United States District Court, D. Hawaii
JONARD P. ESCALANTE, Plaintiff,
CITY AND COUNTY OF HONOLULU, et al., Defendants.
ORDER GRANTING DEFENDANT CITY AND COUNTY OF
HONOLULU'S MOTION TO DISMISS COUNT THREE, WITHOUT LEAVE
TO AMEND, ECF NO. 11
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
question before the court is whether Plaintiff Jonard P.
Escalante (“Escalante”) has stated a viable 42
U.S.C. § 1983 claim against Defendant the City and
County of Honolulu (the “City”) for the assault
he suffered at the hands of an off-duty Honolulu Police
Department (“HPD”) Officer, Co-Defendant Keoki
Kamuela Duarte (“Duarte”). Because the court
finds no plausible causal connection between the assault and
the alleged acts or omissions of the City, the Motion to
Dismiss is GRANTED.
facts alleged regarding the underlying assault are
straightforward. On December 7, 2015, Escalante and Duarte
were involved in a minor traffic accident. Compl.
¶¶ 11-13, ECF No. 1. Both drivers pulled to the
side of the road, whereupon Duarte pulled Escalante from his
truck, threw him to the asphalt, and punched, kicked, and
choked him until a third party intervened. Id.
¶¶ 14-16. Duarte was not on duty at the time, and
he was not driving a patrol car. Id. ¶ 12.
There are no allegations that Escalante knew or believed that
Duarte was a police officer or that Duarte did, said, or wore
anything implying his position. Duarte was later convicted of
assault and unauthorized entry of a motor vehicle.
Id. ¶ 17.
factual allegations in the Complaint regarding the City,
however, are more complex. They center on an alleged
“de facto policy, practice, or custom of
abstaining from reporting instances of misconduct of other
officers” - what Escalante calls in his Opposition
“HPD's unofficial ‘brotherhood' culture
of silence” - which he alleges is “continuing,
persistent, and widespread throughout the [HPD]” and
results in the City's “failure to discover and/or
take appropriate remedial actions.” Id.
¶¶ 21-22, 25-33; Opp'n at 3, ECF No. 19. The
Complaint further alleges that HPD encourages its
officers' behavior by failing to combat it, including by
failing to establish appropriate policies and procedures for
doing so. See id. ¶¶ 21-22, 25-27.
the Complaint states that, before the December 7 assault,
Duarte “had a history of emotional distress and/or
anger management issues resulting in the inappropriate use of
excessive and violent force which was or should have been
known” to HPD. Compl. ¶ 19. It claims that the
City failed to properly counsel Duarte or “limit his
encounters with potential victims of excessive force and
violence, ” id. ¶20; failed to
investigate incidents involving Duarte and properly
discipline him, including for a 2012 incident involving a
“mistaken arrest, ” violence, and excessive
force, and an attempt to cover up the same, id.
¶ 20, 26; and failed to take proper action after the
December 7 assault, id. ¶ 24.
the 2012 incident, the Complaint refers generally to four
other “attempt[s] to conceal misconduct or criminal
wrongdoing” of other HPD officers (one
incident occurring in 2009-2010, two in 2014, and one in
2015). Id. ¶ 27. And finally, it
alleges that the City failed to adopt policies (1) requiring
officers to report the misconduct of other officers, (2)
protecting those who do report, and (3) requiring records be
kept of misconduct and consequences. Id. ¶¶
filed his Complaint on December 1, 2017, alleging various
claims against the City, Duarte, and other unnamed
individuals. ECF No. 1. Against the City, he alleges in Count
Three a violation of 42 U.S.C. § 1983 and in Count Six a
state-law negligence claim. Id. at 15-18.
City filed its Motion to Dismiss on January 2, 2018, arguing
that Counts Three and Six of the Compliant should be
dismissed for failure to state a claim upon which relief can
be granted. ECF No. 11. Escalante filed his Opposition
on March 19, 2018. ECF No. 19. And the City replied on March
26, 2018. ECF No. 21. The Motion was heard on April 9, 2018.
STANDARD OF REVIEW
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the claims alleged in
the complaint. Ileto v. Glock, Inc., 349 F.3d 1191,
1199-1200 (9th Cir. 2003). Review is limited to the contents
of the complaint. Allarcom Pay Television, Ltd. v. Gen.
Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To
survive a motion to dismiss for failure to state a claim, a
complaint generally must satisfy the requirements of Federal
Rule of Civil Procedure Rule 8, which requires that a
complaint include a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
pleading standard “does not require ‘detailed
factual allegations, 'but it demands more than an
accusation.” Aschcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). And a pleading that offers
“labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.”
Id. In other words, the allegations in the ...