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Garcia v. City And County of Honolulu

United States District Court, D. Hawaii

November 16, 2018

DONNA GARCIA, Individually and As Guardian Ad Litem for Her Minor Children, J.L. and G.L. Plaintiff,



         For the reasons set forth below, the Court GRANTS Defendants' motions to dismiss for failure to state claims upon which relief can be granted as follows:

1. The Court GRANTS WITH PREJUDICE the Officer Defendants' Motion as to all claims except those asserted against Officers Arakawa, Hee, and Lee in their individual capacities, which are dismissed WITHOUT PREJUDICE;
2. The Court GRANTS WITH PREJUDICE Defendant Cravalho's Motion and Defendant Moszkowicz's Motion as to all claims; and
3. The Court GRANTS WITHOUT PREJUDICE Defendant Honolulu's Motion as to all claims.


         On March 15, 2018, Plaintiff Donna Garcia, individually and as guardian ad litem for her minor children, J.L. and G.L. (“Plaintiff”) filed a Complaint against the City and County of Honolulu (“Defendant Honolulu”), twenty-one Honolulu Police Department (“HPD”) officers, and John and/or Jane Does 1-10 (“Doe Defendants”). ECF No. 1 (“Compl.”) ¶¶ 11-14. The twenty-one HPD officer defendants are sued in both their individual and official capacities, and are Ronald J. Lombardi (“Defendant Lombardi”), Robert A. Cravalho (“Defendant Cravalho”), Benjamin Moszkowicz (“Defendant Moszkowicz”), April Daniels, Arlynn Orpilla, Bonnie McKewen, Harold Uehara, Timothy Slovak, Mikel Frederick, Darrien Thornley, Gary Daniels, Thomas Nitta, Leonard Nishimura, Alan Rodrigues, Keith Vegas, Lanell Arakawa, Brian Blackwell, Nathan Hee, Brandon Lau, Ryan Hironaka, and Paul Lee (the “Officer Defendants”). Id. ¶ 13.

         The Complaint asserts five causes of action. Counts I, II and III, arising under 42 U.S.C. § 1983 (“Section 1983”), allege that Defendants violated Plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment. Id. ¶¶ 145-160. Counts IV and V allege state law claims for intentional infliction of emotional distress (“IIED”)[1] and negligence. Id. ¶¶ 161-164. Based on these claims, Plaintiff requests monetary relief, as well as punitive damages and attorneys' fees and costs. Id. ¶ 164.

         On May 4, 2018, Defendant Honolulu filed a Motion to Dismiss. ECF No. 20. (“Defendant Honolulu's Motion”). On May 14, 2018, Defendant Cravalho filed a Motion to Dismiss. ECF No. 25. (“Defendant Cravalho's Motion”). On June 19, 2018, Defendant Moszkowicz filed a Motion to Dismiss. ECF No. 40. (“Defendant Moszkowicz's Motion”). On July 31, 2018, the remaining Officer Defendants (with the notable exception of Defendant Lombardi) filed a Motion to Dismiss. ECF No. 45. (“Officer Defendants' Motion”). On October 11, 2018, Plaintiff filed her “Omnibus Memorandum in Opposition” to Defendant Honolulu's Motion, Defendant Cravalho's Motion, and Defendant Moszkowicz's Motion. ECF No. 54. (“Omnibus Opposition”). On October 15, Plaintiff filed her Memorandum in Opposition to Officer Defendants' Motion. ECF No. 57 (“Second Opposition”). On October 18, 2018, Defendant Honolulu and Defendants Cravalho and Moszkowicz filed their Replies. ECF Nos. 58 and 59. On October 22, 2018, the remaining Officer Defendants filed their Reply. ECF No. 60. The Court held a Hearing on Defendants' Motions on November 9, 2018 at 11:00 a.m.


         The facts in this order are recited only for the purpose of deciding Defendants' motions to dismiss and are not intended to be findings of fact upon which the parties may rely in future proceedings.

         According to the Complaint, Plaintiff is employed as an officer with the Department of Homeland Security, Customs and Border Protection and currently resides in Georgia, having left Honolulu in 2009. Compl. ¶¶ 9-10. Defendant Lombardi is currently employed as an HPD officer and resides in Honolulu. Id. ¶ 12. Defendants Cravalho and Moszkowicz, as well as the remaining Officer Defendants, are all currently employed as HPD officers. Id. ¶ 13. Defendant Honolulu is a municipal corporation of the State of Hawai'i. Id. ¶ 11.

         Plaintiff and Defendant Lombardi were married in November 1999. Id. ¶ 15. They have two children together, J.L. and G.L. Id. ¶ 16. Plaintiff and Defendant Lombardi were separated in November 2007, and divorced on February 14, 2011. Id. ¶ 17. The separation and divorce were precipitated by Defendant Lombardi's sexual abuse of his children and his physical domestic abuse of Plaintiff. Id. ¶ 18. In the final divorce decree, Plaintiff was awarded sole legal and physical custody of the children. Id. ¶ 19. Defendant Lombardi was permitted phone visitation with the children and in-person visitation under the supervision and approval of their current treating therapist and Plaintiff. Id.

         The Complaint states that Plaintiff has been victimized and harassed by Defendant Lombardi on an ongoing basis since she and Defendant Lombardi separated in November 2007. Id. ¶ 3. On March 2, 2008, G.L. reported that she was sexually assaulted by Defendant Lombardi. Id. ¶ 20. On March 7, 2008, G.L. was interviewed at the Children's Justice Center in Honolulu regarding the reported sexual assault; J.L. was interviewed regarding another incident where Defendant Lombardi apparently sexually assaulted J.L. Id. ¶ 21-22.

         During the course of 2008, Plaintiff obtained three protective orders against Defendant Lombardi. Id. ¶¶ 27, 37 and 44. Plaintiff also obtained a pre-decree relief order in her divorce action. Id. ¶ 34. The first protective order was obtained on March 7, 2008 and remained in effect until June 5, 2008. Id. ¶¶ 27-28. The second protective order was obtained on June 18, 2008 and remained in effect until July 9, 2008, when it was dissolved by agreement of the parties and replaced by the pre-decree relief order dated July 15, 2008. Id. ¶ 37. The third protective order was obtained on September 26, 2008 and remained in effect until March 26, 2009. Id. ¶ 44. The pre-decree relief order stayed in effect until February 14, 2011 when Plaintiff's final divorce decree was entered. Id. ¶ 19.

         The first protective order was obtained based on threats by Defendant Lombardi to Plaintiff and the physical assault of J.L. and sexual assault of G.L. Id. ¶ 25. The second protective order was obtained based on physical threats involving fire arms directed at Plaintiff and attempts by Defendant Lombardi to enter Plaintiff's residence without permission. Id. ¶ 36. The second protective order required Defendant Lombardi to surrender all of his firearms to the HPD, but the HPD apparently seized only three of Defendant Lombardi's four firearms. Id. ¶¶ 37, 39. The third protective order was obtained based on Defendant Lombardi stalking Plaintiff and being in possession of firearms while in Plaintiff's presence in violation of the pre-decree relief order. Id. ¶ 43. Defendant Lombardi's firearms were seized on September 28, 2008, three days after the third protective order was issued. Id. ¶ 47.

         Plaintiff points out that upon service of each protective order, Defendant Lombardi was placed on restricted duty, but that the HPD restored his police authority shortly after each protective order expired. Id. ¶¶ 28, 40, 51. Plaintiff avers that the rapid restoration of Defendant Lombardi's police authority after each protective order expired indicates that the HPD failed to conduct independent internal investigations regarding the facts underlying the protective orders. Id. ¶¶ 29, 41, 52.

         Plaintiff also contends that the HPD, Doe Defendants and Defendant Honolulu helped Defendant Lombardi pass a polygraph examination with respect to the first protective order sought after G.L. reported that Defendant Lombardi sexually assaulted her. Id. ¶¶ 30-32. The Complaint alleges that the HPD, Doe Defendants and Defendant Honolulu provided Defendant Lombardi with the polygraph questions in advance, selected the examiner, ignored physical evidence of sexual assault on G.L.'s body in addition to other evidence of sexual assault, and provided Defendant Lombardi with the videotaped interviews of G.L. and J.L. regarding their sexual assaults. Id. ¶¶ 23, 30-32.

         From June through November 2008, Plaintiff filed seven incident reports with the HPD documenting Defendant Lombardi's violations of the three protective orders and the pre-decree relief order. Id. ¶ 53. The incident reports described various violations, including that Defendant Lombardi: (1) visited Plaintiff and entered her residence and vehicle without her permission and while armed; (2) delivered “disturbing books about murders, crime scene investigation, and autopsies to Aikahi Elementary School to be given to J.L.;” (3) harassed Plaintiff and the children at a Jamba Juice in Kailua; (4) harassed and threatened Plaintiff regarding unsupervised visitation with the children; (5) visited G.L. at her pre-school without permission; (6) and left Plaintiff a threatening voicemail.[2] Id. ¶¶ 54, 56-59, 61. The Department of the Prosecuting Attorney declined to prosecute the latter two incident reports. Id. ¶ 64. Plaintiff believes that the HPD did not confer with the Department of the Prosecuting Attorney regarding the other incidents. Id.

         In August 2009, J.L. and G.L. both again reported that they were sexually assaulted by Defendant Lombardi. Id. ¶ 67. Their therapist, Dr. Becky Padua, reported this information to Defendant Cravalho and Child Welfare Services, along with her fear of reprisal from Defendant Lombardi for reporting the information as required by law. Id. ¶ 68. In September 2009, Plaintiff provided a letter and binder of evidence to the Prosecuting Attorney for the City and County of Honolulu in order to seek its assistance regarding these incidents. Id. ¶ 69. The materials were turned over to Internal Affairs at HPD. Id. ¶ 70.

         Plaintiff contends that between June 2008 and June 2011, Defendant Lombardi, with the assistance of various Officer Defendants, filed six false police reports against Plaintiff in order to harass, victimize, and harm her professionally, as well as unduly influence the ongoing divorce and custody proceedings. Id. ¶¶ 73-88.

         After Plaintiff moved to Ottawa, Canada for work in October 2012, Defendant Lombardi continued to harass her via mail, phone and email. Id. ¶¶ 89-90. Plaintiff reported this information to the Ottawa Police Service (“OPS”), which contacted the HPD and opened a criminal harassment investigation into the matter. Id. ¶¶ 91-92.

         On June 25, 2015, Plaintiff filed a written complaint with the Professional Standards Office (“PSO”) of the HPD regarding the handling of the three protective orders, the pre-divorce decree, the OPS investigation, Defendant Lombardi's continued harassment, threats of retaliation, and violations of standing Family Court orders in Virginia and Hawai'i. Id. ¶ 94. Plaintiff was notified on May 11, 2017 that on November 9, 2015, her complaint was closed after having been determined to be “‘more of a civil matter.'” Id. ¶ 95.

         Between November 2015 and March 2016, Defendant Lombardi filed four incident reports falsely accusing Plaintiff of custodial interference, which were referred to the Department of the Prosecuting Attorney. Id. ¶¶ 98, 104. In May 2016, Defendant Lombardi attempted to use these reports in a show cause action he brought in Fairfax County, Virginia Juvenile and Domestic Relations Court to have Plaintiff held in contempt for violating the custody agreement, despite the fact that Plaintiff retained full custody of the children after the divorce. Id. ¶ 108. That action was subsequently dismissed. Id. ¶ 109. Plaintiff was informed on February 27, 2017, that Department of the Prosecuting Attorney would be taking no action on the custodial interference reports. Id. ¶ 107.

         On March 15, 2017, Plaintiff filed a second written complaint with the PSO regarding the four false incident reports that Defendant Lombardi filed accusing Plaintiff of custodial interference. Id. ¶ 109. Plaintiff was notified on August 9, 2017 that her complaint was sustained. Id. ¶ 111. On May 24, 2017 and on January 30, 2018, Defendant Lombardi sent Plaintiff emails wherein he threatened to file additional police reports and bring charges alleging custodial interference. Id. ¶¶ 110, 112.

         The HPD has six standing policies which are designed to address the misconduct that Plaintiff alleges in her Complaint. Omnibus Opposition at 8-11. The policies are HPD Policy Nos. 2.21 (“Standards of Conduct”); 3.12 (“Employee Early Recognition System”); 3.26 (“Employees Involved in Domestic Violence”); 4.18 (“Abuse of Family or Household Members”); 5.01 (“Complaints and Internal Investigations”); and 7.09 (“Court Orders for Protection”). Compl. ¶ 114.


         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). Although Rule 8 does not require detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (2009) (quoting Twombly, 550 U.S. at 570). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. (citing Twombly, 550 U.S. at 555). Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “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).

         A statute of limitations defense may properly be raised in a motion to dismiss if statute of limitations issues are “apparent from the face of the complaint.” Seven Arts Filmed Entm't Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir. 2013) (citations omitted).


         Defendants first argue that Plaintiff's Section 1983 claims and negligence claims are time-barred by the relevant statute of limitations. Defendants next argue that, even if Plaintiff's claims are not time-barred, the Complaint fails to allege sufficient facts to state any plausible Section 1983 claims or state law negligence claims.

         The statute of limitations for personal injury and negligence actions in Hawai'i is two years. Haw. Rev. Stat. § 657-7. Plaintiff filed her Complaint on March 15, 2018. Only the following allegations in the Complaint occurred within the statute of limitations period: (1) on March 18, 2016, Defendant Lombardi allegedly filed a police report, authored by Officer Arakawa and approved by Officer Hee, accusing Plaintiff of custodial interference, Compl. ¶ 103; (2) at an unidentified time thereafter, Defendant Lombardi used that police report in connection with his custody dispute with Plaintiff, Id. ¶ 108; (3) on May 11, 2017, Officer Lee notified Plaintiff via email that one of her complaints against Defendant Lombardi had been closed on November 9, 2015, Id. ¶¶ 95-96; (4) on August 9, 2017, the PSO notified Plaintiff that her complaint dated March 15, 2017 regarding the allegedly false police reports that Defendant Lombardi filed against her was sustained, Id. ¶¶ 109, 111; and (5) Defendant Lombardi sent two emails to Plaintiff dated May 24, 2017 and January 30, 2018, where he threatened to bring custodial interference charges against Plaintiff. Id. ¶¶ 110, 112. Plaintiff alleges that she immediately forwarded the first of these two emails to Officer Lee. Id. ¶ 110.

         The Court first addresses whether Plaintiff's claims against the moving defendants are time-barred, and then turns to the question of whether Plaintiff's Complaint adequately alleges claims upon which relief can be granted.

         I. Statute of Limitations

         Plaintiff argues that none of her claims are time-barred because she has alleged a continuing violation with respect to Defendant Honolulu and each of the individual Officer Defendants.

         For purposes of Section 1983 claims, federal courts apply the forum state's statute of limitations and its tolling provisions for personal injury tort actions. Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017). Hawai'i has a two-year statute of limitations for personal injury actions. Haw. Rev. Stat. § 657-7. However, federal law governs when Section 1983 claims accrue. Klein, 865 F.3d at 1278. “Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Id. (citing Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004)). However, where a plaintiff alleges a “continuing violation, ” the claim accrues on the date of the last injury. Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001) (citing Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1237 (10th Cir. 2001)).

         The continuing violation doctrine allows a plaintiff to sue where her injuries are “the consequence of a numerous and continuous series of events, ” which, under certain circumstances, can permit a plaintiff to bring a claim based on events that would normally be time-barred. Heard, 253 F.3d at 319. The doctrine is meant “to prevent a defendant from using its earlier illegal conduct to avoid liability for later illegal conduct of the same sort.” O'Loghlin v. Cty. of Orange, 229 F.3d 871, 875 (9th Cir. 2000). A continuing violation is one where “it would be unreasonable to require or even permit [a plaintiff] to sue separately over every incident of the defendant's unlawful conduct.” Heard, 253 F.3d at 319.

         Historically, a plaintiff could invoke the continuing violation doctrine in the Ninth Circuit in two ways: (1) the “related acts” method; and (2) the discriminatory pattern or practice method. The “related acts” method required a plaintiff to allege timely acts that were sufficiently related to time-barred acts, such that the acts as a whole constituted a continuing violation. Gutowsky v. Cty. of Placer, 108 F.3d 256, 259 (9th Cir. 1997). The Supreme Court “invalidated the ‘related acts' method of establishing a continuing violation, stating that ‘discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges.'” Carpinteria Valley Farms, Ltd. v. Cty. of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).[3]

         This Court has defined a discrete act as an “unlawful practice that ‘occurred' on the day it ‘happened, '” which includes, for example, ‘termination, failure to promote, denial of transfer, or refusal to hire.'” Yonemoto v. Shinseki, 3 F.Supp.3d 827, 842 (D. Haw. 2014) (quoting Morgan, 536 U.S. at 111, 114).[4] Put another way, a discrete act of discrimination is “one that constitutes a separate, actionable unlawful practice that is temporally distinct.” Mansourian v. Regents of the Univ. of California, No. CIV. S 03-2591 FCD EFB, 2011 WL 1897428, at *2 (E.D. Cal. May 18, 2011) (citing Morgan, 536 U.S. at 114). When a plaintiff alleges a claim based upon discrete discriminatory acts, the statute of limitations runs separately from each discrete act, and the continuing violation doctrine is no longer applicable. Morgan, 536 U.S. at 113.

         After Morgan, “[o]ne of the only viable pathways to maintaining a cause of action for past acts occurring outside the statute of limitations period is where a plaintiff's claims are based, not on discrete acts, but rather on ‘a series of separate acts that collectively constitute one unlawful practice.'” Long, 2017 WL 5490835, at *5 (quoting RK Ventures, 307 F.3d at 1061 n. 13).[5]

         Thus, because Plaintiff may no longer avail herself of the “related acts” method of bringing a Section 1983 claim, the question necessarily becomes whether Plaintiff's Section 1983 claim is predicated upon a series of discrete discriminatory acts or upon a systematic pattern or practice of discrimination.

         The Ninth Circuit has determined that a claim based on discrete time-barred acts involves a claim that “does not stem from [a discriminatory] policy . . . but rather from the individualized decisions that resulted from implementation of a policy.” Pouncil v. Tilton, 704 F.3d 568, 579 (9th Cir. 2012) (citing Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003)). Indeed, “pattern-or-practice claims cannot be based on ‘sporadic discriminatory acts' but rather must be based on discriminatory conduct that is widespread.” Cherosky, 330 F.3d at 1247 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)).

         In the instant case, Plaintiff argues that Defendant Honolulu's continuing violation of her constitutional rights is its “de facto policy, practice and custom of ignoring criminal conduct, misconduct, and violations of its standing regulations and orders committed by [HPD] officers.” Omnibus Opposition at 15. Although the Complaint is replete with allegations of individual instances in which various officer defendants engaged in acts of misfeasance and nonfeasance in violation of numerous internal HPD policies, the heart of Plaintiff's Complaint stems not from these numerous individual acts, but from Defendant Honolulu's alleged “de facto policy.” Cf. Cherosky, 330 F.3d at 1247 (rejecting the continuing violation doctrine where “the heart of plaintiffs' complaint [did] not stem from [a discriminatory] policy regarding the use of respirators, but rather from the individualized decisions that resulted from implementation of a policy”).

         The Ninth Circuit in Gutowsky held that the Plaintiff successfully invoked the continuing violation doctrine in a Section 1983 case involving employment discrimination. 108 F.3d at 260. In that case, the Ninth Circuit stated that the Plaintiff “presents specific examples of discrimination which are not the basis of her charge of discrimination but evidence that a policy of discrimination pervaded” the employer's internal promotion decisions, and that the employer engaged in “widespread polic[ies] and practices of discrimination.” Id. (emphasis in original) (internal quotations and citation omitted). Similar to Gutowsky, the Plaintiff in the instant case attacks a practice or policy-Defendant Honolulu's alleged policy of ignoring when HPD officers engage in misconduct that violates internal HPD policies-which Plaintiff alleges violates her constitutional rights and continues to affect her to this day. Omnibus Motion at 19.

         Furthermore, it is unclear that any single act that Plaintiff complains of gave rise to a cause of action. A discrete act is one that gives rise to a claim when the act occurs. See Yonemoto, 3 F.Supp.3d at 842. Although Plaintiff's allegations largely consist of acts by HPD officers, her purported equal protection claim arises from Defendant Honolulu and the Officer Defendants' failure to discipline and take action against Defendant Lombardi and other HPD officers when officers act in violation of HPD internal policies.

         Plaintiff's Complaint also features numerous allegations of instances in which the HPD apparently did respond to the police reports and other complaints that she filed. For example, Plaintiff alleges that one of the complaints she filed against Defendant Lombardi was sustained, and that another of her complaints was not sustained. Compl. ¶ 182. However, these apparent contradictions do not disavow Plaintiff's broader allegation that Defendant Honolulu and the HPD officers have a “de facto policy” of ignoring misconduct that HPD officers engage in. See Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009) (affirming the district court's finding that a prisoner's continuing violation was based upon an ongoing discriminatory policy of doctors and prison staff disregarding medical treatment recommendations, even though the prisoner was frequently seen by doctors).

         Accordingly, the Court finds that Plaintiff's claims are based upon a persistent discriminatory policy or practice, and not upon discrete discriminatory acts. The next question is whether Plaintiff has successfully alleged a continuing violation doctrine.

         To invoke the continuing violation doctrine in a Section 1983 case, a plaintiff must show “the maintenance of a discriminatory system both before and during” the limitations period. Gutowsky, 108 F.3d at 260. See also Mansourian, 602 F.3d at 974 (providing that a plaintiff has adequately pled an ongoing claim if she alleges that a systematic discriminatory policy or practice operated, in part, within the limitations period). More specifically, “the plaintiff ‘must allege both the existence of an ongoing policy of discrimination and some ...

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