The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CITY & COUNTY OF HONOLULU'S MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM
Before the Court is Defendant City and County of Honolulu's ("the City") Motion to Dismiss Complaint for Failure to State a Claim ("Motion"), filed February 8, 2012. Plaintiff Abdel Salameh ("Plaintiff") filed his memorandum in opposition on March 5, 2012, and the City filed its reply on March 13, 2012. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, the City's Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below. Plaintiff's claims are HEREBY DISMISSED WITHOUT PREJUDICE, and Plaintiff is GRANTED leave to file an Amended Complaint by April 30, 2012.
Plaintiff filed his Complaint on November 21, 2011 against Defendants Eric Hokama ("Hokama") and the City (collectively "Defendants") in the Circuit Court of the First Circuit, State of Hawai'i. Defendants removed the action to this Court on February 6, 2012.
Plaintiff alleges that, on January 15, 2010, Hokama and other Honolulu Police Department ("HPD") officers arrived at his residence to investigate an earlier harassment complaint made against him. [Complaint at ¶ 6.] He alleges that he was not inside the residence when the officers arrived, but was walking upstairs towards his residence. Hokama and the other officers stood at the top of the stairs and waited for Plaintiff to reach the top. Plaintiff told the officers that he needed to go to his apartment to get his medication, but the officers told Plaintiff that he could not go into the apartment and that he needed to talk to them where they were. After a verbal exchange, Hokama informed Plaintiff that he was under arrest, and proceeded to leg sweep Plaintiff's left leg with his right foot causing Plaintiff to fall down the stairs. [Id. at ¶¶ 7-11.]
Plaintiff alleges that the HPD officers handcuffed him and that he complained of pain in his right leg; the officers then carried Plaintiff to the police vehicle. They took Plaintiff to the Queen's Medical Center emergency room where x- rays showed he had a fractured right knee. [Id. at ¶¶ 13-14.]
Plaintiff alleges the following causes of action: (1) a 42 U.S.C. § 1983 claim against the City and Hokama (Count I); (2) assault and battery against Hokama (Count II); (3) a negligence claim against the City and Hokama, including negligent failure to train, supervise, hire, and/or discipline (Count III); (4) an intentional infliction of emotional distress ("IIED") claim against the City and Hokama (Count IV); (5) a negligent infliction of emotional distress ("NIED") claim against the City and Hokama (Count V); (6) a respondeat superior claim against the City (Count VI); and (7) a punitive damages claim against Hokama. Hokama is sued in his official and individual capacities. [Id. at ¶ 3.]
The City moves to dismiss the Complaint on the grounds that various causes of action fail to state a claim under the pleading standards established in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), and that the allegations in the Complaint are legal conclusions not entitled to a presumption of truth. [Mem. in Supp. of Motion at 2-3.]
A. Count I - 42 U.S.C. § 1983
The City argues that Plaintiff fails to state a § 1983 claim against it because he fails to allege a deprivation of a constitutional right, and fails to allege municipal liability.
[Id. at 4-5.] First, the City asserts that Plaintiff's allegation that the City violated his right "to liberty, freedom from unreasonable seizures and other civil liberties," [Complaint at ¶ 15,] is a legal conclusion, unsupported by facts that address "other civil liberties." With respect to the Fourth Amendment, the City argues that Plaintiff fails to plead facts that address the reasonableness, or lack of reasonableness, of the alleged seizure of Plaintiff. [Id. at 6-7.]
Second, the City argues that Plaintiff does not sufficiently allege municipal liability. That is, he does not allege: (1) any City policy, custom, or practice that was the moving force behind the constitutional violation; or (2) a failure to train that amounts to deliberate indifference to Plaintiff's rights. [Id. at 7.] To the extent Plaintiff sets forth legal conclusions, the City argues that they are not supported by factual allegations. [Id. at 7-8.]
B. Count II - Assault and Battery
According to the City, Plaintiff fails to state a respondeat superior claim for assault or battery against it because he does not allege that: (1) Hokama acted with intent to cause harmful or offensive contact; (2) Hokama acted unreasonably; and (3) Hokama's action was unjustifiable and/or done with malice. [Id. at 8.]
C. Count III - Negligence
The City next addresses Plaintiff's Count III claim for negligence. It presumes that Plaintiff does not allege negligence via respondeat superior liability, but asserts direct negligence against the City in a negligent training, supervision, hiring, and/or discipline claim. The City argues that Plaintiff fails to state such a claim because he does not allege that: (1) Hokama was acting outside the course and scope of his employment; (2) the City had notice of any deficiency with respect to Hokama; (3) there was a specific deficiency in the City's training, discipline, or hiring; and (4) he suffered damages caused by such deficiency. [Id. at 11-14.]
Next, the City asserts that Plaintiff fails to state a claim against it for IIED because he does not plead intentional or reckless conduct, and there are no facts regarding the circumstances of the use of force. Further, Plaintiff fails to plead malice sufficient to overcome the conditional privilege. [Id. at 15.]
With respect to Plaintiff's NIED claim, the City argues that his failure to state a negligence claim similarly dooms the derivative NIED claim. It also states that Plaintiff fails to plead malice sufficient to overcome the conditional privilege. [Id. at 15-16.]
The City asks the Court to dismiss the Doe Defendants with prejudice because pleading fictitious Doe defendants is not necessary in federal court. [Id. at 16.]
II. Plaintiff's Memorandum in Opposition
Plaintiff argues that his Complaint alleges sufficient facts to survive the Motion. He asserts that the Complaint unambiguously provides Defendants with all necessary operative facts to give them notice of the causes of action in the case. He also states that the allegations are not conclusory. [Mem. in Opp. at 4-5.] With respect to Hokama, Plaintiff asserts that, if Hokama's acts were within the course and scope of his employment, the City is liable for the torts he committed under the doctrine of respondeat superior. [Id. at 7.] ...