Hyun Ju Park v. City of Honolulu
| Decision Date | 12 February 2018 |
| Docket Number | Civ. No. 17–00142 ACK–KSC |
| Citation | 292 F.Supp.3d 1080 |
| Parties | HYUN JU PARK, Plaintiff, v. CITY AND COUNTY OF HONOLULU; Anson Kimura, Sterling Naki; Joshua Omoso; Doe Associations 1–5; and John and/or Jane Does 1–10, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Bronson Avila, Law Office Eric A. Seitz, Eric A. Seitz, A Law Corporation, Della A. Belatti, Honolulu, HI, for Plaintiff.
Traci Rei G. Morita, Tracy S. Fukui, Curtis E. Sherwood, Department of the Corporation Counsel, Honolulu, HI, for Defendants.
Sterling Naki, Ewa Beach, HI, Pro Se.
Joshua Omoso, Honolulu, HI, Pro Se.
ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
For the reasons set forth below, the Court GRANTS Defendant City and County of Honolulu's Motion to Dismiss the First Amended Complaint, ECF No. 98, to which Defendants Joshua Omoso and Sterling Naki have filed a Joinder, ECF Nos. 103, 104, as follows:
The Court notes that, as discussed in more detail herein, Counts 4 and 5 were dismissed pursuant to a stipulation, ECF No. 97, and no longer remain in this case.
On March 30, 2017, Plaintiff Hyun Ju Park ("Plaintiff") filed a Complaint against the following entities and individuals: (1) City and County of Honolulu ("Honolulu"); (2) Honolulu Police Department ("HPD") officer Anson Kimura ("Kimura")1 in his individual and official capacity; (3) HPD officer Sterling Naki ("Defendant Naki") in his individual and official capacity; (4) HPD officer Joshua Omoso ("Defendant Omoso") in his individual and official capacity (collectively with Kimura and Defendant Naki, the "individual officers"); and (5) John and/or Jane Does 1–10 and Doe Associations 1–5 (collectively with the John and Jane Does, the "Doe Defendants"). Complaint ¶¶ 8–11.
The Complaint asserted six causes of action. Counts 1 through 3, arising under 42 U.S.C. § 1983, stated that Defendants violated Plaintiff's rights under the Fourth and Fourteenth Amendments. Id. ¶¶ 31–43. Counts 4 through 6 alleged claims of assault and battery; intentional infliction of emotional distress ("IIED"); and negligence. Id. ¶¶ 44–51.
On May 11, 2017, Defendant Honolulu filed a Motion to Dismiss Complaint Filed April 20, 2017 Pursuant to FRCP 12(b)(6) ("Motion"). ECF No. 14. On June 2, 2017, Dongbu Insurance Co. ("Intervenor Plaintiff" or "Dongbu") filed a Motion to Intervene to protect its subrogation rights as the lien holder for the worker's compensation benefits it provided Plaintiff and to assert claims against Defendants. ECF No. 25. On August 31, 2017, Magistrate Judge Kevin Chang granted the Motion to Intervene. ECF Nos. 52, 68. On September 11, 2017, both Plaintiff and Intervenor Plaintiff filed Oppositions to Defendant Honolulu's Motion to Dismiss ("Pl. Opp." and "Int. Pl. Opp."). ECF Nos. 60, 62. On September 18, 2017, Defendant Honolulu filed replies to these oppositions. ECF Nos. 71, 72.
On October 3, 2017, the Court entered an Order Granting in Part and Denying in Part Defendant City and County of Honolulu's Motion to Dismiss Complaint ("October 3, 2017 Order"). ECF No. 79. Specifically, in its October 3, 2017 Order, the Court held the following:
On November 2, 2017, Plaintiff filed her First Amended Complaint ("FAC"). ECF No. 90. The FAC alleges claims against the same Defendants as the Complaint. The FAC also alleges the same claims as the Complaint, except Count 6's negligence claim also alleges a theory of negligent training and/or supervision.
On November 22, 2017, Defendant Honolulu filed a Motion to Dismiss the First Amended Complaint. ECF No. 98. On December 6, 2017, Defendants Omoso and Naki filed a Joinder to Defendant Honolulu's Motion to Dismiss. ECF Nos. 103, 104. On January 12, 2018, Plaintiff filed an Opposition to Defendant's Motion. ECF No. 120. On that same date, Plaintiff–Intervenor Dongbu filed a Joinder to Plaintiff's Opposition. ECF No. 122. On January 22, 2018, Defendant Honolulu filed a Reply to Plaintiff's Opposition. ECF No. 124. The Court held a hearing on Defendant's Motion on February 5, 2018.2
At approximately 1:45 a.m. on April 3, 2015, Plaintiff was performing her duties as a bartender and manager at the Kings Sports Bar in Honolulu, Hawaii. FAC ¶ 12. At that same time and place, Kimura was drinking alcoholic beverages and socializing with Defendants Naki and Omoso, among others, while on "off-duty" status as HPD officers. Id. ¶¶ 13–14. Plaintiff and other persons present at the Kings Sports Bar were aware that Kimura, Naki, and Omoso were HPD officers. Id. ¶ 15.
While Kimura was drinking, he took out his supplemental firearm issued by the HPD and then handled the weapon in a reckless and dangerous manner. Id. ¶ 16. One bullet was discharged from Kimura's firearm and struck Plaintiff. Id. The FAC alleges that Kimura purports to have handled his weapon in order to reload what he believed to be an unloaded firearm. Id. ¶ 17.
Defendants Naki and Omoso were aware that Kimura was handling his firearm in a reckless and dangerous manner prior to its discharge but failed to intervene. Id. ¶ 21. Pursuant to HPD Policy Number 2.21, entitled "Standards of Conduct," effective on the date of the incident, Defendants Naki and Omoso were required to take action as soon as they observed Kimura's reckless and dangerous handling of his firearm. Id. ¶ 22.
Pursuant to HPD Policy Number 2.38, effective on the date of the incident, entitled "Uniforms, Equipment, and Firearms," police officers are required to possess their HPD issued firearm at all times but are prohibited from such possession when an officer's "physical and/or mental processes are impaired because of consumption or use of alcohol." Id. ¶ 23. The FAC further alleges that this policy was modified around January 6, 2016, after the date of the incident, to prohibit officers from physically handling HPD issued firearms while consuming alcohol or any other substance likely to impair their physical or mental processes. Id. ¶ 24.
Plaintiff alleges that Policy Number 2.38, as it was effective on the date of the incident, was deficient as it permitted officers to possess firearms while consuming alcohol up to the point of intoxication, rather than expressly prohibiting the possession of a firearm while consuming alcohol in any amount. Id. ¶ 25. The individual officers were trained in accordance with Policy Number 2.21 and 2.38—the versions that were in place on the date of the incident. Id. ¶ 26.
Plaintiff alleges that there was a "brotherhood" culture of silence at the HPD, in which officers were known to abstain from reporting misconduct by their fellow officers, which was a de facto policy of the HPD. Id. ¶¶ 29–30. Plaintiff alleges that this "brotherhood" culture was exhibited in many different ways. See id. ¶¶ 31–39.
Federal Rule of Civil Procedure 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). The Court may dismiss a complaint either because it lacks a cognizable legal theory or because it lacks sufficient factual allegations to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
In resolving a Rule 12(b)(6) motion, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012). The complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "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, 127 S.Ct. 1955 ).
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).
The Court's October 3, 2017 Order dismissed Plaintiff's official capacity claims against the individual officers with prejudice. ECF No. 79. The Court held the following:
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