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Sergeant Shermon Dean Dowkin v. the Honolulu Police Department

July 23, 2012

SERGEANT SHERMON DEAN DOWKIN,
OFFICER FEDERICO DELGADILLO MARTINEZ, JR., AND OFFICER
CASSANDRA BENNETT-BAGORIO, PLAINTIFFS,
v.
THE 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 RALSTON TANAKA, OFFICER KASHIMOTORO, PAT AH LOO AND DOES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL OF THIRD AMENDED COMPLAINT

I. INTRODUCTION.

On January 17, 2011, Plaintiffs Sergeant Shermon Dean Dowkin, Officer Federico Delgadillo Martinez, Jr., and Officer Cassandra Bennett-Bagorio of the Honolulu Police Department ("HPD") filed their Third Amended Complaint. Third Amended Compl. for Compensatory, Statutory, and Punitive Damages ("TAC"), ECF No. 221. Plaintiffs allege, among other things, race and sex discrimination. Defendants seek dismissal of portions of the TAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court partially grants the motion.

II. FACTUAL AND PROCEDURAL BACKGROUND.

The parties are familiar with the background of this case, and this court has set forth the underlying allegations in previous orders. See Order Partially Granting and Partially Denying Defendants' Motion for Partial Dismissal Of First Amended Complaint ("FAC Order"), Nov. 30, 2010, ECF No. 43; Order Partially Granting and Partially Denying Defendants' Motion for Dismissal of Second Amended Complaint ("SAC Order"), Sept. 2, 2011, ECF No. 167. The court includes here only the background facts relevant to this motion.

Sergeant Shermon Dean Dowkin ("Dowkin"), Officer Federico Delgadillo Martinez, Jr. ("Delgadillo"), and Officer Cassandra Bennett-Bagorio ("Bennett-Bagorio") were and are still employed by HPD. TAC ¶¶ 5-8. Dowkin and Delgadillo are males who serve in HPD's Regional Patrol Bureau District 4, First Watch. Id. In the First Watch of District 4, Dowkin is alleged to be the only African-American supervisor and Delgadillo is alleged to be the only Mexican-American officer. Id. ¶ 5. Bennett-Bagorio is a Caucasian female. Id. ¶ 8.

From November 2003 to August 2008, Dowkin supervised a Traffic Enforcement Team, also known as the Driving Under the Influence Team ("DUI Team"). Id. ¶ 58. Delgadillo was a member of the DUI Team. Id. The DUI Team was responsible for enforcing traffic laws on the Windward Side of Oahu during the First Watch hours of 10:00 p.m. to 7:00 a.m. Id. Plaintiffs allege that the DUI Team makes more stops than other patrol officers on a nightly basis. Id. ¶ 59.

Plaintiffs allege that, between 2003 and 2008, Dowkin and Delgadillo's supervisors and fellow officers conspired not to provide Dowkin and Delgadillo with protective "cover" or "backup" when Dowkin and Delgadillo made DUI and other traffic stops and arrests. See id. ¶¶ 38, 43, 51, 54, 64. Plaintiffs say that Dowkin and Delgadillo's supervisors also ordered others to refuse to provide Dowkin and Delgadillo with backup. See id.

HPD's "standard operating procedure" allegedly requires the dispatch of the nearest officer to provide backup to any officer making a stop alone at night. Id. ¶ 62. Plaintiffs allege that this requirement was "deliberately and/or recklessly disregarded by the direct orders and conspiratorial misconduct of Defendants." Id. ¶ 64. Plaintiffs say that Defendants were acting discriminatorily against Dowkin and Delgadillo because of their race. Id. ¶ 65.

Plaintiffs further allege that, after Dowkin made several written and verbal complaints to his superior officer about other officers' failure to provide backup, id. ¶ 41, Defendants retaliated against him and Delgadillo. Id. ¶ 45. Defendants allegedly permitted other officers to continue to fail to provide backup, failed to investigate Dowkin's discrimination complaint, provided "tacit approval" of the discriminatory failure to provide backup, and caused Dowkin and Delgadillo to lose their seniority status. Id. ¶¶ 45, 77.

On October 14, 2008, Bennett-Bagorio allegedly provided HPD Human Resources with testimony supporting Dowkin and Delgadillo's race discrimination claims. Id. ¶ 78. Plaintiffs say that, as a result of her testimony and because of her gender, Defendants also retaliated against Bennett-Bagorio. Id. ¶ 80. Defendants allegedly failed to provide her with backup, denied her critical training, and humiliated and isolated her. Id.

¶ 81.

Plaintiffs' First Amended Complaint, filed on March 30, 2010, asserted fifteen causes of action. See ECF No. 5. This court dismissed many of those claims. See FAC Order.

On June 24, 2011, Plaintiffs filed their Second Amended Complaint, asserting nine causes of action. See ECF No. 94. On September 2, 2011, this court dismissed some of those claims. See SAC Order at 34. On reconsideration, this court, revisiting the issue of Plaintiff's civil conspiracy claim, amended that order. Amended Order Granting Alternative Relief Sought in Motion to Reconsider Dismissal of Count Viii (Civil Conspiracy), Oct. 27, 2011, ECF No. 186. In its amended order, the court did not reinstate the civil conspiracy claim, but it gave Plaintiffs leave to amend their civil conspiracy claim in a third amended complaint. Id.

On January 13, 2012, Magistrate Judge Richard L. Puglisi granted Plaintiffs leave to file the TAC. Order Granting Plaintiffs' Motion for Leave to File a Third Amended Complaint, Jan. 13, 2012, ECF No. 220. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants now seek dismissal of some of the claims asserted against the individual Defendants in the TAC.*fn1

II. LEGAL STANDARD.

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a party "may assert the following defense[] by motion: . . . (6) failure to state a claim upon which relief can be granted[.]"

Dismissal under Rule 12(b)(6) may be based on either (1) the lack of a cognizable legal theory, or (2) insufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

On a Rule 12(b)(6) motion, the court takes all allegations of material fact as true and construes them in the light most favorable to the nonmoving party. Marcus v. Holder, 574 F.3d 1182, 1184 (9th Cir. 2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 554). Whether a complaint ...


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