United States District Court, D. Hawaii
DANIEL W. HARRIS, ESTHER M.L.K. SANTIAGO-HARRIS, DONNA M. SEGUNDO, Plaintiffs,
COUNTY OF HAWAII, DOES 1-10, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
COUNTY OF HAWAII'S MOTION TO DISMISS COUNTS 4-12 OF
COMPLAINT FILED SEPTEMBER 8, 2017
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE
the Court is Defendant County of Hawaii's Motion to
Dismiss Counts 4-12 of Complaint Filed September 8, 2017,
filed on October 9, 2017 (“Motion”). ECF No. 8.
Plaintiffs filed their Opposition on October 23, 2017. ECF
No. 15. Defendant County of Hawaii (“the County”)
filed its Reply on November 2, 2017. ECF No. 18. The Court
finds this matter suitable for disposition without a hearing
pursuant to Rule 7.2(d) of the Local Rules of Practice for
the United States District Court for the District of Hawaii
and VACATES the hearing set for November 17, 2017.
See ECF No. 11. After carefully reviewing the
parties' submissions and the relevant legal authority,
the Court GRANTS the County's Motion.
filed their Complaint on September 8, 2017. ECF No. 1. In the
Complaint, Plaintiffs allege that Plaintiff Harris was shot
with a Taser and beaten by Hawaii Police Department officers
on September 15, 2015, when he was mistakenly arrested
pursuant to a warrant for another individual who shared his
same name. Id. ¶¶ 10-26. Plaintiff Segundo
is Plaintiff Harris' mother and witnessed his arrest;
Plaintiff Santiago-Harris is Plaintiff Harris' wife.
Id. ¶¶ 17, 27. Plaintiffs assert federal
claims under 42 U.S.C. § 1983 (Counts I, II, and III),
and state law claims for assault and battery, for false
arrest, false imprisonment, negligent training and
supervision, negligence, gross negligence, intentional
infliction of emotional distress, negligent infliction of
emotional distress, and loss of consortium (Counts IV through
XII). Id. ¶¶ 33-85.
present Motion, the County argues that all of Plaintiffs'
state law claims must be dismissed because they are barred
by statute of limitations set forth in Hawaii Revised
Statutes Section 46-72. ECF No. 8-1.
Federal Rule of Civil Procedure 12(b)(6), Defendant may move
to dismiss a claim for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Dismissal is proper if 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)).
statue of limitations defense can be the basis for a motion
to dismiss if it is apparent from the face of the Complaint.
See Seven Arts Filmed Entm't Ltd. v. Content Media
Corp., 733 F.3d 1251, 1254 (9th Cir. 2013); 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.”) (citation
omitted). However, “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).
Revised Statutes Section 46-72 provides that in order to hold
the County liable for tort claims, an injured person must
provide “notice in writing of the injuries and the
specific damages resulting” to the individual
identified in the county's charter “within two
years after the injuries accrued.” Haw. Rev. Stat.
§ 46-72. The County's charter provides that written
notice must be provided to the county clerk. Section 13-18,
Haw. Cty. Charter. The Hawaii Supreme Court has held that
Section 46-72's written notice provision operates as a
statue of limitations. Silva v. City & Cty. of
Honolulu, 165 P.3d 247, 257 (Haw. 2007).
there is no dispute that Plaintiffs did not provide written
notice to the county clerk as required by Section 46-72.
See ECF No. 15. However, Plaintiffs argue that their
state law claims are not barred because Section 46-72
violates the Equal Protection Clause of the Hawaii
Constitution and their state law claims against the County
should be governed by the two-year general personal injury
statute of limitations contained in Hawaii Revised Statutes
Section 657-7, which does not contain a notice requirement.
Id. at 5-8. In support of their argument, Plaintiffs
cite Silva v. City and County of Honolulu.
Silva, the Hawaii Supreme Court held that “the
prior version” of Section 46-72, which required written
notice to the county within six months on an injury, violated
the Equal Protection Clause of the Hawaii Constitution
because there was no rational basis to have a six-month
statute of limitations for tort victims injured by the county
and a two-year statute of limitations for tort victims
injured by private parties or the state. 165 P.3d at 257-60.
However, and as recognized in Silva, the prior
version of Section 46-72 was repealed and replaced with a
two-year statute of limitations. See id. at 260.
There is no support for Plaintiff's argument that the
Supreme Court's decision in Silva requires a
finding that the revised version of Section 46-72 violates
the Equal Protection Clause of the Hawaii Constitution. The
Hawaii Supreme Court expressly held that the “six-month
provision” was the only “constitutional
error” in the statute. Id. Section 46-72 now
the person injured . . . within two years after the injuries
accrued shall give the individual identified in the
respective county's charter . . . notice in writing of
the injuries and the specific damages resulting, stating
fully when, where, and how the injuries or damage occurred,
the extent of the injuries or damages, and the amount
Haw. Rev. Stat. § 46-72.
statutory language is “plain and unambiguous, ” a
court's “sole duty is to give effect to its plain
and obvious meaning.” State v. Ribbel, 142
P.3d 290, 295 (Haw. 2006) (quoting Peterson v. Hawaii
Elec. Light Co., Inc., 944 P.2d 1265, 1270-71 (Haw.
1997)). Under the plain language of Section 46-72, written
notice must be provided to the County within two years of
injury. Haw. Rev. Stat. § 46-72. Here, Plaintiff Harris
was injured on the night of September 15, 2015. ECF No. 1
¶ 10. There is no dispute that Plaintiffs did not
provide the required written notice to the County's clerk
within two years as required by Section 46-72. Even if
Plaintiffs' Complaint was sufficient written notice under
Section 46-72, Plaintiffs did not serve a copy of the
Complaint on the County until September 18, ...