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Reno v. Nielson

United States District Court, D. Hawaii

December 17, 2019

DAVID A. RENO, Plaintiff,
SCOTT U. NIELSON, individually And in his capacity as Police Officer; HONOLULU POLICE DEPARTMENT; CITY AND COUNTY OF HONOLULU, Defendants.



         For the 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.


         This 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 Plaintiff's Complaint.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         On 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 11:00 a.m.


         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, 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).

         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). “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).

         “[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).

         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).


         I. Parties' Arguments

         Defendant 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.

         The 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.

         Plaintiff's 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.

         An 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 analysis.

         II. Threshold Procedural Issues

         As an 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.

         Plaintiff 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 ...

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