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Rodrigues v. County of Hawaii

United States District Court, D. Hawaii

November 20, 2018



          Alan C. Kay, Sr., United States District Judge

         For the reasons detailed below, the Court GRANTS Defendants' Motion to Dismiss the First Amended Complaint, ECF No. 17, and dismisses all of Plaintiff's claims without prejudice.


         According to the First Amended Complaint (“FAC”), ECF No. 16, Plaintiff John Rodrigues, Jr. (“Plaintiff”) is a retired police officer who retired on August 31, 2016, after serving with the Hawai`i County Police Department (“HCPD”) for twenty-six years, FAC ¶ 10. At all relevant times, Plaintiff was a “qualified retired law enforcement officer” as that term is defined under 18 U.S.C. § 926C (the “Law Enforcement Officers Safety Act” or “LEOSA”). Id. ¶ 96. Plaintiff had met standards for qualification in firearms training for active law enforcement officers with the HCPD, including for his Remington shotgun and 9mm Smith & Wesson handgun; these qualifications expired on December 24, 2016. Id. ¶ 89.[1]

         On or about January 26, 2017, at 10 a.m., Plaintiff called 911 to request police assistance after he was threatened by an individual known to him as Wesley “Mana” Brooks. Id. ¶¶ 11-12. Witnesses informed HCPD officers that Brooks had brandished what appeared to be a chrome-plated, 9mm handgun, chambered a round, pointed the handgun at Plaintiff, and fired a round at him. Id. ¶ 13. At no point did Plaintiff take out, brandish, or display any firearms, or point any firearms in Brooks's direction. Id. ¶ 14.

         One of the responding officers was Defendant Samuel Jelsma (“Defendant Jelsma”), a captain in the HCPD. Id. ¶ 15. Plaintiff and Defendant Jelsma were acquainted, and Defendant Jelsma had and has a personal grudge against Plaintiff. Id. ¶ 65. This grudge stems from a No. of incidents, but first arose in the 1990s, when the two were roommates during a two-week specialized Traffic Enforcement Unit training in Honolulu. Id. ¶¶ 65, 65(a). There, Defendant Jelsma deliberately irritated and mocked Plaintiff about the course material, studying, and preparing for the training's final exam. Id. ¶ 65(b).

         Later, after Defendant Jelsma's promotion to sergeant, Plaintiff was assigned to assist him in a DUI enforcement roadblock. Id. ¶ 65(c). Defendant Jelsma instructed Plaintiff to perform an activity that Plaintiff believed to be inefficient, and did not appreciate it when Plaintiff expressed that opinion. Id.

         In approximately 2010 or 2011, Plaintiff was once again assigned to assist Defendant Jelsma, this time in locating and arresting a dangerous fugitive. Id. ¶ 65(e). When the fugitive was cornered, Defendant Jelsma, in the presence of other law enforcement officers, repeatedly refused to go in and make the arrest. Id. Plaintiff proceeded to make the arrest without incident, after which point Defendant Jelsma was hostile toward Plaintiff due to a perceived slight to Defendant Jelsma's reputation. Id.

         Most recently, prior to Plaintiff's retirement, Plaintiff and another officer spotted a fugitive driving a stolen truck; upon seeing Plaintiff, the fugitive sped away, driving well over the speed limit. Id. ¶ 65(f). Plaintiff contacted the Pahoa HCPD station (of which Defendant Jelsma was the captain) over the police radio to inform them that a fugitive was driving a stolen truck in their direction. Id. Plaintiff was not in pursuit of the fugitive, but Defendant Jelsma contacted Plaintiff over the police radio and ordered him to come to the Pahoa station to type out a memo or report concerning his pursuit of the fugitive. Id. Plaintiff, thinking this was odd, contacted his supervisor, who overrode Defendant Jelsma's order and informed Defendant Jelsma over the police radio that Plaintiff would not be typing out a memo or report. Id. This embarrassed Defendant Jelsma. Id.

         Based on these incidents, and on comments from coworkers, Plaintiff believes that Defendant Jelsma would use any and every opportunity to embarrass, humiliate, or discipline him. Id. ¶ 65(g).

         When HCPD officers arrived at the scene on January 26, 2017, Defendant Jelsma approached Plaintiff and asked if he had any firearms in his vehicle. Id. ¶ 15. Plaintiff responded in the affirmative, Id. ¶ 16, at which point Defendant Jelsma said, “We need a consent from you to enter your vehicle, ” Id. ¶ 17. Plaintiff gave his consent. Id. ¶ 18.

         Before the search commenced, Plaintiff took out a photographic identification card issued to him by HPCD, which identified Plaintiff as a retired detective from HCPD, Id. ¶ 19, and which read, on the back, as follows:

This card is for identification purposes only, pursuant to 18 United States Code [§] 926C(d), Carrying of Concealed Firearms By Qualified Retired Law Enforcement Officers. This identification DOES NOT perm[i]t the holder to carry a concealed firearm pursuant to 18 United States Code [§] 926C and in [and] of itself is not inte[n]ded to comply with or be applicable to State statutes and administrative rules governing identification for the purpose of carrying a concealed and/or unconcealed firearm.

FAC, Declaration of John Rodrigues, Jr. (“Rodrigues Decl.”), ECF No. 16-10 ¶ 13; FAC Ex. 2 (“ID Card”), ECF No. 16-2 at 1-2.[2] Plaintiff attempted to hand the identification card to Defendant Jelsma, and told Defendant Jelsma (in the presence of other HCPD officers) that he was permitted to carry concealed firearms under LEOSA, but Defendant Jelsma ignored Plaintiff's statements and refused to look at the ID Card. FAC ¶¶ 20-22.

         Plaintiff then related to Defendant Jelsma the history between Plaintiff's family and Brooks. Id. ¶¶ 23-30. Among other incidents, Brooks had previously made death threats against Plaintiff's son while brandishing an AK-47 assault rifle and a chrome-plated 9 mm handgun. Id. ¶ 23-24. Brooks had also stalked the Plaintiff's son at his workplace and had threatened his life in front of others. Id. ¶ 25. Plaintiff's son reported each incident to the HCPD, which had taken no action against Brooks and had not investigated any of the claims made by Plaintiff's son. Id. ¶ 26. Plaintiff told Defendant Jelsma that Brooks's threats and actions were escalating dangerously, and that Plaintiff wanted to protect his son's life and ensure that HCPD detained and investigated Brooks, Id. ¶ 28-29, but that Plaintiff was concerned that HCPD was doing nothing. Id. ¶ 30. Defendant Jelsma responded that Plaintiff should have called HCPD and spoken to a supervisor. Id. ¶ 31. When Plaintiff expressed concern that Brooks would act on his threats, and asked why HCPD was not taking action, Defendant Jelsma ignored him. Id. ¶ 32.

         HCPD officers then searched Plaintiff's vehicle, and recovered a Remington shotgun and a 9mm Smith and Wesson handgun, Id. ¶ 33, both of which were legally registered to Plaintiff, Id. ¶¶ 38-39. The Remington shotgun was on the floor of Plaintiff's truck, in the back of the cab, Id. ¶ 34, and the 9mm Smith and Wesson handgun was in a holster on the floor beneath the driver's seat, Id. ¶ 35. During the search, Plaintiff displayed the ID Card and told the HCPD officers he was allowed to carry concealed firearms, Id. ¶ 36, but Defendant Jelsma ordered the officers to continue the search, Id. ¶ 37. Plaintiff then again asked Defendant Jelsma if he intended to do anything about Brooks and the threats against Plaintiff's son, but Jelsma continued to ignore Plaintiff. Id. ¶ 40.

         At approximately 11:02 a.m., Defendant Jelsma instructed Plaintiff to drive himself to the Pahoa police station, where later he would be free to go. Id. ¶ 41. Plaintiff was not under arrest. Id. ¶ 42. Plaintiff drove directly to the Pahoa police station, followed closely by an HCPD officer. Id. ¶ 43.

         Plaintiff was directed by an HCPD officer to go into an interrogation room and remain there. Id. ¶ 45. Plaintiff heard over the police radio that Defendant Jelsma had arrived at the Pahoa station, id. ¶ 46, and went to the doorway to meet him, id. ¶ 47. Plaintiff asked Defendant Jelsma when he was going to conduct the Advice of Rights (“AOR”) so that Plaintiff could leave, as Defendant Jelsma had earlier said Plaintiff could do. Id. Plaintiff again displayed the ID Card to Defendant Jelsma and said that, under LEOSA, he was permitted to carry concealed firearms. Id. ¶ 48. Defendant Jelsma ignored Plaintiff and would not look at the ID Card. Id. ¶ 49. Plaintiff attempted to hand the ID Card to Defendant Jelsma, who would not take it. Id. ¶ 50.

         Plaintiff asked Defendant Jelsma if the HCPD intended to do anything about Brooks, but Defendant Jelsma instructed Plaintiff to “wait.” Id. ¶ 51. Plaintiff asked Defendant Jelsma if he was under arrest, to which Defendant Jelsma responded, “No!” Id. ¶ 52. Plaintiff inquired if he was free to leave, and again, Defendant Jelsma said, “No!” Id. ¶ 53. Confused, Plaintiff sought clarification, stating that he was not under arrest but he was not free to go. Id. ¶ 54. Defendant Jelsma responded loudly, “No, you are not under arrest, but you are not free to leave.” Id. ¶ 55. When Plaintiff repeated Defendant Jelsma's statement, the latter confirmed: yes, the Plaintiff was not under arrest, and “Yes, you can't leave; you need to wait.” Id. ¶ 57.

         At this point, in order to test Defendant Jelsma's intentions and determine whether he was under arrest, Plaintiff declared himself to be thirsty and asked Defendant Jelsma if he could retrieve his hydro-flask full of water from his truck. Id. ¶ 60. Defendant Jelsma allowed Plaintiff to retrieve his hydro-flask under armed police escort. Id.¶ 61. Upon his return to the interrogation room, Plaintiff against asked Defendant Jelsma if he planned on conducting any investigation into Brooks and his threats against Plaintiff's son, but Defendant Jelsma ignored Plaintiff. Id. ¶ 62.

         Plaintiff got the clear impression that Defendant Jelsma was unconcerned with Brooks and with the safety of Plaintiff's son, and, because of Defendant Jelsma's statements and demeanor, that Defendant Jelsma was trying to discredit Plaintiff and ruin his reputation in the community. Id. ¶¶ 63, 64. From the interrogation room, Plaintiff could clearly hear Defendant Jelsma's voice from an adjacent room as he conversed with other officers, trying to find any and every possible violation of the law for which they could arrest Plaintiff. Id. ¶ 66.

         At approximately 2 p.m., an HCPD officer, under Defendant Jelsma's orders, placed Plaintiff under arrest for three counts of terroristic threatening in the first degree and six firearm violations. Id. ¶ 67. Before being placed under arrest, Plaintiff again displayed his ID Card and informed the arresting officer that, under LEOSA, he was permitted to carry concealed weapons. Id. ¶ 68. Plaintiff attempted to hand his ID Card to the arresting officer, but the officer would not accept or examine it, id., but instead informed Plaintiff that Defendant Jelsma's mind was made up, id. ¶ 69. In violation of HCPD standard operating procedure, Plaintiff was given no information regarding the identity of the person he was supposed to have threatened, or about his alleged firearms violations. Id. ¶¶ 70-71. After Plaintiff's arrest, Detective Kelii, an HCPD officer, informed him that the prosecuting attorney for the County of Hawai`i had been contacted and had advised Defendant Jelsma to release Plaintiff because, under LEOSA, Plaintiff should not have been arrested. Id. ¶ 72. Plaintiff was released, pending further investigation, after over four hours in custody. Id. ¶ 73. In violation of HCPD standard operating procedure, Plaintiff was given no information about his arrest after his release from custody. Id. ¶ 74.

         Shortly after Plaintiff's arrest, Defendant Jelsma and the County of Hawai`i (together, “the County Defendants”) issued two media releases about Plaintiff's arrest and charges. Id. ¶ 75. The first, issued on January 26, 2017, read in relevant part as follows:

HPD Investigating ‘Shots Fired' Report in Puna
Hawai`i Island police are investigating a firearms incident initially reported as “gunshots fired” in the Hawaiian Paradise Park subdivision in lower Puna. Responding officers contacted a group of individuals near the area where the shots were reported, although the preliminary investigation has thus far indicated that no shots were fired. Detectives assigned to the Criminal Investigations Section are continuing the investigation.

         Rodrigues Decl. ¶ 16; FAC Ex. 4, ECF No. 16-4 at 1. This release was published to the community at large in print media and through text and mobile phone messages. FAC ¶ 75(a). The second, which the Defendants issued on January 27, 2017, included a recent picture of Plaintiff and read thusly:

Hakalau Man Arrested for Firearms, Terroristic Threatening
East Hawai`i detectives arrested a 50-year-old Hakalau man late Thursday afternoon, Jan. 26, as part of their investigation into a firearms incident earlier in the day in Puna.
John Rodrigues Jr. was arrested on suspicion of three counts of first-degree terroristic threatening and six firearms violations. After conferring with prosecutors, police released Rodrigues pending further investigation.
The incident was initially reported as “gunshots fired” in the Hawaiian Paradise Park subdivision in lower Puna at approximately 10 a.m. Responding officers contacted a group of individuals near where the shots were reported and were able to determine that no shots had been fired, although firearms were involved in a confrontation.
Detectives assigned to the Criminal Investigations Section are continuing the investigation[.]

FAC Ex. 4 at 2.

         Due to a conflict of interest, the prosecuting attorney for Defendant County of Hawai`i (“County”) referred any criminal charges against Plaintiff to the Department of the Attorney General, State of Hawai`i, which also had a conflict of interest and referred the matter to the prosecuting attorney for the County of Kaua`i.[3] FAC ¶ 77. On or about August 17, 2017, the prosecuting attorney for the County of Kaua`i informed Plaintiff that he would not pursue any criminal action against Plaintiff, closed the case against Plaintiff, and notified the Department of the Attorney General, State of Hawai`i, about the decision. Id. ¶ 79. The Department of the Attorney General also decided not to prosecute Plaintiff. Id. ¶ 80. In a conversation with Plaintiff, Mitch Roth, the prosecuting attorney of the County of Hawai`i, stated that under LEOSA Plaintiff was allowed to carry concealed firearms. Id. ¶ 82.

         After Plaintiff's arrest, Brooks appeared at Plaintiff's son's workplace and threatened him; the County Defendants did not intervene. Id. ¶ 76.


         On January 9, 2018, Plaintiff filed a complaint in state court against the County, Defendant Jelsma, Doe Persons 1- 10, Doe Corporations 1-10, Roe “Non-Profit” Corporations 1-10, and Roe Governmental Entities 1-10 (collectively, “Doe Defendants”). ECF No. 1-2. The complaint alleged eight counts: (1) violation of 42 U.S.C. § 1983 (“§ 1983”) by Defendant Jelsma; (2) violation of § 1983 by the County; (3) false arrest/false imprisonment; (4) defamation “per se”; (5) defamation “per quod”; (6) false light; (7) intentional infliction of emotional distress (“IIED”); and (8) negligent infliction of emotional distress (“NIED”). Id. ¶¶ 710-132. On January 18, 2018, the County Defendants filed a notice of removal with this Court. ECF No. 1. The County Defendants filed a motion to dismiss on January 26, 2018. ECF No. 5. On April 20, 2018, the Court entered an order granting the motion and dismissing all of Plaintiffs' claims without prejudice (“April 20, 2018 Order”). ECF No. 14. In the April 20, 2018 Order, the Court gave Plaintiff thirty days to file an amended complaint. Id. at 34.

         On May 17, 2018, Plaintiff filed the FAC, alleging the same eight claims as alleged in the original complaint. ECF No. 16. Along with the FAC, Plaintiff filed nine exhibits and five declarations. See ECF Nos. 16-1-16-14. The County Defendants filed the instant Motion to Dismiss (“Motion”), ECF No. 17, and an accompanying memorandum (“MTD”), ECF No. 17-1, on May 21, 2018. A hearing on the Motion was originally scheduled for September 4, 2018, ECF No. 18, but was continued until November 13, 2018, at the Court's request, ECF No. 22. On October 23, 2018, Plaintiff filed an opposition (“Opposition” or “Opp.”) to the Motion. ECF No. 24. The County Defendants filed a reply (“Reply”) on October 31, 2018. The Court held a hearing on the Motion on Tuesday, November 13, 2018.


         Federal Rule of Civil Procedure (“Rule”) 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 ...

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