United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT CITY AND COUNTY OF
HONOLULU'S MOTION TO DISMISS THE SECOND AMENDED
C. Kay, Judge
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
1) Counts 1-3 of the Second Amended Complaint are DISMISSED
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.
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”) 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.
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.
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.
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.
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,
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.
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.
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;
2) Granted the Motion to Dismiss as to Plaintiff's
official capacity claims against Defendants Naki and Omoso.
See id. at 1-2.
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.
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.
“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
Naki and Omoso observed Kimura mishandling his firearm prior
to its discharge but did not intervene. 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.
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.
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,
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).
Section 1983 Claims (Counts 1-3)
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.
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
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.
The SAC Does Not Plausibly Allege that Defendants Acted Under
Color of State Law
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.
The Acts Complained of Were Not Performed
While the Officers Were Acting, Purporting, or
Pretending to Act in the Performance of Their Official
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)).
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