United States District Court, D. Hawaii
NIKITA NAKAMOTO, Individually and as Next Friend of A.N. and N.B., minors, Plaintiffs,
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.
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
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.
asserts the following claims against the County and
unidentified “John Doe” Hawaii Police Department
11. The acts of Defendants, as described above, constitute
the negligent and/or intentional infliction of emotional
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.
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.
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.
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 ¶ 4,
Notice of Removal, Dkt. No. 1-1. On March 15, 2018, the
County removed the case to this district court on the basis