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Kiha Silva v. the City and County of Honolulu

October 29, 2012

KIHA SILVA,
PLAINTIFF,
v.
THE CITY AND COUNTY OF HONOLULU, KEITH DAVID MARINI AND DOE DEFENDANTS 1-10, DEFENDANTS.



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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS CITY AND COUNTY OF HONOLULU AND KEITH DAVID MARINI'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

Before the Court is Defendants City and County of Honolulu ("City") and Keith David Marini's ("Marini," both collectively, "Defendants") Motion to Dismiss First Amended Complaint ("Motion"), filed on July 31, 2012. Plaintiff Kiha Silva ("Plaintiff") filed his memorandum in opposition on September 27, 2012, and Defendants filed their reply on October 5, 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, Defendants' Motion is HEREBY GRANTED IN PART and DENIED IN PART for the reasons set forth below.

BACKGROUND

Plaintiff filed his First Amended Complaint on July 16, 2012, alleging that Marini, a Honolulu Police Department ("HPD") officer, shot him following an altercation. The First Amended Complaint states, in pertinent part:

3. At all material times herein, Defendant KEITH DAVID MARINI (hereinafter "Defendant MARINI") was a police officer employed by Defendant CITY AND COUNTY OF HONOLULU, and acting within the course and scope of his employment.

4. This action arises under the United States Constitution, particularly under the provisions of Fourth and Fourteenth Amendments to the Constitution of the United States and under federal law, particularly the Civil Rights Act, Title 42 of the United States Code, § 1983 (42 U.S.C.A. § 1983) and the laws of the state of Hawaii for damages for unlawful violation of civil rights.

6. In doing the acts alleged in this complaint, Defendant MARINI was acting under the color of the statutes, ordinances, regulations, customs, and usages of Defendant City and County of Honolulu and the State of Hawaii and under the authority of his office as police officer.

. . . . 8. At all times mentioned, Defendant CITY AND COUNTY OF HONOLULU employed police officer(s) who were employees, servants and/or agents of defendant's police department, and were acting within the course and scope of that employment, and was the employer of Defendant MARINI at the time of the events complained of herein. Defendants are liable for the negligent/tortious actions of its agents, employees and servants, including those of Defendant MARINI, under the doctrine of respondeat superior/vicarious liability.

9. Plaintiff is informed and believes and therefore alleges that at all times mentioned each of the defendants, including all defendants sued under fictitious names, was the agent and employee of each of the remaining defendants, and in doing the things alleged, was acting within the course and scope of that agency and employment.

10. On March 29, 2009, an altercation occurred between Plaintiff and Defendant Marini involving the Plaintiff's alleged unauthorized entry into the Defendant Marini's motor vehicle.

11. The Plaintiff was unarmed at the time of said altercation.

12. Defendant Marini shot the Plaintiff multiple times with his service revolver, including one or more shots into the back of the Plaintiff. Defendant MARINI made no effort to assist or obtain any medical attention for the Plaintiff after shooting and incapacitating the Plaintiff with the first gun shot to the Plaintiff's abdomen. Rather, Defendant MARINI continued to fire into the defenseless and helpless Plaintiff.

13. Plaintiff denies that he had committed a crime justifying the use of lethal force, but even if the Plaintiff had committed an offense, Defendant MARINI was not justified in using deadly force to prevent the Plaintiff's escape and attempt to bring about the death of the wounded Plaintiff. Although unauthorized entry into a motor vehicle is a crime under the laws of the State of Hawaii, it is not such an inherently dangerous offense that there is a great risk of harm to the public if the perpetrator is not immediately apprehended. In addition, at the time that the Plaintiff was shot the Plaintiff was unarmed and posed no serious threat of death or serious physical injury to either Defendant MARINI or the public if the Plaintiff were not immediately apprehended. As a result, the use, and repeated use, of deadly force on the Plaintiff was unreasonable and totally without justification.

14. Defendant CITY AND COUNTY OF HONOLULU was responsible for the training of all police officers of Defendant CITY in the proper use of firearms and in the exercise of restrain[t] in the use of weapons and employing force and in the performance of their duties as police officers. Defendant CITY trained Defendant MARINI in the use of firearms in accordance with the statutes, ordinances, regulations, customs, and usages of Defendant CITY and the State of Hawaii.

. . . . 33. Defendant MARINI was not justified in using deadly force to prevent the Plaintiff's escape, nor to shoot the unarmed Plaintiff one or more times in the back as he tried to flee Defendant MARINI. At the time that officer MARINI shot the Plaintiff, the Plaintiff was unarmed and posed no significant threat of death or serious physical injury to either Defendant MARINI or the public at large if the Plaintiff were not immediately apprehended. As a result, the use of deadly force on the Plaintiff was unreasonable and totally without justification and are a violation of the "fleeing felon" laws including Tennessee v. Garner, 471 U.S. 1 (1985). Defendant MARININ's (sic) actions were willful and malicious.

34. Defendant CITY AND COUNTY OF HONOLULU was responsible for the training of all police officers of defendant city in the proper use of force and in the performance of their duties as police officers, including arrest of suspects and the proper use of service revolvers. Defendant CITY AND COUNTY OF HONOLULU was deliberately indifferent to its obligations to properly train/retrain Officer MARINI in the performance of his duties as a police officer and to protect the constitutional rights of the citizens of Honolulu, including the use of force on suspects and the public at large, said deliberate indifference constituting a substantial factor in bringing about the permanent injury of the Plaintiff. Defendant City and County of Honolulu had an inadequate training program with respect to the use of lethal force on its citizens which resulted in the deprivation of the constitutional rights of the Plaintiff and harm to the Plaintiff.

35. The conduct of Defendants as described above deprived the Plaintiff of the Plaintiff's right to be secure in his person against unreasonable searches and seizure as guaranteed to the Plaintiff under the Fourth Amendment to the United States Constitution (Art. XIV, U.S. Constitution), of Plaintiff's right not to be subjected to any cruel or unusual punishment as secured to the Plaintiff under the Eighth Amendment to the United States Constitution (Art. VIII, U.S. Constitution), and of Plaintiff's right not to be deprived of life, liberty, or property without due process of law and to be accorded the equal protection of the laws as guaranteed to Plaintiff under the Fourteenth Amendment to the United States Constitution (Art. XIV, U.S. Constitution), and to be free of assault and battery and unreasonable use of force under the laws of the state of Hawaii.

Plaintiff alleges the following counts: (I) a 42 U.S.C. § 1983 claim based on violations of the Fourth Amendment (excessive force); (II) a § 1983 claim based on violations of the Fourteenth Amendment (reckless indifference to medical needs); (III) a § 1983 claim for monetary damages against the City under Monell v. Dep't of Social Services, 436 U.S. 658 (1978); (IV) a battery claim against Marini; and (V) a negligence and "willful and wanton" misconduct claim against Marini.

The Court previously granted in part and denied in part Defendants' Motion for Partial Judgment on the Pleadings with respect to the original Complaint. In its June 29, 2012 Order ("Order"), the Court granted the motion without prejudice:

(1) Defendants' request to extend the dispositive motions deadline; (2) Count I; (3) Count II as to the City only; (4) Count III; and (5) the "general averments." The Court denied the motion as to: (1) Count II insofar as it relates to Officer Marini; and (2) Counts IV and V.

I. Defendants' Motion

Defendants ask the Court to dismiss the claims in Plaintiff's First Amended Complaint which fail to state a claim upon which relief can be granted, and strike all conclusory allegations of law without sufficient factual support from ...


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