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Russell H. Doi v. Joseph Aoki

July 27, 2012

RUSSELL H. DOI,
PLAINTIFF,
v.
JOSEPH AOKI, BRYAN PAGAN, HARRY S. KUBOJIRI, COUNTY OF HAWAII, JOHN DOES 1-25, DEFENDANTS.



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

ORDER GRANTING DEFENDANTS JO AOKI, RYAN PAGAN, HARRY S. KUBOJIRI, AND COUNTY OF HAWAII'S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS

Before the Court is Defendants Jo Aoki's*fn1 ("Officer Aoki"), Ryan Pagan's*fn2 ("Officer Pagan"), Harry S. Kubojiri's ("Chief Kubojiri"), and the County of Hawaii's ("the County") (collectively, "Defendants") Motion for Summary Judgment on All Claims ("Motion"), filed on April 5, 2012. [Dkt. no. 74.] Plaintiff Russell H. Doi ("Plaintiff") filed his memorandum in opposition on June 15, 2012, and Defendants filed their reply on June 22, 2012. [Dkt. nos. 88, 90.] This matter came on for hearing on July 6, 2012. Appearing on behalf of Defendants was Laureen L. Martin, Esq., and appearing on behalf of Plaintiff were Ronald N.W. Kim, Esq., and Eric A. Seitz, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND

This case arose out of Officer Aoki's and Officer Pagan's response to an unfortunate and emotionally overwrought family dispute between Plaintiff and his siblings, Aimee Doi ("Aimee") and Edmund Doi ("Edmund").

Plaintiff's parents, Rikio Doi ("Rikio") and Florence Doi ("Florence"), resided at 78 East Kahaopea Street in Hilo, Hawai'i at the time of the subject incidents. [Mem. in Supp. of Motion at 2 (citing Defs.' Concise Statement of Facts in Supp. of their Motion for Summ. Jdgmt. on All Claims ("Defs.' CSOF"), Decl. of Laureen L. Martin ("Martin Decl."), Exh. N (excerpts of 9/7/11 Depo. of Edmund Doi ("Depo. of Edmund Doi")) at 8-9).] Edmund lived in the main house with them, and Plaintiff and his girlfriend, Stephanie Salazar, lived in a separate ohana unit on the property. [Depo. of Edmund Doi at 9.] Aimee lives in Las Vegas. [Defs.' CSOF, Martin Decl., Exh. B at 2.]

In 2009, Florence was diagnosed with cancer. In September 2009, she executed a number of documents to put her financial affairs in order, including a power of attorney, a will, and a revocable trust. [Defs.' CSOF, Martin Decl., Exhs. C, E.] Rikio also executed a power of attorney ("first power of attorney"), a will, and the revocable trust. [Id., Exhs. B, D, E.] Both Florence and Rikio gave Aimee their respective powers of attorney and made Aimee the successor trustee to their trust. [Id., Exh. B; Exh. E at 6; Exh. H (excerpts of 9/7/11 Depo. of Aimee Doi ("Depo. of Aimee Doi")) at 15-16.]

Defendants contend that Plaintiff was upset that Aimee was chosen to handle their parents' financial affairs. [Mem. in Supp. of Motion at 2 (citing Defs.' CSOF, Martin Decl., Exh. I (excerpts of 9/27/11 Depo. of Russell Doi, Vol. I ("Depo. of Russell Doi, Vol. I")) at 178; Exh. O (excerpts of 9/8/11 Depo. of Delphine Kealoha ("Depo. of Delphine Kealoha")) at 17-18;

Depo. of Edmund Doi at 23, 66-67; Depo. of Aimee Doi at 15-16, 32-33).] Defendants claim that Plaintiff harassed and yelled at Florence, [id. at 2-3 (citing Depo. of Aimee Doi at 17, 48-49; Depo. of Edmund Doi at 16-17; Depo. of Delphine Kealoha at 11-12, 15-17),] and harassed and threatened Aimee and Edmund [id. (citing Depo. of Aimee Doi at 15-16; Depo. of Russell Doi, Vol. I at 178; Depo. of Edmund Doi at 11)]. The police were often called during the family disputes. [Depo. of Aimee Doi at 37.]

Florence passed away on September 16, 2009. [Depo. of Aimee Doi at 18.] Defendants claim that Plaintiff continued to harass Edmund, Aimee, and Aimee's friend, Delphine Kealoha ("Delphine"). [Mem. in Supp. of Motion at 3 (citing Depo. of Aimee Doi at 19; Defs.' CSOF, Martin Decl., Exh. K (excerpts of 9/28/11 Depo. of Russell Doi, Vol. II ("Depo. of Russell Doi, Vol. II")) at 303).] Defendants also allege that Plaintiff attempted to gain control over Rikio's finances by taking his wallet and redirecting Rikio's social security checks to a different account. [Id. at 3-4 (citing Depo. of Aimee Doi at 44-45; Depo. of Russell Doi, Vol. I at 180-81).] Defendants recount an incident in which Plaintiff cut the brake lines to Aimee's car and, when the tow truck driver arrived to tow the car, Plaintiff sent him away. [Depo. of Aimee Doi at 17.] Aimee sought a temporary restraining order against Plaintiff, but the state district court denied it on or around September 29, 2009. [Pltf.'s Concise Counter-Statement of Material Facts ("Pltf.'s CSOF"), Decl. of E. Seitz ("Seitz Decl."), Exh. 22.] On or around October 2, 2009, Rikio executed a power of attorney in favor of Plaintiff ("second power of attorney"). [Id., Exh. 16.]

The subject incident occurred on October 8, 2009. Edmund came home to find that Plaintiff had changed the locks on the main house. [Depo. of Edmund Doi at 37.] Edmund called Aimee and Delphine, who arrived with Rikio's first power of attorney. [Id.; Depo. of Aimee Doi at 55.] Edmund called the police, and Officer Aoki and Officer Pagan responded. [Defs.' CSOF, Martin Decl., Exh. Q at ¶ 7; Exh. R at ¶ 6.]

Plaintiff and Rikio arrived thereafter. Plaintiff retrieved Rikio's second power of attorney and showed it to Officer Aoki in or around the carport. [Depo. of Aimee Doi at 56, 58; Defs.' CSOF, Martin Decl., Exh. J; Exh. Q at ¶ 11.] Officer Pagan was standing at a distance, near Edmund, Aimee, and Delphine. [Defs.' CSOF, Martin Decl., Exh. R at ¶ 9.]

According to Defendants' version of events: Plaintiff immediately became upset and wasn't listening to the police. Exhibits "H" at 59; "Q" at ¶ 11. The police were trying to make him relax and mellow out but he wasn't willing to listen to reason and was yelling and swearing. Exhibits "H" at 59; "Q" at ¶ 11; "R" at ¶ 10. Officer Aoki instructed Plaintiff not to go towards the other family member, but he refused to follow instructions. Exhibits "Q" at ¶ 11; "K" at 231, 273. Instead, Plaintiff came towards Officer Aoki in an effort to confront the other family members. Exhibits "J"; "K" at 226, 273; "L"; "M["] at 12; "Q" at ¶ 11. Plaintiff stated under oath:

I wanted to leave the garage to check on my father in the care [sic] because it was a hot day. Defendant Aoki prevented me from leaving the garage area, shoved me against a car (emphasis added) . . . Exhibit "M" at 12.

Officer Aoki pushed Plaintiff a single time in order to prevent him from approaching the other family members. Exhibits "J"; "K" at 226, 273; "L"; "M["] at 12; "Q" at ¶ 11. Plaintiff fell on a vehicle and cut his arm. Exhibits "L"; "K" at 226. Alarmingly, after Plaintiff fell on the vehicle, he again came towards Officer Aoki. Exhibits "K" at 279; "Q" at ¶ 12. Officer Aoki had a split second to respond and grabbed the Plaintiff as he approached. Exhibit "Q" at ¶¶ 12-14. Plaintiff claims Officer Aoki put him in a headlock which resulted in him twisting his neck. Exhibit "K" at 280-81. The entire encounter happened very quickly and took less than ten seconds. Exhibits "K" at 233, 281 at ln 6-8.

Shortly after [Plaintiff fell] on the vehicle, Rikio opened the car door and began to exit the vehicle. Exhibits "H" at 60; "O" at 33. This caused great concern to the family because Rikio was in his eighties, frail and unsteady on his feet. Exhibits "H" at 46, ln 21-23; "O" at 34. The ground was also uneven with various debris and animal feces. Exhibit "H" at 65-66. Therefore, Delphine rushed to help Rikio walk in the direction of the main house. Exhibit "O" at 34-36. Plaintiff knew Delphine and Rikio were headed towards the house. Exhibit "K" at 293. Delphine also reassured Plaintiff she was just trying to help Rikio so that he wouldn't fall. Exhibit "O" at 34, ln 19-21. Plaintiff responded "Fuck this!" Exhibit "O" at 78.

Plaintiff did not want anyone to have contact with Rikio. Exhibit "K" at 265. Plaintiff began yelling "they no can take my father!" Exhibit "K" at 294. He was yelling "you guys cannot do this." The police repeatedly told Plaintiff to "just stay here". Exhibits "N" at 49-50; "R" at ¶ 11; "Q" at ¶ 14. The police also repeatedly told Plaintiff to calm down, but he continued to swear and refused to listen. Exhibits "R" at ¶ 11; "Q" at ¶ 14; "H" at 60-61; "O" at 34, 36-37. Plaintiff then tried to go towards the other family members. Exhibits "Q" at ¶ 14; "R" at ¶¶ 11-12; "K" at 296-97; "H" at 61; "O" at 34-35; "N" at 49-50. The police were yelling at Plaintiff to "stop!" Exhibit "O" at 35, ln 4. When Plaintiff tried to go towards the other family members, he used force against the police. Exhibits "Q" at ¶ 14; "R" at ¶¶ 11-12; "N" at 50-51; "O" at 34, ln 23; "H" at 61, 63. Plaintiff was yelling, swearing and was very aggressive to the police. He was vicious. Exhibits "H" at 117; "O" at 35, ln 11-20. The Officers were concerned for their own safety as well as others. Exhibits "R" at ¶ 11; "Q" at ¶ 11.

The police had to physically restrain Plaintiff and everyone ended up on the ground. Exhibits "Q" at ¶ 14; "R" at ¶¶ 11-12; "H" at 62-63. Plaintiff is trained in martial arts and is very strong. It took both Officers to hold him down. Exhibits "N" at 50, ln 8-12; "R" at ¶ 12; "H" at 63, ln 14-17.

Even while on the ground, Plaintiff continued to resist and the police repeatedly told him to calm down and "stop resisting". Exhibits "Q" at ¶ 14; "R" at ¶11-¶12; "O" at 38; "K" at 300; "H" at 63, ln 14-25. Instead of following police instructions, Plaintiff swore at the Officers. Exhibit "H" at 64, ln 1-3. [Mem. in Supp. of Motion at 4-7 (internal footnotes omitted).]

Conversely, according to Plaintiff's version of events, Officer Aoki put him in a headlock when he merely leaned to the side of Officer Aoki so that he could see his father:

Defendant Aoki followed Mr. Doi into the garage area where Mr. Doi attempted to show Defendant Aoki the power of attorney while Defendant Aoki stood in front of him. CCSOF 58. Mr. Doi leaned to the side of Defendant Aoki because he wanted to check on his father. CCSOF 14. Without saying anything or giving any other warning, Defendant Aoki shoved Mr. Doi against a car in the garage, which cut Mr. Doi's arm, then rapidly moved to Mr. Doi's side and put Mr. Doi in a headlock and twisted his neck. CCSOF 12, 17. Mr. Doi immediately knew that Defendant Aoki had severely injured his neck. CCSOF 59.

Mr. Doi went back into his house and called his common-law wife. CCSOF 60. When he emerged from his house Mr. Doi saw Ms. Kealoha taking his father out of the car and told Defendants Aoki and Pagan that his siblings and Ms. Kealoha should not be able to take his father. CCSOF 61. Defendant Aoki responded to Mr. Doi that Rikio Doi was "their father too." CCSOF 62. Mr. Doi was upset due to having been assaulted, the fact that his siblings had denied him contact with their mother before she died, and his concern that his siblings planned on taking their father away to Las Vegas. CCSOF 63. Mr. Doi yelled that the police should not let his siblings take his father. CCSOF 64. [Mem. in Opp. at 3-4.]

At that point, Officer Aoki and Officer Pagan arrested Plaintiff and charged him with disorderly conduct under Hawai'i Revised Statutes § 711-1101. [Defs.' CSOF, Martin Decl., Exh. Q at ¶ 15.] That charge was later dismissed with prejudice, due to Edmund's unavailability. [Pltf.'s CSOF, Seitz Decl., Exh. 9.]

On the same day as the subject incident, Rikio executed a third power of attorney in favor of Aimee. [Defs.' CSOF, Martin Decl., Exh. G.] Shortly thereafter, Aimee took Rikio to live with her in Las Vegas; Edmund moved to Las Vegas, as well. [Depo. of Aimee Doi at 45-46; Depo. of Edmund Doi at 10.]

On or around October 13, 2009, Plaintiff filed a complaint with the Hawai'i County Police Commission ("Police Commission") against Officer Aoki and Officer Pagan. [Defs.' CSOF, Martin Decl., Exh. J; Pltf.'s CSOF, Seitz Decl., Exh. 11 at 1-2.] The Police Commission dismissed that complaint, finding that there was insufficient evidence that Officer Aoki and Officer Pagan committed any act of misconduct or any act amounting to malicious use of force or excessive use of force. [Id. at 3-5.]

On November 11, 2010, Plaintiff filed his Complaint for Damages ("Complaint") in this district court. He alleges four causes of action: (1) constitutional violations of the Fourth, Fifth, Ninth, and Fourteenth Amendments; (2) failure to train, supervise, and/or discipline; (3) negligence; and (4) intentional and malicious disregard of Plaintiff's rights. [Dkt. no. 1.]

I. Motion

A. Plaintiff's Arrest

Defendants first argue that Plaintiff's arrest by Officer Aoki and Officer Pagan was proper. They argue that Officer Aoki and Officer Pagan only needed probable cause to arrest Plaintiff, which requires that "'[t]he evidence need only support the probability, and not a prima facie showing of criminal activity.'" [Mem. in Supp. of Motion at 9 (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)).]

Defendants contend that the evidence supports Plaintiff's arrest for disorderly conduct. They argue that Plaintiff was "creating a great deal of noise, including yelling and swearing. . . . In addition, Plaintiff was swearing, physically aggressive and ignoring police admonitions to cease his conduct. . . . Therefore, there can be little doubt that the Officers had probable cause to believe a violation of HRS § 711- 1101 had occurred." [Id. at 10.]

Defendants argue that Plaintiff could also have been charged with a number of other crimes. [Id. (quoting Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006) ("If the facts known to an arresting officer are sufficient to create probable cause, the arrest is lawful, regardless of the officer's subjective reasons for it.")).] Defendants claim that the officers had probable cause to arrest Plaintiff for other crimes, such as harassment under Hawai'i Revised Statutes § 711-1106, obstructing government operations under Hawai'i Revised Statutes § 710-1010, and resisting arrest under Hawai'i Revised Statutes § 710-1026. [Id. at 11-13.]

B. Qualified Immunity

Defendants argue that, even if Officer Aoki and Officer Pagan did not actually have probable cause to arrest Plaintiff, they reasonably believed that probable cause existed and are therefore entitled to qualified immunity. [Id. at 13 (quoting Hunter v. Bryant, 502 U.S. 224 (1991)).]

1. Officer Aoki

Defendants argue that Officer Aoki is entitled to qualified immunity. Regarding Plaintiff's claim that Officer Aoki violated his constitutional rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments, Defendants contend that the excessive force claim must be analyzed under the Fourth Amendment, which requires that officers' actions be "'objectively reasonable in light of the facts and circumstances confronting them . . . .'" [Id. at 16 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).] Defendants argue that "the single most important factor in determining whether force is objectively reasonable is whether the suspect poses an immediate threat to the safety of the officers or others." [Id. at 17 (citing Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003); Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)).]

Defendants contend that Plaintiff posed a significant threat to the safety of Officer Aoki, Officer Pagan, and the other family members. When Plaintiff refused to follow Officer Aoki's instructions to calm down and not approach his family members, Officer Aoki pushed Plaintiff a single time. Plaintiff again came directly at Officer Aoki, who then placed Plaintiff in a headlock. [Id. at 18-19.] Defendants claim that "[t]he failure to follow commands raises a concern for the safety of the Officer because it demonstrates the individual's resistance to the Officer's attempts to control the situation." [Id. at 18.] Accordingly, Defendants take the position that the force employed by Officer Aoki was reasonable: "Officer Aoki had a split-second to decide how to deal with an aggressive individual who repeatedly failed to follow simple requests and was heading directly at him. The force chosen in this tense, uncertain and rapidly evolving situation was a single push followed by grabbing Plaintiff for a mere ten seconds." [Id. at 19.]

Defendants claim that Officer Aoki "utilized a low level of force and simply attempted to gain control of an aggressive and belligerent individual." [Id. at 19-20.] Plaintiff was yelling, swearing, and attempting to approach his family members against the instructions of Officer Aoki and Officer Pagan. [Id. at 21.] The Ninth Circuit has found that force under similar circumstances is reasonable. [Id. at 20 (some citations omitted) (citing Gregory v. Cnty. of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008); Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1096 (9th Cir. 2006); Miller v. Clark Cnty., 340 F.3d 959, 968 (9th Cir. 2003)).] Defendants contend that Officer Aoki would have been justified in using a higher level of force, such as pepper spray or a baton. [Id.]

Defendants liken the present case to Abdulakhalik v. City of San Diego, No. 08CV1515-MMA (NLS), 2009 WL 4282004 (S.D. Cal. Nov. 25, 2009), in which the district court granted summary judgment in favor of an officer who utilized a headlock in order to restrain an individual who failed to follow an officer's instructions, when the individual "tensed his arm" because he was surprised when the officer grabbed him. [Id. at 21-22 (citing 2009 WL 4282004, at *6).] That court found that the use of the headlock was objectively reasonable, because the officer could have interpreted the actions as "'physical opposition to attempts of control, thus elevating him to an active aggressor.'" [Id. at 22 (quoting 2009 WL 4282004, at *6).] In the present case, Defendants contend that a reasonable officer on the scene would have perceived Plaintiff's actions as aggression and a physical threat, given that Plaintiff failed to follow Officer Aoki's warnings and attempted to "come back towards Officer Aoki," even after Officer Aoki had pushed him back. [Id.]

2. Officer Pagan

Defendants next argue that Officer Pagan is entitled to qualified immunity because he cannot be held liable for acts he did not commit. [Id. at 23 (citing Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005); Jones v. Williams, 297 F.3d 930, 937 (9th Cir. 2002)).] Officer Pagan was not involved in the initial alleged use of excessive force by Officer Aoki, and Defendants point out that Plaintiff apologized to Officer Pagan for naming him in this lawsuit because he was not "the assaulter." [Id. at 23-24 (citing Depo. of Russell Doi, Vol. II at 219, 221).]

Defendants argue that Officer Pagan only used force against Plaintiff when Plaintiff attempted to go toward his family members in an allegedly threatening manner, and that the force used was justified under the circumstances because Plaintiff ignored warnings to calm down and not approach the family. [Id.]

3. Chief Kubojiri

Defendants argue that Plaintiff fails to articulate any basis of liability against Chief Kubojiri. Defendants argue that, in response to Defendants' request for answers to interrogatories, Plaintiff did not identify any facts relating to Chief Kubojiri's allegedly wrongful acts. [Id. at 25.] At most, Plaintiff testified in his deposition that Chief Kubojiri is responsible because "he [is] in charge of the whole department." [Id. at 25 n.15.] Defendants contend, however, that Chief Kubojiri may not be held liable for his subordinates' conduct under a theory of respondeat superior. [Id. (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).]

Defendants argue that a supervisor may only be held liable under § 1983 if there exists: (1) his personal involvement in the constitutional deprivation; or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. [Id. at 26 (citing Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 937 (9th Cir. 2002); Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001)).] Defendants contend that Chief Kubojiri is not liable because it is undisputed that he did not personally participate in the subject incident. Defendants argue that, even if the City is liable for deficient training, Chief Kubojiri was not the police chief at the time Officer Aoki and Officer Pagan attended recruit training. Furthermore, Defendants argue that Chief Kubojiri is entitled to qualified immunity, because he was not put on notice that his actions violated a clearly established constitutional right. [Id. at 26-27.]

C. Municipal Liability

1. Officer Aoki's and Officer Pagan's Actions

Defendants argue that, because Officer Aoki and Officer Pagan acted reasonably and did not commit any constitutional violations, the County cannot be held liable. [Id. at 27 (some citations omitted) (citing Reed v. City & Cnty. of Honolulu, 76 Hawai'i 219, 227 (1994); Jackson v. City of Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001)).]

2. Failure to Establish Policy or Custom

Next, Defendants argue that, even if Officer Aoki or Officer Pagan committed constitutional violations, the § 1983 claim against the County fails, because Plaintiff cannot show a municipal policy or custom as required by Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1977). They claim that the Complaint is devoid of any allegation regarding a deficiency in formal policy or practice. The County does not condone excessive force, and any complaint of excessive force is investigated by the Police Commission and/or Internal Affairs and forwarded to the Administrative Review Board. Defendants represent that, in every case in which the review board found excessive force, Chief Kubojiri has imposed discipline. [Mem. in Supp. of Motion at 28-30.]

Defendants argue that, in the absence of a custom or policy, § 1983 liability may only be imposed if the challenged action was taken or ratified by an official with "'final policymaking authority.'" [Id. at 30 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)).] In the present case, Plaintiff fails to allege that the county mayor or Chief Kubojiri ratified any unconstitutional action, or otherwise "'adopted an[d] expressly approved of the acts of others who caused the constitutional violation.'" [Id. at 31 (quoting Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996)).]

3. Training Deficiency

Defendants argue that the County's training was not deficient. They contend that liability is imposed against a municipality only where there is a "'deliberate indifference' to the rights of its inhabitants . . . ." [Id. at 32 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)).] As such, a plaintiff must prove: (1) an inadequate training program,

(2) deliberate indifference, and (3) that the inadequate training "actually caused" a deprivation of a constitutional right. [Id. at 35 (citing Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989)).]

Defendants argue that Plaintiff cannot prove inadequate training, because the County provides extensive classroom and field training for new recruits and annual training thereafter that includes a review of the use of force. [Id. at 35-36.]

D. State Law Claims

Defendants contend that the use of reasonable force cannot provide the basis for state tort claims. [Id. at 36 (citing Johnson v. Cnty. of Los Angeles, 340 F.3d 787, 794 (9th Cir. 2003); Aprin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)).] Defendants argue that, since the officers were acting reasonably, the state law claims fail. [Id. at 37.] They also contend that Plaintiff's claim for negligent supervision fails, because the officers were acting within the scope of their employment. [Id. at 37 n.21 (citing Dairy Road Partners v. Island Ins. Co., 92 Hawai'i 398, 423 (2000)).]

Defendants further argue that "Hawaii law provides that a government officer has a qualified or conditional privilege with respect to his or her tortuous [sic] actions taken in the performance of his or her public duty. This privilege shields all but the most guilty officials from liability." [Id. at 37-38 (some citations omitted) (citing Tucker v. Perez, Civ. No. 09-00376 SOM/KSC, 2010 WL 2985620, at *5 (D. Hawai'i July 28, 2010)).] Defendants argue that there is no evidence of malice or actions for an improper purpose. [Id. at 38.]

E. Punitive Damages

Finally, Defendants argue that punitive damages are not warranted in this case because municipalities cannot be liable for punitive damages. There is no evidence that Officer Aoki or Officer Pagan acted with an "evil motive" or reckless disregard of Plaintiff's constitutional rights. [Id. (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1991); Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005)).]

II. Memorandum in Opposition

A. Material Facts Regarding the Use of Force and Plaintiff's Arrest

Plaintiff argues that the facts concerning the force used by Officer Aoki and Officer Pagan, when viewed in the light most favorable to him, demonstrate excessive force and create an issue of fact. Plaintiff claims that the officers' versions of events are inconsistent and omit key facts. At the very least, Plaintiff argues that his inability to recall whether he was warned or not ...


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