The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
KINCHUNG CHUNG'S MOTION TO
DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT KINCHUNG CHUNG'S MOTION TO DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT
This action arises out of what Plaintiff Dillon Bracken says was an attack on him by security personnel when he tried to enter Rumfire, a Kyo-ya Hotels and Resorts ("Kyo-ya") restaurant in Hawaii, on New Year's Eve in 2009. Bracken is a California resident alleging that Kyo-ya, its employees, and Honolulu Police Department ("HPD") Officer Kinchung Chung (collectively, "Defendants") violated his constitutional rights and committed multiple torts in response to what they allegedly viewed as his trespass.
Chung seeks dismissal of Bracken's Fourth Amended Complaint.*fn1 The court grants Chung's motion in part and denies it in part.
On December 31, 2009, Defendant Chung was working at Kyo-ya as a special duty police officer, meaning that, although he was an HPD officer, he "work[ed] with and alongside" Kyo-ya's in-house security guards. Fourth Am. Compl. ¶ 55, ECF No. 60. Chung was "wearing clothing that identified him as an officer of the Honolulu Police Department." Id. ¶ 38.
Bracken says he entered the RumFire restaurant "unaware that it was supposedly closed to the public" for a private New Year's Eve celebration. Id. ¶ 23. Bracken alleges that, shortly thereafter, Aaron Okura, a private plainclothes Kyo-ya security guard, "abruptly grabbed [him] by his shoulder." Id. ¶ 24. Thinking that Okura was an intoxicated RumFire patron "trying to pick a fight," Bracken says he "tried to avoid any altercation with him." Id. ¶ 25. Bracken claims his efforts to get away from Okura were "thwarted" by Chung. Id. ¶ 26. Bracken asserts that he "repeatedly stated that he was trying to leave the premises and implored Defendants Okura and Chung to stop preventing him from leaving," but that Okura and Chung "blocked [his] egress." Id. ¶¶ 46, 47.
Bracken alleges that the reason Okura and Chung refused to let him leave was that Kyo-ya had a "protracted procedure for warning persons that they would be considered trespassers," which included detaining alleged trespassers and photographing them. Id. ¶¶ 28-30. Kyo-ya's "standard operating procedure" was allegedly to take and retain the alleged trespasser's identifying documents until the individual submitted to the procedure. Id. ¶ 30.
Bracken alleges that, to carry out Kyo-ya's procedure, Okura, together with "additional security guards employed by [Kyo-ya], including a person in a supervisory position, participated in the attack on [Bracken], restrained [his] freedom, abducted him and injured him." Id. ¶ 34.
Bracken alleges that Chung "had the opportunity to intercede," but failed to stop the Kyo-ya security guards from assaulting him. Id. ¶ 47. Instead, Bracken alleges, Chung "repeatedly demanded . . . [Bracken's] identification even after Defendant Okura had by force pinned [Bracken's] left arm so that he could not retrieve any identification." Id. ¶ 44. Bracken complains that "Chung exhibited hostility" toward him, and "engaged in making demands" on him, "all the while ignoring the fact that others were illegally attacking him." Id. ¶ 42. Besides failing to "interfere with the assault" or "take any steps to prevent it," Chung allegedly failed to "confront the perpetrators." Id. ¶ 43.
The day after the incident, Chung filed a written report with HPD about the incident. Id. ¶ 53. Bracken alleges that Chung's report was "false" in that Chung "pretended not to have seen the assault, even though he was right there and actually saw what occurred." Id.
Bracken asserts that he suffered the following injuries from the New Year's Eve incident:
(a) deprivation of freedom and liberty during the time he was being attacked and pinned on the ground by agents and employees of Defendant Kyo-ya Hotels and Resorts, as well as during the time his movement away from Defendants and their premises was restrained;
(b) loss of consciousness; (c) larynx and vocal cord injury, causing pain, and inconvenience; (d) bruising of his wrists;
(e) physical pain; (f) temporary inability to speak above a hoarse raspy whisper; (g) emotional distress and depression; (h) interference with the right to be secure in his person[;] (i) deprivation of the right of equal protection of law secured to him by the Fifth and Fourteenth Amendments to the United States Constitution[;] (j) deprivation of the rights and privileges secured to other citizens[;] and (k) incurring medical and allied expenses.
Bracken's Fourth Amended Complaint asserts eight causes of action. See Fourth Am. Compl. The following five counts pertain to Chung:
Count 3, "Assault, Battery, Intentional Infliction of Emotional Distress, False Imprisonment and Wrongful ...