Wong v. City & County of Honolulu

• Decision Date: 26 August 2004
• Docket Number: No. CIV.03-00176 ACK/LEK.,CIV.03-00176 ACK/LEK.
• Citation: 333 F.Supp.2d 942
• Court: U.S. District Court — District of Hawaii
• Parties: Randy WONG, dba TLC Motorcycles, Plaintiff, v. CITY & COUNTY OF HONOLULU; Sergeant Earl Penarosa; Does 2-10, Defendants.

333 F.Supp.2d 942

Randy WONG, dba TLC Motorcycles, Plaintiff, v. CITY & COUNTY OF HONOLULU; Sergeant Earl Penarosa; Does 2-10, Defendants.

No. CIV.03-00176 ACK/LEK.

United States District Court, D. Hawai`i.

August 26, 2004.

COPYRIGHT MATERIAL OMITTED

Jack F. Schweigert, Honolulu, HI, for Plaintiff.

James C. Butt, Honolulu, HI, for Defendants.

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

KAY, District Judge.

BACKGROUND

The matter before the Court arises on Defendants City and County of Honolulu and Earl Penarosa's motion for summary judgment in a case stemming from the removal and destruction of a number of motorcycles parked in the area around Plaintiff Randy Wong's motorcycle repair shop, TLC Motorcycles.

The relevant facts are as follows. On May 1, 2001 the City and County of Honolulu conducted a sweep of derelict vehicles on Cummins Street in the vicinity of Plaintiff's Shop, in which approximately 110 motorcycles and mopeds¹ were removed and subsequently destroyed by taking them straight to a junkyard to be scrapped. The May 1, 2001 sweep was conducted as a result of Defendant Penarosa's April 18, 2001 investigation into a complaint about improper parking of a number of motorcycles in the street and curbside near Plaintiff's shop. Defendant Penarosa asked Plaintiff to remove the motorcycles.² Plaintiff contends that Defendant Penarosa gave him until May 7, 2001 to remove the motorcycles.³

As a result of the May 1, 2001 sweep, Plaintiff filed a Complaint with this Court on April 17, 2003.⁴ Plaintiff asserts claims under 42 U.S.C. § 1983, contending violations of his rights under the Fourth, Fifth, and Fourteenth Amendments, as well as state law claims of breach of contract, conversion of property, and trespass to chattels. See (Second Amended Complaint at 3).

Defendants filed the instant motion for summary judgment on April 16, 2004. Plaintiff filed his opposition on June 3, 2004. Defendants filed their Reply on June 23, 2004.

Following the Court's June 21, 2004 certification to the State of Hawaii Attorney General informing him of a constitutional challenge to a state statute, the State of Hawaii filed a petition for leave to file an Amicus Brief on July 1, 2004. The Court granted the petition that same day.⁵ Amicus State of Hawaii filed its brief on July 8, 2004, and Plaintiff filed his response on July 14, 2004.⁶

On July 15, 2004, Amicus State of Hawaii filed a petition to appear and present oral argument, which the Court granted on July 20, 2004.⁷

Oral argument took place on July 21, 2004. Jack Schweigert appeared on behalf of Plaintiff Randy Wong, Marie Gavigan appeared on behalf of Defendants City and County of Honolulu and Earl Penarosa, and Kimberly Tsumoto appeared on behalf of Amicus Curiae State of Hawaii.

STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate 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."⁸ Fed.R.Civ.P. 56(c).

"A fact is `material' when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"⁹ Thrifty Oil Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 310 F.3d 1188, 1194 (9th Cir.2002) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir.1994)) (internal citations omitted). Conversely, where the evidence "could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may do so with affirmative evidence or by "`showing' — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party. See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987). So, too, the Court's role is not to make credibility assessments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, if "reasonable minds could differ as to the import of the evidence," summary judgment will be denied. Id. at 250-51, 106 S.Ct. 2505. Or, "[p]ut another way, if a rational trier of fact might resolve the issue in favor of the nonmoving party, summary judgment must be denied." T.W. Elec. Serv., 809 F.2d at 631.

When the moving party also has the burden of proof in an element of a claim, it has the "burden of establishing a prima facie case on the motion for summary judgement." UA Local 343 of the United Ass'n of Journeymen & Apprentices v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir.1994). Upon showing a prima facie case, it becomes "incumbent on [the nonmoving party] to `set forth specific facts showing that there is a genuine issue for trial,' by evidence cognizable under that rule." Id. (quoting Fed.R.Civ.P. 56(e)).

The nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322-23 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Nor will uncorroborated allegations and "self-serving testimony" create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002); see also T.W. Elec. Serv., 809 F.2d at 630. Summary judgment may be granted "`[i]f the evidence is merely colorable or is not significantly probative.'" Nor-Cal Plumbing, 48 F.3d at 1471 (quoting Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505) (modification in original).

DISCUSSION

As an initial matter, the Court notes that it is well-settled that "[t]here is no longer a need to bring official-capacity actions against local government officials, for under Monell ... local government units can be sued directly for damages and injunctive or declaratory relief." Kentucky v. Graham, 473 U.S. 159, 166-67 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). See also Monell v. Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (stating that "official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent"); cf. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office"). The Court accordingly finds that the claims asserted against the Defendant Penarosa in his official capacity duplicates the claims asserted against the City and County of Honolulu and therefore DISMISSES Plaintiff's official capacity claims against Defendant Penarosa.

I. Constitutionality of Hawaii Revised Statutes §§ 290-8 and 290-9¹⁰

Plaintiff asserts that H.R.S. §§ 290-8 and 290-9 are unconstitutional because they do not provide for notice and hearing.

Any inquiry into the constitutionality of a statute must begin with the presumption that the statute is constitutional. See United States v. National Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); United States ex rel. Madden v. General Dynamics Corp., 4 F.3d 827, 830 (9th Cir.1993). Accordingly, for Plaintiff to succeed on a constitutional challenge, Plaintiff must overcome this presumption.

To successfully assert a facial challenge to a statute, the challenger must "establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), quoted in S.D. Myers, Inc. v. City & County of San Francisco, 253 F.3d 461, 467 (9th Cir.2001). Furthermore, "considerations of comity suggest that a federal court should not paint with too broad a brush on the canvas of state [highway] regulation." Safeway Stores, Inc. v. Bd. of Agric., 590 F.Supp. 778, 786 (D.Haw.1984).

H.R.S. §§ 290-8¹¹ and 290-9¹² allow for the immediate disposition of derelict vehicles without complying with the notice requirements set forth for vehicles impounded as abandoned under H.R.S. § 290-1.¹³ See H.R.S. chs. 290-1, 290-2, 290-5, 290-8, 290-9 (2004). H.R.S. 290-8 provides that:

A vehicle shall be deemed a derelict ... if major parts have been removed or material damage to the vehicle has rendered the vehicle inoperable and one of the following conditions exists:

(1) The vehicle is registered for the current registration period and the registered and legal owners no longer reside at the addresses on record with the county director of finance;

(2) The vehicle has been registered for the current or previous registration period and the registered and legal owners disclaim ownership;

(3) The vehicle identification number and license plates have been removed so as to nullify efforts to locate or identify the current registered and legal owners;

(4) The vehicle has not been registered for the current or previous registration periods;

(5) The...