The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT CITY AND COUNTY OF HONOLULU POLICE DEPARTMENT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT; AND
(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS MALCOLM UEHARA AND TERRY T. MURAKAMI'S MOTION TO DISMISS FIRST AMENDED COMPLAINT
Plaintiff Winston Costales ("Plaintiff") asserts that Defendants City and County of Honolulu (the "County"), Honolulu Police Department ("HPD") Chief Louis Kealoha, and HPD Officers Henry Cheung, Malcolm Uehara, Sheri Nakasone, Blake Hottendorf, Roel Gaupsan, Terry Murakami, and Patrice Gionson (collectively, "Defendants") violated his civil rights and committed state law torts when he was arrested on April 1, 2010.
Currently before the court is (1) the County's Motion to Dismiss; and
(2) Officers Uehara and Murakami's ("Moving Officers") Motion to Dismiss.*fn1 Both Motions argue that certain claims in the First Amended Complaint ("FAC") lack a legally cognizable basis, and that other claims are pled in such conclusory fashion that they fail to state a plausible claim for relief. At the October 9, 2012 hearing, the parties agreed that even though not all Defendants have been served, it would be in the interest of justice for the court to address the arguments as applied to all Defendants. Based on the following, the court GRANTS in part and DENIES in part the Motions to Dismiss as to all Defendants.
As alleged in the FAC, on April 1, 2010 at approximately 2:20 a.m., Officer Nakasone pulled Plaintiff over on the H-1 freeway after observing him speeding, weaving, and passing vehicles on the right. Doc. No. 6, FAC ¶¶ 16-22. Officer Nakasone claimed to smell alcohol on Plaintiff's breath, resulting in administration of a field sobriety test and a Preliminary Alcohol Screening, both of which Officer Nakasone determined Plaintiff failed. Id. ¶¶ 25-31. Officer Nakasone further discovered that Plaintiff had an outstanding traffic warrant in the amount of $500.00. Id. ¶ 32.
By this time, Officers Uehara, Murakami, and Gaupsan were providing back-up to Officer Nakasone. Id. ¶ 23. With the assistance of Officers Gaupsan and Murakami and the concurrence of Officer Uehara, Officer Nakasone placed Plaintiff under arrest for operating his vehicle under the influence of an intoxicant, driving with a suspended license, reckless driving, and for the outstanding traffic warrant. Id. ¶ 33. Officer Nakasone informed Plaintiff of the reasons for his arrest and then placed him in handcuffs with the assistance of Officers Murakami and Gaupsan. Id. ¶ 34. In the course of taking Plaintiff to Officer Nakasone's vehicle, Officers Gaupsan and Murakami forced Plaintiff to the ground face-first so that Officer Murakami could place leg shackles on him. Id. ¶¶ 36-37. The FAC asserts that Officers Gaupsan and Murakami, with the concurrence of Officers Uehara and Nakasone, "used a degree of force on the Plaintiff that was unnecessary and unreasonable, and that the degree of force resulted in causing cuts and abrasions thereby causing injury to the Plaintiff." Id. ¶ 38.
The officers subsequently took Plaintiff to the HPD Wahiawa police substation, where they were met by Officers Hottendorf, Cheung, and Gionson. Officers Murakami and Hottendorf took Plaintiff inside the station to be processed and removed his handcuffs and leg restraints. Id. ¶¶ 44, 46. Reports created by Officers Nakasone, Gaupsan, Murakami, and Hottendorf assert that at this time, Plaintiff was using foul language towards the officers. Id. ¶ 45. Reports further assert that Plaintiff got up from his seat and confronted Officer Hottendorf, who placed his hands on Plaintiff's shoulders. Id. ¶ 47. These reports recite that Plaintiff lost his balance and fell face-first onto a table, causing Plaintiff to suffer a bloody nose. Id. ¶ 48. According to the FAC, however, Officer Hottendorf in reality struck Plaintiff, causing a fracture of the orbit of one of Plaintiff's eyes.
Id. ¶ 49. The FAC further asserts that Plaintiff was assaulted by Officers Gaupsan, Murakami, and other unknown officers. Id. ¶ 50.
According to the FAC, Officers Gionson and Cheung, the senior officers responsible for overseeing the conduct of officers regarding arrests and reports, were aware of Officers Gaupsan's, Murakami's, and Hottendorf's treatment of Plaintiff, and that Officers Cheung, Uehara, Gionson, and Nakasone were either present during the assault or were made aware of the assault by Officers Gaupsan, Murakami, and Hottendorf. Id. ¶¶ 53-54. The FAC further asserts that these Officers either generated and/or approved false reports stating that Plaintiff was uninjured and/or that the injuries were caused by Plaintiff's own wrongdoing. Id. ¶ 55.
Plaintiff filed this action on March 28, 2012, and the FAC asserts claims for (1) violation of Plaintiff's First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights (Count I); (2) conspiracy to violate Plaintiff's civil rights (Count II); (3) assault and battery (Count III); (4) gross negligence and negligence (Count IV); (5) intentional/negligence infliction of emotional distress (IIED/NIED) (Count V); and (6) false imprisonment (Count VI).
The County filed its Motion to Dismiss on July 19, 2012, and Moving Officers filed their Motion to Dismiss on August 2, 2012. Plaintiff filed an Opposition on September 19, 2012, and Defendants filed a Reply on September 25, 2012. A hearing was held on October 9, 2012.
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon which relief can be granted[.]"
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S.at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.").
Rather, "[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 (citing Twombly, 550 U.S.at 556). In other words, "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. Factual allegations that only permit the court to infer "the mere possibility of misconduct" do not show that the pleader is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
Defendants argue that the FAC fails to state a plausible claim for relief. In opposition, Plaintiff concedes that his claims for violations of his Fifth, Sixth, Eighth, and Ninth Amendment rights, as well as his false imprisonment claim, all fail as a matter of law. Plaintiff also concedes that his conspiracy claim is inadequately pled and instead seeks leave to amend. See Doc. No. 26, Pl.'s Opp'n at 12. In light of these concessions, the court ...