United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CITY AND COUNTY OF HONOLULU’S MOTION TO DISMISS
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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.
September 5, 2014 Incident
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
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
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.
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).
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.
City moves to dismiss the claims against itself and Kealoha
in his official and individual capacities. 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.
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.
Section 1983 Claims Against the City (Count
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. . . .
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.
Hawaii State Constitutional Claim Is Dismissed With
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