United States District Court, D. Hawaii
DAVID A. RENO, Plaintiff,
SCOTT U. NIELSON, individually And in his capacity as Police Officer; HONOLULU POLICE DEPARTMENT; CITY AND COUNTY OF HONOLULU, Defendants.
GRANTING DEFENDANTS' MOTIONS TO DISMISS
C. KAY SR. UNITED STATES DISTRICT JUDGE.
reasons discussed below, the Court GRANTS Defendant the City
and County of Honolulu's Motion to Dismiss, ECF No. 13,
and GRANTS Defendant Scott Nielson's Motion to Dismiss,
ECF No. 16.
case arises from an encounter between Plaintiff David Reno
(“Plaintiff”) and Defendant Scott Nielson
(“Defendant Nielson”). ECF No. 1
(“Compl.”). The following facts are drawn from
sought to submit a statement to the Honolulu Police
Department (“HPD”) documenting a matter involving
Plaintiff's insurance agent falsifying information on
Plaintiff's insurance documents. Compl. at 4. Plaintiff
was provided forms on which to submit his statement by a
non-party HPD officer. Compl. at 3. Plaintiff was advised to
submit the forms to the HPD by calling 911 and requesting a
beat officer who would take the forms and issue Plaintiff a
report number. Compl. at 3. Plaintiff called 911 on August 4,
2017, and Defendant Nielson, an HPD officer, met with
Plaintiff. Compl. at 4.
states that Defendant Nielson refused to take Plaintiff's
information. Compl. at 4. Defendant Nielson advised Plaintiff
against filing his statement and quoted false laws or
policies to Plaintiff, including a statement that “[w]e
don't just give report numbers to documents.”
Compl. at 4. Plaintiff realized partway through the encounter
that he had been filming the interaction on his cell phone
and pointed his cell phone camera at Defendant Nielson.
Compl. at 5. At this time, Defendant Nielson recognized
Plaintiff was recording the interaction and Defendant Nielson
accepted Plaintiff's statement and issued Plaintiff a
report number. Compl. at 6. Defendant Nielson got into
Plaintiff's “space” before they parted ways.
Compl. at 6.
August 21, 2017, Plaintiff went to the police station to
inquire about his statement, at which time he learned that
Defendant Nielson's police report was the only document
associated with the provided report number. Compl. at 6.
Plaintiff filed an affidavit against Defendant Nielson
through HPD's Professional Standards Office based on
Defendant Nielson's failure to submit Plaintiff's
statement. Compl. at 6. On August 23, 2017, Plaintiff learned
that Defendant Nielson falsely stated in the police report
that Plaintiff had not provided Defendant Nielson any
documents and had misstated material facts. Compl. at 7. In
response, Plaintiff filed a second affidavit against
Defendant Nielson. Compl. at 7.
asserts that these events violated his First, Fifth, and
Fourteenth Amendment rights under the United States
Constitution. Compl. at 2. Plaintiff seeks (1) rescission or
removal of Defendant Nielson's falsified police report;
(2) punitive damages for the negligent or intentional
infliction of emotional distress; and (3) compensatory
damages for loss of earnings. Compl. at 7-8.
September 10, 2019, Defendant the City and County of Honolulu
filed a Motion to Dismiss for failure to state a claim. ECF
No. 13. On October 11, 2019, Defendant Scott Nielson filed a
Motion to Dismiss for failure to state a claim. ECF No. 16.
On November 20, 2019, Plaintiff filed an Opposition, ECF No.
21, and on November 27, 2019, Defendants filed a Reply, ECF
No. 23. A hearing was held on Thursday, December 12, 2019 at
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, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
1964, 167 L.Ed.2d 929 (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).
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). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter
to ‘state a claim to relief that is plausible on its
face.'” Id. (quoting Iqbal, 556
U.S. at 678). “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.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556).
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 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).
City and County of Honolulu (the “City”) and
Defendant Nielson (collectively, “Defendants”)
both seek dismissal of the claims for five of the same
reasons. First, Defendants argue that Plaintiff fails to
plead an actionable state law claim of negligence. City's
Mot. Dismiss at 5; Nielson's Mot. Dismiss at 4. Second,
Defendants argue that Plaintiff's Fifth Amendment claim
fails because the Fifth Amendment only applies to alleged
violations by the federal government. City's Mot. Dismiss
at 6; Nielson's Mot. Dismiss at 4. Third, Defendants
argue that Plaintiff's First Amendment claim fails
because the speech at issue does not relate to a matter of
public concern. City's Mot. Dismiss at 6-9; Nielson's
Mot. Dismiss at 4-8. Fourth, Defendants argue that
Plaintiff's Fourteenth Amendment claim fails because
Plaintiff did not suffer a constitutional deprivation as a
result of an allegedly false police report or unsubmitted
statement. City's Mot. Dismiss at 9; Nielson's Mot.
Dismiss at 8-9. Fifth, Defendants argue that Plaintiff's
claims against Defendant Nielson in his official capacity are
redundant of the claims against the City. City's Mot.
Dismiss at 11; Nielson's Mot. Dismiss at 9-10.
City makes the additional argument that the City cannot be
held vicariously liable for its employees' alleged
constitutional violations. City's Mot. Dismiss at 4.
Defendant Nielson makes the additional arguments that he is
entitled to qualified immunity, Nielson's Mot. Dismiss at
10-12, and that the request for injunctive relief should be
dismissed as moot, Nielson's Mot. Dismiss at 12-13.
Opposition does not respond to these arguments. Rather, it
alleges additional details and offers extrinsic evidence not
attached to the Complaint. In particular, the Opposition
attaches three additional documents: (1) the statement that
Plaintiff attempted to submit to Defendant Nielson; (2)
Plaintiff's video recording of the interaction with
Defendant Nielson, as well as a transcript of that recording;
and (3) Defendant Nielson's police report.
opposition to a motion to dismiss is an improper vehicle to
assert additional facts not initially alleged, which
Plaintiff may properly assert through an amended complaint.
Nathanson v. Polycom, Inc., 87 F.Supp.3d 966, 985
(N.D. Cal. 2015) (declining to address allegations raised in
plaintiff's opposition brief but not his complaint)
(citation omitted). “A court may, however, consider
certain materials” when ruling on a Rule 12(b)(6)
motion to dismiss, including “documents incorporated by
reference in the complaint.” United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “Even
if a document is not attached to a complaint, it may be
incorporated by reference into a complaint if the plaintiff
refers extensively to the document or the document forms the
basis of the plaintiff's claim.” Id. The
statement is referred to extensively in the Complaint, and,
though a closer question, arguably the video recording is as
well. Defendant Nielson's allegedly false police report
forms the basis for some Plaintiff's claims. Thus, the
Court may consider these items in ruling on the motion to
dismiss. With that said, they do not alter the Court's
Threshold Procedural Issues
initial matter, Plaintiff does not assert the basis on which
he names the City as a Defendant. Plaintiff names the City in
the caption of his Complaint and in his list of Defendants,
but does not in any other place refer to the City or the
City's liability for the alleged actions. See
Compl. at 1, 2. In fact, aside from the caption of the
Complaint, the single reference to the City is as follows:
“Defendant City and County of Honolulu (‘City and
County') of 530 South King Street Honolulu Hawai‘i
96813 and whose phone number is (808) 768-5222, is the
municipal authorities of the City and County of Honolulu as a
Corporation and at all times relevant; and may be sued in its
name.” Compl. at 2. Plaintiff's failure to direct
any substantive allegations toward the City makes it
difficult for the Court to ascertain the basis for liability,
and difficult for the Court to know if Plaintiff intends to
assert all, or only some, of his claims against the City.
further fails to allege any specific cause of action for his
constitutional claims. He is apparently attempting to
directly sue for violations of his constitutional rights
despite the established law that there is “no cause of
action directly under the United States Constitution”
and “a litigant complaining of a violation of a
constitutional right must utilize 42 U.S.C. §
1983.” Azul-Pacifico, Inc. v. City of Los
Angeles, 973 F.2d 704, 705 (9th Cir. 1992); see also
Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d
912, 925 (9th Cir. 2001). Nevertheless, Plaintiff here is pro
se and the Court holds his allegations “to less
stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); see also Wolfe
v. Strankman,392 F.3d 358, 362 (9th Cir. 2004)
(“We construe the complaint liberally because it was
drafted by a pro ...