United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS THE COUNTY OF HAWAII AND THE COUNTY OF HAWAII POLICE DEPARTMENT'S MOTION TO DISMISS; AND GRANTING IN PART AND DENYING IN PART DEFENDANT PATRICK T. KIHARA'S MOTION TO DISMISS
LESLIE E. KOBAYASHI, District Judge.
Pro se Plaintiff Christopher Young ("Plaintiff") filed his Complaint in state court on July 21, 2015. Defendants the County of Hawaii and the County of Hawaii Police Department (collectively, "the County") filed a motion to dismiss the Complaint ("County Motion") on October 7, 2015, and Defendant Patrick T. Kihara ("Kihara") filed a motion to dismiss the Complaint ("Kihara Motion") on October 30, 2015. [Dkt. nos. 5, 10.] On January 11, 2016, Plaintiff filed an "Objection" to the Kihara Motion ("Kihara Opposition"), and, on January 19, 2016, Plaintiff filed an "Objection" to the County Motion ("County Opposition"). [Dkt. nos. 26, 29.] On January 15, 2016, the County and Kihara (collectively, "the County Defendants") filed a joint reply in support of both motions. [Dkt. no. 27.] On January 28, 2016, Plaintiff filed an objection to the reply. [Dkt. no. 31.] The Court finds these matters 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 Hawaii ("Local Rules"). After careful consideration of the motions, supporting and opposing documents, and the relevant legal authority, the County Motion and the Kihara Motion are HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
According to the Complaint, on July 25, 2013, at approximately 11:40 a.m., Plaintiff and Kraus were involved in a motor vehicle accident in Hilo, Hawaii. While Kraus's vehicle was stopped at a stop sign on a hill, he put his vehicle in reverse and struck Plaintiff's vehicle. Plaintiff alleges that, as a result of Kraus's negligence, Plaintiff's vehicle was damaged, and Plaintiff suffered substantial bodily injury. [Notice of Removal, filed 9/28/15 (dkt. no. 1), Decl. of Laureen L. Martin ("Martin Removal Decl."), Exh. A (Complaint) at ¶¶ 6, 8-9, Exh. 1 (State of Hawaii Motor Vehicle Accident Report, dated 7/29/13).]
According to Plaintiff, Kraus is the owner of Tree Works Inc. ("Tree Works"), and Kraus was operating a commercial vehicle when he was involved in the accident. [Id. at ¶¶ 2, 6.] Plaintiff sues Kraus in his individual capacity and in his official capacity with Tree Works. [Id. at ¶ 2.]
Plaintiff called 911 for police assistance and, an hour later, he called 911 for an ambulance. Kihara and the ambulance arrived at approximately 12:40 p.m. [Id. at ¶ 7.] Although Kihara acknowledged that Kraus operated his vehicle in a negligent manner, he did not issue a citation to Kraus, and his accident report did not reflect Plaintiff's injury. [Id. at ¶ 10, Exh. 1.] Plaintiff argues that Kihara had a duty to issue a criminal citation after the accident. [Id. at ¶ 11.]
Plaintiff alleges that, as a result of the actions of the County Defendants and Kraus (collectively "Defendants"), he suffered "emotional and psychological trauma, loss of property, as well as financial loss." [Id. at ¶ 12.] Plaintiff alleges the following claims: fraudulent misrepresentation ("Count I"); intentional infliction of emotional distress ("IIED") and/or negligent infliction of emotional distress ("NIED" and "Count II"); interference with chattels ("Count IIA"); a 42 U.S.C. § 1983 claim for civil rights torts under federal common law ("Count III"); a § 1983 claim for violation of his Fourteenth Amendment right to due process ("Count IV"); a § 1983 claim for violation of his Fourth Amendment right to be free from the use of excessive and unreasonable force ("Count V"); a claim for fees and costs ("Count VI"); and a claim for punitive damages ("Count VII"). Plaintiff prays for the following relief: general, special, consequential, incidental, and punitive damages: fees and costs; prejudgment interest; and any other appropriate relief.
On September 28, 2015, the County removed the case to this district court based on federal question jurisdiction. [Notice of Removal at ¶ 4.] The County asserted that it was the only party that had been properly served by the time of removal. [Id. at ¶ 9.] Before filing the Notice of Removal, the County's counsel attempted to speak to Kraus, but was unable to do so. Counsel was informed by someone at Tree Works that a copy of the Complaint was delivered to Tree Works on September 23, 2015. Counsel states that she "believe[s] all Defendants have and/or will consent to the removal of this matter." [Martin Removal Decl. at ¶ 11.] The County argues that the delivery of the Complaint to Tree Works was an improper attempt to serve Kraus. [Notice of Removal at ¶ 9.]
The County Motion argues that Plaintiff's Complaint fails to state a claim upon which relief can be granted because: the County owed no duty to Plaintiff because there is no private cause of action to enforce the criminal statutes that Kraus allegedly violated; Plaintiff did not suffer any damages as a result of Kihara's failure to issue a citation; Plaintiff has not alleged sufficient facts to support any of his claims; Plaintiff's claim for fees and costs and his claim for punitive damages fail because all of his substantive claims fail; and, even if any substantive claim remains, municipalities cannot be held liable for punitive damages. The County urges this Court to dismiss the Complaint with prejudice.
The Kihara Motion raises the same arguments as the County Motion. In addition, Kihara argues that this Court should dismiss the claims against him because he was not properly served and because he has qualified immunity. Kihara also urges this Court to dismiss the Complaint with prejudice.
I. Service on Kihara
On October 16, 2015 - after removal, Plaintiff sent the Complaint to Kihara's workplace via certified mail, return receipt requested. [Kihara Motion, Decl. of Laureen L. Martin ("Martin Kihara Decl."), Exh. B (copy of the envelope sent to Kihara's workplace).] Kihara argues that this was not proper service under Fed.R.Civ.P. 4(e), which states:
Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Mailing a complaint by certified mail to a defendant's workplace does not constitute proper service under Rule 4(e)(2).
Under Rule 4(e)(1), Plaintiff could make service by complying with Hawaii state law. Hawaii law allows for service by certified mail in certain circumstances.
When service of summons is provided for by section 634-33, 634-34, or 634-35, service shall be made by service upon the defendant personally by any person authorized to serve process in the place in which the defendant may be found or appointed by the court for the purpose, or sent by certified, registered, or express mail, postage prepaid, with return receipt requested, by the plaintiff or the plaintiff's attorney to the defendant....
Both Haw. Rev. Stat. § 634-33, which governs service in cases arising from the defendant's operation of a motor vehicle, and Haw. Rev. Stat. § 634-34, which governs service on boat operators, state that service is to be made pursuant to § 634-36 "if the defendant cannot be found in the State." Haw. Rev. Stat. § 634-35 is the Hawaii long-arm statute, and subsection (b) allows service pursuant to § 634-36 "if the person cannot be found in the State."
The factual allegations of the Complaint do not trigger the application of either § 634-33 or § 634-34. Moreover, neither § 634-33, § 634-34, nor § 634-35 apply because the record reflects that Kihara could be found within the State. See Martin Kihara Decl., Exh. B (copy of the envelope that Plaintiff used to mail the Complaint to Kihara in Hilo, Hawaii). This Court CONCLUDES that § 634-36 does not apply to Plaintiff's service of Kihara, and therefore the attempted service via certified mail was not proper service under Rule 4(e). This Court GRANTS the Kihara Motion insofar as Plaintiff's claims against Kihara are DISMISSED for lack of proper service.
II. Claims Against the County Defendants
According to the County Defendants, underlying all of Plaintiff's claims against them is the assumption that they owe a duty to Plaintiff to enforce state criminal laws and that Plaintiff has private right of action to enforce that duty. Based on the allegations in the Complaint, Plaintiff appears to contend that Kihara should have cited Kraus for a violation of Haw. Rev. Stat. § 707-705 or § 707-706. The County Defendants emphasize that "[w]hether to prosecute and what criminal charges to bring are decisions that generally rest in the discretion of the prosecutor, " and they argue that, as a general rule, "criminal statutes do not provide a private cause of action or a basis for civil liability." [Mem. in Supp. of County Motion at 4; Mem. in Supp. of Kihara Motion at 5.]
Both this district court and the Hawaii state courts have recognized that the prosecutor has broad discretion to determine whether charges should be filed against a defendant. See, e.g., Veloria v. United States, Crim. No. 00-00145 SOM, Civ. No. 08-00019 SOM/BMK, 2008 WL 4055819, at *15 (D. Hawaii Aug. 28, 2008) ("prosecutors are afforded broad discretion in selecting whom to prosecute and what charges to bring, subject to constitutional limits"); Naluai v. Naluai, 99 Hawaii 363, 368, 55 P.3d 856, 861 (Ct. App. 2002) ("[t]he prosecutor not only has complete discretion as to whether to charge, he also has complete discretion as to when charges will be filed, what charges will be filed, how many charges will be filed, and under what statutes the charges will be made" (alteration in Naluai)). However, courts do not extend the same level of discretion to law enforcement officers that they do to prosecutors. For example, one district court has stated:
[T]he judiciary owes special deference to the prosecutorial office. The exercise of prosecutorial discretion in bringing charges is a power within the "special province' of the Executive." [ United States v. Armstrong, 517 U.S. 456, ] 464, 116 S.Ct. 1480 [(1996)]. "As a result, the presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Id . (internal quotation marks, brackets and citation omitted). Law enforcement officers, in contrast, never have been afforded the same presumption of regularity extended to prosecutors. Courts have recognized the possibility that officers in the field occasionally may abuse their discretion and selectively target specific groups and individuals on the basis of race or other illegitimate factors. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
Rodriguez v. Cal. Highway Patrol, 89 F.Supp.2d 1131, 1141 (N.D. Cal. 2000) (emphasis added). Similarly, the Ninth Circuit has stated that, "[u]nlike prosecutors, who enjoy absolute immunity, police officers are entitled only to qualified immunity in section 1983 cases." Elliot-Park v. Manglona, 592 F.3d 1003, 1006 (9th Cir. 2010) (citing ...