United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS COUNTY OF HAWAII AND SAMUEL
JELSMA'S MOTION TO DISMISS COMPLAINT
C. KAY SR. UNITED STATES DISTRICT JUDGE.
reasons discussed below, the Court GRANTS Defendants County
of Hawaii and Samuel Jelsma's Motion to Dismiss filed on
January 26, 2018, ECF No. 5, and dismisses all of
Plaintiff's claims WITHOUT PREJUDICE.
January 9, 2018, Plaintiff John Rodrigues, Jr.
(“Plaintiff”) filed a Complaint in state court
against the County of Hawaii (the “County”),
Samuel Jelsma (“Defendant Jelsma, ” and
collectively with the County, the “County
Defendants”), Doe Persons 1-10, Doe Partnerships 1-10,
Doe Corporations 1-10, Roe “Non-Profit Corporations
1-10, and Roe Governmental Entities 1-10 (collectively with
Doe Persons 1-10, Doe Partnerships 1-10, Doe Corporations
1-10, Roe Non-Profit Corporations 1-10, the “Doe
Defendants”). ECF No. 1-2 (“Compl.”). The
Complaint alleges the following eight counts: (1) violation
of 42 U.S.C. § 1983 (“section 1983”) by
Defendant Jelsma; (2) violation of section 1983 by the
County; (3) false arrest/false imprisonment; (4) defamation
“per se”; (5) defamation “per quod”;
(6) false light; (7) intentional infliction of emotional
distress (“IIED”); and (8) negligent infliction
of emotional distress (“NIED”). Compl.
January 18, 2018, the County Defendants filed a notice of
removal with this Court. ECF No. 1. Later that month, on
January 26, 2018, the County Defendants filed a Motion to
Dismiss (“Motion”). ECF No. 5. On March 27, 2018,
Plaintiff filed an Opposition to the County Defendants'
Motion (“Opposition” or “Opp.”). ECF
No. 9. On March 29, 2018, the County Defendants filed a Reply
to Plaintiff's Opposition (“Reply”). ECF No.
11. The Court held a hearing on the County Defendants'
Motion on April 16, 2018.
to the Complaint, Plaintiff is a retired law enforcement
officer with the Hawaii County Police Department. Compl.
¶ 9. He served “for an aggregate of 10 years or
more, ” id. ¶ 59, and previously met the
standards for qualification in firearms training for active
law enforcement officers with the Hawaii County Police
Department, id. ¶ 60. At all relevant times,
Plaintiff was a “qualified law enforcement
officer” as that term is defined under 18 U.S.C. §
926C (the “Law Enforcement Officers Safety Act”
or “LEOSA”). Id. ¶ 67.
about January 26, 2017, Plaintiff called 9-1-1 to request
police assistance after being threatened by an individual
known as Wesley “Mana” Brooks
(“Brooks”). Id. ¶¶ 11-12.
Specifically, Brooks had brandished a firearm and fired a
round at Plaintiff. Id. ¶ 13.
Hawaii County Police Department officers arrived at the
scene, Defendant Jelsma-a Captain in the Hawaii County Police
Department-asked Plaintiff if he kept any firearms in his
vehicle. Id. at 14. Plaintiff responded that he did
keep firearms in the vehicle, id. ¶ 15, which
prompted Defendant Jelsma to state: “we need a consent
from you to enter your vehicle, ” id. ¶
16. Plaintiff immediately consented to a search of his
vehicle, and officers therein recovered a shotgun and a 9mm
handgun. Id. ¶¶ 17, 28.
after consenting to the vehicle search, Plaintiff began
describing to Defendant Jelsma the history between
Plaintiff's family and Brooks. Among other incidents,
Brooks previously made death threats against Plaintiff's
son while brandishing an AK-47 assault rifle and a 9mm
handgun. Id. ¶ 19. Brooks also stalked
Plaintiff's son at his workplace and threatened his life
in front of others. Id. ¶ 20. These death
threats prompted Plaintiff's son to file at least three
prior police reports. Id. ¶ 18.
further told Defendant Jelsma that, although Brooks's
threats continued to escalate, “the Hawaii County
Police Department was doing nothing to investigate the
threats to his son's life and Brooks' unlawful
possession and use of firearms.” Id. ¶
25. Defendant Jelsma first responded that Plaintiff should
have called a supervisor at the Hawaii County Police
Department, id. ¶ 26, but he thereafter began
to ignore Plaintiff. Id. ¶ 27.
officers recovered the firearms from Plaintiff's vehicle,
Defendant Jelsma instructed Plaintiff to drive himself to the
Pahoa Police Station “where later, he would be free to
go.” Id. ¶ 31. Plaintiff drove to the
Pahoa Police Station-at approximately 11:02am-with a police
officer following behind him. Id. ¶¶ 31,
Plaintiff arrived at Pahoa Police Station, that same officer
directed him into an interrogation room and ordered him to
remain there. Id. ¶ 34. Upon Defendant
Jelsma's arrival at the station, Plaintiff asked him if
he intended to conduct the Advice of Rights so that Plaintiff
would be free to leave. Id. ¶¶ 35-36.
Defendant Jelsma instructed Plaintiff to “wait.”
Id. ¶ 37. When Plaintiff asked if he was under
arrest, Defendant Jelsma first answered “No, ”
id. ¶¶ 38-39, and then told Plaintiff
loudly: “No you are not under arrest, but you are not
free to leave, ” id. ¶ 41. When Plaintiff
repeated Defendant Jelsma's statement, Defendant Jelsma
confirmed: “Yes, you can't leave, you need to
wait.” Id. ¶¶ 42-43.
point, Plaintiff was thirsty and asked Defendant Jelsma if he
could get his hydro-flask from his truck. Id. ¶
46. Defendant Jelsma agreed, and armed officers escorted
Plaintiff to his truck and back into the interrogation room.
Id. ¶ 47.
Plaintiff arrived back in the interrogation room, he again
asked Defendant Jelsma about his plan regarding Brooks.
Id. ¶ 48. Defendant Jelsma ignored Plaintiff,
id., and Plaintiff began to believe that Defendant
Jelsma was “trying to discredit [him] and ruin his
reputation and standing in the community, ”
id. ¶ 50.
approximately 2:00pm, a detective placed Plaintiff under
arrest for three counts of Terroristic Threatening in the
First Degree and six firearm violations. Id. ¶
51. Plaintiff was then released pending further investigation
after spending over four hours in custody. Id.
¶ 53. Defendants thereafter issued a media release about
Plaintiff's arrest and charges, which they followed with
another media release containing the criminal charges against
Plaintiff and a recent photograph of him. Id. ¶
52. The Prosecuting Attorney for the County of Hawaii,
however, ultimately declined to prosecute Plaintiff.
Id. ¶ 55.
about January 28, 2018, the day after Plaintiff's arrest,
Brooks threatened Plaintiff's son's life at his
workplace. Id. ¶ 54. Defendants did not
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 Defendant Jelsma in his Official
brings claims against Defendant Jelsma in his individual and
official capacity. Compl. ¶ 3. Personal capacity suits,
on the one hand, 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). Courts, therefore, generally treat such suits as
suits against the governmental entity. Kentucky v.
Graham, 473 U.S. 159, 166 (1985); see also 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); Freeland v. Cty. of Maui, No. CIV. 11-00617
ACK-KS, 2013 WL 6528831, at *5 (D. Haw. Dec. 11, 2013)
(“[T]he official-capacity claims ‘duplicate[ ]
the claims asserted against the [County of Maui]' and are
therefore dismissed.” (alterations in original)
(citation omitted)). Accordingly, the Court dismisses the
claims against Defendant Jelsma in his official capacity with
Section 1983 Claim (Count I) Against Defendant
County Defendants move to dismiss Plaintiff's section
1983 claim against Defendant Jelsma based on qualified
immunity. Defs.' Mem. in Supp. of Mot. to Dismiss
(“MTD”) at 2. Qualified immunity shields
government officials who perform discretionary functions from
liability for civil damages when “their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
deciding whether a government official is entitled to
qualified immunity in a section 1983 action, courts must
determine: (1) the constitutional right allegedly violated;
(2) whether the right was clearly established; and (3) whether
a reasonable official would have believed the official's
conduct to be lawful. Hamilton v. Endell, 981 F.2d
1062, 1066 (9th Cir.1992) (citing Romero v. Kitsap
County, 931 F.2d 624, 627 (9th Cir.1991)).
an official is protected by qualified immunity often turns on
the “objective legal reasonableness” of his
action. Anderson v. Creighton, 483 U.S. 635, 639
(1987). If the action at issue is an allegedly unlawful
arrest, qualified immunity will shield the arresting officers
if a reasonable police officer would have believed that
probable cause existed to arrest the plaintiff. Hunter v.
Bryant, 502 U.S. 224, 226-27 (1991).
case, the Complaint alleges that Defendant Jelsma deprived
Plaintiff of his Fourth Amendment right to be free from
arrest unsupported by a warrant or probable cause. Compl.
¶ 73a. Plaintiff further alleges that his arrest
violated LEOSA and Plaintiff's “legal right to
carry concealed weapons.” Id. ¶ 73b. The
issue therefore is (1) whether Defendant Jelsma had probable
cause to arrest Plaintiff, or, if not, (2) whether a
reasonable officer in Defendant Jelsma's position would
have believed that he had probable cause arrest Plaintiff in
light of clearly established law and the information he
possessed and therefore is entitled to qualified immunity.
See Hunter, 502 U.S. at 227.
cause exists “when officers have knowledge or
reasonably trustworthy information sufficient to lead a
person of reasonable caution to believe that an offense has
been or is being committed by the person being
arrested.” Fayer v. Vaughn, 649 F .3d 1061,
1064 (9th Cir. 2011) (quoting United States v.
Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)); Michino
v. Lewis, No. CIV. 13-00546 ACK, 2015 WL 3752503, at *5
(D. Haw. June 16, 2015) (“A warrantless arrest is
lawful under the Fourth Amendment . . . if it is accompanied