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Nakamoto v. County of Hawaii

United States District Court, D. Hawaii

June 7, 2018

NIKITA NAKAMOTO, Individually and as Next Friend of A.N. and N.B., minors, Plaintiffs,
v.
COUNTY OF HAWAI‘I, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT COUNTY OF HAWAII'S MOTION TO DISMISS

          Derrick K. Watson United States District Judge.

         INTRODUCTION

         The County of Hawai‘i seeks dismissal of Nakamoto's state law claims in this excessive force case, in light of her admitted failure to submit pre-suit notice of those claims in writing to the County Clerk, as required by Hawaii Revised Statutes (“HRS”) § 46-76 and Hawai‘i County Charter (“HCC”) § 13-18. Because Nakamoto does not dispute that her negligence claims are barred, and the Court determines that her individual state tort claims based upon intentional conduct are likewise barred, by the lack of written notice to the County, the Court GRANTS in part the County's Motion to Dismiss. The County has failed, at least at this time, to meet its burden of proof on its statute of limitations defense as to claims brought as next friend of minors, A.N. and N.B., in light Hawaii's statutory infancy tolling provision, and the Motion is therefore DENIED in part as to those claims.

         BACKGROUND

         The Complaint alleges that Nakamoto was a passenger in a car driven by her husband, Ronald K.V. Barawis, Jr., when, at approximately 12:01 a.m. on February 5, 2016, while at a drive-thru lane at a McDonald's restaurant in Hilo, Hawaii, the car was surrounded by numerous, unnamed County police officers. Compl. ¶ 8, Dkt. No. 1-2. Nakamoto asserts that officers armed with assault-type rifles, without warning or provocation, opened fire on Nakamoto and Barawis. Compl. ¶¶ 8-9. At the time of the shooting, Nakamoto claims that she “had her hands raised, as instructed by the policer officers, ” and that she was unarmed and made “no threats or threatening gestures.” Compl. ¶ 10. She was “struck multiple times by bullets and/or bullet fragments, and sustained significant and permanent physical and emotional injuries.” Compl. ¶ 9.

         Nakamoto asserts the following claims against the County and unidentified “John Doe” Hawaii Police Department officers:

11. The acts of Defendants, as described above, constitute the negligent and/or intentional infliction of emotional distress.
12. The actions of Defendants, as described above, constitute the malicious use and or abuse of discretion.
13. The actions of Defendant John Doe Police Officers, as described above constitute the excessive use of force.
14. The actions of Defendant John Doe Police Officers, as described above constitute a form of assault as defined by Chapter 707, Hawaii Revised Statutes.

Compl. ¶¶ 11-14.

         Nakamoto contends that the County and the Hawaii Police Department “are liable for the conduct of Defendant John Doe Police Officers under the doctrine of respondeat superior, Compl. ¶ 16, and that the officers “were acting in their official capacity as . . . police officer[s] of the [County] and/or were acting under color of their authority as a police officer.” Compl. ¶ 15. The Complaint also asserts that the County is liable for its own negligent supervision and hiring, that it was “otherwise negligent, ” and failed to effectively train its officers with regard to the excessive use of force. Compl. ¶ 17.

         Nakamoto seeks damages for her own injuries as well as loss of consortium damages for her two minor children. Because Barawis is the father of N.B., Nakamoto seeks damages for the loss of affection and care N.B. would have received from Barawis, but for the incident. Compl. ¶¶ 23-24. She brings claims, as next friend, on behalf of the minors, alleging that they “suffered severe mental and emotional distress, ” due to the death of Barawis, and “over the injuries to their mother.” Compl. ¶ 22-24.

         The Complaint was filed in the state Circuit Court of the Third Circuit on January 12, 2018, and served on the County on February 27, 2018. See Decl. of Counsel ΒΆ 4, Notice of Removal, Dkt. No. 1-1. On March 15, 2018, the County removed the case to this district court on the basis ...


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