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Young v. Kraus

United States District Court, D. Hawaii

January 27, 2017

MICHAEL M. KRAUS, Owner of Tree Works Inc., COUNTY OF HAWAII, POLICE DEPARTMENT, PATRICK T. KIHARA as a Police Officer in the County of Hawaii, State of Hawaii, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, AND DOE GOVERNMENT ENTITIES 1-10, Defendants.


          Leslie E. Kobayashi United States District Judge.

         Pro se Plaintiff Christopher Young (“Plaintiff”) filed his “Amendment of Complaint” (“Amended Complaint”) on March 4, 2016. [Dkt. no. 35.] Defendants the County of Hawai`i, the County of Hawai`i Police Department (collectively, “the County”), and Patrick T. Kihara (“Kihara”, all collectively, “the County Defendants”) filed a motion to dismiss the Amended Complaint (“Motion”) on March 14, 2016. [Dkt. no. 38.] Plaintiff did not file a timely memorandum in opposition to the Motion. On July 6, 2016, this Court issued an entering order finding the Motion 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 Hawai`i (“Local Rules”). [Dkt. no. 64.]

         On August 24, 2016, this Court issued an entering order (“8/24/16 EO”) directing the County Defendants to file a supplemental memorandum addressing Plaintiff's fraudulent misrepresentation claim. [Dkt. no. 72.] The County Defendants filed their supplemental memorandum (“County Supplement”) on September 14, 2016. [Dkt. no. 79.] Plaintiff filed a response to the County Supplement on October 26, 2016 (“Plaintiff Supplement”), and the County Defendants filed a supplemental reply memorandum (“County Supplemental Reply”) on October 27, 2016. [Dkt. nos. 93, 94.] After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, the County Defendants' Motion is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to the request to dismiss the Amended Complaint as untimely and GRANTED as to the request to dismiss the claims against the County Defendants for failure to state a claim. Plaintiff's claims against the County Defendants are HEREBY DISMISSED WITH PREJUDICE because Plaintiff failed to cure the defects in his claims that this Court identified in its prior order.


         The instant case arises from a motor vehicle accident involving Plaintiff and Defendant Michael M. Kraus (“Kraus”).[1]Plaintiff filed his original Complaint in state court. [Notice of Removal, filed 9/28/15 (dkt. no. 1), Decl. of Laureen L. Martin (“Martin Removal Decl.”), Exh. A (Complaint).] It alleged 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”);[2] 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”).

         In an order issued on January 29, 2016, this Court 1) dismissed Count VII against the County with prejudice and dismissed all other claims against the County without prejudice; 2) dismissed the claims against Kihara without prejudice; 3) dismissed Counts VI and VII against Kraus without prejudice;[3]and 4) made no findings or conclusions regarding the merits of Plaintiff's other claims against Kraus. [1/29/16 Order at 26-27.] The 1/29/16 Order directed Plaintiff to file his amended complaint by March 2, 2016, and cautioned him that all of the claims that this Court dismissed without prejudice would be dismissed with prejudice if he failed to file his amended complaint by that date. [Id. at 27-28.] Plaintiff filed the Amended Complaint on March 4, 2016.[4]

         According to the Amended Complaint, Kraus was at fault, and Plaintiff and the other person in the car - John Hoffman (“Hoffman”) - were injured in the accident. Plaintiff called 911 for police assistance and an ambulance, but Kraus left the scene. Kihara and an ambulance arrived approximately one hour after the accident. [Amended Complaint at ¶¶ 6-11.] Plaintiff alleges that Kihara acknowledged that Kraus operated his vehicle in a negligent manner. Plaintiff argues that, because Plaintiff's negligence and violation of Hawai`i statutes caused an accident that resulted in injuries or damages, it was mandatory that Kihara arrest Kraus or issue a criminal citation. [Id. at ¶¶ 12-13.] Plaintiff alleges that Kihara's failure to cite or arrest Kraus “violate[d] his Oath and duties (denied Plaintiff services) to government operation.” [Id. at ¶ 14.] Plaintiff alleges that the County also knew that Kraus was negligent and had violated Hawai`i law, and Plaintiff apparently contends that the County is also responsible for the failure to arrest or cite Kraus after the accident. [Id. at ¶ 13.]

         In addition to the allegations about the failure to cite or arrest Kraus, Plaintiff alleges that, at the scene of the accident, Kihara called the paramedic away while the paramedic was asking Plaintiff and Hoffman what happened. According to Plaintiff, Kihara told the paramedic that all parties in the accident refused medical attention. After Kihara spoke with the paramedic, Kihara gave Plaintiff the police report number and left the scene. After Kihara left, Plaintiff and Hoffman were taken to Hilo Medical Center to be examined by a doctor. [Id. at ¶ 11.] Plaintiff alleges that Defendants' actions

denied Plaintiff medical service and prevent[ed] Plaintiff from protesting the actions of all Defendants[ and made it] intimidating to prevent Plaintiff from exercising the Hawaii and United States Constitution Rights of freedom of speech, protest, association, and the basic right to pursue the interest, to prevent the free exercise of his rights.

         [Id. at ¶ 17.]

         The first six counts of the Amended Complaint allege the same claims as Plaintiff alleged in Counts I, II, [5] IIA, III, IV and V of the original Complaint (“Amended Counts I through V”). The Amended Complaint also alleges a separate count for punitive damages and attorneys' fees and costs (“Amended Count VI”).

         In the instant Motion, the County Defendants argue that this Court should dismiss the Amended Complaint because Plaintiff filed it after the deadline in the 1/29/16 Order. If this Court does not dismiss the Amended Complaint as untimely, the County Defendants urge this Court to dismiss the claims against them in the Amended Complaint because they have the same deficiencies as the claims in the original Complaint.


         I. Timeliness of the Amended Complaint

         The County Defendants correctly point out that Plaintiff failed to file the Amended Complaint by the March 2, 2016 deadline given in the 1/29/16 Order. See 1/29/16 Order at 27-28. They ask this Court to dismiss Plaintiff's case pursuant to Fed.R.Civ.P. 41(b) because of Plaintiff's failure to comply with the 1/29/16 Order. [Mem. in Supp. of Motion at 4-5.] However, the Ninth Circuit has

identified five factors that a district court must consider before dismissing a case . . .: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy favoring the disposition of ...

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