United States District Court, D. Hawaii
DONNA GARCIA, Individually and As Guardian Ad Litem for Her Minor Children, J.L. and G.L. Plaintiff,
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
C. Kay Sr. United States District Judge.
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
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.
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; 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.
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.
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.
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.
dismissing Plaintiff Garcia's claims, the Court held the
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
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
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.
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.
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 -violation of the substantive due
process right to bodily integrity, which is protected by the
Due Process Clause of the Fourteenth Amendment. FAC
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.
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.
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.
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.
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.
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.
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.
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.
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,  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.
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.
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.
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.
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.'” 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.
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.
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. Id. ¶ 74.
False Police Reports
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.
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.
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.
Professional Standards Office (“PSO”)
Garcia filed four 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.
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.
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,
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).
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).
“[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)
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).
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.
Official Capacity Claims Against the Individual Officer
Defendants (Counts I-II)
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.
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