United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT CITY AND COUNTY OF
HONOLULU'S MOTION TO DISMISS THE FIRST AMENDED
C. Kay, United States District Judge
reasons set forth below, the Court GRANTS Defendant City and
County of Honolulu's Motion to Dismiss the First Amended
Complaint, ECF No. 98, to which Defendants Joshua Omoso and
Sterling Naki have filed a Joinder, ECF Nos. 103, 104, as
As to Defendant City and County of Honolulu and Defendants
Naki and Omoso, the Court GRANTS the Motion to Dismiss as
to Counts 1-3 and 6. Counts 1-3 and 6 in regard to
Defendant City and County of Honolulu and Defendants Naki
and Omoso are DISMISSED WITHOUT PREJUDICE.
As to Defendants Naki and Omoso, the Court GRANTS the
Motion to Dismiss as to Plaintiff's official capacity
claims. These claims are construed against the City and
County of Honolulu and are DISMISSED against the officers
in their official capacity WITH PREJUDICE.
Court notes that, as discussed in more detail herein, Counts
4 and 5 were dismissed pursuant to a stipulation, ECF No. 97,
and no longer remain in this case.
March 30, 2017, Plaintiff Hyun Ju Park
(“Plaintiff”) filed a Complaint against the
following entities and individuals: (1) City and County of
Honolulu (“Honolulu”); (2) Honolulu Police
Department (“HPD”) officer Anson Kimura
(“Kimura”) in his individual and official capacity;
(3) HPD officer Sterling Naki (“Defendant Naki”)
in his individual and official capacity; (4) HPD officer
Joshua Omoso (“Defendant Omoso”) in his
individual and official capacity (collectively with Kimura
and Defendant Naki, the “individual officers”);
and (5) John and/or Jane Does 1-10 and Doe Associations 1-5
(collectively with the John and Jane Does, the “Doe
Defendants”). Complaint ¶¶ 8-11.
Complaint asserted six causes of action. Counts 1 through 3,
arising under 42 U.S.C. § 1983, stated that Defendants
violated Plaintiff's rights under the Fourth and
Fourteenth Amendments. Id. ¶¶ 31-43.
Counts 4 through 6 alleged claims of assault and battery;
intentional infliction of emotional distress
(“IIED”); and negligence. Id.
11, 2017, Defendant Honolulu filed a Motion to Dismiss
Complaint Filed April 20, 2017 Pursuant to FRCP 12(b)(6)
(“Motion”). ECF No. 14. On June 2, 2017, Dongbu
Insurance Co. (“Intervenor Plaintiff” or
“Dongbu”) filed a Motion to Intervene to protect
its subrogation rights as the lien holder for the
worker's compensation benefits it provided Plaintiff and
to assert claims against Defendants. ECF No. 25. On August
31, 2017, Magistrate Judge Kevin Chang granted the Motion to
Intervene. ECF Nos. 52, 68. On September 11, 2017, both
Plaintiff and Intervenor Plaintiff filed Oppositions to
Defendant Honolulu's Motion to Dismiss (“Pl.
Opp.” and “Int. Pl. Opp.”). ECF Nos. 60,
62. On September 18, 2017, Defendant Honolulu filed replies
to these oppositions. ECF Nos. 71, 72.
October 3, 2017, the Court entered an Order Granting in Part
and Denying in Part Defendant City and County of
Honolulu's Motion to Dismiss Complaint (“October 3,
2017 Order”). ECF No. 79. Specifically, in its October
3, 2017 Order, the Court held the following:
(1) As to Defendants Kimura, Naki, and Omoso, the Court
granted the Motion to Dismiss as to Plaintiff's official
capacity claims. The Court construed these claims against the
City and County of Honolulu and dismissed them against the
officers in their official capacity with prejudice.
(2) As to the Doe Defendants, the Court denied the Motion to
(3) As to Defendant City and County of Honolulu, the Court
granted the Motion to Dismiss as to Counts 1-3 and 6 and
dismissed these counts without prejudice.
November 2, 2017, Plaintiff filed her First Amended Complaint
(“FAC”). ECF No. 90. The FAC alleges claims
against the same Defendants as the Complaint. The FAC also
alleges the same claims as the Complaint, except Count
6's negligence claim also alleges a theory of negligent
training and/or supervision.
November 22, 2017, Defendant Honolulu filed a Motion to
Dismiss the First Amended Complaint. ECF No. 98. On December
6, 2017, Defendants Omoso and Naki filed a Joinder to
Defendant Honolulu's Motion to Dismiss. ECF Nos. 103,
104. On January 12, 2018, Plaintiff filed an Opposition to
Defendant's Motion. ECF No. 120. On that same date,
Plaintiff-Intervenor Dongbu filed a Joinder to
Plaintiff's Opposition. ECF No. 122. On January 22, 2018,
Defendant Honolulu filed a Reply to Plaintiff's
Opposition. ECF No. 124. The Court held a hearing on
Defendant's Motion on February 5, 2018.
approximately 1:45 a.m. on April 3, 2015, Plaintiff was
performing her duties as a bartender and manager at the Kings
Sports Bar in Honolulu, Hawaii. FAC ¶ 12. At that same
time and place, Kimura was drinking alcoholic beverages and
socializing with Defendants Naki and Omoso, among others,
while on “off-duty” status as HPD officers.
Id. ¶¶ 13-14. Plaintiff and other persons
present at the Kings Sports Bar were aware that Kimura, Naki,
and Omoso were HPD officers. Id. ¶ 15.
Kimura was drinking, he took out his supplemental firearm
issued by the HPD and then handled the weapon in a reckless
and dangerous manner. Id. ¶ 16. One bullet was
discharged from Kimura's firearm and struck Plaintiff.
Id. The FAC alleges that Kimura purports to have
handled his weapon in order to reload what he believed to be
an unloaded firearm. Id. ¶ 17.
Naki and Omoso were aware that Kimura was handling his
firearm in a reckless and dangerous manner prior to its
discharge but failed to intervene. Id. ¶ 21.
Pursuant to HPD Policy Number 2.21, entitled “Standards
of Conduct, ” effective on the date of the incident,
Defendants Naki and Omoso were required to take action as
soon as they observed Kimura's reckless and dangerous
handling of his firearm. Id. ¶ 22.
to HPD Policy Number 2.38, effective on the date of the
incident, entitled “Uniforms, Equipment, and Firearms,
” police officers are required to possess their HPD
issued firearm at all times but are prohibited from such
possession when an officer's “physical and/or
mental processes are impaired because of consumption or use
of alcohol.” Id. ¶ 23. The FAC further
alleges that this policy was modified around January 6, 2016,
after the date of the incident, to prohibit officers from
physically handling HPD issued firearms while consuming
alcohol or any other substance likely to impair their
physical or mental processes. Id. ¶ 24.
alleges that Policy Number 2.38, as it was effective on the
date of the incident, was deficient as it permitted officers
to possess firearms while consuming alcohol up to the point
of intoxication, rather than expressly prohibiting the
possession of a firearm while consuming alcohol in any
amount. Id. ¶ 25. The individual officers were
trained in accordance with Policy Number 2.21 and 2.38-the
versions that were in place on the date of the incident.
Id. ¶ 26.
alleges that there was a “brotherhood” culture of
silence at the HPD, in which officers were known to abstain
from reporting misconduct by their fellow officers, which was
a de facto policy of the HPD. Id. ¶¶
29-30. Plaintiff alleges that this “brotherhood”
culture was exhibited in many different ways. See
id. ¶¶ 31-39.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The Court may dismiss a complaint
either because it lacks a cognizable legal theory or because
it lacks sufficient factual allegations to support a
cognizable legal theory. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
resolving a Rule 12(b)(6) motion, the Court must construe the
complaint in the light most favorable to the plaintiff and
accept all well-pleaded factual allegations as true.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 783 (9th Cir. 2012). The complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).
the Court dismisses a complaint pursuant to Rule 12(b)(6) it
should grant leave to amend unless the pleading cannot be
cured by new factual allegations. OSU Student All. v.
Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
Claims Against Individual Officers in their Official
Court's October 3, 2017 Order dismissed Plaintiff's
official capacity claims against the individual officers with
prejudice. ECF No. 79. The Court held the following:
Personal capacity suits seek to impose personal liability
upon a government official for actions he takes under color
of state law. See Hafer v. Melo, 502 U.S. 21, 25
(1991). Official capacity suits, on the other hand,
“generally represent only another way of pleading an
action against an entity of which an officer is an
agent.” Monell v. N.Y.C. Dep't of Soc.
Servs., 436 U.S. 658, 690 n. 55 (1978). Therefore,
courts should treat such suits as suits against the
governmental entity. Kentucky v. Graham, 473 U.S.
159, 166 (1985); see Carnell v. Grimm, 872 F.Supp.
746, 752 (D. Haw. 1994) (dismissing claims against officials
in their official capacity as duplicative where the
municipality had also been sued). Accordingly, the Court
dismisses the claims against the individual officers in their
official capacity with prejudice.
3, 2017 Order at 12. The FAC still pursues official capacity
claims against the individual officers. FAC ¶¶
9-10. In light of the Court's prior ruling, the Court
again dismisses official capacity claims against the
individual officers with prejudice.
Section 1983 Claims (Counts 1-3) Against Defendant Honolulu
and Defendants Naki and Omoso
1983 provides relief against “[e]very person who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State . . . causes . . . any citizen of the
United States . . . the deprivation of any rights,
privileges, or immunities secured by the Constitution.”
42 U.S.C. § 1983. Parties can seek relief under §
1983 against persons acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
“Persons” covers “state and local officials
sued in their individual capacities, private individuals and
entities which acted under color of state law, and local
governmental entities.” Vance v. Cty. of Santa
Clara, 928 F.Supp. 993, 995-96 (N.D. Cal. 1996).
individual capacity suit under Section 1983, plaintiff must
allege personal participation in the constitutional violation
on the part of the individual to subject that person to
individual liability. Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002). For a municipal liability suit,
municipalities and their agents must cause the constitutional
violation through a policy or custom. Monell, 436
U.S. at 694.
establish a Section 1983 claim for municipal liability, the
plaintiff must show: “(1) that [she] possessed a
constitutional right of which [she] was deprived; (2) that
the municipality had a policy; (3) that this policy amounts
to deliberate indifference to the plaintiff's
constitutional right; and (4) that the policy is the moving
force behind the constitutional violation.” Oviatt
v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (internal
quotation marks omitted). In addition, as discussed in more
detail in footnote 3, the government official generally must
act under state law.
Honolulu argues that Plaintiff fails to plausibly allege that
Defendants were acting under color of state law and each of
these four requirements. The Court discusses each of these
arguments in turn.
Whether the FAC Plausibly Alleges that Defendants were Acting
Under Color of State Law
Honolulu argues that the Court should dismiss the FAC because
Defendants did not act under the color of state
Ninth Circuit has held that there are “three critical
requirements that must be satisfied” for conduct to be
considered state action: (1) the acts complained of must have
been “‘performed' while the officer is
acting, purporting, or pretending to act in the performance
of his or her official duties”; (2) the “pretense
of acting in the performance of his duties must have had the
purpose and effect of influencing the behavior of
others”; and (3) the acts complained of must be
“related in some meaningful way either to the
officer's governmental status or to the performance of
his duties.” Anderson v. Warner, 451 F.3d
1063, 1068-69 (9th Cir. 2006) (internal quotation marks and
citation omitted); see Silva v. City & Cty. of
Honolulu, Civ. No. 11-00561 LEK-RLP, 2013 WL 2420902, at
*12 (D. Haw. May 31, 2013). The Court finds that the FAC
fails to plausibly allege that the individual officers acted
under color of state law.
Whether the Acts Complained of Were Performed While the
Officers were Acting, Purporting, or Pretending to Act in the
Performance of Their Official Duties
does not allege that the individual officers were acting,
purporting, or pretending to act in the performance of their
official duties. Rather, Plaintiff alleges that the
individual officers were “off-duty” at the time
of the incident, FAC ¶ 14, and that Kimura was drinking
alcohol and socializing with Defendants Naki and Omoso, among
others when he handled his HPD issued firearm. Id.
¶ 13. In fact, as regards to Kimura, Plaintiff
specifically alleges that he acted “outside the scope
of his employment as a police officer” with the HPD.
Id. ¶ 63.
addition, the FAC does not contain any facts to support a
claim that the individual officers were acting in performance
of their official duties. Plaintiff has not amended her
complaint to allege that the individual officers were in
uniform, carried official identification, or identified
themselves as a member of law enforcement. See
Silva, 2013 WL 2420902, at *12 (addressing whether an
off-duty police officer was acting pursuant to official
authority and looking to, inter alia, whether the
officer was wearing a uniform, displaying a badge,
brandishing a weapon, identifying oneself as an officer,
issuing commands, or intervening in a dispute). Plaintiff
alleges that Kimura was reloading his HPD firearm, which he
believed to be unloaded. FAC ¶ 17. However, the FAC does
not allege that his conduct was in performance of his
official duties or provide sufficient indication that such
conduct- reloading a firearm while drinking and off duty in a
bar-was part of Kimura's official duties. In regard to
Defendants Naki and Omoso, the FAC merely alleges that they
were drinking alcohol and ...