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Yoshimura v. Kaneshiro

United States District Court, D. Hawaii

August 14, 2018

TRACY T. YOSHIMURA, ET AL., Plaintiffs,
v.
KEITH M. KANESHIRO, ETC., ET AL., Defendants.

          ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS COMPLAINT FILED ON JANUARY 26, 2018

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant City and County of Honolulu's (“City”) April 26, 2018 Motion to Dismiss Complaint Filed on January 26, 2018 (“Motion”). [Dkt. no. 10.] Plaintiffs Tracy T. Yoshimura (“Yoshimura”), Eugene M. Simeona, Jr. (“G. Simeona”), Michael D. Miller, Jr. (“Miller”), Gary G. Danley, Jr. (“Danley”), Quentin D.R. Canencia (“Canencia”), Desiree U. Haina (“Haina”), Michael A. Madali, Jr. (“Madali”), and Clayton Simeona (“C. Simeona, ” collectively “Plaintiffs”) filed their memorandum in opposition on June 9, 2018, and the City filed its reply on July 13, 2018. [Dkt. Nos. 21, 22.] This matter came on for hearing on July 30, 2018. The City's Motion is hereby granted for the reasons set forth below.

         BACKGROUND

         On January 26, 2018, Plaintiffs filed their Complaint against: Defendants Keith M. Kaneshiro, individually and in his capacity as the Prosecuting Attorney of the City and County of Honolulu (“Kaneshiro”); Katherine Kealoha, individually and in her capacity as Deputy Prosecuting Attorney (“Kealoha”); Vernon Branco (“Branco”);[1] and the City (collectively “Defendants”).[2] Plaintiffs bring this action for violation of their civil rights pursuant to 42 U.S.C. § 1983. Plaintiffs assert federal question jurisdiction over the § 1983 claims and supplemental jurisdiction over the state law claims. [Complaint at ¶¶ 16-17 (citing 28 U.S.C. §§ 1331, 1367(a)).]

         Plaintiffs are residents of the City and County of Honolulu, State of Hawai`i. [Id. at ¶¶ 1-9.] ] Yoshimura was the owner of PJY Enterprises, LLC (“PJY”), which was the distributor of Products Direct Sweepstakes terminals (“PDS terminals”) in Honolulu. [Id. at ¶ 19.] G. Simeona and Miller were owners of arcades with PDS terminals and employed Danley, Canencia, Haina, Madali, and C. Simeona, as cashiers in their arcades. [Id. at ¶¶ 20-21, 46, 69.] On September 27, 2012, Kaneshiro, in cooperation with the Honolulu Police Department (“HPD”), directed and conducted seizures of PDS terminals from six game arcades in Hawai`i. After the seizure of PDS terminals on September 27, 2012, Yoshimura expressed criticism of Kaneshiro to the media. [Id. at ¶ 22.] In December 2012 and February 2013, HPD conducted another series of PDS terminal seizures, including seizures at arcades belonging to G. Simeona and Miller. Kaneshiro assigned Branco to conduct undercover investigations of various arcades. [Id. at ¶¶ 23-24.] In the fall of 2013, approximately 190 PDS terminals were seized and held by authorities. Branco provided Kaneshiro and Kealoha with reports of his undercover investigations. [Id. at ¶ 25.] After the seizures, Yoshimura told the media “‘I'd like to publicly challenge Keith [Kaneshiro], to charge us or leave us alone and release the equipment he is holding.'” [Id.] Plaintiffs allege Kaneshiro, in his administrative capacity as Prosecuting Attorney for the City and County of Honolulu, hired Branco as an investigator and assigned Kealoha to prosecute Plaintiffs. [Id. at ¶ 31.] Plaintiffs assert their wrongful prosecution was a result of retaliation for Plaintiffs' participation in a federal civil action and because of Yoshimura's public criticism of Kaneshiro.[3] [Id. at ¶ 108.]

         On May 1, 2014, Kealoha presented evidence from Branco's investigation of the arcades to a state grand jury, and it returned an indictment against Plaintiffs (the “First Indictment”).[4] [Id. at ¶ 29.] At the grand jury proceeding, Kealoha presented Branco's testimony that Yoshimura was the owner of various arcades and businesses.[5] Contrary to Branco's testimony, Yoshimura alleges he was not the owner of the business investigated.[6] Therefore, Plaintiffs filed a Motion to Disqualify the Department of the Prosecuting Attorney and motions to dismiss the First Indictment based on excessive heresay, insufficient evidence, failure to present exculpatory evidence, and misrepresentations of the evidence. [Id. at ¶¶ 32-34, 36.] Subsequently, the state court approved the Prosecuting Attorney's Ex Parte Motion to Nolle Prosequi Without Prejudice, and the court dismissed the First Indictment without prejudice.[7] [Id. at ¶¶ 39-41.]

         On January 28, 2016, a state grand jury returned an indictment charging Danley, Canencia, Haina, Madali, and C. Simeona with promoting gambling and unlawful ownership or operation of a business (the “Second Indictment”).[8] [Id. at ¶ 42.] In the Second Indictment, C. Simeona was charged with criminal offenses related to the operation of the PDS terminals as a cashier in an arcade located at the Stadium Mall. [Id. at ¶ 43.] Plaintiffs allege Kealoha failed to inform the grand jury that the state's expert did not examine any PDS terminals from the Stadium Mall location.[9] [Id. at ¶ 83.] Subsequently, the Second Indictment was dismissed with prejudice. [Id. at ¶ 53.]

         On February 24, 2016, a state grand jury returned an indictment charging Yoshimura, G. Simeona, and Miller with promoting gambling and unlawful ownership or operation of a business (the “Third Indictment”).[10] Plaintiffs allege Branco provided an investigation report to Kaneshiro and Kealoha which stated Yoshimura owned three arcades involved in the events giving rise to the Third Indictment.[11] Yoshimura alleges he never owned any of the arcades identified by Branco, but alleges that the trade names of the business were transferred to him without his knowledge, after Branco's investigation. [Id. at ¶¶ 47-49.] Additionally, Plaintiffs allege Kealoha knew Yoshimura did not own one of the arcades involved in the Third Indictment because Branco's report to Kealoha and Kaneshiro previously noted it belonged to a third party. See id. at ¶ 48; see also supra footnote 6. The Third Indictment was dismissed with prejudice. [Complaint at ¶ 52.]

         The Complaint alleges the following claims:

a 42 U.S.C. § 1983 claim by all Plaintiffs against Defendants for retaliatory prosecution, in violation of Plaintiffs' right to free speech under the First Amendment to the United States Constitution and the applicable provision of the Hawai`i State Constitution (“Count I”); [id. at ¶¶ 55-67;]
a § 1983 claim by all Plaintiffs against Defendants, alleging selective enforcement, in violation of the Equal Protection Clause (“Count II”); [id. at ¶¶ 68-77;]
a state claim by Danley, Canecia, Haina, C. Simeona, and Madali against Kealoha and the City for initiation of malicious prosecution (“Count III”); [id. at ¶¶ 78-87;]
a state claim by Yoshimura against Kealoha and the City for initiation of malicious prosecution (“Count IV”); [id. at ¶¶ 88-94;]
a state claim by Danley, Canecia, Haina, C. Simeona, and Madali against Kaneshiro, Kealoha, and the City for maintaining a malicious prosecution (“Count ...

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