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Franson v. City and County of Honolulu

United States District Court, D. Hawaii

July 26, 2016





         On September 5, 2014, Francisco Franson and Jordon Topinio were assaulted, allegedly without cause, by Honolulu Police Officer (“HPD”) Vincent Morre at a game room, while he and HPD Officers Nelson Tamayori and Joseph Becera were on duty. Plaintiffs allege that the assault, a post-assault cover-up, and unspecified HPD policies were unlawful. They bring claims against the three HPD Officers, HPD Chief Louis Kealoha, and the City and County of Honolulu (“City”) for violations of state and federal law. Because Plaintiffs’ 42 U.S.C. § 1983 municipal liability and negligent training and/or supervision claims against the City are conclusory and lack factual specificity, they are deficient as currently alleged. Accordingly, the City’s motion to dismiss is GRANTED in part with leave to amend, as set forth more fully below. The motion is DENIED to the extent the City seeks dismissal of Plaintiffs’ negligence-based claims as a matter of law.


         I. September 5, 2014 Incident

         According to Plaintiffs, while on duty on September 5, 2014, HPD Officers Morre, Becera, and Tamayori demanded entry and gained access to a game room located on Hopaka Street in search of a fugitive. Plaintiffs were patrons of the game room and were seated next to each other in front of gaming machines when the three officers entered. Complaint ¶¶ 13-15.

         Plaintiffs allege that Morre approached Topinio and ordered him to remove his hat. Topinio complied, but Morre kicked Topinio in the face, unprovoked. Morre then continued his search of the game room and returned to the area where Plaintiffs were seated. Complaint ¶¶ 16-17. The Complaint alleges that, again without provocation, Morre “punched, kicked, and struck” Franson, “then proceeded to again intentionally kick Topinio and threw a chair/stool striking Mr. Topinio in the head.” Complaint ¶ 18. Tamayori and Becera allegedly witnessed Morre assault Plaintiffs, but failed or refused to intervene. Complaint ¶ 19. The three HPD Officers thereafter left the game room together.

         Franson and Topinio contend that Morre, Tamayori, and Becera agreed to and purposely omitted the assault from their subsequent reports of the incident in an attempt to conceal it. Moreover, Becera allegedly made materially false statements to “law enforcement that he did not witness Defendant Morre strike Mr. Topinio” in order to conceal the assault. Complaint ¶¶ 21-22. Plaintiffs allege that all three HPD Officers were members of the HPD Crime Reduction Unit, see Complaint ¶ 12, and aver as follows with respect to the City’s liability:

23. Plaintiffs are informed and believe and do thereupon allege that the Honolulu Police Department has a custom, policy, practice, and/or usage of condoning and/or ratifying the use of excessive force and/or conditions amounting to severe punishment by Honolulu Police Department officers, including but not limited to officers with the Honolulu Police Department Crime Reduction Unit.
24. Plaintiffs did not at any time provoke, invite, consent to, or otherwise allow or permit Defendants to utilize excessive and/or unnecessary force or to expose them to conditions amounting to severe punishment.
25. Plaintiffs are informed and believe and do thereupon allege that the actions of Defendants were without reasonable, just, and/or probable cause.
26. As a direct and proximate result of the foregoing, Plaintiffs suffered the deprivation of their freedom, liberties, profits, and/or consequential damages in amounts to be proven at trial.
28. In committing the above acts and omissions, Defendants acted maliciously, knowingly, intentionally, recklessly, willfully, deliberately, and/or without regard for the rights, interests, and well-being of Plaintiffs, and without reasonable, just, and/or probable cause.

Complaint ¶¶ 23-28.

         II. Plaintiffs’ Claims

         Plaintiffs filed suit against the City, the Defendant HPD Officers in their individual capacities (Complaint ¶¶ 6-8), and Chief Kealoha in both his official and individual capacities (Complaint ¶¶ 9-10, 41). The Complaint alleges the following causes of action: (1) a Section 1983 claim against the City and Kealoha based upon excessive use of force, seizure, and severe punishment in violation of the Fourth and Fourteenth Amendments, and the Constitution and laws of the State of Hawaii (Count I); (2) a negligent training and/or supervision claim against the City and Kealoha (Count II); (3) an assault and battery claim against Morre (Count III); (4) a negligence claim against Defendant HPD Officers based upon conduct during the execution of an arrest warrant in the game room (Count IV); (5) a negligent infliction of emotional distress (“NIED”) claim against all Defendants (Count V); (6) an intentional infliction of emotional distress claim (“IIED”) claim against Defendant HPD Officers (Count VI); (7) a respondeat superior claim against the City based upon the tortious conduct of Morre occurring within the scope of his employment (Count VII); (8) a civil conspiracy claim against Defendant HPD Officers (Count VIII); and (9) a claim for punitive damages against Defendant HPD Officers (Count IX).


         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. Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.


         The City moves to dismiss the claims against itself and Kealoha in his official and individual capacities.[1] Becera filed a joinder to the City’s motion. For the following reasons, the City’s motion is GRANTED with Plaintiffs permitted leave to amend the following claims: Count I (Section 1983 claim based on violation of the Fourth Amendment); Count II (negligent supervision/training); and all claims against Kealoha in his individual capacity.

         The following claims are DISMISSED without leave to amend: Count I (Section 1983 violation based upon violation of the 14th Amendment and the Hawaii Constitution), Count IX (punitive damages as a stand-alone claim), and all claims against Kealoha in his official capacity.

         I. Section 1983 Claims Against the City (Count I)

         Under 42 U.S.C. § 1983,

Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

         Plaintiffs allege that their rights were violated under the Fourth and Fourteenth Amendments to the United States Constitution, and civil liberties protected by the Hawaii State Constitution. See Complaint ¶¶ 31-35. As a preliminary matter, the Court appropriately narrows the scope of Plaintiffs’ Section 1983 claim by identifying the proper federal right allegedly violated.

         A. Hawaii State Constitutional Claim Is Dismissed With Prejudice

         Section 1983 is a vehicle for redress of violations of federal law. A claim for violation of state law is not cognizable under the statute. Cornejo v. County of San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007). Despite their Complaint, Plaintiffs acknowledge that they are not pursuing a Section 1983 claim against the City based upon violation of state ...

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