Carnell v. Grimm

• Citation: 872 F. Supp. 746
• Decision Date: 27 December 1994
• Docket Number: Civ. No. 93-00385DAE.
• Parties: Brenda Lynne CARNELL, Plaintiff, v. Cheryl GRIMM, Chris Sueo Yamaguchi, Susan Dowsett, Jerry Yoshit Kujiuji, Officer R. Noguchi, Officer C. Yoshimura, Officer C. Collins, Officer P. Thornton, Officer C.K. Flynn, City and County of Honolulu, Officer Earl Penaroza, and John Does 1-10, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)

872 F. Supp. 746

Brenda Lynne CARNELL, Plaintiff, v. Cheryl GRIMM, Chris Sueo Yamaguchi, Susan Dowsett, Jerry Yoshit Kujiuji, Officer R. Noguchi, Officer C. Yoshimura, Officer C. Collins, Officer P. Thornton, Officer C.K. Flynn, City and County of Honolulu, Officer Earl Penaroza, and John Does 1-10, Defendants.

Civ. No. 93-00385DAE.

United States District Court, D. Hawai`i.

December 6, 1994.

Order Denying Reconsideration but Ordering Entry of Separate Judgment December 27, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jacob M. Merrill, Honolulu, HI, for plaintiff.

Duane W.H. Pang, and Ronald B. Mun, Corp. Counsel, City & County of Honolulu, Honolulu, HI, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

The court heard defendants' motion on November 21, 1994. Duane W.H. Pang, Esq., appeared on behalf of defendants; Jacob M. Merrill, Esq., appeared on behalf of plaintiff. After reviewing the motion and the supporting and opposing memoranda, the court GRANTS in part and DENIES in part defendants' motion for summary judgment.

BACKGROUND

On November 1, 1992, Brenda Carnell ("plaintiff") celebrated Halloween at Honolulu's Restaurant Row. According to plaintiff, she accepted a ride home from a man who raped her in his car in the vicinity of Restaurant Row. With plaintiff still in his car, the man then drove onto the Nimitz Highway, where he stopped at a stoplight. Plaintiff fled from the car, the man tried to prevent her escape, bystanders intervened, and Restaurant Row security called the police.

Responding to the call regarding the possible sexual assault at 4:30 a.m., Officer Cornelius K. Flynn ("Defendant Flynn") saw plaintiff running down the middle of the road. Plaintiff contends that she was in the road at times, but was running on the side of the road when Defendant Flynn arrived. According to Defendant Flynn, he approached plaintiff, asked if she needed help, and told her to get out of the road. After she continued running in the road, he stopped her and took her to the sidewalk.

Other officers joined Defendant Flynn, who asked plaintiff what had happened. She responded with shouts of profanity and attempted to elude the officers and run back out onto the roadway. According to the officers, she also struggled with them, threatened them, and made sudden moves towards them. The officers arrested plaintiff for disorderly conduct. Plaintiff contends that she told the officers she had been raped. The officers disagree.

Defendant Flynn called a female officer to speak with plaintiff, who responded to that officer with continued threats and profanity. The police took the plaintiff to Central Receiving at the Honolulu Police Station. There, plaintiff refused to identify herself and could not be identified until a fingerprint technician could be called in to match her fingerprints. Plaintiff alleges that officers assaulted her in the cellblock.

On May 11, 1993, plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging violations of her constitutional rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments. Plaintiff named several officers of the Honolulu Police Department and the City and County of Honolulu ("CCH") as defendants. Defendants brought this motion for summary judgment on October 11, 1994. On November 7, 1994, plaintiff dismissed by stipulation all parties except Defendant Officers R. Noguchi and C.K. Flynn and defendant CCH.

STANDARD OF REVIEW

I. Summary Judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989).

Once the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Electrical, 809 F.2d 626. The opposing party cannot stand on its pleadings, nor can it simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., 809 F.2d at 630; Blue Ocean Preservation Soc. v. Watkins, 754 F.Supp. 1450, 1455 (D.Haw.1991); Fed.R.Civ.P. 56(e). There is no genuine issue of fact if the opposing party fails to offer evidence sufficient to establish the existence of an element essential to that party's case. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Blue Ocean Preservation Soc. v. Watkins, 754 F.Supp. 1450 (D.Haw.1991). If the non-moving party fails to assert specific facts, beyond the mere allegations or denials in its response, summary judgment, if appropriate, shall be entered. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); T.W. Electric, 809 F.2d 626; Fed.R.Civ.P. 56(e).

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979).

II. Qualified Immunity

Government officials who perform discretionary functions are protected from liability for civil damages when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In order for a right to be clearly established, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

Whether an official is protected by qualified immunity for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action. Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. at 3038. In Creighton, the Court held that despite an unlawful warrantless search, an officer could be entitled to qualified immunity if a reasonable officer could have believed that the search was lawful in light of the clearly established law and the information possessed by the searching officer. Id. Further, if a reasonable police officer would have believed that probable cause existed to arrest a defendant, the police officer is protected by qualified immunity. Hunter v. Bryant, 502 U.S. 224, 226-27, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991).

In summary, in order to determine whether a government official is entitled to qualified immunity in a section 1983 action, a court must (1) identify the right allegedly violated, (2) determine whether the right was clearly established, and (3) determine whether a reasonable official would have believed the official's conduct to be lawful. Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992) (citing Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991)). In deciding whether the right was clearly established, the court attributes to defendants' knowledge of constitutional developments at the time of the violations, including all available case law. Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 477 (9th Cir.1991).

Given these standards, unless a plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Since qualified immunity provides "an immunity from suit rather than a mere defense to liability," courts should resolve immunity questions "at the earliest possible stage in the litigation." Hunter v. Bryant, 502 U.S. at 227, 112 S.Ct. at 536. Even if the plaintiff's complaint alleges a violation of clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. If discovery does reveal genuine issues of fact which prevent determination of qualified immunity at summary judgment, the case must proceed to trial. Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993).

The threshold determination of whether the law governing the conduct at issue is clearly established is a question of law for the court. Act Up!/Portland, 988 F.2d at 873. Furthermore, the determination of whether the facts alleged could support a reasonable belief in the existence of probable cause is also a question of law determined by the court. Id. When a district court's determination of either of these issues results in the denial of a claim for qualified immunity, the denial is a final decision which is immediately appealable under 28 U.S.C. § 1291. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817-18 (where denial turns on issues of law, decision is immediately appealable). However, when the district court's denial of a claim for qualified immunity centers on a finding that genuine issues of material fact exist precluding summary judgment, the denial is...