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Park v. City and County of Honolulu

United States District Court, D. Hawaii

August 8, 2018

HYUN JU PARK, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU; ANSON KIMURA, STERLING NAKI; JOSHUA OMOSO; DOE ASSOCIATIONS 1-5; and JOHN and/or JANE DOES 1-10, Defendants.

          ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

          Alan C. Kay, Judge

         For the reasons discussed below, the Court GRANTS Defendant City and County of Honolulu's Motion to Dismiss the Second Amended Complaint, ECF No. 134, to which Defendants Sterling Naki and Joshua Omoso have filed joinders, ECF Nos. 141, 142, as follows:

1) Counts 1-3 of the Second Amended Complaint are DISMISSED WITH PREJUDICE.
2) The Court declines to exercise supplemental jurisdiction over Count 4 of the Second Amended Complaint (asserting state-law negligence claims) and accordingly Count 4 is DISMISSED WITHOUT PREJUDICE, and Plaintiff may re-file this claim in Hawaii state court.

         PROCEDURAL BACKGROUND

         On March 30, 2017, Plaintiff Hyun Ju Park (“Plaintiff”) filed a Complaint against the following entities and individuals: (1) City and County of Honolulu (“Honolulu”); (2) Honolulu Police Department (“HPD”) officer Anson Kimura (“Kimura”)[1] in his individual and official capacity; (3) HPD officer Sterling Naki (“Defendant Naki”) in his individual and official capacity; (4) HPD officer Joshua Omoso (“Defendant Omoso”) in his individual and official capacity (collectively with Kimura and Defendant Naki, the “individual officers”); and (5) John and/or Jane Does 1-10 and Doe Associations 1-5 (collectively with the John and Jane Does, the “Doe Defendants”). Compl. ¶¶ 8-11, ECF No. 1.

         The Complaint asserted six causes of action. Counts 1 through 3, arising under 42 U.S.C. § 1983, alleged that Defendants violated Plaintiff's rights under the Fourth and Fourteenth Amendments. Id. ¶¶ 31-43. Counts 4 through 6 alleged claims of assault and battery; intentional infliction of emotional distress (“IIED”); and negligence. Id. ¶¶ 44-51.

         On May 11, 2017, Defendant Honolulu filed a Motion to Dismiss Complaint Filed April 20, 2017 Pursuant to FRCP 12(b)(6). ECF No. 14. Dongbu Insurance Co. (“Intervenor Plaintiff” or “Dongbu”) filed a Motion to Intervene on June 2, 2017, to protect its subrogation rights as the lien holder for the worker's compensation benefits it provided Plaintiff and to assert claims against Defendants. ECF No. 25. On August 31, 2017, Magistrate Judge Kevin Chang granted the Motion to Intervene. ECF Nos. 52, 68.

         On September 11, 2017, both Plaintiff and Intervenor Plaintiff filed Oppositions to Defendant Honolulu's Motion to Dismiss, ECF Nos. 60, 62, to which Defendant Honolulu later filed replies, ECF Nos. 71, 72.

         On October 3, 2017, the Court entered an Order Granting in Part and Denying in Part Defendant City and County of Honolulu's Motion to Dismiss Complaint (“October 3, 2017 Order”). ECF No. 79. In the October 3, 2017 Order, the Court:

1) Granted the Motion to Dismiss Plaintiff's official capacity claims against Defendants Kimura, Naki, and Omoso. The Court construed these claims against the City and County of Honolulu and dismissed them against the officers in their official capacity with prejudice;
2) Denied the Motion to Dismiss as to the Doe Defendants; and
3) Granted the Motion to Dismiss as to Counts 1-3 and 6 against Defendant City and County of Honolulu, and dismissed these counts without prejudice. On November 2, 2017, Plaintiff filed her First Amended Complaint (“FAC”). ECF No. 90. The FAC alleged the same claims against the same Defendants as the Complaint, except the FAC's negligence claim in Count 6 added a negligent training and/or supervision theory.

         On November 22, 2017, Defendant Honolulu filed a Motion to Dismiss the First Amended Complaint. ECF No. 98. On December 6, 2017, Defendants Omoso and Naki filed joinders to Defendant Honolulu's Motion to Dismiss. ECF Nos. 103, 104. On January 12, 2018, Plaintiff filed an Opposition to Defendant's Motion. ECF No. 120. That same date, Plaintiff-Intervenor Dongbu filed a Joinder to Plaintiff's Opposition. ECF No. 122. On January 22, 2018, Defendant Honolulu filed a Reply to Plaintiff's Opposition. ECF No. 124.[2]

         On February 12, 2018, the Court issued an Order Granting Defendant City and County of Honolulu's Motion to Dismiss the First Amended Complaint (“February 12, 2018 Order”). ECF No. 132. The February 12, 2018 Order:

1) Granted the Motion to Dismiss as to Counts 1-3 and 6 against Defendant City and County of Honolulu and Defendants Naki and Omoso, and dismissed those claims without prejudice; and
2) Granted the Motion to Dismiss as to Plaintiff's official capacity claims against Defendants Naki and Omoso. See id. at 1-2.[3]

         On March 13, 2018, Plaintiff filed a Second Amended Complaint (“SAC”). ECF 134. The SAC alleges four causes of action against the same Defendants as the FAC, but Defendants Naki and Omoso are named only in their individual capacities. Id. ¶ 8. On April 3, 2018, Defendant Honolulu filed a Motion to Dismiss the SAC, ECF No. 138, and a supporting memorandum (“MTD”), ECF No. 138-2. On April 12, 2018, Defendants Naki and Omoso filed substantive joinders to Defendant Honolulu's Motion to Dismiss the SAC. ECF Nos. 141, 142. On July 16, 2018, Plaintiff filed an Opposition to Defendant's Motion (“Opp.”). ECF No. 149. On July 16, 2018, Plaintiff-Intervenor Dongbu filed a substantive joinder to Plaintiff's Opposition. ECF No. 150. On July 23, 2018, Defendant Honolulu filed a Reply to Plaintiff's Opposition (“Reply”). ECF No. 151. The Court held a hearing on Defendant Honolulu's Motion to Dismiss the SAC on August 6, 2018.

         FACTUAL BACKGROUND

         At approximately 1:45 a.m. on April 3, 2015, Plaintiff was performing her duties as a bartender and manager at the Kings Sports Bar (“Kings”) in Honolulu, Hawaii. SAC ¶ 10. Kimura and Defendants Naki and Omoso had been consuming alcoholic beverages and socializing at Kings for approximately two hours. Id. ¶¶ 11, 14. During this time, Kimura consumed approximately seven 12-ounce bottles of Coors Light beer. Id. ¶ 15.

         While “mental[ly] and/or physical[ly] impaired due to his consumption of alcohol, ” Kimura brandished his HPD supplemental firearm for the purpose of reloading it. Id. ¶¶ 21-22. One bullet discharged from Kimura's firearm and struck Plaintiff. Id. at 27.

         Defendants Naki and Omoso observed Kimura mishandling his firearm prior to its discharge but did not intervene.[4] See id. ¶¶ 25-26. Pursuant to HPD Policy Number 2.21, entitled “Standards of Conduct, ” effective on the date of the incident, Defendants Naki and Omoso were required to take action when they observed Kimura's reckless and dangerous handling of his firearm. Id. ¶ 43. Nevertheless, and despite being trained in accordance with HPD Policy Number 2.21, Defendants Naki and Omoso “deliberately failed to perform their duties.” Id. ¶¶ 44-45 Kimura was carrying his HPD supplemental firearm at the time of the incident “in furtherance of HPD Policy Number 2.38.” Id. ¶ 34. Pursuant to HPD Policy Number 2.38, effective on the date of the incident and entitled “Uniforms, Equipment, and Firearms, ” police officers are required to possess their HPD issued firearm at all times but are prohibited from such possession when an officer's “physical and/or mental processes are impaired because of consumption or use of alcohol.” Id. ¶ 34. Kimura was trained in accordance with HPD Policy Number 2.38. Id. ¶ 36. His attempt to reload his HPD supplemental firearm while impaired at Kings “was performed in accordance with his official training and duties as an HPD officer . . . [and] Kimura knew it was necessary that his firearm be loaded to achieve the intended purpose of HPD Policy Number 2.38, ” Id. ¶ 37.

         The SAC alleges that HPD Policy Number 2.38 was modified around January 6, 2016, after the date of the incident, to prohibit officers from physically handling HPD issued firearms while consuming alcohol or any other substance likely to impair their physical or mental processes. Id. ¶ 42. Policy Number 2.38, in the form effective on the date of the incident, was allegedly deficient because it permitted officers to possess firearms while consuming alcohol until the point of mental or physical impairment. Id. ¶ 39. Policy Number 2.38 allegedly should have contained an express prohibition on the possession of a firearm while consuming any amount of alcohol. Id. Other alleged deficiencies in Policy Number 2.38 include its lack of guidance as to: (1) how an officer should determine whether he or she is “impaired”; (2) how to prevent firearm mismanagement if an officer is “about to become impaired”; and (3) how to prevent an armed and impaired officer from injuring another person. Id. ¶ 35.

         In addition, the SAC alleges that there was a “brotherhood” culture of silence at the HPD pursuant to which officers abstained from reporting their fellow officers' misconduct. Id. ¶¶ 46-47. This “brotherhood” culture of silence was a de facto policy of the HPD, evidenced during the April 3, 2015 incident at Kings when officers failed to “report and/or take appropriate action against Kimura.” Id. ¶¶ 46-47, 51. The SAC alleges that this “brotherhood” culture was further shown during prior incidents in which the HPD concealed and condoned officer misconduct. Id. ¶¶ 50, 52.

         STANDARD

         Federal 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).

         In 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).

         When 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).

         DISCUSSION

         I. Section 1983 Claims (Counts 1-3)

         Section 1983 provides relief against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . causes . . . any citizen of the United States . . . the deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Parties can seek relief under § 1983 against persons acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). “Persons” covers “state and local officials sued in their individual capacities, private individuals and entities which acted under color of state law, and local governmental entities.” Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 995-96 (N.D. Cal. 1996). For an official capacity suit, municipalities and their agents must cause the violation of a federal constitutional or statutory right through a policy or custom. Monell, 436 U.S. at 694.

         To establish a Section 1983 claim for municipal liability, the plaintiff must show: “(1) that [she] possessed a constitutional right of which she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is the moving force behind the constitutional violation.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (internal quotation marks omitted).

         Defendant Honolulu argues that the SAC does not plausibly allege that Defendants acted under color of state law or establish any of these four requirements. The Court discusses each of these arguments in turn.

         a. The SAC Does Not Plausibly Allege that Defendants Acted Under Color of State Law

         Defendant Honolulu argues that the Court should dismiss the SAC because Defendants did not act under the color of state law. MTD at 5-10. The Ninth Circuit has held that there are “three critical requirements that must be satisfied” for conduct to be considered state action: (1) the acts complained of must have been “performed while the officer is acting, purporting, or pretending to act in the performance of his or her official duties”; (2) the “pretense of acting in the performance of his duties must have had the purpose and effect of influencing the behavior of others”; and (3) the acts complained of must be “related in some meaningful way either to the officer's governmental status or to the performance of his duties.” Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006) (internal quotation marks and citation omitted); see also Silva v. City & Cnty. of Honolulu, Civ. No. 11-00561 LEK-RLP, 2013 WL 2420902, at *12 (D. Haw. May 31, 2013). The Court finds that, like the Complaint and the FAC before it, the SAC fails to plausibly allege that the individual officers acted under color of state law.[5]

         i. The Acts Complained of Were Not Performed While the Officers Were Acting, Purporting, or Pretending to Act in the Performance of Their Official Duties

         A police officer's acts can fairly be said to be under color of state law only where they “were in some way related ‘to the performance of his official duties.'” Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir. 1996) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)). Accordingly, the Ninth Circuit has explained that “an officer who is pursuing his own goals and [i]s not in any way subject to control by [his public employer] . . . does not act under color of law, unless he purport[s] or pretend[s] to do so.” Huffman v. Cnty. of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) (citation and internal quotation marks omitted). Acts that are “purely private” and “not furthered by any actual or purported state authority[, ] are not acts under color of state law.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994) (holding that “unauthorized use of a police-issued nightstick is simply not enough to color [a] clearly personal family dispute with the imprimatur of state authority”); see also Martinez, 54 F.3d at 988 (1st Cir. 1995) (“[W]hile a police officer's use of a state-issue[d] weapon in the [on-duty] pursuit of private activities will have furthered the § 1983 violation in a literal sense, a court needs additional indicia of state authority to conclude that the officer acted under color of state law.” (citation omitted)).

         Here, the SAC fails to allege that the individual officers were acting, purporting, or pretending to act in the performance of their official duties. The act that forms the crux of Plaintiff's allegations-Kimura's off-duty discharge of his personal firearm while drinking and socializing at Kings-is a “purely private” act. Although the SAC no longer explicitly alleges that Kimura was “off-duty” at the time of the incident, it does allege that he was handling his “personal firearm that HPD had authorized [him] to carry for official use wh[en] ‘off- duty.'” SAC ¶¶ 13-14. Further, the SAC does not allege, for example, that Kimura identified himself as a police officer, wore his uniform, or carried official identification while at Kings. E.g., Hechavarria v. City & Cnty. of San Francisco, 463 Fed.Appx. 632, 633 (9th Cir. 2011) (finding that individual's conduct was not under color of state law where he “did not represent himself as a City employee; rather, he was off-duty, wearing street clothes, and driving in his own personal vehicle.”); see also Pete v. Olsen, No. CV-09-54-EFS, 2010 WL 996408, at *3 ...


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