Dowkin v. The Honolulu Police Dep't
| Decision Date | 30 November 2010 |
| Docket Number | CIVIL NO. 10-00087 SOM/LEK |
| Parties | SERGEANT SHERMON DEAN DOWKIN, OFFICER FEDERICO DELGADILLO MARTINEZ, JR. AND OFFICER CASSANDRA BENNETT-BAGORIO,Plaintiffs, v. THE HONOLULU POLICE DEPARTMENT, THE CITY AND COUNTY OF HONOLULU, FORMER CHIEF OF POLICE BOISSE CORREA, CURRENT CHIEF OF POLICE LOUIS KEALOHA, ASSISTANT CHIEF MICHAEL TAMASHIRO, MAJOR KENNETH SIMMONS, MAJOR JOHN MCENTIRE, CAPTAIN NYLE DOLERA, LIEUTENANT MICHAEL SERRAO, LIEUTENANT DAN KWON, LIEUTENANT WILLIAM AXT, SERGEANT WAYNE FERNANDEZ, SERGEANT RALSTON TANAKA, OFFICER KASHIMOTORO, PAT AH LOO AND Does 1-100,Defendan |
| Court | U.S. District Court — District of Hawaii |
Three Honolulu Police Officers bring this action against their employer, the Honolulu Police Department ("HPD"), and thirteen supervisors, officers, and HPD personnel for alleged race and gender discrimination, retaliation, and disparate treatment. On March 30, 2010, Sergeant Shermon Dean Dowkin, Officer Federico Delgadillo Martinez, Jr., and Officer Cassandra Bennett-Bagorio filed a First Amended Complaint with fourteen causes of action. On September 23, 2010, the fourteen Defendants filed a motion for partial dismissal for failure to state a claim upon which relief can be granted.1 The court grants in part and denies in part Defendants' motion for partial dismissal.
Sergeant Shermon Dean Dowkin ("Dowkin"), Officer Federico Delgadillo Martinez, Jr. ("Delgadillo"), and Officer Cassandra Bennett-Bagorio ("Bennett-Bagorio") (hereinafter referred to collectively as "Plaintiffs") were and are still employed by HPD. See First Am. Compl. ¶ 24, ECF No. 5. Dowkin and Delgadillo have and are currently serving in HPD's Regional Patrol Bureau District 4, First Watch. See id. ¶¶ 4, 5. Dowkin is a male Field Sergeant and has been employed with HPD since 1988. Id. ¶ 4. Delgadillo is a male Motorized Metropolitan Police Officer and has been an HPD employee since 1998. Id. ¶ 5. Bennett-Bagorio is a female Motorized Metropolitan Police Officer and has been with HPD since 1997. Id. ¶ 6. Dowkin is allegedly the only African-American supervisor, and Delgadillo is allegedly the only Mexican-American officer in the First Watch of District 4. Id. ¶ 28.
From November 2003 to August 2008, Dowkin supervised a Traffic Enforcement Team, also known as the Driving Under the Influence Team ("DUI Team"). See id. 5 25. Delgadillo was a member of the DUI Team. See id. The DUI Team was responsible for enforcing traffic laws on the Windward Side of Oahu during First Watch hours from 10:00 pm to 7:00 am. See id. Plaintiffs allege that the DUI Team makes more stops than other patrol officers on a nightly basis. See id.
Dowkin and Delgadillo allege that, between 2003 and 2008, their supervisors and fellow officers gave direct orders and conspired not to provide them protective "cover" or "backup" when Dowkin and Delgadillo arrested persons in the field. See id. 55 24, 27. Dowkin and Delgadillo's ongoing requests for assistance were allegedly "routinely ignored," as Defendants were purportedly "motivated by racial prejudice." Id. 5 29. Plaintiffs claim this was designed or accomplished with a reckless disregard for their physical safety and that, when they complained about race discrimination, retaliation also motivated Defendants. Id.
HPD's standard operating procedure allegedly required backup support by the nearest officer to any officer radioing that he or she was making a solo traffic stop at night. See id. 5 27. The procedure allegedly ensured that the arresting officer's physical safety and ultimate prosecution of offenders were not jeopardized. See id. Plaintiffs allege further that all HPD District 4 patrol officers were obligated to respond immediately to requests for cover and to provide backup as part of their normal police responsibilities. See id.
Dowkin and Delgadillo, having been on special duty assignment with the DUI team, returned to the First Watch in 2008. See id. ¶ 31. Plaintiffs allege that "for the most part" officers assigned to special duty assignments do not lose their seniority benefits when they return to First Watch. Id. But when Dowkin and Delgadillo returned to First Watch from the DUI team, they were allegedly demoted to "junior officer status." Id.
On August 7, 2008, Dowkin delivered a written complaint, alleging race discrimination by HPD, to Defendant Major Simmons, Commander of HPD District 4. Id. ¶ 29. Dowkin allegedly spoke with Major Simmons and explained the circumstances regarding the disparate treatment. Id. Major Simmons allegedly took no action in response to the complaint. Id. Plaintiffs further allege that, although the filing of the complaint was protected activity, retaliation immediately commenced. Id.
On October 14, 2008, Bennett-Bagorio was allegedly summoned by HPD Human Resources to provide testimony regarding Dowkin and Delgadillo's race discrimination complaint. Id. ¶ 32.
Bennett-Bagorio's testimony allegedly supported Dowkin and Delgadillo's claims of race discrimination and of purported failure to provide cover on traffic stops. Id. Bennett-Bagorio alleges that, as a result of her testimony and her gender, Defendants retaliated against her. Defendants allegedly failed to provide her with backup on traffic stops, denied her critical training, humiliated her in front of her peers, and isolated her from normal workplace social contact. Id.
Dowkin and Delgadillo filed a charge with the United States Equal Opportunity Commission Office ("EEOC") in Honolulu and with the Hawaii Civil Rights Commission ("HCRC") in November 2008. See Am. Compl. 30, ¶ 33(CCC). Bennett-Bagorio filed a charge of gender discrimination and retaliation with the EEOC and HCRC in April 2009. See Am. Compl. 31, ¶ 33(NNN).
Plaintiffs filed the present lawsuit on February 20, 2010, see ECF No. 1, and a First Amended Complaint on March 30, 2010, see ECF No. 5.
On a Rule 12(b)(6) motion, review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). If matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, courts may "consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 554).
Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).
The First Amended Complaint names HPD as a defendant. HPD is not an independent legal entity. See Meyer v. City & County of Honolulu, 6 Haw. App. 505, 507 n.1, 729 P.2d 388, 390 n.1, rev'd in part on other grounds, 69 Haw. 8, 731 P.2d 149 (1986) ( "the HPD is a department placed under supervision of the managing director of the City and County of Honolulu" and is not an "independent legal entity"); Headwaters Forest Def. v. Cnty. of Humboldt, et al., 276 F.3d 1125, 1127 (9th Cir. 2002) (). Accordingly, all claims against HPD are dismissed. As Plaintiffs note, the proper municipal defendant in this case is the City and County of Honolulu ("City"). See Opp'n 3-4, ECF No. 37. The court will treat Plaintiffs' claims against the HPD as claims against the City.
Plaintiffs withdrew Claim 1 in their Opposition. See Opp'n 4. The court does not address this withdrawn claim.
Defendants do not move to dismiss Claim 2. Accordingly, this claim remains for further adjudication.
Defendants move to dismiss Claim 3, in which Plaintiffs sue the City for race discrimination in violation of 42 U.S.C. § 1981. That statute states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a).
Because the language of § 1981 is "very similar" to the language of 42 U.S.C. § 1983, when a plaintiff brings a § 1981 claim against a government...
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