United States District Court, D. Hawaii
OUTLINE OF DECISION
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
matter came on before the Court for a bench trial On June 5,
2018. John Rapp, Esq., appeared on behalf of Plaintiff Thinh
Luong (“Plaintiff” or “Luong”). John
Cregor, Jr., Deputy Attorney General, appeared on behalf of
Defendant Pat Sooalo (“Defendant” or
“Sooalo”). The Court, having considered the
pleadings filed herein and the testimony given at trial,
including the witnesses' declarations, and having an
opportunity to judge the credibility of the witnesses, to
examine the exhibits admitted into evidence and to consider
the arguments and representations of counsel, pursuant to
Federal Rule of Civil Procedure 52, makes the following
Findings of Fact and Conclusions of Law and Order, and FINDS
in favor of Plaintiff and AWARDS the amount of $5, 000.00 in
general damages and the amount of $25, 000 in punitive
damages. The Court also concludes that Plaintiff is entitled
to an award of reasonable attorney's fees and costs
incurred, to the extent permissible by law. Plaintiff shall,
in strict compliance with Rule LR54.3 of the Local Rules of
Practice of the United States District Court for the District
of Hawai`i (“Local Rules”), submit his motion for
attorney's fees and costs, with supporting documentation,
according to the deadlines set forth in Local Rule 54.3 and
the other applicable legal authorities. Plaintiff's
motion for attorney's fees and costs will be referred to
the magistrate judge, pursuant to Local Rule 54.3(h).
finding of fact that should more properly be deemed a
conclusion of law and any conclusion of law that should more
properly be deemed a finding of fact shall be so construed.
as the prevailing party, shall prepare his proposed Findings
of Facts and Conclusions of Law (“FOFCOL”) based
on the Court's Outline of Decision
(“Outline”) and provide page and line notations
for the findings of fact from the official court transcript
or other citations to the trial record. Plaintiff's
proposed FOFCOL is due by October 19, 2018. Defendant shall
prepare his objections, if any, to Plaintiff's proposed
FOFCOL, together with and Defendant's proposed FOFCOL
based on the Court's Outline, by October 31, 2018.
Thereafter, the Court will issue its FOFCOL, Order and
Judgment in the case.
facts of this action involve an incident which occurred on
December 21, 2015 when Defendant, while employed by the State
of Hawai`i, in the Department of Public Safety
(“DPS”), as an Adult Correction Officer
(“ACO”) at the Oahu Community Correctional Center
(“OCCC”), entered a prison cell where Plaintiff
was located. Subsequently, Plaintiff sustained physical and
Findings of Fact
Plaintiff was an incarcerated person at OCCC on December 21,
the time of his incarceration, Plaintiff was residing at OCCC
in Module 17, Cell 111 with John Silva (“Mr.
Silva”) and another roommate. [Tr. Exh. D-9 (photograph
of Cell 111 front door).]
layout of Cell 111 is depicted in two diagrams. [Tr. Exh. D-8
(two floor plan diagrams).] This cell contains a toilet which
is affixed to the floor and located next to the door at the
entrance of Cell 111, bunk beds, which are located directly
across the door at the entrance, and a sink/desk located in
between the toilet and the bunk beds. [Tr. Exhs. D-8, D-10
(photograph of bunk beds from entrance to cell).]
December 21, 2015, Defendant was employed by DPS and on duty
at OCCC as an ACO.
December 21, 2015, Plaintiff arrived by ambulance at The
Queen's Medical Center (“QMC”) Emergency
Department (“ED”) at 4:06 p.m. [Tr. Exh. P-1
(excerpts of Plaintiff's medical records) at SOHM 0096.]
The chief complaint was that “Patient presents with
Assault, Physic. OCCC; mod trauma, ” and the history
taken was that:
This is a 49 year old male with no known past medical history
who presents to the ED via for evaluation of an assault. This
patient was found down in his cell after an altercation
occurred at OCCC. The patient was not responding to questions
appropriately during his interview, but there is a known
language barrier the patient primarily speaks Vietnamese.
According to the prison guards, the patient and some of the
other inmates apparently smoked spice prior to the
altercation. He was given Narcan en route. Further history
cannot be obtained due to the acuity of the patient's
[Id.] Plaintiff had a laceration to his left
forehead, which was repaired with sutures. [Id. at
SOHM 0097.] Examination, including x-rays, resulted in the
1. Acute to subacute appearing right 10th rib fracture
deformity with subacute appearing right 11th rib fracture
2. Otherwise no evidence of traumatic injury to the abdomen
3. Small hiatal hernia and other incidental findings as
[Id. at SOHM 0101 (emphases omitted).] The
physician's summary of medical care and patient
assessment included, in relevant part, as follows:
Course/Medical Decision Making: MDM
This is a 49 year old year old [sic] male with a past medical
history as described above who presents to the ED for
evaluation of an assault.
On physical exam, the patient was initially tachycardic.
Otherwise, the cardiopulmonary exam is unremarkable. Abdomen
is soft, non-distended, non-tender. There is small 1 cm
laceration to the left superior forehead. The patient appears
My differential diagnosis in this patient includes, but it
not limited to subsequent intoxication, head contusion versus
I have reviewed the patient's past medical record and see
that this patient has not been seen at Queen's Medical
Because the risk of possible life threatening illness,
further emergency evaluation and management were indicated.
Laboratory studies were reviewed by me. CBC shows a
leukocytosis of 11.1 but with no left shift. BMP was
Imaging studies were review by me as above. CT of the abdomen
and pelvis revealed subacute fractures of the ribs 10 and 11
on the right side.
[Id. at SOHM 0103.] The clinical impression was
“[a]ssault by bodily force by person unknown to victim
(primary encounter diagnosis).” [Id.]
October 10, 2016, Plaintiff filed his Complaint against
Defendant Francis Segueira, in his Official Capacity only as
Warden of Oahu Community Correctional Center
(“Defendant Segueira”), in the First Circuit
Court of the State of Hawai`i. The Complaint was removed to
federal court on November 16, 2016. [Notice of Removal, dkt.
no. 1, Exh. A (Complaint).] Plaintiff's Complaint alleged
five claims: Count I (assault), Count II (a 42 U.S.C. §
1983 claim), Count III (battery), Count IV (gross negligence
and/or wilful, wanton misconduct), and Count V (injunctive
Plaintiff's First Amended Complaint was filed on July 17,
2017 against Defendants Segueira and Sooalo, and it alleges
the same five claims alleged in the original Complaint. [Dkt.
Court approved the parties' stipulation to dismiss
Defendant Segueira on May 31, 2018. [Dkt. no. 107.]
non-jury trial was held on June 5, 2018 as to Plaintiff's
claims against Defendant on the First Amended Complaint's
Counts I through IV. Count V has been dismissed since that
claim for relief was alleged only as to Defendant Segueira,
who was dismissed by stipulation prior to trial.
Plaintiff testified at trial that the following occurred on
December 21, 2015:
a. An individual by the name of “Sonny Jackson”
(“Mr. Jackson”) came into his cell to talk story,
and Plaintiff sat in the cell with Mr. Jackson and Mr. Silva.
b. He was sitting on the toilet, Mr. Silva was sitting in the
chair which was in front of the sink, and Mr. Jackson was
sitting between the toilet and the door to the cell.
c. No one in the cell was smoking “spice” or
“tea bags, ” nor did they have any contraband.
d. Defendant was in the hallway outside of Plaintiff's
cell and was walking up and down the hallway. Plaintiff was
inside his cell with Mr. Jackson and Mr. Silva, and Plaintiff
swore at Defendant by saying, “Fuck you, ” or
“Asshole, better get the hell out of here.” e.
Plaintiff speaks with an accent and believes that Defendant
recognized his accent and knew that it was Plaintiff who
swore at Defendant.
f. Plaintiff and Mr. Silva swore at Defendant. Plaintiff did
so because Defendant was walking up and down the hallway in
front of his cell and was looking inside the cell as if he
was suspicious of Plaintiff doing something in the cell.
g. After Plaintiff swore, Defendant went away for a little
while and then came back. Plaintiff swore at him again. The
swearing made Defendant very mad. Defendant came into the
cell, grabbed Plaintiff and hit him.
h. After being struck by Defendant, Plaintiff was
“knocked out” and became unconscious. He does not
remember anything until he regained consciousness and found
himself in QMC as a patient. A nurse told Plaintiff that he
had been beaten by a guard.
Plaintiff testified that he is currently homeless and
Defendant testified that the following occurred on December
a. Plaintiff never tried to assault or harm him.
b. There was no justification for him to use any kind of
force on Plaintiff.
c. He approached Cell 111 because he could smell smoke from
where he was standing and went down to the bottom tier to
follow the scent, which led him to Plaintiff's Cell 111.
d. The door to Cell 111 was closed.
e. He thought the smell of smoke came from fire, and inmates
are not allowed to have fire nor matches nor lighters in the
cells. These would be violations of the OCCC rules.
f. He did not call for backup, but he went up to the cell,
opened the door and saw a lot of inmates in Cell 111. A few
inmates left, and there were three remaining - Plaintiff, Mr.
Silva and Mr. Jackson.
g. He went into Cell 111 and observed Plaintiff, Mr. Jackson
and Mr. Silva with their eyes rolled back, and they were
unresponsive to any commands or questions that he asked.
There was a strong odor of smoke in the cell.
h. He thought at the time that the inmates had been smoking
something because of the strong odor and what he saw in the
toilet. Initially, he thought they were smoking spice because
of the inmates' reaction, and that would be an OCCC rule
i. He determined that the situation definitely was one in
which he should call for medical backup, and he did so by
verbally calling to his partner who was up on the control
station. His partner was “Valador.” j. At the
time he called for backup, the door was closed because when
he entered the cell, the door just shuts on its own. Later in
his trial testimony, he stated that the cell door closes
automatically “probably for the first few inches but
anything more than that it just stays open.” There is
no closing mechanism.
h. He had to come out of the cell to tell Valador to call for
module lock down.
i. He did not tell Valador to call for medical backup when he
first came out of the cell after concluding that the inmates
needed medical help. He called for medical backup only after
he left to get gloves because he needed to assess the
situation a little bit more.
j. He was getting the gloves to preserve what the inmates had
been smoking and which was in the toilet. He was not able to
obtain what was in the toilet because he could not get to it,
and he does not know what happened to whatever was in the
toilet. At first, the item was floating in the toilet, but it
got wet and probably sunk to the bottom of the toilet. It
would have been appropriate procedure to try to ...