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Silva v. City and County of Honolulu

United States District Court, D. Hawaii

June 28, 2017

GULSTAN E. SILVA, JR., as Personal Representative of the Estate of Sheldon Paul Haleck; JESSICA Y. HALECK, Individually and as Guardian Ad Litem of Jeremiah M.V. Haleck; WILLIAM E. HALECK; VERDELL B. HALECK, Plaintiffs,
v.
CITY AND COUNTY OF HONOLULU; LOUIS M. KEALOHA, Individually; CHRISTOPHER CHUNG; SAMANTHA CRITCHLOW; STEPHEN KARDASH, Defendants.

         ORDER GRANTING DEFENDANT LOUIS M. KEALOHA'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 193) ANDN DENYING PLAINTIFFS' AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE LIABILITY OF DEFENDANTS CHRISTOPHER CHUNG, SAMANTHA CRITCHLOW, STEPHEN KARDASH, LOUIS M. KEALOHA, AND CITY AND COUNTY OF HONOLULU FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS (ECF NO. 195) AND GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF NO. 199) AND GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS CHRISTOPHER CHUNG, SAMANTHA CRITCHLOW, AND STEPHEN KARDASH'S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF NO. 200)

          Helen Gillmor District Judge

         Plaintiffs filed a Second Amended Complaint against the City and County of Honolulu, former Honolulu police chief Louis Kealoha, and Honolulu police officers Christopher Chung, Samantha Critchlow, and Stephen Kardash relating to a March 16, 2015 incident involving Sheldon Paul Haleck.

         Plaintiffs claim the Honolulu police officers seized Sheldon Paul Haleck and used excess force when they arrested him for disorderly conduct. Plaintiffs assert that the Honolulu police officers used pepper spray and a Taser multiple times against Sheldon Paul Haleck. He died following his arrest.

         Plaintiffs allege constitutional violations and state law claims against the City and County of Honolulu, the former police chief, and the Honolulu police officers who seized and arrested Haleck.

         There are four motions for summary judgment filed by the Parties.

         1. Defendant Louis M. Kealoha's Motion for Summary Judgment (ECF No. 193)

         Defendant Louis M. Kealoha filed a Motion for Summary Judgment on all claims against him.

         First, Defendant Kealoha seeks summary judgment as to Plaintiffs' third cause of action. The cause of action includes a Section 1983 claim against Defendant Kealoha in his individual capacity for failure to supervise, failure to discipline, and ratification of the police officers' actions as stated in the Third Cause of Action.

         Second, Defendant Kealoha moves for summary judgment as to the Eighth Cause of Action for interference with civil rights.

         Defendant Louis M. Kealoha's Motion for Summary Judgment (ECF No. 193) is GRANTED.

         2. Plaintiffs' Amended Motion for Summary Judgment (ECF No. 195)

         Plaintiffs filed an Amended Motion for Partial Summary Judgment as to the liability of Defendants City and County of Honolulu, Louis M. Kealoha, Christopher Chung, Samantha Critchlow, and Stephen Kardash for alleged constitutional violations pursuant to Section 1983 as stated in the First, Second, and Third Causes of Action.

         Plaintiffs' Amended Motion for Partial Summary Judgment (ECF No. 195) is DENIED.

         3. Defendant City and County of Honolulu's Amended Motion for Summary Judgment (ECF No. 199)

         Defendant City and County of Honolulu filed an Amended Motion for Summary Judgment as to Plaintiffs' Third Cause of Action for Section 1983 municipal liability. Defendant City and County also seeks summary judgment in its favor as to Plaintiffs' Eighth Cause of Action for interference with civil rights.

         Defendant City and County of Honolulu's Amended Motion for Summary Judgment (ECF No. 199) is GRANTED.

         4. Defendants Christopher Chung, Samantha Critchlow, and Stephen Kardash's Amended Motion for Summary Judgment (ECF No. 200)

         Defendants Christopher Chung, Samantha Critchlow, and Stephen Kardash filed an Amended Motion for Summary Judgment as to Plaintiffs' constitutional and state law claims against them stated in the First, Second, Fourth, Fifth, Sixth, and Seventh Causes of Action. The Defendant police officers assert that they did not violate Haleck's constitutional rights and are otherwise entitled to qualified immunity. The Defendant officers argue they are entitled to a conditional privilege as to the Plaintiffs' state law claims.

         Defendant Honolulu Police Officers' Amended Motion for Summary Judgment (ECF No. 200) is GRANTED, IN PART, AND DENIED, IN PART.

         As to the Causes of Action stated in the Second Amended Complaint:

         The Court GRANTS Summary Judgment for the respective Defendants as to the Causes of Action 2 through 8.

         The only Cause of Action remaining is as follows:

The First Cause of Action for Excessive Force in Violation of the Fourth Amendment to the United States Constitution Pursuant to 42 U.S.C. § 1983 stated by Plaintiff Gulstan E.
Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck, against Defendants Christopher Chung, Samantha Critchlow, and Stephen Kardash in their individual capacities.

         There are no remaining claims by Plaintiffs Jessica Y. Haleck, for herself and as Guardian Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell B. Haleck.

         The only remaining Plaintiff is Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck.

         There are no remaining claims against Defendant City and County of Honolulu and Defendant Louis M. Kealoha.

         The only remaining Defendants are Christopher Chung, Samantha Critchlow, and Stephen Kardash.

         PROCEDURAL HISTORY

         On October 20, 2015, Plaintiffs filed a Complaint. (ECF No. 1).

         On the same date, Plaintiff Jessica Y. Haleck filed an Ex Parte Motion for Appointment of Guardian Ad Litem. (ECF No. 3).

         On November 23, 2015, the Magistrate Judge issued an Order Appointing Jessica Y. Haleck as Guardian Ad Litem for Jeremiah M.V. Haleck. (ECF No. 11).

         On March 29, 2016, Plaintiffs filed a FIRST AMENDED COMPLAINT. (ECF No. 31).

         On January 4, 2017, Defendant Louis M. Kealoha, Defendant City and County of Honolulu, and Defendants Christopher Chung, Samantha, Critchlow, Stephen Kardash, Chad Sano, Reynwood Makishi, and Frank Pojsl filed Motions for Summary Judgment and Concise Statements of Facts. (ECF Nos. 126, 127, 134, 136, 137, 138).

         On the same date, Plaintiffs filed a Motion for Partial Summary Judgment and a Concise Statement of Facts. (ECF Nos. 131, 132).

         On January 4, 2017, Plaintiffs filed a Motion to Seal Documents (ECF No. 133) and Defendant Louis M. Kealoha filed a Motion to Seal Documents (ECF No. 129).

         On January 11, 2017, the Court issued an ORDER GRANTING PLAINTIFFS LEAVE TO FILE EXHIBITS UNDER SEAL. (ECF No. 145).

         Also on January 11, 2017, the Court issued an ORDER GRANTING DEFENDANT LOUIS M. KEALOHA'S EX-PARTE MOTION FOR LEAVE TO FILE CERTAIN EXHIBITS UNDER SEAL. (ECF No. 146).

         On January 20, 2017, the Parties filed their Oppositions to the Motions for Summary Judgment. (ECF No. 152, 153, 154, 155, 157, 158, 159, 160).

         On February 2, 2017, the Parties filed their Replies. (ECF Nos. 167, 168, 169, 170).

         On February 6, 2017, the Court issued an ORDER GRANTING PLAINTIFFS LEAVE TO FILE EXHIBITS UNDER SEAL. (ECF No. 171).

         On February 15, 2017, Plaintiffs filed PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT. (ECF No. 173).

         Also on February 15, 2017, Plaintiffs filed PLAINTIFFS' MOTION TO DISMISS DEFENDANTS LOUIS M. KEALOHA, IN HIS OFFICIAL CAPACITY, CHAD SANO, REYNWOOD MAKISHI, AND FRANK POJSL. (ECF No. 174).

         On the same date, Plaintiffs filed PLAINTIFFS' EX PARTE MOTION TO SHORTEN TIME FOR HEARING (1) MOTION TO DISMISS DEFENDANTS LOUIS M. KEALOHA, IN HIS OFFICIAL CAPACITY, CHAD SANO, REYNWOOD MAKISHI, AND FRANK POJSL AND (2) MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT. (ECF No. 175).

         On February 16, 2017, the Court issued a Minute Order granting Plaintiffs' Motion to Shorten Time and issued a briefing schedule as to Plaintiffs' Motion to Dismiss and their Motion to File Second Amended Complaint. (ECF No. 177).

         On February 16, 2017, the Court issued the Parties' STIPULATION FOR PARTIAL DISMISSAL WITHOUT PREJUDICE OF ALL CLAIMS AGAINST DEFENDANT DONNA Y.L LEONG AND ORDER. (ECF No. 176).

         On March 7, 2017, the Court held a hearing as to Plaintiff's Motion to Dismiss, Plaintiff's Motion for Leave to File Second Amended Complaint, and the scheduling of the Motions for Summary Judgment. (ECF No. 186).

         The Court granted, in part, and denied, in part, Plaintiffs' Motion to Dismiss and granted Plaintiff's Motion for Leave to File Second Amended Complaint. (Id.)

         The Court ordered the Parties to re-file their Motions for Summary Judgment in accordance with its Orders on Plaintiffs' Motions to Dismiss and Leave to Amend. (Id.)

         On March 10, 2017, Plaintiffs filed their SECOND AMENDED COMPLAINT FOR DAMAGES. (ECF No. 189).

         On March 14, 2017, the Court issued an ORDER GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFFS' MOTION TO DISMISS DEFENDANTS LOUIS M. KEALOHA, IN HIS OFFICIAL CAPACITY, CHAD SANO, REYNWOOD MAKISHI AND FRANK POJSL AND GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT. (ECF No. 192).

         On March 21, 2017, Defendant Kealoha filed his Motion for Summary Judgment (ECF No. 193), Defendant City and County of Honolulu filed its Amended Motion for Summary Judgment (ECF No. 199), and the Defendant Honolulu Police Officers filed their Amended Motion for Summary Judgment (ECF No. 200).

         On the same date, Plaintiffs filed their Amended Motion for Summary Judgment. (ECF No. 195).

         On April 17, 2017, the Parties filed their Oppositions. (ECF No. 208, 209, 210, 211).

         On April 24, 2017, the Parties filed their Replies. (ECF Nos. 212, 214, 215, 216).

         On June 14, 2017, the Court held a hearing on the Parties' four Motions for Summary Judgment. (ECF No. 223). The Court ruled from the bench. The Court granted the Motions for Summary Judgment filed by Defendants Louis M. Kealoha and the City and County of Honolulu. The Court granted, in part, and denied, in part, the Defendant Officers' Motion for Summary Judgment. The Court denied Plaintiffs' Motion for Summary Judgment. The reasons for the decision are set forth in this Written Order.

         BACKGROUND

         The Parties

         There are five Plaintiffs named in the Second Amended Complaint. All of the Plaintiffs claim they are relatives of Sheldon Paul Haleck, who is deceased. (Second Amended Complaint at ¶¶ 7-12, ECF No. 189). Gulstan E. Silva, Jr. is the personal representative of the Estate of Sheldon Paul Haleck.

         Plaintiffs have filed federal and state law claims against the City and County of Honolulu and various individuals arising out of a March 16, 2015 incident involving Honolulu Police Officers and Sheldon Haleck. (Id. at pp. 3-22).

         Plaintiffs' relationships to Sheldon Haleck are alleged in the Second Amended Complaint as follows:

(1) Plaintiff Gulstan E. Silva, Jr. as the natural uncle of Sheldon Haleck and as the Personal Representative of the Estate of Sheldon Paul Haleck (id. at ¶ 8);
(2) Plaintiff Jessica Y. Haleck as the wife of Sheldon Haleck and as Guardian Ad Litem of Jeremiah M.V. Haleck (id. at ¶ 9);
(3) Plaintiff Jeremiah M.V. Haleck as the minor son of Plaintiff Jessica Y. Haleck and Sheldon Haleck (id. at ¶ 10);
(4) Plaintiff William E. Haleck as the father of Sheldon Haleck (id. at ¶ 11); and,
(5) Plaintiff Verdell B. Haleck as the mother of Sheldon Haleck (id. at ¶ 12).

         The Second Amended Complaint names the following Defendants:

(1) Defendant City and County of Honolulu (id. at ¶ 13);
(2) Defendant Louis M. Kealoha, individually, former Chief of the Honolulu Police Department; (id. at ¶ 14);
(3) Defendant Christopher Chung, individually and in his official capacity as an officer with the Honolulu Police Department, (id. at ¶ 15);
(4) Defendant Samantha Critchlow, individually and in her official capacity as an officer with the Honolulu Police Department, (id. at ¶ 16); and,
(5) Defendant Stephen Kardash, individually and in his official capacity as an officer with the Honolulu Police Department, (id. at ¶ 17).

         The Parties Agree to the Following Facts:

         At 8:15 p.m., on March 16, 2015, Honolulu Police Officer Christopher Chung (“Officer Chung”) responded to a call from dispatch about a male walking in the middle of South King Street, a busy six-lane road in Downtown Honolulu. (Deposition of Officer Christopher Chung (“Chung Depo.”) at p. 27-29, attached as Ex. C to Pla.'s Concise Statement of Facts (“CSF”), ECF No. 196-4). Officer Chung arrived at the scene and observed Sheldon Paul Haleck (“Haleck”) in the street. (Id. at p. 29). Officer Samantha Critchlow (“Officer Critchlow”) arrived approximately one minute later. (Deposition of Officer Samantha Critchlow (“Critchlow Depo.”) at p. 39, attached as Ex. D to Pla.'s CSF, ECF No. 196-5).

         Both Officers instructed Haleck to get out of the middle of the road and to move to the sidewalk. (Id. at p. 42; Chung Depo. at p. 30, ECF No. 196-4). Haleck did not comply with the Officers' instructions and moved away from them while remaining in the middle of the street. (Critchlow Depo. at p. 42, ECF No. 196-5; Chung Depo. at p. 34, ECF No. 196-4).

         The Officers warned Haleck that they would use pepper spray if he did not comply, but Haleck did not move to the sidewalk. (Chung Depo. at p. 34, ECF No. 196-4). The Officers sprayed Haleck with pepper spray multiple times. (Id. at pp. 37-38; Critchlow Depo. at p. 48, ECF No. 196-5). Haleck continued to run away from the Officers, moving side to side, and he did not move to the sidewalk. (Chung Depo. at p. 38, ECF No. 196-4).

         Officer Chung warned Haleck that he would use the Taser if Haleck did not get on the sidewalk. (Chung Depo. at p. 49, 196-4). Officer Chung deployed the Taser in dart mode and pulled the trigger to send a current through the probes but Haleck did not fall to the ground. (Id.)

         Officer Stephen Kardash (“Officer Kardash”) arrived at the scene and also ordered Haleck to move to the sidewalk. (Deposition of Officer Stephen Kardash (“Kardash Depo.”) at p. 23, attached as Ex. E to Pla.'s CSF, ECF No. 196-6). Haleck did not comply and Officer Kardash sprayed Haleck with pepper spray. (Id. at p. 36).

         Officer Chung deployed his Taser in dart mode a second time and pulled the trigger to send a current through the probes. (Critchlow Depo. at p. 53, ECF No. 196-5). Officer Chung testified in his deposition that while the probes were still deployed from the second deployment, he pulled the trigger to send a current through the probes a third time. (Chung Depo. at p. 51, attached as Ex. A to Def.'s Opp., ECF No. 210-3). The Parties agree that following the third use of the Taser, Haleck fell to the ground. The Parties dispute the cause of the fall.

         The Officers attempted to handcuff Haleck after he had fallen on the ground. (Critchlow Depo. at p. 57, ECF No. 196-5). Haleck did not comply with Officers' requests to cooperate and he was “flailing, ” “squirming, ” and “kicking.” (Id.) Six Officers were needed to hold Haleck down in order to place him in handcuffs and leg shackles. (Chung Depo. at p. 57, ECF No. 196-4; Kardash Depo. at pp. 47-49, ECF No. 196-6).

         Following the fall and cuffing, Haleck was arrested for disorderly conduct. (Critchlow Depo. at p. 67, ECF No. 196-5). Minutes later, Haleck lost consciousness and stopped breathing. (Critchlow Depo. at p. 60, ECF No. 196-5; Kardash Depo. at p. 49, ECF No. 196-6). An ambulance arrived at the scene and took Haleck to Queen's Medical Center. (Autopsy Report of Sheldon P. Haleck at p. 3, attached as Ex. A to Def. Honolulu's CSF, ECF No. 136-13). The next morning, approximately 11 hours later, Haleck was pronounced dead at 7:33 a.m. (Id.)

         Plaintiffs' Position:

         Plaintiffs assert that the third use of the Taser caused Haleck to fall. Plaintiffs point to evidence from the Autopsy that there were red marks on Haleck's body that they assert indicate the Taser had some effect on Haleck. (Autopsy Report of Sheldon P. Haleck at p. 6, attached as Ex. A to Def. Honolulu's CSF, ECF No. 136-13; Report of Richard Lichten, at p. 11, attached as Ex. B to Pla.'s CSF, ECF No. 147-1).

         Plaintiffs claim the Officers' multiple uses of pepper spray and the Taser were not reasonable under the circumstances.

         Defendants' Position:

         Defendants state that following the third use of the Taser, Haleck's shorts fell down and he tripped and fell to the ground. (Critchlow Depo. at p. 54, ECF No. 196-5; Kardash Depo. at p. 45, ECF No. 196-6). Defendants assert that the Chief Medical Examiner determined that the Taser had no effect on Haleck because the barbs never implanted in his skin. (Deposition of Chief Medical Examiner Dr. Christopher Happy at pp. 22-24, (“Dr. Happy Depo.”) attached as Ex. H to Def.'s Opp., ECF No. 210-9).

         Defendants assert that the Officers' actions were reasonable under the circumstances. Defendants claim there was an immediate threat of injury to the Officers and others. The Defendants base their claim on the facts that the incident occurred in the middle of a busy street in Downtown Honolulu, at night, and that Haleck refused to comply with the Officers' warnings and commands.

         STANDARD OF REVIEW

         Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To defeat summary judgment there must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1997).

         The moving party has the initial burden of “identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party, however, has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. The moving party need not produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325. The moving party must show, however, that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. That burden is met by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Id.

         If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The opposing party must present admissible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

         The court views the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of declarations, admissions, evidence obtained through discovery, and matters judicially noticed. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The opposing party cannot, however, stand on its pleadings or simply assert that it will be able to discredit the movant's evidence at trial. Fed.R.Civ.P. 56(e); T.W. Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on mere allegations or denials. Fed.R.Civ.P. 56(e); Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). When the non-moving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); see also National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).

         ANALYSIS

         There are eight causes of action in the Second Amended Complaint:

FIRST CAUSE OF ACTION: Excessive Force in violation of the Fourth Amendment to the United States Constitution and Article I of the Hawaii Constitution pursuant to 42 U.S.C. § 1983
Stated by: Plaintiffs Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck, and Jessica Y. Haleck, individually and as Guardian Ad Litem for Jeremiah M.V. Haleck, William E. Haleck, and Verdell B. Haleck (hereinafter “the individual Plaintiffs”)
Stated against: Defendants Christopher Chung, Samantha Critchlow, and Stephen Kardash
SECOND CAUSE OF ACTION: Violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution Pursuant to 42 U.S.C. § 1983
Stated by: Plaintiff Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck, and the individual Plaintiffs
Stated against: Defendants Christopher Chung, Samantha Critchlow, and Stephen Kardash
THIRD CAUSE OF ACTION: Municipality and Supervisor Liability for United States Constitutional Violations pursuant to 42 U.S.C. § 1983
Stated by: Plaintiff Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck, and the individual Plaintiffs
Stated against: Defendants City and County of Honolulu and Louis M. Kealoha
FOURTH CAUSE OF ACTION: Assault and Battery
Stated by: Plaintiff Gulstan E. Silva, Jr., as Personal Representative of the Estate of Sheldon Paul Haleck, and the individual Plaintiffs
Stated against: Defendants Christopher Chung, Samantha Critchlow, and ...

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