United States District Court, D. Hawaii
NAPOLEON T. ANNAN-YARTEY SR., Plaintiff,
OFFICER T. MURANAKA, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S SECOND AMENDED COMPLAINT, ECF NO. 31
Michael Seabright Chief United States District Judge
November 1, 2016,  pro se Plaintiff Napoleon T. Annan-Yartey,
Sr. (“Plaintiff”) filed claims for civil rights
violations against the City and County of Honolulu (the
“City”); Honolulu Police Department
(“HPD”); HPD Officers T. Muranaka
(“Muranaka”), Royce S. Ohira
(“Ohira”), and Chad K. Murphy
(“Murphy”) in their individual capacities; HPD
Chief Louis M. Kealoha (“Kealoha”) in his
official capacity; and “all police officers involved
and officials” (“Doe Defendants”), ECF No.
1. On November 21, 2016, Plaintiff filed a “Second
Amended Complaint” (“SAC”). ECF No. 10. On
December 5, 2016, the court (1) dismissed Plaintiff's
claims against the City, Doe Defendants, Kealoha, and Count
11 against Murphy; (2) found that the SAC stated claims
against Muranaka, Ohira, and Murphy (collectively,
“Defendants”) in their individual capacities; and
(3) directed service of the SAC on Defendants (the
“December 5 Order”). ECF No. 12.
before the court is Defendants' Motion to Dismiss
Plaintiff's SAC on the ground that Plaintiff's claims
are time-barred. ECF No. 31. Based on the following, the
court agrees. The Motion to Dismiss is GRANTED and the SAC is
DISMISSED without leave to amend.
an African-American male, alleges that on December 11, 2013,
Defendants arrested him, and searched and seized his
belongings without probable cause after Plaintiff, who was
carrying a bag of recently purchased food, crossed a street
along with other pedestrians. SAC ¶¶ 8, 9, 21-23,
25-26. Muranaka and Ohira allegedly made racially derogatory
remarks; Ohira choked Plaintiff; all three officers
“pulled him by his neck and then threw him on the
ground, ” restrained him with handcuffs, and took his
wallet; Muranaka searched Plaintiff's bag and took his
federally-issued ID; and all three officers held him on the
ground for a lengthy period of time until Muranaka stated
that Plaintiff “came up clean;” all without
telling Plaintiff why he was stopped. Id.
¶¶ 24, 26-29, 31, 33.
was charged in state court with disobeying traffic signals
and littering, based on affidavits of probable cause
containing allegedly false statements or omissions by the
three officers. Id. ¶¶ 34, 36. Plaintiff
appeared in court several times related to the allegedly
false charges before they were dismissed with prejudice.
Id. ¶¶ 39-40. Somewhat inconsistently, the
SAC also alleges that “criminal proceedings against
[Plaintiff] went to trial and the court came with a (not
guilty verdict) thereafter all charges were dismissed in
favor of Plaintiff, ” id. ¶ 52, and
that “[a]ll 65 charges were terminated in
Plaintiff's favor, ” id. ¶ 81.
listed in state court public dockets provide some
clarification.Two criminal actions arose from citations
issued on December 11, 2013: (1) Case No. 1DTI-13-159259,
based on a traffic citation for crossing a street against a
Don't Walk signal, in violation of Hawaii Revised
Statutes (“HRS”) § 291C-33(2); and (2) Case
No. 1DCC-13-0010643, based on a criminal citation for
littering, in violation of HRS § 708-829. See
Hawaii State Judiciary Information Management System eCourt
Kokua (“eCourt Kokua”),
(last visited Mar. 24, 2017). The traffic citation was
dismissed with prejudice on July 23, 2014, and the littering
citation was dismissed with prejudice on July 31, 2014.
August 3, 2014, Plaintiff was issued an unrelated citation
charging him with entering a closed park in violation of
Revised Ordinances of Honolulu 10-1.2(a)(12). See
Id. (Case No. 1DCC-14-0006812). Following a bench trial,
on October 27, 2014, Plaintiff was found not guilty.
filed this action on November 1, 2016, and filed his SAC on
November 21, 2016. ECF Nos. 1, 10. Against the remaining
Defendants, the SAC asserts § 1983 claims for violation
of rights protected by the Fourth, Fifth, and/or Fourteenth
Amendments to the United States Constitution including equal
protection (Count 1); unreasonable search, seizure, and
arrest without probable cause (Count 2); excessive force
(Count 3); malicious prosecution (Count 4); and due process
(Count 5). The SAC also alleges claims for racial
discrimination and conspiracy to discriminate pursuant to 42
U.S.C. §§ 1981, 1983, and 1985(3) (Count 11); and
(2) intentional and negligent infliction of emotional
distress under §§ 1981, 1983, and state law (Count
12). Finally, the SAC alleges state-law claims for malicious
prosecution (Count 9); and violation of rights protected by
the Hawaii State Constitution including equal protection
(Count 7) and unlawful search, seizure, arrest, and excessive
force (Count 8).
February 7, 2017, Defendants filed their Motion to Dismiss.
ECF No. 31. On February 24, 2017, Plaintiff filed his
Opposition. ECF No. 34. Defendants filed a Reply on March 3,
2017, ECF No. 35, and on March 9, 2017, Plaintiff filed an
Affidavit in Support of his Opposition, ECF No.
A hearing was held on March 20, 2017. Pursuant to the
court's request, the parties each filed a Supplemental
Memorandum on March 23 and 24, 2017, respectively. ECF Nos.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim 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 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
statute-of-limitations defense, if ‘apparent from the
face of the complaint, ' may properly be raised in a
motion to dismiss.” Seven Arts Filmed Entm't
Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th
Cir. 2013) (quoting Conerly v. Westinghouse Elec.
Corp., 623 F.2d 117, 119 (9th Cir. 1980)); see also
Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902
(9th Cir. 2013) (“When an affirmative defense is
obvious on the face of a complaint, however, a defendant can
raise that defense in a motion to dismiss.”) (citing
Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126,
1128-29 (9th Cir. 1999)). That said, “a complaint
cannot be dismissed unless it appears beyond doubt that the
plaintiff can prove no set of facts that would establish the
timeliness of the claim.” Supermail Cargo, Inc. v.
United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995)
(quotation marks and citations omitted). In making such a
determination, the court is not “required to accept as
true allegations that contradict . . . matters properly
subject to judicial notice[.]” Seven Arts Filmed
Entm't Ltd., 733 F.3d at 1254 (internal quotation
marks omitted); see also Mimms v. Lewis, 2016 WL
5329625, at *5 (C.D. Cal. May 3, 2016) (“A motion to
dismiss based on the running of ...