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Antonio D. Gonzalez, Jr. v. Jensen Okagawa

December 27, 2012


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



Plaintiff Antonio D. Gonzalez, a former Honolulu Police Department ("HPD") officer, was arrested and charged with having caused criminal property damage by allegedly "keying" Defendant Jonathan Querido's vehicle. The charges were ultimately dismissed by the State of Hawaii district court without consideration of the merits of the charges. Gonzalez sues the City and County of Honolulu ("City"), the two HPD officers who investigated the matter and arrested him, four other HPD officers, and HPD's chief of police (collectively, "City Defendants"), as well as Jonathan Querido, the alleged victim.

City Defendants have moved for dismissal of the Complaint. That motion is granted in part and denied in part. To the extent Gonzalez asserts claims under 42 U.S.C. § 1983 against the City, those claims are dismissed. The court also dismisses the negligence claims asserted against all Defendants. However, the court denies City Defendants' request to dismiss the official capacity claims asserted against the individual Defendants.

Gonzalez is given leave to file a First Amended Complaint no later than January 21, 2013.


Gonzalez is a 70-year-old man of Puerto Rican and African American descent. See Complaint ¶ 14.

Gonzalez says that, on the evening on October 20, 2011, he went to a Walmart store in Kunia on Oahu. See id. ¶ 16. That evening, Defendant Jonathan Querido had complained that someone had "keyed" Querido's car in the Walmart parking lot. See id. Ex 8 at PageID # 48 (photo of damage to car). That is, someone had scratched the paint on Querido's car, possibly with a key.

Querido apparently told HPD officers that, while in the Walmart store, he saw his car being "keyed," and that the culprit might have been the driver of a white pickup truck parked in the parking lot. Querido pointed out such a truck, which was registered to Gonzalez. Id. ¶¶ 50, 56.

According to Gonzalez, the arrest by Officers Cadiz and Okagawa was not immediate. The officers allegedly searched for a suspect for nearly an hour before focusing on Gonzalez. Id. ¶ 45. Gonzalez says that proper police procedure would have been to detain him only long enough to establish his identity, and then to release him pending further investigation. Id. ¶ 46. Gonzalez accuses Officers Cadiz and Okagawa of having used racial profiling and of having "rush[ed] to judgment" in deciding to arrest him without probable cause. Id. ¶¶ 43, 47. Gonzalez adds that, as the incident was caught on videotape, Officer Okagawa's "positive" identification of him was a "deliberate misrepresentation." Id. ¶¶ 53, 54. Although at a "show up" Querido identified Gonzalez as the person who had scratched his car, Gonzalez describes the "show-up" as having been suggestive because Querido saw Gonzalez in police custody surrounded by uniformed officers, and also allegedly saw Officer Okagawa berating Gonzalez. Id. ¶¶ 62(h) & (i).

Gonzalez says that Querido had actually identified another man as the suspect earlier in the evening. Gonzalez also says that a security guard heard Querido say that his car had been keyed by a "Samoan." Id. ¶ 62(l). Querido allegedly said that the person who had scratched his car was wearing a white shirt, while Gonzalez says his shirt was not white. Id. ¶ 71(a); Complaint, Ex. 8 (police report indicating that Gonzalez was wearing a green shirt), PageID # 38.

As reported by Gonzalez, the initial charge against him was criminal property damage in the third degree, in violation of section 708-822(1)(c) of Hawaii Revised Statutes. That statute, says Gonzalez, applies when a "person intentionally damages the agricultural equipment, supplies, or products or aquacultural equipment, supplies, or products of another, including trees, bushes, or any other plant and livestock of another, without the other's consent, in an amount exceeding $100." See Complaint ¶ 22. Criminal property damage in the third degree is a misdemeanor. See Haw. Rev. Stat. § 708-822(2). However, when he appeared in court on November 7, 2011, Gonzalez was allegedly served with a written complaint charging him with a violation of section 708-822(1)(c). See id. ¶ 28. He says that, when he appeared at a rescheduled court hearing on December 12, 2011, the charge was amended to be a violation of section 708-822(1)(b), which applies when a "person intentionally or knowingly damages the property of another, without the other's consent, in an amount exceeding $500." See id. ¶ 29. At a state-court hearing on December 12, 2011, his arraignment and plea were set for January 4, 2012. See id. On January 4, 2012, Gonzalez pled "not guilty" and requested a jury trial. He was told to appear in First Circuit Court on January 17, 2012. See id. ¶ 30.

On January 17, 2012, Gonzalez went to the First Circuit Court, where he says he was told that the prosecution had decided to reduce the charge to criminal property damage in the fourth degree in violation of section 708-823 of Hawaii Revised Statutes, a petty misdemeanor. That section states, "A person commits the offense of criminal property damage in the fourth degree if by means other than fire, the person intentionally or knowingly damages the property of another without the other's consent." Gonzalez says that, with the reduction in the charge, he had no right to a jury trial and was therefore sent back to the state district court. See Complaint ¶ 31.

Gonzalez appeared in state district court for trial on April 9, 2012. Because the prosecution was not ready to proceed, the trial was continued. See Complaint ¶ 32. The trial was continued again on May 21, 2012. ¶ 33. When the prosecution requested yet another continuance of the trial on June 20, 2012, the state district court judge denied the request. That same day, Gonzalez's attorney moved for dismissal of the charge with prejudice. That request was granted. See id. ¶ 34.

Gonzalez alleges that "Okagawa and Cadiz, along with the Honolulu City Prosecutor's Office, were well aware from the outset that the alleged Charge of Criminal Property Damage in the Third Degree totally lacked merit, yet chose to proceed." Complaint ¶ 35. Gonzalez says that they conducted a baseless and malicious prosecution of him, although he does not actually plead a malicious prosecution cause of action. Id. ¶ 38.

Gonzalez also sues HPD Officers Reynold Kam, Daniel Aoki, Jon Nguyen, Everette Hung, and the Chief of HPD, Louis M. Kealoha. See id. ¶¶ 6-10. It is not entirely clear why these five individual Defendants are named as Defendants. At the hearing, Gonzalez says he named these individual as Defendants because they helped to complete the arrest process. Hung is alleged to have set bail at $500. See id. ¶ 23. Nguyen is alleged to have conducted a custodial search of Gonzalez and to have issued him a receipt for items seized. See id. ¶ 24. Aoki is alleged to have "completed the Arrest Report." Id. ¶ 25.


Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, courts may "consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Documents whose contents are alleged in a complaint and whose authenticity is not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994).

On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell, 266 F.3d at 988; Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Additionally, the court need not accept as true allegations that contradict ...

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