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Flores v. City & Cnty. of Honolulu

United States District Court, D. Hawaii

November 7, 2019

KARL FLORES, Plaintiff,
v.
CITY & CNTY. OF HONOLULU, et al., Defendants.

          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 JUDGE.

         Flores 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.

         Because 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 AMEND.

         FACTUAL & PROCEDURAL BACKGROUND

         Early 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.

         When 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.

         Flores 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.

         Nearly two years after the confrontation with Officer Kirito, Flores filed this lawsuit on June 26, 2019. Dkt. No. 1.

         STANDARD OF REVIEW

         To 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).

         On a 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)).

         Accordingly, “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)).

         DISCUSSION

         The 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.[1]

         Before 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.

         Here, 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.[2]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.

         I. Claims Against Officer Kirito

         Defendants' 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 ...


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