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Park v. City & County of Honolulu

United States District Court, D. Hawaii

February 12, 2018

HYUN JU PARK, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU; ANSON KIMURA, STERLING NAKI; JOSHUA OMOSO; DOE ASSOCIATIONS 1-5; and JOHN and/or JANE DOES 1-10, Defendants.

          ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

          Alan C. Kay, United States District Judge

         For the 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 follows:

         (1) 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.

         (2) 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.

         The 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.

         PROCEDURAL BACKGROUND

         On 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”)[1] 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.

         The 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. ¶¶ 44-51.

         On May 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.

         On 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 Dismiss.
(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.

         On 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.

         On 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.[2]

         FACTUAL BACKGROUND

         At 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.

         While 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.

         Defendants 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.

         Pursuant 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.

         Plaintiff 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.

         Plaintiff 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.

         STANDARD

         Federal 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).

         In 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).

         When 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).

         DISCUSSION

         I. Claims Against Individual Officers in their Official Capacity

         The 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.

         October 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.

         II. Section 1983 Claims (Counts 1-3) Against Defendant Honolulu and Defendants Naki and Omoso

         Section 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).

         For an 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.

         To 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.

         Defendant 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.

         a. Whether the FAC Plausibly Alleges that Defendants were Acting Under Color of State Law

         Defendant Honolulu argues that the Court should dismiss the FAC because Defendants did not act under the color of state law.[3]

         The 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.

         i. Whether the Acts Complained of Were Performed While the Officers were Acting, Purporting, or Pretending to Act in the Performance of Their Official Duties

         The FAC 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.

         In 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 ΒΆ 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 ...


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