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Sergeant Shermon Dean Dowkin, Officer v. Honolulu Police Department

July 3, 2012

SERGEANT SHERMON DEAN DOWKIN, OFFICER FEDERICO DELGADILLO MARTINEZ, JR., AND OFFICER CASSANDRA BENNETT-BAGORIO,
PLAINTIFFS,
v.
HONOLULU POLICE DEPARTMENT, THE CITY AND COUNTY OF HONOLULU, FORMER CHIEF OF POLICE BOISSE CORREA, CURRENT CHIEF OF POLICE LOUIS
KEALOHA, ASSISTANT CHIEF MICHAEL TAMASHIRO, MAJOR KENNETH SIMMONS, MAJOR JOHN MCENTIRE, CAPTAIN NYLE DOLERA, LIEUTENANT MICHAEL SERRAO, LIEUTENANT DAN KWON, LIEUTENANT WILLIAM AXT, SERGEANT WAYNE FERNANDEZ, SERGEANT RALSTAN TANAKA, OFFICER COLBY KASHIMOTO, PAT AH LOO, AND DOES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Richard L. Puglisi United States Magistrate Judge

ORDER (1) DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT; (2) DENYING PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT THEIR REPLY; (3) DENYING IN PART AND TAKING UNDER ADVISEMENT IN PART PLAINTIFFS' MOTION TO MODIFY RULE 16 SCHEDULING ORDER; AND (4) FOR PLAINTIFFS' COUNSEL TO SHOW CAUSE WHY THEY DID NOT VIOLATE FRCP 11(b)

Before the Court is Plaintiffs Shermon Dean Dowkin, Federico Delgadillo Martinez, Jr., and Cassandra Bennett-Bagorio's (collectively "Plaintiffs") Motion for Leave to File a Fourth Amended Complaint, filed on May 10, 2012 ("Motion"). See ECF No. 283. Plaintiffs seek leave to file a Fourth Amended Complaint ("FAC"), in the form proposed in Exhibit A to their Motion. On May 24, 2012, Defendants City and County of Honolulu ("City"), Boisse Correa, Louis Kealoha, Michael Tamashiro, Kenneth Simmons, John McEntire, Nyle Dolera, Michael Serrao, Dan Kwon, William Axt, Wayne Fernandez, Ralston Tanaka, Colby Kashimoto, and Pat Ah Loo (collectively "Defendants") filed their Memorandum in Opposition to Plaintiffs' Motion, and on June 7, 2012, Plaintiffs filed a Reply to Defendants' Opposition. See ECF Nos. 288, 303.

On May 10, 2012, the Court found this matter suitable for disposition without a hearing pursuant to LR 7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii. See ECF No. 284. Based on the following, and after careful consideration of the Motion, the supporting and opposing memoranda, the exhibits attached thereto, and the record established in this action, the Court HEREBY DENIES Plaintiffs' Motion and ORDERS Plaintiff's counsel to SHOW CAUSE why they did not violate Rule 11(b) of the Federal Rules of Civil Procedure ("FRCP").

BACKGROUND

On February 22, 2010, three Honolulu police officers brought this action against their employer, the Honolulu Police Department ("HPD"), and thirteen supervisors, officers, and HPD personnel for alleged race and gender discrimination, retaliation, and disparate treatment. Dowkin, who allegedly is the only African-American supervisor in HPD's Regional Parol Bureau District 4, First Watch ("District 4"), and Delgadillo, who is allegedly the only Mexican-American officer in District 4, claim that, between 2003 and 2008, their supervisors and fellow officers gave direct orders and conspired not to provide them protective "cover" or "backup" when Dowkin and Delgadillo arrested persons in the field. Dowkin and Delgadillo's requests for assistance were allegedly "routinely ignored," as Defendants were purportedly "motivated by racial prejudice." Dowkin and Delgadillo also allege that they were demoted to "junior officer status" after returning to their unit from a special duty assignment.

On August 7, 2008, Dowkin, on behalf of himself and Delgadillo, delivered a written complaint, alleging race discrimination by HPD to Defendant Simmons, Commander of District 4. After Dowkin spoke with Defendant Simmons about the disparate treatment, Defendant Simmons allegedly took no action in response to the complaint. Plaintiffs allege that, although the filing of the complaint was protected activity, retaliation immediately commenced.

On October 14, 2008, Bennett-Bagorio was allegedly summoned by HPD Human Resources to provide testimony regarding Dowkin and Delgadillo's race discrimination complaint. Bennett-Bagorio's testimony allegedly supported Dowkin and Delgadillo's claims of race discrimination and purported failure to provide protective cover on traffic stops. Bennett-Bagorio alleges that, as a result of her testimony and her gender, Defendants retaliated against her.

Plaintiffs' First Amended Complaint, filed on March 30, 2010, alleged the following fifteen causes of action: (1) violations of the First, Fifth, and Fourteenth Amendments of United States Constitution; (2) violations of Title VII of the Civil Rights Act of 1964; (3) violations of 42 U.S.C. § 1981; (4) violations of Title VI of the Civil Rights Act of 1964; (5) violations of the Hawaii State Constitution and Hawaii civil rights law; (6) reckless endangerment; (7) hate crimes; (8) negligent training, supervision, retention and/or failure to report and investigate; (9) intentional infliction of emotional distress (IIED); (10) negligent infliction of emotional distress (NIED); (11) bad faith breach of employment contracts; (12) defamation; (13) violations of 42 U.S.C. § 1983; (14) civil conspiracy; and (15) injunctive relief. See ECF No. 5.

On November 30, 2010, the Court issued an Order Partially Granting and Partially Denying Defendants' Motion for Partial Dismissal of First Amended Complaint. See ECF No. 43. In the Order, the Court dismissed Plaintiffs' Count III, XI, and XII against all Defendants. The Court dismissed Count XIII against the City, but not as to the individual Defendants. Count X was dismissed to the extent it asserted claims by Delgadillo and Bennett-Bagorio, but not to the extent it asserted claims by Dowkin. Count VIII was dismissed against all Defendants except the City, Lieutenant Kwon, and Sergeant Fernandez. The Plaintiffs withdrew Count I, VI, and VII. As a result, the entirety Count II, IV, V, IX, and XIV and portions of Claim XIII, X, and XIII remained for adjudication.

On June 24, 2011, after obtaining leave of this Court to do so, Plaintiffs filed their Second Amended Complaint ("SAC"). See ECF No. 139. In granting leave, the Court cautioned Plaintiffs to be "judicious" in their determination of whether to file future amended complaints. See ECF No. 138 at 8. The SAC added allegations in support of Dowkin and Bennett-Bagorio's NIED claim, and asserted nine causes of action: (1) Title VII; (2) Title VI; (3) state constitution and civil rights; (4) negligent training, supervision, retention and/or failure to report and investigate; (5) IIED; (6) NIED; (7) 42 U.S.C. § 1983; (8) civil conspiracy; and (9) injunctive relief.

On September 2, 2011, the Court issued an Order Partially Granting and Partially Denying Defendants' Motion for Dismissal of Second Amended Complaint. See ECF No. 167. The Order dismissed the Hawaii Revised Statutes ("HRS") §§ 378-2(1) and 378-2(2) claims in Count III against all Defendants, the negligent supervision claim in Count IV against all Defendants, the negligent training claim in Count IV against Kashimoto, Count VII in its entirety, the conspiracy claim in Count VIII against all Defendants except Kwon and Fernandez, and the injunctive relief claim in Count IX. The Order also cautioned Plaintiffs regarding the filing of a Third Amended Complaint ("TAC"):

If Plaintiffs move for leave to file a Third Amended Complaint, Plaintiffs should avoid the deficiencies in the Second Amended Complaint. The Second Amended Complaint often fails to distinguish among Defendants as to alleged causes of action. Any further Amended Complaint must clearly state how each named Defendant has injured which Plaintiff. In other words, Plaintiffs should explain, in clear and concise allegations, what each Defendant did and how those specific facts create a plausible claim for relief. A complaint that fails to explain which allegations are relevant to which Defendant is confusing. This, in turn, "impose[s] unfair burdens on litigants and judges" because it requires both to waste time formulating their own best guesses of what the Plaintiffs may or may not have meant to assert, risking substantial confusion if their understanding is not equivalent to Plaintiffs'.

Id. at 35-36 (citing McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996)).

On September 28, 2011, Plaintiffs moved for reconsideration of the Court's September 2, 2011 Order. See ECF No. 169. Plaintiffs sought reinstatement of their Count XIII (civil conspiracy), which had been dismissed against all Defendants except Kwon and Fernandez. On October 27, 2011, the Court issued its Amended Order Granting Alternative Relief Sought in Motion to Reconsider Dismissal of Count VIII (Civil Conspiracy). See ECF No. 186. In the Order, the Court gave Plaintiffs leave to include an amended civil conspiracy claim in a proposed TAC. The Court further cautioned Plaintiffs:

[A]ny new civil conspiracy claim should clearly allege what each Defendant named in the claim did that makes that Defendant liable for civil conspiracy. The court is concerned from the argument in the reconsideration motion that Plaintiffs may believe that being in a chain of command is sufficient to make someone liable for civil conspiracy. That is not the law. The essence of a conspiracy is an agreement. Being in the chain of command is not, without more, an agreement at all. It is not by itself evidence that someone has knowingly joined or agreed to be part of a conspiracy. Nor can civil conspiracy rest on vicarious liability. Any new civil conspiracy claim should not assume that, if one or more individuals commit some wrongful act, all persons in the chain of command with authority over the wrongful actors necessarily must be conspirators. Each Defendant sued for civil conspiracy must have allegedly engaged in some specific wrongful conduct in furtherance of the agreement.

Id. at 5-6.

On January 17, 2012, after again obtaining leave to do so, Plaintiffs' filed their TAC. See ECF No. 221. In granting ...


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