United States District Court, D. Hawaii
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS; AND (2) DISMISSING THE
COMPLAINT WITH PARTIAL LEAVE TO AMEND
DERRICK K. WATSON UNITED STATES DISTRICT
brings this excessive force action against the City and
County of Honolulu (the City) and Officer Joshua M. Kirito
under 42 U.S.C. Section 1983 and Hawaii law. Flores alleges
that after a vehicle crashed onto his property in July 2017,
Officer Kirito arrived on scene and, without provocation,
began punching him in the face and chest in apparent response
to Flores photographing the vehicle's driver. Defendants
move for dismissal under Fed.R.Civ.P. 12(b)(6) on the basis
that Flores has failed to allege sufficient facts to state a
claim against the City and because Officer Kirito is a
“redundant defendant.” Dkt. No. 9.
the direct claims against the City (Counts I and IV) are only
supported by conclusory statements, and Officer Kirito is
not a “redundant defendant” insofar as
the individual capacity claims against him are concerned, the
motion to dismiss is GRANTED IN PART AND DENIED IN PART, and
the Complaint (Dkt. No. 1) is DISMISSED WITH PARTIAL LEAVE TO
& PROCEDURAL BACKGROUND
in the evening on July 2, 2017, Plaintiff Karl Flores was
away from his home when he received a phone call and learned
that a vehicle had crashed into his property. Dkt. No. 1,
¶ 14. At about 8:30 p.m., Flores returned to his home to
find that his neighbors had apprehended the driver of the
stolen vehicle until police arrived. Id. at
¶¶ 15-17. Once police and medical personnel were on
the scene, the driver was placed in the back of an ambulance
and the rear doors were left open. Id. at ¶ 17.
Flores began taking pictures of the driver and the property
damage, Flores avers that, without any provocation, Officer
Kirito ran to Flores, punched him in the chest, attempted to
grab the cell phone from Flores' hand, punched Flores
again in the chest, backhanded Flores in the face, and
hyperextended Flores' wrist. Id. at ¶¶
18-19. Despite the physical encounter, Flores was not
arrested, he was not taken into custody, and his phone was
not confiscated. Id. at ¶ 20.
later reported the assault and spoke to a captain and
lieutenant with the Honolulu Police Department (HPD).
Id. at ¶ 21. HPD allegedly never followed up
with Flores and withheld unspecified information.
Id. at ¶ 23.
two years after the confrontation with Officer Kirito, Flores
filed this lawsuit on June 26, 2019. Dkt. No. 1.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain enough facts “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P. 8(a)(2).
Even though a “complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (citations omitted).
Rule 12(b)(6) motion, a court “must accept as true all
of the factual allegations contained in the complaint,
” Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and draw “any reasonable inferences” in favor of
the plaintiff. Johnson v. Riverside Healthcare Sys.,
534 F.3d 1116, 1122 (9th Cir. 2008). To that end, a court
must judge the sufficiency of a complaint under a two-pronged
approach: (1) disregard all “legal conclusions”
and “conclusory statements”; and (2) determine
whether the remaining “well-pleaded factual
allegations, ” accepted as true, “plausibly give
rise to an entitlement to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-81 (2009). Dismissal is
warranted “where there is no cognizable legal theory or
an absence of sufficient facts alleged to support a
cognizable legal theory.” Interpipe
Contracting, Inc. v. Becerra, 898 F.3d 879, 886
(9th Cir. 2018) (quoting L.A. Lakers, Inc. v. Fed. Ins.
Co., 869 F.3d 795, 800 (9th Cir. 2017)).
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A
claim becomes plausible “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. at 678. That is, the
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S.
at 555 (internal citations omitted). If, from the
well-pleaded facts, the court cannot “infer more than
the mere possibility of misconduct, the complaint has
alleged-but has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Complaint lacks focus and clarity, requiring the Court to
deconstruct the claims against each Defendant.
Notwithstanding, the Court interprets the Complaint to raise
five counts: (1) violation of the Fourth Amendment by Officer
Kirito and the City; (2) assault and battery by Officer
Kirito; (3) intentional, willful, or reckless conduct by
Officer Kirito; (4) negligent training and supervision by the
City; and (5) negligence by Officer Kirito.
turning to the merits, there is a procedural infirmity to
address. Litigants must comply with local rules, and
“[o]nly in rare cases will [the Ninth Circuit Court of
Appeals] question the [district court's] exercise of
discretion in connection with the application of local
rules.” Sekhon v. BAC Home Loans Servicing LP,
519 Fed.Appx. 971, 972 (9th Cir. 2013) (quoting Ghazali
v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (district
court properly dismissed complaint pursuant to local rule as
a result of plaintiff's failure to oppose motion for
dismissal)). Local Rule 7.2 requires an opposition to a
motion set for a hearing to be “filed at least
twenty-one (21) days prior to the date of the hearing . . .
An opposition . . . that is untimely filed may be disregarded
by the court or stricken from the record.” LR 7.2.
the hearing on Defendants' motion to dismiss was set for
October 18, 2019. See Dkt. No. 10. Flores was
required to file his response in opposition twenty-one days
prior to that date; that is, no later than September 27,
2019. Thus, Flores' opposition was untimely when he filed
it on September 30, 2019. Dkt. No. 12.Although LR 7.2
gives the Court the discretion to strike Flores' late
opposition, Dkt. No. 12, the Court declines to do so-this
time. Counsel is cautioned that continued failures to adhere
to the Court's rules may result in more significant
consequences should those practices persist.
Claims Against Officer Kirito
motion primarily focuses on the deficiencies in the claims
alleged against the City. Dkt. No. 9-1 at 4-9. Indeed,
Defendants do not argue that the allegations, accepted as
true, fail to allege that Officer Kirito's conduct
amounted to excessive force, assault, or negligence. Rather,
because “[a] suit against a [government] official in
his or her official capacity is not a suit against the
official but rather is a suit against the official's
office, ” see, e.g., Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71, (1989);
Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(“[A]n official-capacity suit is, in all respects other
than name, to be treated as a suit against ...