HomeMy WebLinkAbout2012-06-29_Scott_Andrews_Claudia_Rohr_v_County_of_Hawaii_Order_Granting_Defendants'_Motion_to_Dismiss Case 1:1 0-cv-00749-DAE-KSC Document 78 Filed 06/29/12 Page 1 of 31 PagelD #:
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SCOTT L. ANDREWS, CLAUDIA ) CV. NO. 10-00749 DAE-KSC
J. ROHR, )
Plaintiffs, )
vs. )
COUNTY OF HAWAII; )
LAWRENCE K. MAHUNA; )
SAMUEL THOMAS; GEORGE )
MAKUA; ROMEO FUVIAVA; )
BRIAN MILLER; BENNY )
RUFFOLO; ANNETTE COLLINS; )
MIRIAM KANAEHOLO; DOE )
DEFENDANTS 1-25, )
Defendants. )
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
On June 15, 2012, the Court heard Defendants' Motion to Dismiss
Plaintiffs' Second Amended Complaint ("Motion"). (Doc. # 64.) Scott L.
Andrews and Claudia J. Rohr, proceeding rp o se, appeared at the hearing on behalf
of themselves; Deputy Corporation Counsel Michael J. Udovic appeared on behalf
of Defendants. After reviewing Defendants County of Hawaii, Lawrence K.
Mahuna, Samuel Thomas, George Makua, Romeo Fuviava, Brian Miller, Benny
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Ruffolo, Annette Collins, Miriam Kanaeholo, and Richard Itliong's (collectively,
"Defendants") Motion and the supporting and opposing memoranda, the Court
GRANTS Defendants' Motion to Dismiss.
BACKGROUND
Plaintiffs Scott Andrews ("Andrews") and his wife Claudia Rohr
("Rohr"), proceeding pro se, filed this action against Defendants Hawaii County
and various members of the Hawaii County Police Department. The factual
allegations in Plaintiffs' Complaint date back to April 21, 2008. ("SAC," Doc.
# 58, ¶ 27.) Plaintiffs claim that on that day, Andrews was confronted and attacked
by a man named Alexander Lewis ("Lewis"). (Id. ¶¶ 29-30.) Plaintiffs allege that
Andrews "pressed charges" against Lewis, but that Lewis was not arrested or
prosecuted. (Id. ¶ 32.) Plaintiffs further allege that a few days after the April 21,
2008 incident, assault rifles were painted on local roadways pointing toward
Plaintiffs' driveway. (Id. ¶ 33.) Plaintiffs, suspecting Lewis or Lewis' "social
network" was responsible, reported it to Defendant police official Samuel Thomas
("Thomas") and deputy prosecutor Mitchell Roth ("Roth"). (Id. ¶ 33.) Plaintiffs
further allege that Lewis began harassing Plaintiffs with threats and "launched a
slanderous and racially motivated campaign to turn locals and the Hawaiian
community against Plaintiffs." (Id. ¶ 35.) Plaintiffs allege that Lewis' "pattern of
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harassment continued on a regular basis, unabated by Hawaii County's police or
prosecutors." (Id. ¶ 39.)
On December 12, 2008, Lewis allegedly drove his truck toward
Andrews twice. (Id. ¶ 42.) Andrews called 911 from a cell phone and was
connected to dispatcher, Defendant Annette Collins ("Collins"), who allegedly
responded with "discriminatory animus" and accused Andrews of"harassing
people in the park." (Id. ¶¶ 43-44.) Plaintiffs allege that Lewis approached
Andrews, who took out and pointed a hand-held video camera at Lewis." (Id.
¶ 46.) Lewis allegedly knocked Andrews' cell phone out of his hand,
disconnecting the 911 call, and assaulted Andrews again, causing injuries that
required Andrews to go to the hospital. (Id. ¶¶ 47, 50-52, 57.) Plaintiffs allege
that Collins "retaliated" against Andrews for his use of a video camera and
"omitted to enter into the dispatch system this information that tended to inculpate
Lewis." (Id. ¶ 49.)
Plaintiffs allege that after the assault, they tried numerous times to
contact the police and request assistance. (Id. ¶¶ 53-57, 58-59.) According to
Plaintiffs, however, the Defendants refused to send an officer to their home or
conduct an investigation. (Id. ¶ 60.) Plaintiffs allege that Rohr drove to the Hilo
police station and confronted Defendant police sergeant George Makua ("Makua")
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about the assault, but that Makua "acted with discriminatory animus" against Rohr
"in retaliation for exercising her First Amendment right to broadcast the truth"
about the assault. (Id. ¶ 60.) According to Plaintiffs, Rohr confronted other police
officials, including Defendant Central Dispatch Division shift supervisor Miriam
Kanaeholo, who withheld information about Andrews' calls and "expressed her
discriminatory bias against [Andrews'] use of a video camera." (Id. ¶ 61.)
Andrews checked into the Hilo Medical Center Emergency Room
around 5:45 p.m. that day and Defendant Benny J. Ruffolo ("Ruffolo") allegedly
agreed to meet Andrews at the hospital for an interview. (Id. ¶¶ 55-56.) However,
Plaintiffs claim that Ruffolo never contacted them. (Id. ¶ 58a.) Instead, Ruffolo
allegedly, under the supervision of Makua, composed an incident report, an
application for an arrest warrant, and an "All Points Bulletin" to arrest Andrews for
a felony assault charge. (Id. ¶ 66.) Plaintiffs also allege that Defendants police
officer Romeo Fuiava ("Fuiava"), Richard Itliong ("Itliong"), and several other
unnamed defendants allegedly went to the hospital and tried to get Andrews civilly
committed but were unsuccessful. (Id. ¶¶ 67-69.) Plaintiffs allege that Fuiava,
Itliong and the others then proceeded to arrest Andrews while he was in the
Emergency Room. (Id. ¶¶ 69, 71.)
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Plaintiffs claim that Andrews was subsequently taken to a holding jail
at the Hilo Police Station after Andrews refused to sign the hospital release form.
(Id. ¶¶ 72, 73-74.) Plaintiffs allege that Defendants did not inform Andrews or
Rohr of the subject matter of the arrest. (Id. ¶¶ 73-74.) According to Plaintiffs,
Andrews repeatedly told the officers that he thought he was going to have a heart
attack but they initially refused to take him back to the hospital. (Id. ¶ 74.)
Plaintiff Rohr repeatedly requested to see Andrews but was denied access to him.
(Id. ¶ 75.) Rohr drove to Thomas' home and left a message with his son, asking
for help, but Thomas never contacted Rohr. (Id. ¶ 76.)
Plaintiffs claim that Andrews was eventually taken to the hospital at
about 10:30 p.m. and was diagnosed with an abnormal electrocardiogram. (Id.
¶ 77.) Plaintiffs allege that the attending physician released Andrews from the
hospital into home care and did not authorize his release to return to jail conditions.
(Id. ¶ 78.)
Plaintiffs allege that Andrews did not receive any of the care
recommended by the hospital doctors and that his health worsened under the
"harsh conditions in jail" so that Andrews was returned to the hospital the next
morning, December 13, 2008, at 10 a.m. (Id. ¶ 79.) Plaintiffs allege that
Defendant police detective Brian Miller ("Miller") interviewed Andrews the
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morning of December 13, 2008 before Plaintiff was allowed a phone call or a visit
from Rohr. (Id. ¶ 80.) Miller allegedly detained Andrews for another 24 hours for
"a cover-up scheme and/or punishment" before setting Andrews' bail. (Id. ¶ 82.)
Plaintiffs allege that they were never verbally informed of the charge(s) against
Andrews and was ultimately provided a "poor copy of the bail receipt that made
the charges undecipherable." (Id. ¶ 83-84.) According to Plaintiffs, the prosecutor
declined to prosecute and dismissed the case. (Id. ¶ 84.)
Plaintiffs initiated the instant action on December 15, 2010. (Doc.
# 1.) On September 20, 2011, this Court dismissed Plaintiffs' Initial Complaint
without prejudice. (Doc. # 39.) The Court determined that the statute of
limitations for Plaintiffs' claims expired before the Initial Complaint was filed.
However, the Court observed that "it may be possible for Plaintiffs to plead
sufficiently that Defendants could be estopped from raising a statute of limitations
defense if provided the opportunity to amend their Complaint." (Id. at 16.) The
Court therefore granted Plaintiffs leave to amend and on November 3, 2011,
Plaintiffs filed a First Amended Complaint ("FAC"). ("FAC," Doc. # 41.)
Defendants subsequently filed a Motion to Dismiss the FAC. (Doc. # 44.)
On February 9, 2012, the Court dismissed the FAC with leave to
amend. (Doc. # 56.) The Court found that Plaintiffs did not allege sufficient facts
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to show that they are entitled to equitable tolling or that equitable estoppel applies
to toll the statute of limitations for Plaintiffs' § 1983 claims. (Id. at 11-16.) The
Court also determined that the FAC failed to satisfy the basic pleading standards
under Federal Rule of Civil Procedure 8 (id. at 16-18), and that Rohr lacks
standing to assert a § 1983 claim based on the alleged false arrest of Andrews (id.
at 19). The Court gave Plaintiffs leave to amend. (Id. at 21.)
On March 27, 2012, Plaintiffs filed the present Second Amended
Complaint ("SAC"). ("SAC," Doc. # 58.) The SAC states the following causes of
action:
(1) First Cause of Action: "Fourteenth Amendment Right—Special
Duty to Provide Medical Care to Detainees and Negligence Under State Law
Claim" (Id. ¶¶ 90-93.) Plaintiffs allege that Defendants Makua, Thomas, and
Mahuna are liable for Andrews' medical injuries resulting from his arrest and
detention. Plaintiffs allege that Thomas and Mahuna are liable for failure to
supervise and failure to promulgate effective policies in this regard, and that
Hawaii County was negligent in its "Special Duty to provide medical care" and is
liable under § 1983 because inadequate policies and procedures and a lack of
training and supervision resulted in Andrews' injuries.
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(2) Second Cause of Action: "Retaliation Against Plaintiffs Andrews
and Rohr For Exercising First Amendment Rights." (Id. ¶ 94.) Plaintiffs allege
that Defendants Ruffolo, Makua, Fuiava, Itliong, Miller and Does 1-25 acted with
discriminatory animus against Andrews "in retaliation for exercising his First
Amendment right to use a video camera" and acted with discriminatory animus
against Rohr "in retaliation for exercising her First Amendment right to complain
about officers." Plaintiffs also allege that Defendants Thomas and Mahuna
retaliated against Plaintiffs for "bringing the FBI in to investigate a racially based
assault."
(3) Third Cause of Action: "False Arrest and False Detention" of
Andrews in violation of the Fourth, Fifth, Ninth and Fourteenth Amendments. (Id.
¶¶ 95-100.) Plaintiffs assert that Defendants "unconstitutionally concealed
exculpatory information from the probable cause analysis." Plaintiffs further
allege that Andrews has suffered physical and emotional injuries and that Rohr has
suffered a loss of consortium as well as physical and emotional injuries.
The SAC also claims that Defendants are equitably estopped from
asserting a statute of limitations defense. (SAC ¶¶ 85-89.)
On April 10, 2012, Defendants filed the instant Motion to Dismiss.
(Doc. # 64.) Plaintiffs did not file a timely Opposition, but on May 24, 2012 filed
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a Motion for Leave to File Plaintiffs' Memorandum in Opposition and an attached
Memorandum in Opposition. (Doc. # 71). On May 25, 2012, the Court granted
Plaintiffs' Motion for Leave to File an Opposition. (Doc. # 72.) On the same day,
Plaintiffs filed a Memorandum in Opposition. (Doc. # 73.) On May 30, 2012,
Defendant Richard Itliong filed a Joinder to Defendants' Motion to Dismiss. (Doc.
# 74.) On June 4, 2012, Defendants filed a Reply to Plaintiffs' Opposition. (Doc.
# 76.)
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a motion to
dismiss will be granted where the plaintiff fails to state a claim upon which relief
can be granted. Review is limited to the contents of the complaint. See Clegg
Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). A complaint may be
dismissed as a matter of law for one of two reasons: "(1) lack of a cognizable legal
theory, or (2) insufficient facts under a cognizable legal claim." Robertson v. Dean
Witter Reynolds; Inc., 749 F.2d 530, 534 (9th Cir. 1984) (citation omitted).
Allegations of fact in the complaint must be taken as true and construed in the light
most favorable to the plaintiff. See Livid Holdings Ltd. v. Salomon Smith Barney,
Inc., 416 F.3d 940, 946 (9th Cir. 2005).
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A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
In providing grounds for relief, however, a plaintiff must do more than recite the
formulaic elements of a cause of action. See id. at 556-57; see also McGlinchy v.
Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ("[C]onclusory allegations
without more are insufficient to defeat a motion to dismiss for failure to state a
claim.") (citation omitted). "The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions," and
courts "are not bound to accept as true a legal conclusion couched as a factual
allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations
and citations omitted). Accordingly, "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555). Rather, "[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." Id. at 1949
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court
to infer "the mere possibility of misconduct" do not show that the pleader is
entitled to relief. Id. at 1950.
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A claim may be dismissed under Rule 12 as "barred by the applicable
statute of limitations only when `the running of the statute is apparent on the face
of the complaint."' Von Saher v. Norton Simon Museum of Art at Pasadena, 592
F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d
992, 997 (9th Cir. 2006)). Such motion should be granted "only if the assertions of
the complaint, read with the required liberality, would not permit the plaintiff to
prove that the statute was tolled." Morales v. City of Los Anggles, 214 F.3d 1151,
1153 (9th Cir. 2000) (citation omitted).
DISCUSSION
Defendants move to dismiss the SAC on the ground that Plaintiffs'
claims are barred by the statute of limitations. Defendants further argue that
Plaintiffs have not alleged facts to support the application of equitable estoppel and
that Plaintiffs' attempts to name Itliong as a defendant do not comply with the Rule
16 Scheduling Order in this case and fall outside the statute of limitations.
As a preliminary matter, the Court notes that a rp o se litigant's
pleadings must be read more liberally than pleadings drafted by counsel. Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). When a plaintiff proceeds rp o se
and technically violates a rule, the court should act with leniency toward the rp o se
litigant. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). However, "a rp o se
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litigant is not excused from knowing the most basic pleading requirements."
American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08
(9th Cir. 2000) (citations omitted). Moreover, "[p]ro se litigants must follow the
same rules of procedure that govern other litigants." King v. Atjyeh, 814 F.2d 565,
567 (9th Cir. 1987).
L Statute of Limitations
"`For actions under 42 U.S.C. § 1983 . . . courts apply the forum
state's statute of limitations."' Canatella v. Van De Kamp, 486 F.3d 1128, 1132
(9th Cir. 2007) (quoting Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)); see
also Fink v. Shelder, 192 F.3d 911, 914 (9th Cir. 1999) (same). Although state law
determines the statute of limitations, federal law determines when the cause of
action accrues. Pesnell, 543 F.3d at 1043 (citing Papa, 2831 F.3d at 1009); see also
Cederquist, 235 F.3d at 1156. In the Ninth Circuit, "a claim accrues under federal
law when the plaintiff knows or has reason to know of the actual injury."
Lukovsky v. San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (citing
Inlandboatmens Union of Pac. v. Dutra Group, 279 F.3d 1075, 1081 (9th Cir.
2002)); cf. Wallace v. Kato, 549 U.S. 384, 384 (2007) ("[T]he accrual date of a
§ 1983 cause of action is a question of federal law that is not resolved by reference
to state law."). However, tolling provisions for § 1983 claims are borrowed from
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the forum state. Canatella, 486 F.3d at 1132. Therefore, Hawaii's two-year statute
of limitations for personal injury actions applies to Plaintiffs' § 1983 claims. See
Haw. Rev. Stat. § 657-7 ("Actions for the recovery of compensation for damage or
injury to persons or property shall be instituted within two years after the cause of
action accrued."). To the extent that Plaintiffs assert a state law negligence claim,
that claim is also governed by the two-year statute of limitations in section 657-7.
Plaintiffs filed the instant action on December 15, 2010. (See Doc.
# 1.) The large majority of Defendants' alleged misconduct happened between
April 2008 and December 12, 2008, when Andrews was arrested. (SAC ¶¶ 27-82.)
The very last instance of alleged misconduct occurred on December 14, 2008, the
day on which Plaintiff was released from custody. Thus, at the latest, the alleged
claims accrued on December 14, 2008, as Plaintiff"kn[ew] or ha[d] reason to
know of the actual injury" underlying his claims. Lukovsky, 535 F.3d at 1051.
Accordingly, the statute of limitations on Plaintiffs' causes of action expired on
December 14, 2010—one day before Plaintiffs filed their Complaint. (See Doc.
# 1.)
Plaintiffs do not dispute that they filed their Complaint after the
statute of limitations expired. However, Plaintiffs assert in their SAC that
Hawaii's discovery rules "toll" the statute of limitations, and that Hawaii's
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fraudulent concealment statute and the doctrine of equitable estoppel bar
Defendants from asserting the statute of limitations as a defense. (SAC ¶¶ 85-89.)
Plaintiffs assert in the SAC that they "suspected that they had a
Section 1983 claim and diligently tried to discover information about their claim
and were stonewalled by Defendants HAWAII COUNTY's and Mahuna's
suppression of the police records." (SAC ¶ 85.) Plaintiffs also assert that
Defendants Makua, Ruffolo, Fuiava, Itliong, Miller and others "fraudulently
concealed and covered up the basic facts of Plaintiffs' Section 1983 claim." (Id.
¶ 87.) According to Plaintiffs, these Defendants "fraudulently, unconstitutionally
concealed exculpatory information from the probable cause analysis using an
investigative handoff procedure in violation of the Fourth Amendment, and the
fraudulent, unlawful procedure also served to fraudulently conceal personal
liability for Plaintiffs[`] Section 1983 claims." (Id.)
Plaintiffs further allege that they were "affirmatively misled by
misstatements, intended to cover-up unlawful motive and personal liability for the
arrest and detention . . . as to what actually happened and who was responsible" for
Andrews' arrest. (Id.) Finally, Plaintiffs claim that it was impossible to develop
their case further without police records.
Defendants argue that none of the causes of action pled in the SAC
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require information that Plaintiffs assert they did not have prior to the expiration of
the statute of limitations. Defendants also argue that Plaintiffs do not show that
they were lulled into inaction or were prevented from filing a complaint asserting
the causes of action pled in the SAC.
A. Discovery Rule
Plaintiffs state in their Opposition that the "first cause of action may
be tolled under Hawaii's discovery rule because there were hidden and latent injury
[sic] that took time to discover." (Opp'n at 3.) Plaintiffs appear to refer to
Andrews alleged fainting episodes in January and April 2009 as a result of the
conditions of his confinement. (Id. at 4.) This allegation is not included in the
SAC; however, even if it was, it would not prevent Plaintiffs' first cause of action
from being time-barred.
Plaintiffs' first cause of action in their SAC is labeled: "Fourteenth
Amendment Right—Special Duty to Provide Medical Care to Detainees and
Negligence Under State Law Claim." (SAC at 24.) The Court liberally construes
Plaintiffs' first cause of action as alleging both a § 1983 claim and a negligence
claim. The Due Process Clause of the Fourteenth Amendment guarantees a pretrial
detainee the right to receive adequate medical care, and that right is violated if
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officials are deliberately indifferent to the detainee's serious medical needs.
Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242-43 (9th Cir. 2010).
The Hawaii state discovery rule provides that "under the statute of
limitations currently codified in HRS § 657-7, a cause of action does not `accrue'
and the limitations period does not begin to run, until the plaintiff knew or should
have known of the defendant's negligence." Hays v. City and County of Honolulu,
917 P.2d 718, 720 (Haw. 1996). First, the discovery rule does not apply to
Plaintiffs' § 1983 claim. As discussed above, when a § 1983 claim accrues is a
question of federal law, not state law. Wallace, 549 U.S. at 384 ("[T]he accrual
date of a § 1983 cause of action is a question of federal law that is not resolved by
reference to state law.") In any event, Hawaii's "discovery rule," which would
apply to a state negligence claim, is nearly identical to the federal test for
determining when a cause of action accrues. See Lukovsky, 535 F.3d at 1051
(noting "a claim accrues under federal law when the plaintiff knows or has reason
to know of the actual injury").
Here, Plaintiffs allege that on December 12, 2008, police arrested
Andrews from his hospital bed, disrupted his medical treatment, and took him to
the Hilo holding cell and did not respond to his repeated statements that he thought
he was about to have a heart attack. (SAC ¶¶ 71, 74.) Plaintiffs allege that "most
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likely" Andrews experienced a heart attack that day. (Id. ¶ 77.) Plaintiffs also
allege that he received none of the recommended care that hospital doctors had
prescribed, that his "health worsened under the harsh conditions in the jail," and
that he was showing signs of distress when he returned to the hospital on
December 13, 2012. (Id. ¶ 79.) Based on these allegations, Plaintiffs should have
been aware that Andrews suffered an actual injury with respect to medical care
claim the weekend that he was incarcerated. Therefore, Plaintiffs' assertion that
there were "hidden and latent" injuries that took time to discover does not postpone
the running of the limitations period for their first cause of action.
B. Equitable Relief
Plaintiffs also allege that the doctrine of equitable estoppel applies.
Equitable estoppel involves a circumstance in which a defendant is estopped from
asserting the statute of limitations as a defense. Pursuant to this doctrine, "`a
defendant cannot avail [her or] himself of the bar of the statute of limitations, if it
appears that he [or she] has done anything that would tend to lull the plaintiff into
inaction, and thereby permit the limitation prescribed by the statute to run against
him [or her]."' Vidinha v. Miyaki, 145 P.3d 879, 885 (Haw. App. 2006) (quoting
Mauian Hotel, Inc. v. Maui Pineapple Co., 481 P.2d 310, 315 (Haw. 1971). "One
invoking equitable estoppel must show that he or she has detrimentally relied on
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the representation or conduct of the person sought to be estopped, and that such
reliance was reasonable." Id. (quoting Doherty v. Hartford Ins. Group, 574 P.2d
132, 134-35 (Haw. 1978).
In their Opposition, Plaintiffs allege that despite repeated requests for
police records, Plaintiffs could only obtain a copy of the bail receipt and copies of
the recorded 911 calls, "which contained contradictory statements which Plaintiffs
relied on, and did not justify filing suit." (Opp'n at 4.) Plaintiffs do not provide
facts showing how the bail receipt contained contradictory statements that
Plaintiffs relied on. Plaintiffs also appear to assert that they relied on
misstatements by Kanaeholo and Ruffolo in recordings of 911 calls and dispatches,
although the SAC does not include such allegations. (Opp'n at 7.) However,
Andrews' Declaration attached to the SAC states that Andrews received copies of
911 call recordings and radio transmissions, and that he "relied" on Kanaeholo's
"recorded intentional misstatements" that she dispatched the details of his 911 call
reporting Lewis' alleged assault and that police were responding. (Andrews' Decl.
¶ 9.) Andrews also asserts that he relied on Ruffolo's misstatements to Kanaeholo
that "no one is getting arrested" and "we're going to take Mr. Andrews' statement
and stuff." (Id.) It is unclear to the Court how such representations could
"dissuade Plaintiffs from filing suit." There is no indication that Kanaeholo and
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Ruffolo made these alleged misstatements to Plaintiffs. Moreover, it is not clear
how Plaintiffs could have reasonably relied on such alleged misstatements when,
according to Plaintiffs' own pleadings, no officer ever responded to Plaintiffs' calls
asking for police assistance, the recordings allegedly included Kanaeholo's
expressions of"discriminatory bias" against Andrews, and Andrews was in fact
arrested.
Plaintiffs also assert in their Opposition that Fuiava and Makua made
misstatements intended to deceive Plaintiffs about the facts surrounding Andrews'
arrest. (Opp'n at 7.) Plaintiffs allege that Fuiava "affirmatively deceived"
Plaintiffs after police arrested Andrews at the hospital when, after Rohr asked
Fuiava if Andrews was being taken to the police station for questioning, Fuiava
responded that "he did not know, that he was only acting on an APB to arrest
[Andrews] and call detectives." (SAC ¶ 73.) As this Court stated in its previous
Order (see Doc. # 56 at 16), there is no factual allegation in the SAC suggesting
that this alleged misrepresentation is false. Moreover, it is not clear how this
representation served to dissuade Plaintiffs from filing suit, and there is no
allegation in the SAC referencing Plaintiffs' reliance on any misstatements made
by Makua.
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In their Opposition, Plaintiffs rely in large part on Kamruddin v.
Desmond, 293 A.D.2d 714 (N.Y. A.D. 2002). In Kamruddin, a medical
malpractice plaintiff demanded copies of his medical records from the defendants,
who did not produce the records until a day before the statute of limitations
expired. Id. at 714. The court affirmed the lower court's decision that the
defendants were equitably estopped from asserting a statute of limitations defense,
stating that "[w]here a medical malpractice claim is asserted, the patient's medical
records are material to reaching a responsible decision on whether there is grounds
for a lawsuit." Id. at 715.
Plaintiffs appear to argue that the instant case is analogous to
Kamruddin because in November 2011, after Plaintiffs filed their First Amended
Complaint, Defendants allegedly provided Plaintiffs with requested discovery
material including a copy of the application and Order for Probable Cause
Determination for Further Detention that identified Itliong as applicant/affiant and
Ruffolo as "author of the APB upon which he had relied." (Opp'n at 12.) In an
attempt to draw similarities with the instant case, Plaintiffs assert that "[1]ike in the
Kamruddin case, here a false arrest and false imprisonment claim is asserted,
therefore the judicial Order for Probable Cause For Further Detention is material to
reaching a responsible decision on whether there are grounds for a lawsuit."
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(Opp'n at 13.) Plaintiffs further assert that Defendants' "intentional delay" in
producing a copy of the judicial order and other "material" police records
constitutes intentional misconduct that prevented Plaintiffs from timely
commencing the instant action and precludes Defendants from asserting a statute
of limitations defense. (Opp'n at 13.)
The Court is not persuaded. First, Kamruddin, a New York state court
case, involves medical malpractice, not a false arrest and imprisonment claim. See
293 A.D.2d 714. Second, it is not clear how an application and judicial order for
probable cause is material to Plaintiffs' decision whether to file suit. Indeed,
Plaintiffs asserted a false arrest claim in their original Complaint and First
Amended Complaint before Plaintiffs allegedly received the judicial order and
police records. (See Docs. # 1, 41.) Plaintiffs state in their Opposition that
although they filed "what they believed to be true facts" in their original
Complaint, they "were precluded from filing a correct account of the facts []
because of HPD and Hawaii County's intentional misconduct." (Opp'n at 13.)
However, Plaintiffs' original Complaint contains allegations of Andrews' arrest at
the hospital, including that the arrest was without probable cause, and officers'
disregard of Andrews' requests for medical attention. (See Doc. # 1 ¶ 52-72.)
Plaintiffs do not explain the contents of the application or judicial
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order, except to say that the application identifies Itliong and Ruffolo. To the
extent that Plaintiffs argue that Defendants concealed Itliong's alleged
involvement, Plaintiffs' contention fails. Plaintiffs assert that Defendants Makua,
Ruffolo, Fuiava, Itliong, Miller, and others used an "investigative handoff
procedure" that "served to fraudulently conceal personal liability for Plaintiffs[']
Section 1983 claims." (SAC ¶ 87.) Plaintiffs' allegation regarding the
"investigative hand-off procedure" appears to refer to certain Defendants' passing
of Andrews' case "to a new investigative group—the detectives in Criminal
Investigative Section." (SAC ¶ 69.) However, it is unclear, and Plaintiffs do not
explain beyond conclusory assertions, how the "investigative hand-off procedure"
fraudulently concealed personal liability and how Plaintiffs detrimentally relied on
it.
Andrews' Declaration indicates that the first time Plaintiffs asked
police about a probable cause document during the statute of limitations period was
between November 29, 2010 and December 15, 2010, when Rohr went to the
police records division and asked the custodian of records, Lieutenant Randal Ishii,
Andrews' Declaration identifies this date as November 29, 2008.
(Andrews Decl. ¶ 7.) However, it appears that Andrews actually meant to cite
November 29, 2010, as Andrews' alleged incarceration occurred the weekend of
December 12, 2008, and Plaintiffs repeatedly refer to November 29, 2010 as when
they received the hospital report, discussed infra.
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whether there was "an APB, any probable cause affidavit or warrant of any Insane
Suspect report for the case." (Andrews Decl. ¶ 7.) According to Plaintiffs, Ishii
"appeared to looked [sic] at his computer and said there were none in their
records." (Id.) Plaintiffs also proffered an October 20, 2011 letter from the police
department referencing a September 7, 2011 request for reports and other materials
and referring the request to the Corporation Counsel because of Plaintiffs' pending
civil lawsuit against Defendants. (FAC Ex. A.) These instances do not amount to
affirmative misconduct that would lull Plaintiffs into inaction.
At the hearing, Plaintiffs directed the Court's attention to Estate of
Amaro III v. City of Oakland, in which the Ninth Circuit—answering a question
certified by the district court—held that the doctrine of equitable estoppel does
apply where a plaintiff believes she has a 1983 claim but is dissuaded from
bringing the claim by affirmative misrepresentations and stonewalling by the
police. 653 F.3d 808, 809, 815 (9th Cir. 2011). In Amaro, Jerry Amaro was
beaten severely by police during an arrest and was denied treatment while in
custody. Id. at 810. Amaro told his mother, Geraldine Montoya, what happened
and died days later. Id. A police officer told Montoya that Amaro "died in the
street" in a gang dispute, although Amaro died at a friend's home and the officer
had already received information corroborating Montoya's contention that police
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beat Amaro. Id. at 811. Police denied Montoya's requests for copies of the police
report for the arrest as well as records related to the investigation of his death; her
requests were first denied on the basis that the matter was still "under
investigation," but police continued to deny her requests even after the homicide
investigation was completed. Id. Montoya was never informed of the results of
the homicide investigation or a police internal affairs investigation that found, inter
alia, that Amaro was severely injured during his arrest and that use of force against
Amaro was left out of the police report. Id. at 812. Montoya also met with five
different lawyers, who told her that, in light of Amaro's uncorroborated statements
about a police beating and the police officer's (mis)statements regarding his death,
she did not have sufficient evidence to file a § 1983 claim.
The allegations in the instant case simply do not rise to the level of
that in Amaro. Plaintiffs' assert in the SAC that they were denied access to police
records and that the police department disciplined "certain defendants" but that
Plaintiffs were denied access to the named defendants' disciplinary records. (SAC
¶ 4.) However, Plaintiffs' general statement in the SAC that they were denied
access to police records does not show that Defendants affirmatively and
2 Plaintiffs assert that the exhibits attached to their FAC show that they
"diligently pursued information about our Section 1983 claim but have been
stonewalled and refused copies of the police records." (Andrews Decl. ¶ 6.)
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fraudulently concealed information necessary for Plaintiffs to understand the true
facts. Moreover, Plaintiffs have not sufficiently alleged that Defendants made any
affirmative misrepresentations that Plaintiffs would reasonably rely on and would
lull them into inaction.'
Plaintiffs also assert that they investigated their case with "reasonable
diligence" and that it was not until November 29, 2010 that:
Plaintiffs discovered the true facts surrounding Plaintiff ANDREWS'
arrest in notes in a hospital report which exposed the falsity of
misleading statements made by Defendants FUTAVA and MAKUA to
Plaintiffs and made Plaintiffs see the case in a totally new way
Defendants FUTAVA and MAKUA were not innocents acting on an
APB but investigators; they had interviewed hospital staff and asked
However, the exhibits do not show that police repeatedly refused requests for the
same police records during the statute of limitations period. The police
correspondence Plaintiffs proffer includes three letters from the police declining to
release police reports; all three letters reference different police reports and cite
pending or possible investigation or prosecution as the reason for not producing the
reports. (FAC Ex. A.)
3 For these reasons, Plaintiffs' allegations also fall short of federal standards
for equitable estoppel. See Estate of Amaro v. City of Oakland, 653 F.3d 808, 813
(9th Cir. 2011) ("In this circuit, the plaintiff carries the burden of pleading and
proving the following elements of equitable estoppel: (1) knowledge of the true
facts by the party to be estopped, (2) intent to induce reliance or actions giving rise
to a belief in that intent, (3) ignorance of the true facts by the relying party, and (4)
detrimental reliance. Additionally, when estoppel is sought against the
government, `there must be affirmative misconduct (not merely negligence) and a
serious injustice outweighing the damage to the public interest of estopping the
government."' (citation omitted)).
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them to certify a civil commitment procedure to permanently discredit
Plaintiff ANDREWS indicating First Amendment retaliation, and
failed; there was deliberate interference with and delay of Plaintiff
ANDREWS' medical care; the information gained by the interview
and failed civil commitment dissipated probable cause to arrest
Plaintiff ANDREWS; and there was a pattern of investigation hand-
offs used to conceal identities of the persons culpable for the arrest
and what they did to cause it.
(Opp'n at 5.) Plaintiffs further assert that they did not know who was culpable for
Andrews' arrest or how they caused it until seeing this November 2010 report.
(Opp'n at 11.) To the extent that Plaintiffs may be referencing this report to assert
equitable tolling, Plaintiffs fail.
Equitable tolling involves the suspension of the running of the
limitations period. "In order to toll a statute of limitations for a complaint filed
after its expiration, a plaintiff must demonstrate (1) that he . . . has been pursuing
his right diligently, and (2) that some extraordinary circumstance stood in his
way." Office of Hawaiian Affairs v. State, 122 P.3d 767, 789 (Haw. 2006)
(internal quotations omitted). "Extraordinary circumstances are circumstances that
are beyond the control of the complainant and make it impossible to file a
complaint within the statute of limitations." Id.
Plaintiffs still fail to allege sufficient facts showing that how the
absence of this report made it impossible for Plaintiffs to file their claims within
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the statute of limitations. Moreover, Plaintiffs' description of the report and how it
"made Plaintiffs see the case in a totally new way" largely comprises conclusory
recitations of their causes of action.
Accordingly, the Court concludes that Plaintiffs have failed to allege
sufficient facts in the SAC to show that Plaintiffs are entitled to equitable relief.
C. Fraudulent Concealment
Plaintiffs also contend that Hawaii's "fraudulent concealment" statute
should toll the statute of limitations. Hawaii Revised Statutes § 657-204 provides:
If any person who is liable to any of the actions mentioned in this part
or section 663-3, fraudulently conceals the existence of the cause of
action or the identity of any person who is liable for the claim from
the knowledge of the person entitled to bring the action, the action
may be commenced at any time within six years after the person who
is entitled to bring the same discovers or should have discovered, the
existence of the cause of action or the identity of the person who is
liable for the claim, although the action would otherwise be barred by
the period of limitations.
Haw. Rev. Stat. § 657-20. As used in § 657-20, fraudulent concealment means the
"employment of artifice, planned to prevent inquiry or escape investigation, and
[mislead] or hinder acquirement of information disclosing a right of action." See
Au v. Au, 626 P.2d 173, 178 (Haw. 1981) (quotation and citation signals omitted);
4 Plaintiffs cite Haw. Rev. Stat. § 657-22 as "Hawaii's fraudulent
concealment statute." (SAC ¶ 89.) However, as § 657-22 is inapplicable, the
Court construes Plaintiffs' assertion as one under § 657-20.
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see also Gast v. Kwak, 396 F. Supp. 2d 1150, 1157 (D. Haw. 2005) (applying
H.R.S. § 657-20); Nakamoto v. Hartley, 758 F. Supp. 1357, 1364-65 (D. Haw.
199 1) (citing Au and applying HRS § 657-20). In other words, fraudulent
concealment requires that a plaintiff show that a defendant acted affirmatively and
fraudulently to conceal the cause of action. See Au, 626 P.2d at 178; Gast, 396 F.
Supp. 2d at 1157. Au states that
[i]t is not necessary that a party should know the details of the
evidence by which to establish his cause of action. It is enough that he
knows that a cause of action exists in his favor, and when he has this
knowledge, it is his own fault if he does not avail himself of those
means which the law provides for prosecuting or preserving his claim.
Au, 626 P.2d at 178 (citation and quotations signals omitted). Importantly, the
Hawaii Supreme Court has stated that the "fraudulent concealment which will
postpone the operation of the statute must be the concealment of the fact that
plaintiff has a cause of action. If there is a known cause of action there can be no
fraudulent concealment." Id. at 173 (citations omitted) (emphasis in original).
Plaintiffs have not alleged any facts showing that Defendants withheld
information that Plaintiffs needed to understand that they had a cause of action. As
discussed above, Plaintiffs' general statements that they were denied access to
police records does not show that Defendants affirmatively and fraudulently
concealed information necessary for Plaintiffs to understand that they had a cause
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of action. Plaintiffs' conclusory and unclear assertions about Defendants'
"investigative hand-off procedure," do not sufficiently demonstrate how this
alleged concealment, whatever it may be, hindered Plaintiffs' ability to obtain
information disclosing their right of action. Plaintiffs' allegations surrounding the
application and order for probable cause do not rise to the level of affirmative and
fraudulent concealment of the fact that Plaintiffs have a cause of action; as noted
above, Plaintiffs filed an FAC before they received this information. See Au, 626
P.2d at 178 ("If there is a known cause of action there can be no fraudulent
concealment."). Accordingly, based on Plaintiffs' allegations, Hawaii's fraudulent
concealment statute does not provide Plaintiffs relief.
IV. Leave to Amend
Pursuant to Rule 15(a)(2), courts should "freely give leave [to amend]
when justice so requires." Further, "requests for leave should be granted with
extreme liberality." Moss v. U.S. Secret Service, 572 F.3d 962, 792 (9th Cir.
2009). "Dismissal without leave to amend is improper unless it is clear . . . that the
complaint could not be saved by an amendment." Id. "However, `liberality in
granting leave to amend is subject to several limitations."' Cafasso; U.S. ex rel. v.
Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011) (quoting Ascon
Props.; Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). "Those
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limitations include undue prejudice to the opposing party, bad faith by the movant,
futility, and undue delay." Id. (citing Ascon Props, 866 F.2d at 1160). "Further,
`[t]he district court's discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint."' Id. (quoting Ascon Props, 866
F.2d at 1160).
Here, it is beyond dispute that the statute of limitations on Plaintiffs'
claims expired before they filed their Complaint. Plaintiffs have now been allowed
two opportunities to amend their complaint and allege sufficient grounds for
equitable relief to address Defendants' statute of limitations defense.
As Plaintiffs have failed to do so, the Court concludes that any further amendment
will be futile. The Court also notes that it notified Plaintiffs in its February 9, 2012
order that failure to cure the pleading deficiencies would result in dismissal of the
action with prejudice. The Complaint is therefore DISMISSED as against all
Defendants in this action.
CONCLUSION
For these reasons, the Court GRANTS Defendants' Motion to
Dismiss.
H
H
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 29, 2012.
David an fia
United Statd§M5istrict Judge
Andrews, et al. v. County of Hawaii et al., Cv. No. 10-00749 DAE-KSC; ORDER
GRANTING DEFENDANTS' MOTION TO DISMISS
31