United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT, DOC. NO. 21
J. Michael Seabright Chief United States District Judge
Defendants City and County of Honolulu (the “City”), and two unknown Honolulu Police Department (“HPD”) Officers (collectively, “Defendants”) move to dismiss the Second Amended Complaint (“SAC”) in this 42 U.S.C. § 1983 action brought pro se by Plaintiff Samuel Erin Eager (“Plaintiff” or “Eager”) alleging a violation of the Fourth Amendment based on an incident where two HPD officers entered Plaintiff’s residence without a warrant. Doc. No. 21. This is Plaintiff’s third attempt to state a claim upon which relief can be granted. Based on the following, the Motion to Dismiss is GRANTED as to the § 1983 claim. Because further amendment would be futile, the dismissal is with prejudice. To the extent the SAC asserts supplemental state law claims for negligence and/or infliction of emotional distress, the state law claims are dismissed without prejudice under 28 U.S.C. § 1367(c)(3).
Two prior Orders dismissed the Complaint and First Amended Complaint (“FAC”) with leave to amend. See Eager v. Six Unknown Honolulu Police Dep’t Officers, 2015 WL 1608771 (D. Haw. Apr. 10, 2015) (“Eager I”) (dismissing Complaint); Eager v. Honolulu Police Dep’t, 2015 WL 3754083 (D. Haw. June 16, 2015) (“Eager II”) (dismissing FAC). Following dismissal of the FAC, Plaintiff filed the SAC on July 2, 2015. Doc. No. 11. The court does not repeat the allegations and analysis set forth in those prior Orders -- the focus here is on the specific allegations of the SAC. Nevertheless, some of the prior background is relevant and is discussed where appropriate.
A. Factual Background
The core allegations of the SAC remain essentially the same as in the Complaint and FAC -- Plaintiff alleges that on January 27, 2013, two HPD officers entered his apartment without his permission and without a warrant. Doc. No. 11, SAC ¶¶ 4-12. Plaintiff alleges that he was in his residence listening to the radio when an HPD officer knocked on his door, and another HPD officer was looking in the window waiving a folded piece of paper. Id. ¶¶ 5-6. The officers asked him to come outside. Id. ¶ 7-8. Plaintiff was “extremely afraid” because the officers “were big and burly [and] were acting menacing and suspicious, ” and “refused to identify the paper they were displaying.” Id. ¶ 9.
Plaintiff alleges that he “went and turned his radio off and as he did so he saw the handle on his dead bolt lock turn and his door was opened by the officer who had been knocking on it.” Id. ¶ 10. Terrified, he claims he “ran to his window, and[, ] grabbing a pair of scissors, chopped through the screen and glass slats. By this time both officers had entered the Plaintiff’s apartment completely.” Id. ¶ 12. The SAC alleges that Plaintiff then “swung outside onto the ledge, ” where he saw “a fire truck, an ambulance and several police cruisers as well as attendant personnel already in place.” Id. ¶¶ 12-13. “Plaintiff put the scissors to his chest and threatened to jump off of the ledge.” Id. ¶ 14. Plaintiff “waited on his apartment ledge for well over an hour.” Id. ¶ 15. During that time, other officers allegedly aimed weapons at him, entered his apartment, made offensive remarks, and threatened physical and deadly force. Id. ¶¶ 13, 16, 20. Plaintiff eventually surrendered, was handcuffed and taken to the hospital, and later released. Id. ¶ 18.
The two prior Orders interpreted the Complaint and FAC as alleging that the two HPD officers did not enter Plaintiff’s residence until “only after he had threatened suicide, broken his window and screen with his hands, and sat on the window ledge for more than an hour while he waited for sufficient witnesses to the incident.” Eager II, 2015 WL 3754083, at *1; see also Eager I, 2015 WL 1608771, at *3 (interpreting Complaint as alleging that Plaintiff “remained on the windowsill threatening to jump with the scissors to his heart for more than an hour, and it was during that period that two police officers entered his apartment”). On that basis, the Orders dismissed the Complaint and FAC because the allegations made clear that a warrantless entry was constitutional under the “emergency aid exception” to the Fourth Amendment’s warrant requirement. See, e.g., Sheehan v. City & Cty. of S.F., 743 F.3d 1211, 1221 (9th Cir. 2014) (“[A] warrantless search or seizure is permitted to render emergency aid or address exigent circumstances.”), rev’d in part on other grounds, 135 S.Ct. 1765 (2015).
Regardless of those two prior Orders, however, the SAC now alleges that HPD officers were actually opening the locked door when Plaintiff grabbed scissors and broke through the window, and the officers entered the apartment before or at the same time that he went on the ledge. Doc. No. 11, SAC ¶ 10 (alleging that as Plaintiff turned off his radio “he saw the handle on his dead bold lock turn and his door was opened by the officer”); ¶ 12 (“By this time both officers had entered the Plaintiff’s apartment completely.”); ¶ 35 (“The officers had actually entered Plaintiff’s apartment by the time the Plaintiff had reached his fear.”). That is, assuming the truth of the SAC’s allegations, it would be premature to apply the emergency aid exception to the warrant requirement at this motion to dismiss stage.
Plaintiff alleges that “the fact that at least six Honolulu Police Department Officers were present as well as an ambulance and fire truck were present before the Plaintiff fled shows premeditation on the [officers’] part to provoke an incident.” Id. ¶ 23. He claims that officers “did willfully and wrongfully present themselves in an official capacity and with supposed legal papers unlawfully unlock and enter the [Plaintiff’s] private residence [without] permission.” Id. ¶ 26. He claims that “[t]he entire incident did terrorize and torment and cause emotional distress that did, in combination with [Plaintiff’s] pre-existing conditions, lead to his only psychotic episode where another individual was injured and has led to the incarceration of the Plaintiff.” Id. ¶ 28.
B. Procedural Background
Plaintiff, proceeding pro se, filed this action on March 25, 2015. Doc. No. 1. The Complaint was screened pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, and dismissed without prejudice on April 10, 2015. Doc. No. 5. Plaintiff filed the FAC on June 1, 2015, Doc. No. 8, and it was also dismissed without prejudice on June 16, 2015. Doc. No. 10. Plaintiff filed the SAC on July 2, 2015. Doc. No. 11. Defendants filed their Motion to Dismiss the SAC on November 30, 2015. Plaintiff filed his Opposition on December 21, 2015, and a corresponding Reply was filed on January 11, 2016. Doc. Nos. 26, 28. The court decides the Motion to Dismiss without an oral hearing under Local Rule 7.2(d).
The SAC names the “Honolulu Police Department” as the Defendant in its caption. But the SAC also alleges that “[t]he Defendant is the Honolulu Police Department and the unknown police officers involved in the warrantless search and seizure of [Plaintiff’s] apartment and person.” Doc. No. 11, SAC ¶ 2. Plaintiff has also filed a Motion to Amend Second Amended Complaint, Doc. No. 25, seeking “to rectify any perceived or actual deficiency in regards to the stated Defendant only.” Id. at 1. To avoid confusion with the allegations of the SAC, he “requests to amend the listed Defendant to reflect the parties who could be potentially held liable according to the facts in the Complaint, ” and “not in any way to alter the body of the Complaint.” Id. at 2. That is, Plaintiff asks that the operative Complaint “be amended to reflect the parties liable, two unknown HPD Officers and City and County of Honolulu.” Id. at 3.
Plaintiff’s original Complaint named “Honolulu Police Department, Six Unknown Officers, ” in an “official capacity” as the Defendant. Doc. No. 1, Compl. at 1. The FAC named only the “Honolulu Police Department” as the Defendant, but alleged that the Defendant “is employed as . . . Police Officers (sic) at Honolulu Police Department.” Doc. No. 8, FAC at 1. Accordingly, given the allegations of the SAC, and accepting the pro se Plaintiff’s stated intent in his Motion to Amend, the court construes the SAC as naming both the City and two unknown HPD Officers in their official and individual capacities as Defendants.See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
III. STANDARDS OF REVIEW
A. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for “failure to state a claim upon which relief can be granted[.]” A Rule 12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable legal theory or the absence of sufficient facts alleged.’” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 ...