Hanakahi v. U.S.

• Decision Date: 31 January 2002
• Docket Number: No. CV. 00-00807-DAEKSC.,CV. 00-00807-DAEKSC.
• Citation: 325 F.Supp.2d 1125
• Court: U.S. District Court — District of Hawaii
• Parties: Barrymore HANAKAHI, individually, and Jeanette K.K Hanakahi, individually, and as Special Administrator of the Estate of Alexa B.H. Hanakahi, Plaintiffs, v. The UNITED STATES of America, Defendant.

325 F.Supp.2d 1125

Barrymore HANAKAHI, individually, and Jeanette K.K Hanakahi, individually, and as Special Administrator of the Estate of Alexa B.H. Hanakahi, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. CV. 00-00807-DAEKSC.

United States District Court, D. Hawai'i.

January 31, 2002.

Michael K. Livingston, Mark S. Davis, Davis, Levin, Livingston, Grande, Honolulu, HI, for Barrymore Hanakahi, individually and as Special Administrator of the Estate of rec. Alexa B. Hanakahi, Jeannette K.K. Hanakahi, individually, and as Special Administrator of the Estate of rec. Alexa B.H. Hanakahi, plaintiffs.

Thomas A. Helper, Robert P. Morean, Office of the United States Attorney, Honolulu, HI, for United States of America, defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, Chief Judge.

The court heard Defendant's Motion on January 22, 2002. Michael K. Livingston, Esq., and Mark S. Davis, Esq., appeared on the briefs or at the hearing on behalf of Plaintiffs; Thomas A. Helper, Assistant U.S. Attorney, appeared on the briefs or at the hearing on behalf of Defendant. After reviewing the motion and the supporting and opposing memoranda, the court GRANTS Defendant's Motion for Dismissal.

BACKGROUND

Private Jason Hilliard was a member of B Company 2/27 Infantry, 25^th Infantry Division, stationed at Schofield Barracks, Hawaii, at all times relevant to this lawsuit. Captain Richard Procell commanded B Company.

On February 20, 1997, Hilliard drank in his barracks, then drove his car off base with another soldier. Hilliard's car collided with a car driven by Alexa Hanakahi, who was killed in the accident. That accident is the basis of this lawsuit.

In July 1996 Hilliard and the rest of B Company were deployed to the Sinai Peninsula to participate in the international peacekeeping force. From January 1996 until the night of February 19-20, 1997, when the accident at issue occurred, Hilliard consumed large enough quantities of alcohol to eventually develop clinical alcohol dependence and alcohol-related liver damage. The legal drinking age for U.S. Army soldiers in the Sinai was 21. Jason Hilliard was under 21 at all relevant times.

On Christmas night in 1996, Hilliard apparently realized he had a serious alcohol problem. He referred himself to the Army's Alcohol and Drug Abuse Prevention and Control Program ("ADAPCP"). This self-referral required approval by all levels of Hilliard's chain of command, from his immediate supervisor to his commander, Captain Procell. Hilliard was assessed in the Sinai by a social worker, Maj. Mosley, who concluded that Hilliard freely accepted that he needed treatment for his "significant alcohol use and high tolerance." ADAPCP Records, p. 111. Because there were no ADAPCP facilities in the Sinai, Maj. Mosley's plan was for Hilliard to begin treatment upon re-deployment at Schofield Barracks.

Hilliard's unit returned to Schofield Barracks in January 1997. Hilliard claims that he attempted to initiate treatment through ADAPCP on arrival, however, he was told to wait until things settled down. Less than one week after the Battalion's return, Hilliard was arrested by the military police for underage drinking at the Sports Dome bar located near the barracks at Schofield Barracks. Hilliard's arrest was brought to the attention of his chain of command. As a result, Hilliard was given Field Grade Article 15 Punishment, which resulted on February 3, 1997, in imposition of 45 days restriction to barracks, 45 days extra duty, a forfeiture of pay, and a reduction in rank. He was also given a command referral to ADAPCP, signed by Capt. Procell on January 23, 1997.

While restricted to post Hilliard was required to get permission to go anywhere outside the confines of Schofield Barracks military installation. He was not imprisoned and therefore was not under guard nor was he closely watched. This restriction to post would have been in effect at the time of the accident. Generally, soldiers who were subject to such discipline would not be eligible for Track III placement until the discipline had been completed. Track III is a residential treatment program involving a 6-8 week period of inpatient care with mandatory outpatient follow-up for one year.

The January 23, 1997 command referral led to an ADAPCP "Brief Screen" later that same day by an ADAPCP counselor. Hilliard was scheduled for an ADAPCP "Full Screen" on January 28, 1997. On January 28, 1997 the full screen was conducted by Dr. James Slobodzien, who became Hilliard's ADAPCP counselor. Dr. Slobodzien recommended Hilliard for Track III residential treatment. In late January or early February 1997, a counselor from ADAPCP called Procell to discuss the appropriate Track for Hilliard. Army Regulation 600-85 governs Army personnel in determining how to treat soldiers with alcohol problems. The regulation requires the Army to balance the needs of the Army and the needs of the soldier. According to Regulation 600-85, in order to enroll a soldier in Track III, the commander's approval is required. In addition, 600-85 sets out an appeal process to resolve a dispute between doctors and commanders. Capt. Procell did not concur that Track III was appropriate for Hilliard. He told the counselor that he believed that Track II was appropriate for Hilliard at that time.

On February 6, 1997, after Hilliard had attended a Track II class, he was seen by Dr. Kent Brockman. According to Dr. Brockman's notes, Hilliard reported that he had been drinking up to a fifth of bourbon on weekdays and two fifths on weekend days for two years, but that he had cut down to about a third of this level. Dr. Brockman consulted with Dr. Wayne Batzer, Chief of the Tri-Service Alcoholism Recovery Facility, and Clinical Consultant to the Alcohol and Drug Abuse Prevention and Control Program. Batzer was the highest ranking military officer with direct responsibility for ADAPCP, and the top medical officer at ADAPCP. Based on his review of the case with Dr. Brockman, Batzer concurred with Capt. Procell that Track III placement was not required.

In January 1997, Hilliard arranged to buy a car from Daniel Schofield. Hilliard paid $2000 to Schofield and agreed to pay-$1500 more. When payment was complete, Schofield would transfer title to Hilliard. Hilliard testified that Schofield would maintain insurance on the car, but he did not to do this. From approximately January 15, 1997 until the night of the accident, Hilliard possessed and was regularly operating the car purchased from Schofield. During this period, Hilliard drove the car on base and parked in the parking lot outside the residential barracks.

STANDARD OF REVIEW

A motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). For the purposes of a 12(b)(6) motion, "[r]eview is limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir.1994).

A complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992) (quoting Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989)) (further citations omitted). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. See id.

To the extent, however, that "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.P. 12(b); Del Monte Dunes at Monterey, Ltd. v. Monterey, 920 F.2d 1496, 1507 (9th Cir.1990).

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be entered when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that 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 demonstrating for the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). The moving party, however, need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548.

Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial. Fed.R.Civ.P. 56(e). The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987); Fed.R.Civ.P. 56(e). There is no genuine issue of fact "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. Id. The evidence submitted by the nonmovant, in opposition to a motion for summary judgment, "is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must bear in mind the actual quantum...