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Garcia v. City and County of Honolulu

United States District Court, D. Hawaii

May 3, 2019

DONNA GARCIA, Individually and As Guardian Ad Litem for Her Minor Children, J.L. and G.L. Plaintiff,
v.
CITY AND COUNTY OF HONOLULU; RONALD J. LOMBARDI; LANELL ARAKAWA; NATHAN HEE; PAUL LEE; and JOHN and/or JANE DOES 1-10, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS

         For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART the Motion to Dismiss filed by Defendants Lanell Arakawa, Nathan Hee, and Paul Lee, ECF No. 77, and GRANTS IN PART AND DENIES IN PART the Motion to Dismiss filed by Defendant City and County of Honolulu, ECF No. 76, as follows:

1. The Officer Defendants' Motion is DENIED with respect to the individual capacity § 1983 equal protection claims and GRANTED with respect to the official capacity § 1983 claims and the negligence claims. The official capacity § 1983 claims are DISMISSED WITH PREJUDICE and the negligence claims are DISMISSED WITHOUT PREJUDICE. The Court declines to address the § 1983 substantive due process claims at this time because the Officer Defendants failed to address those claims in their Motion.
2. Defendant Honolulu's Motion is DENIED with respect to the § 1983 equal protection municipal liability claim and GRANTED with respect to the negligent supervision claims. The negligent supervision claims are DISMISSED WITHOUT PREJUDICE. The Court declines to address the § 1983 substantive due process municipal liability claim at this time because Defendant Honolulu failed to address that claim in its Motion.

         PROCEDURAL BACKGROUND

         On March 15, 2018, Plaintiff Donna Garcia, individually and as guardian ad litem for her minor children, J.L. and G.L. (“Plaintiff Garcia”), filed a Complaint, ECF No. 1, against (1) the City and County of Honolulu (“Defendant Honolulu”); (2) twenty-one Honolulu Police Department (“HPD”) officers;[1]/ and (3) John and/or Jane Does 1-10 (“Doe Defendants”). Compl. ¶¶ 11-14. The HPD officers were sued in their individual and official capacities. Id. ¶ 13.

         The Complaint asserted five causes of action. Counts I, II, and III asserted claims against each of the Defendants under 42 U.S.C. § 1983 for violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id. ¶¶ 145-160. Count IV asserted a state law claim against HPD officer Ronald J. Lombardi (“Defendant Lombardi”) for intentional infliction of emotional distress (“IIED”). Id. ¶ 161-162. Count V asserted state law negligence claims against each of the Defendants except Defendant Lombardi. Id. ¶ 163-164.

         On May 4, 2018, Defendant Honolulu filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). ECF No. 20. Thereafter, the HPD officers filed three motions to dismiss as follows: (1) Robert A. Cravalho filed a Motion to Dismiss on May 14, 2018, ECF No. 25; (2) Benjamin Moszkowicz filed a Motion to Dismiss on June 19, 2018, ECF No. 40; and (3) the remaining HPD officers (except for Defendant Lombardi) filed a Motion to Dismiss on July 31, 2018, ECF No. 45. On October 11, 2018, Plaintiff Garcia filed an Omnibus Memorandum in Opposition to the motions filed by Defendant Honolulu and HPD officers Cravalho and Moszkowicz. ECF No. 54. Plaintiff Garcia filed a Memorandum in Opposition to the motion filed by the remaining HPD officers on October 15, 2018. ECF No. 57. On October 18, 2018, Defendant Honolulu and HPD officers Cravalho and Moszkowicz filed Replies. ECF Nos. 58 and 59. On October 22, 2018, the remaining HPD officers filed a Reply. ECF No. 60. The Court held a hearing on all four motions on November 9, 2018. ECF No. 63.

         On November 16, 2018, the Court issued an Order Granting Defendants' Motions to Dismiss (the “11/16/2018 Order”). ECF No. 64. Given that the Complaint alleged events dating back to 2008, the parties initially disputed the extent to which Plaintiff Garcia's claims were time-barred by the relevant two-year statute of limitations. 11/16/2018 Order at 14. The Court found that Plaintiff Garcia's claims against Defendant Honolulu were based on an ongoing policy of discrimination, and that she had alleged numerous acts within the limitations period taken in furtherance of the discriminatory policy. Id. at 21-22. Accordingly, the Court ruled that Plaintiff Garcia's claims against Defendant Honolulu constituted a continuing violation and were not time-barred. Id. at 22. With respect to the claims against the individual HPD officers, the Court ruled that only those claims involving non-time-barred acts taken in furtherance of the discriminatory policy could advance. Id. at 24.

         In dismissing Plaintiff Garcia's claims, the Court held the following:

1. As to HPD officers Cravalho, Moszkowicz, Daniels, Orpilla, McKewen, Uehara, Slovak, Frederick, Thornley, Daniels, Nitta, Nishimura, Rodrigues, Vegas, Blackwell, Lau, and Hironaka, the Court dismissed all of Plaintiff Garcia's claims with prejudice because the Court found that the claims were time-barred.
2. As to HPD officers Arakawa, Hee, and Lee, the Court construed the official capacity § 1983 claims against Defendant Honolulu and dismissed those claims with prejudice; and the Court found that the individual capacity § 1983 claims and negligence claims against HPD officers Arakawa, Hee, and Lee were not time-barred, but dismissed those claims without prejudice.
3. As to Defendant Honolulu, the Court found that Plaintiff Garcia's § 1983 municipal liability claim and negligence claim were not time-barred, but dismissed the claims without prejudice.[2]/
4. The Court granted Plaintiff Garcia leave to file an amended complaint in order to cure the pleading deficiencies the Court identified with respect to the claims that were dismissed without prejudice. Specifically, the Court noted pleading deficiencies with respect to Plaintiff Garcia's failure to plead plausible constitutional violations, municipal liability, and state law negligence claims.

         On December 14, 2018, Plaintiff Garcia filed her First Amended Complaint (“FAC”). ECF No. 70. The FAC alleges claims against Defendant Honolulu, Defendant Lombardi, HPD officer Lanell Arakawa (“Defendant Arakawa”), HPD officer Nathan Hee (“Defendant Hee”), HPD officer Paul Lee (“Defendant Lee”), and the Doe Defendants. The FAC alleges nearly the same claims as the Complaint, except that the FAC alleges an additional constitutional deprivation[3]/-violation of the substantive due process right to bodily integrity, which is protected by the Due Process Clause of the Fourteenth Amendment. FAC ¶¶ 213-233.

         On January 7, 2019, Defendant Honolulu filed a Motion to Dismiss First Amended Complaint (“Defendant Honolulu's Motion”). ECF No. 76. On that same date, Defendants Arakawa, Hee, and Lee (collectively, the “Officer Defendants”) filed a Motion to Dismiss First Amended Complaint (“Officer Defendants' Motion”). ECF No. 77. On April 2, 2019, Plaintiff Garcia filed an Omnibus Memorandum in Opposition to Defendants' Motions. ECF No. 88. On April 9, 2019, Defendant Honolulu and the Officer Defendants filed Replies to Plaintiff Garcia's Opposition. ECF Nos. 89 and 90. The Court held a hearing on Defendants' Motions on April 23, 2019.

         FACTUAL BACKGROUND

         According to the FAC, Plaintiff Garcia 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. FAC ¶¶ 9-10. Defendants Lombardi, Arakawa, Hee, and Lee are all currently employed as HPD officers and reside in Honolulu. Id. ¶¶ 12-13. Defendant Honolulu is a municipal corporation of the State of Hawai`i. Id. ¶ 11. Plaintiff Garcia and Defendant Lombardi were married in November 1999, separated in November 2007, and divorced on February 14, 2011. Id. ¶¶ 15, 17. They have two children together, J.L. and G.L. Id. ¶ 16. Plaintiff Garcia was awarded temporary sole legal and physical custody of the children on July 15, 2008, a custody arrangement that was made permanent in the divorce decree dated February 14, 2011. Id. ¶ 19.

         The 73-page FAC features allegations spanning a ten-year period from 2008 to 2018 that describe how Defendant Lombardi engaged in abusive and harassing conduct over that period. The FAC also describes how Defendant Honolulu and numerous HPD officers allegedly failed to do anything to stop Defendant Lombardi and other HPD officers that Plaintiff Garcia alleges aided him in his harassment campaign. The thrust of Plaintiff Garcia's claims is that the HPD has a “de facto” longstanding practice or custom of mishandling complaints of domestic abuse filed by victims against HPD officers. The Court outlines below the various events that Plaintiff Garcia believes are symptomatic of the alleged longstanding practice or custom.

         I. Assaults

         Plaintiff Garcia alleges that on February 28, 2008, Defendant Lombardi sexually assaulted G.L., and that G.L. reported the sexual assault on March 2, 2008. Id. ¶¶ 20-21. At some point prior to or in March 2008, Defendant Lombardi physically and sexually assaulted J.L., the other daughter. Id. ¶¶ 22, 25. In October 2008, G.L. reported to her treating therapist at the Sex Abuse Treatment Center that Defendant Lombardi sexually assaulted her on another occasion. Id. ¶ 54. In August 2009, J.L. and G.L. both reported to their therapist that Defendant Lombardi committed additional sexual assaults. Id. ¶ 79.

         II. Protective Orders

         Plaintiff Garcia obtained three separate protective orders and one order for pre-decree relief due to Defendant Lombardi's conduct. Plaintiff Garcia obtained the first protective order on March 7, 2008, having stated in the petition for the order that Defendant Lombardi threatened her with physical harm if she attempted to end their marriage, physically assaulted J.L., and sexually assaulted G.L. Id. ¶¶ 24-25. The order prohibited Defendant Lombardi from threatening or abusing Plaintiff Garcia, J.L., and G.L.; prohibited Defendant Lombardi from coming within 100 feet of Plaintiff Garcia, her residence and workplace; and prohibited Defendant Lombardi from contacting Plaintiff Garcia or damaging or disturbing her property. Id. ¶ 26. Defendant Lombardi was also required to surrender his firearms to the HPD. Id. The order remained in effect until June 5, 2008. Id.

         On June 17, 2008, after divorce proceedings were underway, Plaintiff Garcia requested pre-decree relief prohibiting Defendant Lombardi from contacting her (other than to schedule visitation with the children), prohibiting him from coming near her residence or automobile absent an invitation, and prohibiting him from possessing firearms while in her presence and while in the presence of the children. Id. ¶ 38.

         On June 18, 2008, Plaintiff Garcia obtained a second protective order with substantially the same terms as the first protective order, but also prohibiting Defendant Lombardi from contacting Plaintiff Garcia or anyone else in her household. Id. ¶ 41. Plaintiff Garcia sought the second protective order because Defendant Lombardi made threats involving firearms and attempted to gain access to her residence in contravention of the first protective order. Id. ¶ 40. The second protective order remained in effect until July 9, 2008, when it was superseded by a pre-decree relief order dated July 15, 2008. Id. ¶¶ 39, 41.

         The July 15, 2008 pre-decree relief order granted Plaintiff Garcia sole legal and physical custody of the children, and prohibited Defendant Lombardi from contacting her for any purpose other than scheduling visitation, [4]/ prohibited him from coming near her residence or automobile absent an invitation, and prohibited him from possessing firearms in her presence or in the presence of the children. Id. ¶¶ 19, 38-39.

         On September 26, 2008, Plaintiff Garcia obtained a third protective order with substantially the same terms as the first and second protective orders. Id. ¶ 50. Plaintiff Garcia sought the third protective order because Defendant Lombardi violated the pre-decree relief order in various ways, including stalking Plaintiff Garcia and the children, attempting to have unsupervised visitation with the children, initiating unauthorized communications with Plaintiff Garcia, possessing a firearm in the presence of the children, and attempting to manipulate G.L. when she was undergoing treatment at the Sex Abuse Treatment Center. Id. ¶ 49. The third protective order was set to expire on December 25, 2008 but was extended until March 26, 2009. Id. ¶ 50.

         III. Incident Reports

         Plaintiff Garcia filed seven incident reports with the HPD throughout 2008 documenting Defendant Lombardi's violations of the three protective orders and pre-decree relief orders. Id. ¶ 60. Plaintiff Garcia's FAC contains allegations about six of the incident reports.

         The first incident report, dated June 20, 2008, detailed Defendant Lombardi having visited and entered Plaintiff Garcia's residence and vehicle without her permission and while armed. Id. ¶ 61. The second incident report, dated September 12, 2008, detailed Defendant Lombardi having visited J.L. at elementary school and delivering her books about murders, crime scene investigations, and autopsies. Id. ¶ 63. Plaintiff Garcia filed a third incident report on September 13, 2008 because Defendant Lombardi, in full uniform and armed with his service firearm, threatened and harassed Plaintiff Garcia and the children at a Jamba Juice in Kailua. Id. ¶ 64. Plaintiff Garcia filed the fourth incident report on September 15, 2008 because Defendant Lombardi had harassed and threatened her, and again attempted to have unsupervised visitation with the children. Id. ¶ 65.

         Plaintiff Garcia filed the fifth incident report on September 25, 2008 because Defendant Lombardi violated the July 15, 2008 pre-decree relief order by visiting G.L. at her preschool. Id. ¶ 66. On that date, Defendant Lombardi told Plaintiff Garcia that “he could get to her with a gun, that he would visit the children wherever and whenever he wanted, and that he would prove to her that he could do whatever he wanted regardless of the court order because he was part of the Honolulu Police Department ‘ohana.'”[5]/ Id. ¶ 67. Defendant Lombardi then called G.L.'s preschool and stated his intention of visiting G.L. during lunch. Id. ¶ 68. The preschool informed Plaintiff Garcia and building security of Defendant Lombardi's plan, both of whom in turn notified the HPD. Id. An HPD officer then called Defendant Lombardi to warn him that the HPD had been notified of his plan to visit the preschool. Id. ¶ 69. Defendant Lombardi explained that the June 18, 2008 protective order was no longer in effect, and that he was therefore allowed to visit G.L. Id. Responding officers confronted Defendant Lombardi after he arrived at the preschool in full uniform but took no further action against him, despite the fact that the pre-decree relief order was in effect. Id. ¶¶ 66, 70.

         Plaintiff Garcia filed the sixth incident report on November 18, 2008 after Defendant Lombardi left her a threating voicemail from an HPD telephone. Id. ¶¶ 71-72.

         Plaintiff Garcia alleges that after she filed each of the aforestated incident reports, Defendant Honolulu, pursuant to a longstanding custom or policy, failed to adequately investigate the incidents because they concerned allegations of abuse and harassment involving an HPD officer. Id. ¶ 73. Plaintiff Garcia alleges that Defendant Honolulu's inadequate investigations violated several internal HPD policies.[6]/ Id. ¶ 74.

         IV. False Police Reports

         Plaintiff Garcia alleges that Defendant Lombardi engaged in a campaign of harassment against her that involved filing six false police reports beginning in June 2008. Id. ¶ 85. The false police reports involved accusations that Plaintiff Garcia committed criminal contempt, violated the child custody arrangement, and made false allegations against Defendant Lombardi. Id. ¶ 86. Defendant Lombardi filed reports on June 17, 2008, July 10, 2008, January 7, 2009, October 22, 2009, June 9, 2011, and June 22, 2011. Id. ¶¶ 88-92; 100-101.

         Plaintiff Garcia alleges that Defendant Lombardi resumed his campaign of harassment in November 2015 by filing four more false police reports. Id. ¶ 113. Each of these reports falsely accused Plaintiff Garcia of custodial interference despite the fact that she was granted sole physical and legal custody of the children. Id. ¶¶ 113-114. These reports were dated November 20, 2015, December 22, 2015, January 14, 2016, and March 18, 2016. Id. ¶¶ 113, 116-119. The last of these reports was authored by Defendant Arakawa and approved by Defendant Hee, both of whom worked with Defendant Lombardi in the HPD's Traffic Division. Id. ¶ 119.

         Plaintiff Garcia alleges that in filing these reports, Defendant Lombardi and the HPD officers who assisted him violated various internal HPD policies. Id. ¶ 115. Defendant Lombardi used these police reports as evidence in a show cause action he filed in a Virginia Family Court in May 2016 attempting to have Plaintiff Garcia held in contempt. Id. ¶ 124.

         V. Professional Standards Office (“PSO”) Complaints

         Plaintiff Garcia filed four[7] PSO complaints with the HPD. The first was dated June 25, 2015 and concerned Defendant Lombardi's continued harassment of Plaintiff Garcia by violating the protective orders and other Family Court orders obtained in Virginia and Hawai`i. Id. ¶ 108. The complaint also detailed Defendant Lombardi having made threats to resort to self-help to visit J.L. and G.L. unsupervised, as well as threats of retaliation against Plaintiff Garcia for accusing him of domestic violence and sexually assaulting G.L. Id. Defendant Lee was one of the officers who conducted the PSO investigation, which Plaintiff Garcia alleges was deficient and violated various internal HPD policies. Id. ¶ 111-112. Defendant Lee notified Plaintiff Garcia on May 11, 2017 that the investigation had been closed on November 9, 2015 because it was determined “to be more of a civil matter.” Id. ¶¶ 109-110.

         Plaintiff Garcia filed another PSO complaint with Defendant Lee on March 15, 2017 in response to Defendant Lombardi's having filed four false police reports against her. Id. ¶¶ 126-127. Plaintiff Garcia also named in this complaint the HPD officers who helped Defendant Lombardi file the false police reports, including Defendants Arakawa and Hee. Id. ¶ 127. That complaint was sustained on August 9, 2017. Id. ¶ 129.

         STANDARD OF REVIEW

         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). 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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “[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). The Court must “accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party.” Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 784 (9th Cir. 2012) (citation omitted).

         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).

         DISCUSSION

         Defendants Honolulu, Arakawa, Hee, and Lee urge the Court to dismiss Plaintiff Garcia's claims because she has failed to plead non-conclusory allegations that, if accepted as true, state plausible claims for relief. The Court first addresses the § 1983 claims and then turns to the negligence claims.

         I. Official Capacity Claims Against the Individual Officer Defendants (Counts I-II)

         As an initial matter, the Court notes that its 11/16/2018 Order dismissed Plaintiff Garcia's official capacity § 1983 claims against the individual officers with prejudice.

         The Court held the following:

Personal capacity suits, on the one hand, seek to impose personal liability upon a government official for actions it takes under color of state law. See Hafer v. Melo, 502 U.S. 21, 5 (1991). Official capacity suits, on the other hand, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell, 436 U.S. at 690 n. 55. Courts, therefore, generally treat such suits as suits against the governmental entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Carnell v. Grimm, 872 F.Supp. 746, 752 (D. Haw. 1994) (dismissing claims against officials in their official capacity as duplicative where the municipality had also been sued); Freeland v. Cty. of Maui, Civ. No. 11-00617 ACK-KSC, 2013 WL 6528831, at *5 (D. Haw. Dec. 11, 2013) (“[T]he official-capacity claims ‘duplicate[ ] the claims asserted against the [County of Maui]' and are therefore dismissed” (alterations in original) (citations omitted)).
For the foregoing reasons, the Court dismisses with prejudice all of Plaintiff's official capacity claims against Officers Arakawa, Hee, and Lee.

11/16/2018 Order at 49. The FAC still pursues official capacity claims against the individual Officer Defendants. FAC ¶ 13. In light of the Court's prior ruling, the Court again dismisses the official capacity claims against the individual Officer Defendants with prejudice.

         II. Section 1983 Claims Against the Officer Defendants (Counts I and II) and ...


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