ORDER GRANTING DEFENDANTS JO AOKI, RYAN PAGAN, HARRY S. KUBOJIRI,AND COUNTY OF HAWAII'S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS Before the Court is Defendants Jo Aoki's1 ("Officer Aoki"), Ryan Pagan's2 ("Officer Pagan"), Harry S. Kubojiri's ("Chief Kubojiri"), and the County of Hawaii's ("the County") (collectively, "Defendants") Motion for Summary Judgment on All Claims ("Motion"), filed on April 5, 2012. [Dkt. no. 74.] Plaintiff Russell H. Doi ("Plaintiff") filed his memorandum in opposition on June 15, 2012, and Defendants filed their reply on June 22, 2012. [Dkt. nos. 88, 90.] This matter came on for hearing on July 6, 2012. Appearing on behalf of Defendants was Laureen L. Martin, Esq., and appearing on behalf of Plaintiff were Ronald N.W. Kim, Esq., and Eric A. Seitz, Esq. Aftercareful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED for the reasons set forth below.
This case arose out of Officer Aoki's and Officer Pagan's response to an unfortunate and emotionally overwrought family dispute between Plaintiff and his siblings, Aimee Doi ("Aimee") and Edmund Doi ("Edmund").
Plaintiff's parents, Rikio Doi ("Rikio") and Florence Doi ("Florence"), resided at 78 East Kahaopea Street in Hilo, Hawai'i at the time of the subject incidents. [Mem. in Supp. of Motion at 2 (citing Defs.' Concise Statement of Facts in Supp. of their Motion for Summ. Jdgmt. on All Claims ("Defs.' CSOF"), Decl. of Laureen L. Martin ("Martin Decl."), Exh. N (excerpts of 9/7/11 Depo. of Edmund Doi ("Depo. of Edmund Doi")) at 8-9).] Edmund lived in the main house with them, and Plaintiff and his girlfriend, Stephanie Salazar, lived in a separate ohana unit on the property. [Depo. of Edmund Doi at 9.] Aimee lives in Las Vegas. [Defs.' CSOF, Martin Decl., Exh. B at 2.]
In 2009, Florence was diagnosed with cancer. In September 2009, she executed a number of documents to put her financial affairs in order, including a power of attorney, a will, and a revocable trust. [Defs.' CSOF, Martin Decl., Exhs. C, E.] Rikio also executed a power of attorney ("first power ofattorney"), a will, and the revocable trust. [Id., Exhs. B, D, E.] Both Florence and Rikio gave Aimee their respective powers of attorney and made Aimee the successor trustee to their trust. [Id., Exh. B; Exh. E at 6; Exh. H (excerpts of 9/7/11 Depo. of Aimee Doi ("Depo. of Aimee Doi")) at 15-16.]
Defendants contend that Plaintiff was upset that Aimee was chosen to handle their parents' financial affairs. [Mem. in Supp. of Motion at 2 (citing Defs.' CSOF, Martin Decl., Exh. I (excerpts of 9/27/11 Depo. of Russell Doi, Vol. I ("Depo. of Russell Doi, Vol. I")) at 178; Exh. O (excerpts of 9/8/11 Depo. of Delphine Kealoha ("Depo. of Delphine Kealoha")) at 17-18; Depo. of Edmund Doi at 23, 66-67; Depo. of Aimee Doi at 15-16, 32-33).] Defendants claim that Plaintiff harassed and yelled at Florence, [id. at 2-3 (citing Depo. of Aimee Doi at 17, 48-49; Depo. of Edmund Doi at 16-17; Depo. of Delphine Kealoha at 11-12, 15-17),] and harassed and threatened Aimee and Edmund [id. (citing Depo. of Aimee Doi at 15-16; Depo. of Russell Doi, Vol. I at 178; Depo. of Edmund Doi at 11)]. The police were often called during the family disputes. [Depo. of Aimee Doi at 37.]
Florence passed away on September 16, 2009. [Depo. of Aimee Doi at 18.] Defendants claim that Plaintiff continued to harass Edmund, Aimee, and Aimee's friend, Delphine Kealoha ("Delphine"). [Mem. in Supp. of Motion at 3 (citing Depo. of Aimee Doi at 19; Defs.' CSOF, Martin Decl., Exh. K (excerpts of9/28/11 Depo. of Russell Doi, Vol. II ("Depo. of Russell Doi, Vol. II")) at 303).] Defendants also allege that Plaintiff attempted to gain control over Rikio's finances by taking his wallet and redirecting Rikio's social security checks to a different account. [Id. at 3-4 (citing Depo. of Aimee Doi at 44-45; Depo. of Russell Doi, Vol. I at 180-81).] Defendants recount an incident in which Plaintiff cut the brake lines to Aimee's car and, when the tow truck driver arrived to tow the car, Plaintiff sent him away. [Depo. of Aimee Doi at 17.] Aimee sought a temporary restraining order against Plaintiff, but the state district court denied it on or around September 29, 2009. [Pltf.'s Concise Counter-Statement of Material Facts ("Pltf.'s CSOF"), Decl. of E. Seitz ("Seitz Decl."), Exh. 22.] On or around October 2, 2009, Rikio executed a power of attorney in favor of Plaintiff ("second power of attorney"). [Id., Exh. 16.]
The subject incident occurred on October 8, 2009. Edmund came home to find that Plaintiff had changed the locks on the main house. [Depo. of Edmund Doi at 37.] Edmund called Aimee and Delphine, who arrived with Rikio's first power of attorney. [Id.; Depo. of Aimee Doi at 55.] Edmund called the police, and Officer Aoki and Officer Pagan responded. [Defs.' CSOF, Martin Decl., Exh. Q at ¶ 7; Exh. R at ¶ 6.]
Plaintiff and Rikio arrived thereafter. Plaintiff retrieved Rikio's second power of attorney and showed it toOfficer Aoki in or around the carport. [Depo. of Aimee Doi at 56, 58; Defs.' CSOF, Martin Decl., Exh. J; Exh. Q at ¶ 11.] Officer Pagan was standing at a distance, near Edmund, Aimee, and Delphine. [Defs.' CSOF, Martin Decl., Exh. R at ¶ 9.]
According to Defendants' version of events:
Plaintiff immediately became upset and wasn't listening to the police. Exhibits "H" at 59; "Q" at ¶ 11. The police were trying to make him relax and mellow out but he wasn't willing to listen to reason and was yelling and swearing. Exhibits "H" at 59; "Q" at ¶ 11; "R" at ¶ 10. Officer Aoki instructed Plaintiff not to go towards the other family member, but he refused to follow instructions. Exhibits "Q" at ¶ 11; "K" at 231, 273. Instead, Plaintiff came towards Officer Aoki in an effort to confront the other family members. Exhibits "J"; "K" at 226, 273; "L"; "M["] at 12; "Q" at ¶ 11. Plaintiff stated under oath:
I wanted to leave the garage to check on my father in the care [sic] because it was a hot day. Defendant Aoki prevented me from leaving the garage area, shoved me against a car (emphasis added) . . .
Exhibit "M" at 12.
Officer Aoki pushed Plaintiff a single time in order to prevent him from approaching the other family members. Exhibits "J"; "K" at 226, 273; "L"; "M["] at 12; "Q" at ¶ 11. Plaintiff fell on a vehicle and cut his arm. Exhibits "L"; "K" at 226. Alarmingly, after Plaintiff fell on the vehicle, he again came towards Officer Aoki. Exhibits "K" at 279; "Q" at ¶ 12. Officer Aoki had a split second to respond and grabbed the Plaintiff as he approached. Exhibit "Q" at ¶¶ 12-14. Plaintiff claims Officer Aoki put him in a headlock which resulted in him twisting his neck. Exhibit "K" at 280-81. The entireencounter happened very quickly and took less than ten seconds. Exhibits "K" at 233, 281 at ln 6-8.
Shortly after [Plaintiff fell] on the vehicle, Rikio opened the car door and began to exit the vehicle. Exhibits "H" at 60; "O" at 33. This caused great concern to the family because Rikio was in his eighties, frail and unsteady on his feet. Exhibits "H" at 46, ln 21-23; "O" at 34. The ground was also uneven with various debris and animal feces. Exhibit "H" at 65-66. Therefore, Delphine rushed to help Rikio walk in the direction of the main house. Exhibit "O" at 34-36. Plaintiff knew Delphine and Rikio were headed towards the house. Exhibit "K" at 293. Delphine also reassured Plaintiff she was just trying to help Rikio so that he wouldn't fall. Exhibit "O" at 34, ln 19-21. Plaintiff responded "Fuck this!" Exhibit "O" at 78.
Plaintiff did not want anyone to have contact with Rikio. Exhibit "K" at 265. Plaintiff began yelling "they no can take my father!" Exhibit "K" at 294. He was yelling "you guys cannot do this." The police repeatedly told Plaintiff to "just stay here". Exhibits "N" at 49-50; "R" at ¶ 11; "Q" at ¶ 14. The police also repeatedly told Plaintiff to calm down, but he continued to swear and refused to listen. Exhibits "R" at ¶ 11; "Q" at ¶ 14; "H" at 60-61; "O" at 34, 36-37. Plaintiff then tried to go towards the other family members. Exhibits "Q" at ¶ 14; "R" at ¶¶ 11-12; "K" at 296-97; "H" at 61; "O" at 34-35; "N" at 49-50. The police were yelling at Plaintiff to "stop!" Exhibit "O" at 35, ln 4. When Plaintiff tried to go towards the other family members, he used force against the police. Exhibits "Q" at ¶ 14; "R" at ¶¶ 11-12; "N" at 50-51; "O" at 34, ln 23; "H" at 61, 63. Plaintiff was yelling, swearing and was very aggressive to the police. He was vicious. Exhibits "H" at 117; "O" at 35, ln 11-20. The Officers were concerned for their own safety as well asothers. Exhibits "R" at ¶ 11; "Q" at ¶ 11.
The police had to physically restrain Plaintiff and everyone ended up on the ground. Exhibits "Q" at ¶ 14; "R" at ¶¶ 11-12; "H" at 62-63. Plaintiff is trained in martial arts and is very strong. It took both Officers to hold him down. Exhibits "N" at 50, ln 8-12; "R" at ¶ 12; "H" at 63, ln 14-17.
Even while on the ground, Plaintiff continued to resist and the police repeatedly told him to calm down and "stop resisting". Exhibits "Q" at ¶ 14; "R" at ¶11-¶12; "O" at 38; "K" at 300; "H" at 63, ln 14-25. Instead
of following police instructions, Plaintiff swore at the Officers. Exhibit "H" at 64, ln 1-3.
[Mem. in Supp. of Motion at 4-7 (internal footnotes omitted).]
Conversely, according to Plaintiff's version of events, Officer Aoki put him in a headlock when he merely leaned to the side of Officer Aoki so that he could see his father:
Defendant Aoki followed Mr. Doi into the garage area where Mr. Doi attempted to show Defendant Aoki the power of attorney while Defendant Aoki stood in front of him. CCSOF 58. Mr. Doi leaned to
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