Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Creamer v. County of Kauai

United States District Court, D. Hawaii

July 18, 2018

DANNY LEE CREAMER, Plaintiff,
v.
COUNTY OF KAUAI; KAUAI POLICE DEPARTMENT; CHIEF OF POLICE, DARRYL PERRY; DEPUTY CHIEF, MICHAEL CONTRADES; ASSISTANT CHIEF, ALEJANDRE QUIBILAN; SERGEANT, PATRICK BALBARINO; SERGEANT SANDY WAKAMOTO; LIEUTENANT, SCOTT BREDE; ASSISTANT CHIEF, ROY ASHER, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (ECF No. 37) WITH LEAVE TO AMEND

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE

         Pro se Plaintiff Danny Lee Creamer, a former police officer with the Kauai Police Department, filed a First Amended Complaint (ECF No. 31) following the Court's dismissal of Plaintiff's original Complaint.

         Plaintiff again alleges that he was discriminated against on the basis of his race, color, age, and disability. Plaintiff has added a state law negligence claim.

         Plaintiff also again sued the two originally named members of the Kauai Police Department and added five more individuals from the Kauai Police Department as Defendants.

         On February 2, 2018, Plaintiff filed an Amended Complaint entitled both “MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE AMEMDED COMPLAINT FOR (ECF NO. 13)” and “MOTION FOR LEAVE TO AMEND COMPLAINT”. The Court construes Plaintiff's pleading as the First Amended Complaint. The allegations in the First Amended Complaint are insufficient to state a claim upon which relief may be granted.

         Defendants' Motion to Dismiss (ECF No. 37) is GRANTED WITH LEAVE TO AMEND.

         PROCEDURAL HISTORY

         On December 6, 2016, Plaintiff Danny Lee Creamer filed a COMPLAINT FOR EMPLOYMENT DISCRIMINATION. (ECF No. 1).

         On June 1, 2017, Defendants filed a Motion to Dismiss Plaintiff's Complaint. (ECF No. 13).

         On November 30, 2017, the Court issue an Order dismissing Plaintiff's Complaint with leave to amend. (ECF No. 25).

         On February 2, 2018, Plaintiff filed an Amended Complaint which also included in its title: “MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE AMEMDED COMPLAINT FOR (ECF NO. 13)” and “MOTION FOR LEAVE TO AMEND COMPLAINT”. (ECF No. 31). The Court construes Plaintiff's filing as a First Amended Complaint.

         On February 20, 2018, Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint. (ECF No. 37).

         On March 8, 2018, Plaintiff filed a pleading bearing the captions “PLAINTIFF'S PLEAD FOR AN EXTENSION TO FILE OPPOSITION TO THE MOTION TO DISMISS (ECF NO. 13)” and “MOTION FOR AN EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISS BY DEFENDANTS.” (ECF No. 39). The Court construed Plaintiff's filing as a request for an extension of time to file his Opposition.

         On March 16, 2018, the Court granted Plaintiff's first request for an extension of time to file his opposition. (ECF No. 40).

         On April 9, 2018, Plaintiff again filed a pleading bearing the captions “PLAINTIFF'S PLEAD FOR AN EXTENSION TO FILE OPPOSITION TO THE MOTION TO DISMISS (ECF NO. 13)” and “MOTION FOR AN EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISS BY DEFENDANTS.” (ECF No. 41). Once more, the Court construed Plaintiff's filing as a request for an extension of time to file his Opposition.

         On April 13, 2018, the Court granted Plaintiff's second request for an extension of time to file his opposition. (ECF No. 42).

         On June 1, 2018, Plaintiff filed his Opposition. (ECF No. 43).

         On June 13, 2018, Defendants filed a Reply. (ECF No. 44).

         The court elects to decide the Motion without a hearing pursuant to Local Rule 7.2(d).

         BACKGROUND

         Plaintiff Danny Lee Creamer was a police officer with the Kauai Police Department for roughly twenty-four years. (First Amended Complaint at p. 1, ECF No. 31). Plaintiff is African-American and was fifty-eight years old when he stopped working at the Department. (Id. at pp. 6, 7).

         Plaintiff names the County of Kauai, the Kauai Police Department, and seven members of the Kauai Police Department as Defendants. (Id. at p. 2). Of the seven individual Defendants, only Lieutenant Scott Brede and Assistant Chief Roy Asher are mentioned in the body of the First Amended Complaint.

         According to Plaintiff's First Amended Complaint:

         In late 2013, the Kauai Police Department introduced a new computer system for filing police reports. (Id. at p. 3). Plaintiff had difficulty learning how to use the system and required overtime to complete inputting his reports. (Id. at pp. 3-4). Plaintiff was limited to three hours of overtime to complete his reports. (Id. at p. 3).

         On January 1, 2014, Plaintiff began to suffer headaches, stomach pain, diarrhea, sleeplessness, loss of appetite, loss of weight, and chest pains. (Id. at p. 4). Plaintiff attributed his symptoms to stress caused by his difficulties with the new computer system. (Id.) Plaintiff's doctor diagnosed him with a stress related physiological response. (Id. at pp. 4-5). This either caused his symptoms or affected preexisting ailments, such as Plaintiff's hypertension. (Id. at pp. 4-5). Plaintiff became depressed when he was unable to meet the requirement that he complete his reports without further assistance, unspecified medical accommodations, or further training. (Id. at p. 5).

         Plaintiff alleges that he was treated disparately over the course of his career with the Kauai Police Department. Without providing names, dates, or specifics, Plaintiff alleges that he was passed over for promotions and assignments, denied fringe benefits, and was not given leave for stress related conditions because of his race and color. (Id. at pp. 7, 8, 9, 13). Plaintiff has not named any officers who were given leave due to stress, what stress related conditions they experienced, or the nature of the leave they were given. (Id.)

         Plaintiff states that unnamed officers created a hostile work environment by saying unspecified things to him throughout his career. (Id. at pp. 8, 9). He states they were aggressive, intimidating, and harassing. (Id.)

         Plaintiff Also Alleges that:

         At some point “[w]hile Plaintiff was in the process of filing his documents to the court and waiting on the results, ” there was an incident involving an unidentified visitor to his home. (Id. at p. 10). In response, Plaintiff called the police. (Id.) Unnamed officers arrived at the scene and arrested Plaintiff. (Id.) Later, Plaintiff states that the charges against him were dropped. (Id.) He does not specify what the charges were. Plaintiff alleges that unnamed officers falsified their report of the incident. (Id.) Plaintiff claims that on the day following Plaintiff's arrest, Defendant Assistant Chief Asher went to Plaintiff's house to serve a “department document.” (Id. at p. 11). Plaintiff then accused Defendant Asher of having him arrested the previous day, in retaliation to his claim against the Kauai Police Department. (Id.) It is not clear what claim Plaintiff refers to. Plaintiff alleges that Defendant Assistant Chief Asher responded by becoming upset, yelling at Plaintiff and walking toward him in an aggressive manner. (Id.)

         STANDARD OF REVIEW

         A court must dismiss a complaint as a matter of law pursuant to Federal Rule of Civil Procedure 12(b)(6) where it fails “to state a claim upon which relief can be granted.” Rule (8)(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all allegations of material fact to be true and draw all reasonable inferences in favor of the non-moving party. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Id.at 699. The Court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         In Bell Atl. Corp. v. Twombly, the United States Supreme Court addressed the pleading standards under the Federal Rules of Civil Procedure in the anti-trust context. 550 U.S. 544 (2007). The Supreme Court stated that Rule 8 of the Federal Rules of Civil Procedure “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action, ” and that “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555.

         Most recently, in Ashcroft v. Iqbal, the Supreme Court clarified that the principles announced in Twombly are applicable in all civil cases. 129 S.Ct. 1937 (2009). The Court stated that “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Id. at 1949 (citing Twombly, 550 U.S. at 555). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id.(quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.(citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id.(quoting Twombly, 550 U.S. at 556). 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 complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively” and “must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” AE ex rel. Hernandez v. Cnty of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations omitted).

         ANALYSIS

         The Court construes Plaintiff's pro se pleadings liberally. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).

         Allegations in a complaint may not simply recite the elements of a cause of action, but the complaint must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Factual allegations taken as true must plausibly suggest an entitlement to relief. Id.

         Even liberally construed, Plaintiff's First Amended Complaint is vague and difficult to decipher.

         I. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST THE INDIVIDUAL DEFENDANTS WHO ARE MEMBERS OF THE KAUAI POLICE DEPARTMENT

         A. Plaintiff Has Failed To State A Claim Against Lieutenant Brede and Assistant Chief Asher

         1. Plaintiff Is Unable To Bring The Federal Employment Discrimination Claims Against Lieutenant Brede And Assistant Chief Asher That Were Previously Dismissed In The Court's November 30, 2017 Order As They Fail As A Matter Of Law

         Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act do not provide for personal liability against individuals. Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993)(no individual liability under Title VII or the Age Discrimination in Employment Act); Walsh v. Nevada Dep't of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006)(no individual liability under the Americans with Disabilities Act).

         In its detailed Order filed on November 30, 2017, the Court dismissed Plaintiff's federal employment discrimination claims against Defendants Lieutenant Scott Brede and Assistant Chief Roy Asher brought pursuant to Title VII of the Civil Rights Act, Age Discrimination in Employment Act, and Americans with Disabilities Act. (ECF No. 25).

         Plaintiff has attempted to bring such claims against Defendants Brede and Asher in the First Amended Complaint. Plaintiff remains barred by the Court's previous order from asserting federal employment discrimination and retaliation claims against Defendants Brede and Asher. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 506 (2001).

         In their Motion to Dismiss, Defendants incorrectly assert that the Court dismissed Defendants Brede and Asher from the case with prejudice. (Motion to Dismiss at pp. 6-7, ECF No. 37-1). Rather, the Court dismissed only the claims against Defendants Brede and Asher brought pursuant to Title VII of the Civil Rights act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. (Order Granting Motion to Dismiss at p. 7, ECF No. 25).

         2. Plaintiff Is Unable To Bring A Federal Hostile Work Environment Claim Against Lieutenant Brede And Assistant Chief Asher

         Individuals cannot be held personally liable for a hostile work environment claim brought pursuant to Title VII of the Civil Rights Act, the Americans With Disabilities Act, or the Age Discrimination in Employment Act. Washington v. Lowe's HIW Inc., 75 F.Supp.3d 1240, 1246-47 (N.D. Cal. Dec. 16, 2014) (citing Holly D. v. Cal. Inst. Of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003)).

         Plaintiff's First Amended Complaint attempts to state a hostile work environment claim against Defendants Lieutenant Brede and Assistant Chief Asher in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

         Plaintiff is unable to bring a hostile work environment claim pursuant to federal employment discrimination law against Defendants Brede and Asher as a matter of law.

         Plaintiff's hostile work environment claim against Defendants Brede and Asher is DISMISSED WITH PREJUDICE.

         B. Plaintiff Has Failed To State A Claim Against The Other Five Individual Members Of The Kauai Police Department

         Plaintiff must allege sufficient facts to plausibly suggest that a named Defendant injured him in order to state a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         Plaintiff's First Amended Complaint names Chief of Police Darryl Perry, Deputy Chief Michael Contrades, Assistant Chief Alejandre Quibilan, Sergeant Patrick Balbarino, and Sergeant Sandy Wakamoto as Defendants in the caption of the First Amended Complaint.

         Plaintiff does not make a single factual allegation about the five new individual defendants.

         Defendants Perry, Contrades, Quibilan, Balbarino and Wakamoto are DISMISSED as no claims have been stated against them. The First Amended Complaint alleges no cause of action that would entitle Plaintiff to relief against these five Defendants. Id. at 558.

         II. PLAINTIFF IS UNABLE TO STATE A CLAIM AGAINST THE DEFENDANT KAUAI POLICE DEPARTMENT

         The Kauai Police Department is not an independent legal entity separate from the County of Kauai. Fisher v. Kealoha, 869 F.Supp.2d 1203, 1214 (D. Haw. 2012).

         Plaintiff names the Kauai Police Department in the First Amended Complaint. The Kauai Police Department is not a proper defendant. Claims against the Kauai Police Department must be brought against the County of Kauai, which is the proper legal entity. Plaintiff's claims brought against the Kauai Police Department are duplicative of claims against the County of Kauai.

         The Kauai Police Department is DISMISSED from the case.

         III. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST THE DEFENDANT COUNTY OF KAUAI

         Plaintiff's First Amended Complaint asserts six causes of action against the County of Kauai:

         First, failure to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.