiff did not at any time provoke, invite, consent to, or otherwise allow or permit Defendant Tanuvasa to assault and berate him.

(19) Plaintiff is informed and believes, and thereupon alleges, that the above described actions of Defendant Tanuvasa were without reasonable, just, and/or probable cause.

(20) Plaintiff is informed and believes, and thereupon alleges, that Defendant Tanuvasa has a history of abusive and violent conduct that was known to Defendant City and County of Honolulu and Defendant Kealoha.

(21) Plaintiff is informed and believes, and thereupon alleges, that despite their prior knowledge of Defendant Tanuvasa's history of abusive and violent conduct Defendants City and County of Honolulu and Kealoha continued to employ Defendant Tanuvasa as a Honolulu police officer, failed to provide specialized or additional training and supervision, and failed to discipline him appropriately.

(22) As a direct and proximate result of the foregoing Plaintiff has suffered serious and permanent physical injuries, great physical and mental pain, anguish and suffering, severe emotional distress, anxiety, embarrassment, humiliation, worry and anger.

(23) As a direct and proximate result of the foregoing, Plaintiff was unable to work for approximately six months due to the injuries he suffered.

Plaintiff alleges the following causes of action: (1) a 42 U.S.C. ยง 1983 claim based on violations of the Fourth Amendment; (2) intentional infliction of emotional distress ("IIED"); (3) a negligence claim against Tanuvasa; (4) a negligence claim against Kealoha and the City; (5) negligent training, supervision, and/or discipline against Kealoha and the City; and (6) assault and battery against Tanuvasa. Tanuvasa is sued in his official and ...


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