RICHARD L. PUGLISI, Magistrate Judge.
The following motions came on for hearing on May 31, 2013, at 11:00 a.m.:
(1) Defendant City and County of Honolulu's Counter-Motion For Summary Judgment ("City's Motion");
(2) Defendants Jensen Okagawa and Roberto Cadiz's Motion for Summary Judgment ("Officer Defendants' Motion"); and
(3) Plaintiff Antonio Diaz Gonzalez, Jr.'s Amended Motion of Summary Judgment on Any and All Claims Asserted by Plaintiff in the Complaint filed 6/27/12 ("Plaintiff's Motion").
Plaintiff Antonio D. Gonzalez, Jr. appeared pro se. Curtis Sherwood, Esq. and Marguerite Nozaki, Esq. appeared on behalf of the City, Defendant Okagawa, and Defendant Cadiz. After careful consideration of the Motions, the supporting and opposing memoranda, the concise statements of fact, declarations, and exhibits attached thereto, and the record established in this action, the Court GRANTS the City's Motion, GRANTS the Officer Defendants' Motion and DENIES Plaintiff's Motion.
Plaintiff alleges that he was arrested by officers of the Honolulu Police Department ("HPD") without probable cause for criminal property damage in the third degree on the evening of October 20, 2011, when Plaintiff went to a Wal-Mart store on Oahu (the "Store").
Plaintiff filed his initial Complaint on June 27, 2012. ECF No. 1. The City moved for dismissal of the Complaint. ECF No. 39. Before the court issued a decision on the City's motion to dismiss, Plaintiff filed a "Motion of Summary Judgment on any and all claims asserted by Plaintiff in the Complaint filed 06/27/12."
The parties' different descriptions of the incident are detailed below.
In support of their Motions, Defendants submitted declarations from Defendant Cadiz and Defendant Okagawa, and an affidavit from Jonathan Querido.
On the evening in question, Jonathan Querido drove his car to the Store. Affidavit of Jonathan Querido ("Querido Aff.") ¶ 3. After Mr. Querido parked his car in the parking lot, he observed a white truck slow and stop behind his parked vehicle. Querido Aff. ¶ 6. Mr. Querido noticed that the window of the white truck was rolled down and the driver was staring at Mr. Querido. Querido Aff. ¶ 6. Mr. Querido waited at the entrance of the Store to watch his vehicle. Querido Aff. ¶ 8. Mr. Querido observed the same white truck that had stopped behind his car park a couple of stalls away. Querido Aff. ¶ 8. Mr. Querido observed a man exit the white truck and walk along the driver's side of Mr. Querido's car. Querido Aff. ¶ 9. As the man walked passed the front end of Mr. Querido's car, Mr. Querido observed the man extend his arm over the hood. Querido Aff. ¶ 10. Mr. Querido checked his car and found a deep scratch on the driver's side door and hood of his vehicle. Querido Aff. ¶ 11. Mr. Querido called the police to report the incident. Querido Aff. ¶ 13.
Defendant Cadiz responded to the call at approximately 9:15 p.m. Declaration of Roberto Cadiz ("Cadiz Decl.") ¶ 6. Shortly after he arrived, Defendant Cadiz met with and interviewed Mr. Querido. Cadiz Decl. ¶ 7. Mr. Querido told Defendant Cadiz what he had earlier observed. Cadiz Decl. ¶¶ 8-12; Querido Aff. ¶ 14. Mr. Querido told Defendant Cadiz that his car did not have the scratch marks prior to driving to the Store, that he did not give anyone permission to damage his car, and that he estimated the damage to his car was approximately $1000. Querido Aff. ¶ 12; Cadiz Decl. ¶ 13. Mr. Querido identified the white truck with license plate PTR 107 as the truck he saw the man exit from. Querido Aff. ¶ 2; Cadiz Decl. ¶ 16. Mr. Querido described the man who exited the white truck as a tall older bald man wearing a white shirt. Querido Aff. ¶ 2; Cadiz Decl. ¶ 16.
Defendant Okagawa arrived at the scene shortly after Defendant Cadiz, but did not call into dispatch that he was at the location. Declaration of Jensen Okagawa, dated April 12, 2013 ("Okagawa Decl. I") ¶ 9. Defendant Okagawa stated that he did not typically respond to misdemeanor calls, but he decided to respond to this particular call because he felt that there was a potential risk to officer safety because the suspect was still in the area. Okagawa Decl. I ¶ 7-8. Defendant Okagawa stated that he did not call into dispatch upon his arrival because he "did not want to be seen as micro-managing the officers" in his sector. Okagawa Decl. I ¶ 10. After Defendant Okagawa arrived on scene, he went over to Mr. Querido's vehicle and observed two large scratches along the driver's side and on the hood of the vehicle. Okagawa Decl. I ¶¶ 14-16. Defendant Okagawa believed that the scratches were recently made because he could see a hanging thread of paint at the end of one of the scratches. Okagawa Decl. I ¶ 17.
Approximately ten minutes after Defendant Cadiz arrived on scene he called into dispatch to request that dispatch run the license plate of the white truck. Cadiz Decl. ¶ 30; Declaration of Jensen Okagawa, dated May 8, 2013 ("Okagawa Decl. II") ¶ 11; Ex. J to Defs.' Counter-Statement, ECF No. 133-15 (recordings of radio transmission on the night of the incident). Dispatch responded almost immediately that the white truck was registered to "Antonio Gonzalez." Cadiz Decl. ¶ 31; Okagawa Decl. II ¶ 14.
Defendant Cadiz went into the Store to look for a person matching the description provided by Mr. Querido. Cadiz Decl. ¶ 17. Defendant Cadiz located a person who fit Mr. Querido's description of the suspect and escorted that person outside the Store. Cadiz Decl. ¶¶ 17-18. A field show-up was conducted. Cadiz Decl. ¶ 17. Mr. Querido said that the person was not the individual that damaged his vehicle. Cadiz Decl. ¶ 19.
Defendant Okagawa spoke with the Store security and learned that the Store had a video system in the parking lot area that likely captured the incident. Okagawa Decl. I ¶ 21. Defendant Okagawa then went with Store security personnel and reviewed the video captured of the parking lot that evening. Okagawa Decl. I ¶ 22. Defendant Okagawa observed on the video a man exit from a white truck, walk next to Mr. Querido's vehicle, extend his arm over the hood of Mr. Querido's car, and then walk toward the Store entrance. Okagawa Decl. I ¶ 23. A copy of the video that Defendant Okagawa viewed at the Store was later obtained by HPD and was attached as an exhibit to Defendant Okagawa's Declaration. Ex. A to Okagawa Decl. I, ECF No. 116; Okagawa Decl. I ¶ 24. After viewing the video, Defendant Okagawa met with the other officers outside the Store. Okagawa Decl. I ¶ 25.
Defendant Cadiz went into the Store again and contacted the Store's personnel to ask if the intercom system could be used to summon the driver of the white truck to come to the customer service counter. Cadiz Decl. ¶ 23. A request was made over the Store's intercom, but no one responded. Cadiz Decl. ¶ 23. Defendant Cadiz then went back outside the store and spoke with Defendant Okagawa who told Defendant Cadiz that he had viewed a video on the Store's surveillance system that had captured the incident. Cadiz Decl. ¶ 25. Defendant Cadiz went into the Store again to try to locate the suspect. Cadiz Decl. ¶ 26. At approximately 10:00 p.m., Defendant Cadiz saw an older bald man standing in line at one of the registers. Cadiz Decl. ¶ 27. The man Defendant Cadiz approached was asked if he was the driver of the white truck, to which Plaintiff replied "yes." Cadiz Decl. ¶ 29. Defendant Cadiz then asked Plaintiff to produce identification. Cadiz Decl. ¶ 30. Plaintiff showed Defendant Cadiz a Hawaii driver's license with the name "Antonio Gonzalez, Jr." and a photograph bearing his resemblance. Cadiz Decl. ¶ 30. Defendant Cadiz then asked Plaintiff to accompany him outside, and Plaintiff agreed to do so. Cadiz Decl. ¶ 32.
At this time, Defendant Okagawa called into dispatch that he was at the location. Okagawa Decl. I ¶ 10.
Outside the store a field show-up was conducted. Querido Aff. ¶ 2; Okagawa Decl. I ¶ 28. Mr. Querido identified Plaintiff as the man he observed exit the white truck and scratch his vehicle. Querido Aff. ¶ 19; Okagawa Decl. I ¶ 30; Cadiz Decl. ¶ 33. Shortly after Mr. Querido identified Plaintiff, Defendant Okagawa informed Defendant Cadiz that Plaintiff was the same man that Defendant Okagawa had seen on the surveillance video. Cadiz Decl. ¶ 35. Defendant Okagawa asked Mr. Querido if he was going to file a criminal complaint against Plaintiff, to which Mr. Querido replied that he wanted to have Plaintiff prosecuted for the damage done to his vehicle. Okagawa Decl. I ¶ 35. Defendant Okagawa spoke with Defendant Cadiz and told him that he believed that probable cause existed to arrest Plaintiff. Okagawa Decl. I ¶ 38.
Defendant Cadiz then informed Plaintiff that he was under arrest for criminal property damage in the third degree. Cadiz Decl. ¶ 36. Plaintiff was then placed in handcuffs. Cadiz Decl. ¶ 28. Plaintiff was very argumentative and denied damaging any vehicle, but the arrest occurred without incident. Cadiz Decl. ¶ 39. Plaintiff was then brought to the Pearl City Police Substation by another officer. Okagawa Decl. I ¶ 40.
Plaintiff's truck was not seized or even touched by the police officers on the night of the incident. Okagawa Decl. I ¶ 43. Neither Defendant Cadiz nor Defendant Okagawa took Plaintiff's truck from him, nor did they instruct any other officer to do so. Okagawa Decl. I ¶ 44.
Plaintiff filed an untimely Separate and Concise Statement of Facts both in support of his Amended Motion and in opposition to both of the Defendants' Motions.
Most of the assertions in Plaintiff's Concise Statement are not statements of fact, but are instead arguments related to what the police officers allegedly failed to do or should have done differently on the night of the incident.
When Mr. Querido called the police to report the incident, Mr. Querido described the suspect as a "Samoan male wearing white shirt and shorts." Pl.'s Statement, ECF NO. 130, at 2. To support this statement, Plaintiff attached the HPD "Incident Recall" sheet. Ex. 1 to Pl.'s Statement, ECF No. 130-2. This document states: "IN THE PLOT LOWER LVL FRNTG NEXT TO A BRN ACURA/SAM ML JST KEYED HIS CAR/ML WEARING WHT SHIRT AND SHORTS/ML IS SILL IN THE AREA."
Plaintiff is an African-American male and wore a green shirt and beige shorts on the evening in question. Querido Interrog. Responses, Ex. 3 to Pl.'s Statement, ECF No. 130-4, at 7 (stating that Plaintiff was wearing "a faded green t-shirt" when Mr. Querido identified him); Pl.'s Dep., ECF Nos. 112-5, 124-8, 133-9, 78:13-17. Plaintiff attached to his Motion a mug shot, which depicts a male wearing a green shirt. Ex. 17 to Pl.'s Mot., ECF No. 127-18. Plaintiff also cites Defendant Okagawa's report, which states that Plaintiff was wearing a green t-shirt and beige shorts. Ex. 4 to Pl.'s Statement, ECF No. 130-5, at 1. Neither the mug shot nor the report are admissible because Plaintiff did not provide any declaration or affidavit to authenticate these documents or lay a proper foundation. However, a properly authenticated photograph of Plaintiff on the night of the incident was submitted with the Officer Defendants' Concise Statement, which shows Plaintiff wearing a green t-shirt. Ex. B to Officer Defs.' Statement, ECF No. 124-6; Okagawa Decl. I ¶ 32.
Plaintiff does not dispute that Mr. Querido also described the person he saw scratch his car as a tall, bald, older man, possibly in his 50s.
Plaintiff asserts, without citation to any evidence, that he was not the individual who drove "his white Mazda truck," license plate PTR 107, to the Store that evening. Pl.'s Statement, ECF No. 130, at 3, 4, 8. Plaintiff did not provide a declaration or affidavit in support of his Motion or in Opposition to Defendants' Motions. Plaintiff repeatedly refused to answer questions regarding the incident during his deposition stating that he refused to do so on the basis of his Fifth Amendment right against self-incrimination.
Plaintiff states, without citation to any evidence, that Defendant Cadiz did not inquire whether he was the "driver" of the white truck when Defendant Cadiz approached Plaintiff at the register inside the Store. Pl.'s Statement, ECF No. 130, at 9. As noted above, Plaintiff did not provide a declaration or affidavit in support of his Motion and refused to answer questions at his deposition regarding the incident.
Plaintiff states that he did not have "on his person" a Hawaii driver's license on the evening in question. Pl.'s Statement, ECF No. 130, at 9. Plaintiff cites Defendant Cadiz's report in support of this statement.
Plaintiff asserts that he was placed under arrest at 22:00 hours while he was inside the Store at the register. Pl.'s Statement, ECF No. 130, at 10. Although not referenced by Plaintiff in his Concise Statement, Plaintiff testified at his deposition that Defendant Cadiz told Plaintiff that he was under arrest at the register inside the Store.
Pl.'s Dep., ECF Nos. 112-12, 124-8, 133-9, at 79:7-19. Additionally, Defendant Cadiz responded to an interrogatory that Plaintiff was "placed under arrest at 2200 hours." Cadiz Interrog. Responses, Ex. K to Defs.' Statement, ECF No. 133-16
Mr. Querido saw three uniform police officers escort Plaintiff along the front of the Store to within a few yards of Mr. Querido. Querido Interrog. Responses, ECF No. 130-4, at 3. Defendant Cadiz escorted Plaintiff to Mr. Querido's location "close enough for [Mr. Querido] to make a positive identification." Querido Interrog. Responses, ECF No. 130-4, at 2. Defendant Cadiz asked Mr. Querido if he could identify the person who scratched his car. Querido Interrog. Responses, ECF No. 130-4, at 2.
Plaintiff notes that the HPD "Incident Recall" sheet reflects that Defendant Okagawa did not call into dispatch to report that he was at the location until 21:58 hours, two minutes before Plaintiff asserts he was placed under arrest. Pl.'s Statement, ECF No. 130, at 17-19 (citing Ex. 1 to Pl.'s Statement, ECF No. 130-2). However, Plaintiff offers no facts to controvert Defendant Okagawa's statements in his declaration that he was on scene prior to that time, but did not call into dispatch until later.
Plaintiff states that when he was outside Defendant Okagawa "berated" him stating "The guy said you scratched his car. He was watching you from inside the store." Pl.'s Statement, ECF No. 130, at 22. Plaintiff replied "It was not me?"
Plaintiff does not dispute that he had one prior arrest, but notes that he was eventually cleared of the charges. Pl.'s Statement, ECF No. 130, at 24. In addition, Plaintiff does not dispute, or even address, the following facts set forth in Defendants' Concise Statements.
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material when, under the governing substantive law, it could affect the outcome of the case.
The party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact.
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts."
Where conflicting evidence is presented by both parties, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact."
Defendants argue that Plaintiff's Motion should not be considered by the Court because it is based on Plaintiff's prior complaint and was not filed timely.
Plaintiff's first claim is entitled "Violations of the Constitution of the State of Hawaii." Amended Compl., ECF No. 96, at 6. However, Plaintiff alleges in this first claim that he was "assaulted, improperly detained, and suffered the loss of his liberty without any probable, sufficient, just, or reasonable cause in the violation of rights guaranteed to him by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and Article 1 of the Constitution of the State of Hawaii."
First, to the extent Plaintiff attempts to assert a Section 1983 claim based on violations of the Hawaii Constitution, that claim fails because state constitutional claims are not covered by Section 1983.
Second, to the extent Plaintiff is bringing this claim directly under the Hawaii Constitution, Hawaii courts have declined to recognize a direct private cause of action for violation of rights guaranteed under the provisions of the Hawaii Constitution listed by Plaintiffs.
Section 1983 provides, in relevant part:
42 U.S.C. § 1983.
Plaintiff did not file an opposition to the City's Motion. However, even construing Plaintiff's own Motion as an opposition, the Court GRANTS summary judgment in favor of the City on Plaintiff's Section 1983 claims.
Local governmental bodies such as the City are "persons" that may be sued under Section 1983.
"[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact."
Here, Plaintiff has not presented any evidence that could create a genuine issue of fact of whether the City exhibited a deliberate indifference to Plaintiff's rights, ratified certain conduct, or had a custom and policy of searching, seizing, or arresting people without probable cause. In contrast, Defendant Cadiz and Defendant Okagawa provided statements in their declarations that they received training in the course of their employment with the City that probable cause must exist before an arrest can take place. Cadiz Decl. ¶ 47; Okagawa Decl. I ¶ 47. Additionally, Defendant Okagawa stated that the City has a policy that provides that arrests must be according to the law and supported by probable cause. Okagawa Decl. I ¶ 49 (referencing HPD Policy 7.01, entitled "Arrests and Persons"). Even if the Court assumes that Plaintiff was arrested without probable cause, Plaintiff has failed to present any evidence that the City was aware of, condoned, instituted or allowed to be instituted actions as alleged, or a policy encouraging such conduct, or that the City was the moving force behind any such unlawful practice. To defeat summary judgment, a nonmoving party must set forth "significant probative evidence" in support of its position.
Plaintiff asserts that Defendant Cadiz and Defendant Okagawa unlawfully arrested him in violation of his Fourth Amended rights.
An arrest is lawful "only if it is accompanied by probable cause to believe that the arrestee has committed, or is committing, an offense."
As an initial matter, there is no merit to Plaintiff's argument that a police officer cannot make a warrantless arrest for a misdemeanor crime unless the misdemeanor occurs in the officer's presence.
The Officer Defendants contend that they had probable cause to arrest Plaintiff for criminal property damage in the third degree under Hawaii Revised Statutes Section 708-822. Cadiz Decl. ¶ 36. A person commits the offense of criminal property damage in the third degree if:
Haw. Rev. Stat. § 708-822(1)(b).
A threshold dispute is whether Plaintiff was arrested at the register, as he contends, or was merely detained at the register and escorted outside where he was later placed under arrest, as Defendants contend. Factors relevant to a custody determination include (1) the language used by the officers; (2) the physical surroundings of the location where the questioning occurs; (3) the extent to which the suspect is confronted with evidence of guilt; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.
The Court must consider whether the Officer Defendants could have reasonably concluded, under the totality of the circumstances, that a "fair probability" existed that Plaintiff knowingly damaged Mr. Querido's property, without Mr. Querido's consent, in an amount exceeding $500, at the time that Plaintiff asserts he was placed under arrest.
Before Plaintiff was presumably arrested at the register, Defendant Cadiz had met with and interviewed Mr. Querido, who told Defendant Cadiz that his vehicle did not have the scratch marks prior to driving to the Store, that he did not give anyone permission to damage his car, and that he estimated the damage to his car was approximately $1000. Querido Aff. ¶ 12; Cadiz Decl. ¶ 13. Mr. Querido observed a man exit a white truck, walk along the driver's side of Mr. Querido's car, and extend his arm over the hood as he passed the front end of Mr. Querido's car. Querido Aff. ¶ 9. Mr. Querido identified to Defendant Cadiz a white truck with license plate PTR 107 as the truck he saw the man exit from. Querido Aff. ¶ 2; Cadiz Decl. ¶ 16. Mr. Querido described the man who exited the white truck as a tall, older, bald man wearing a white shirt. Querido Aff. ¶ 2; Cadiz Decl. ¶ 16. Approximately ten minutes after Defendant Cadiz arrived on scene he called into dispatch to request that they run the license plate of the white truck. Cadiz Decl. ¶ 30; Okagawa Decl. II ¶ 11; Ex. J to Defs.' Counter-Statement, ECF No. 133-15 (recordings of radio transmission on the night of the incident). Dispatch responded almost immediately that the white truck was registered to "Antonio Gonzalez." Cadiz Decl. ¶ 31; Okagawa Decl. II ¶ 14; Ex. J to Defs.' Counter-Statement, ECF No. 133-15 (recordings of radio transmission on the night of the incident).
Defendant Cadiz spoke with Defendant Okagawa who told Defendant Cadiz that Defendant Okagawa had viewed a video taken from the Store's surveillance system that had captured the incident. Cadiz Decl. ¶ 25. Defendant Cadiz went into the Store to try to locate the suspect. Cadiz Decl. ¶ 26. At approximately 10:00 p.m., Defendant Cadiz saw Plaintiff, an older bald man wearing a green t-shirt, standing in line at one of the registers. Cadiz Decl. ¶ 27. Defendant Cadiz approached Plaintiff and asked if he was the driver of the white truck, to which Plaintiff replied "yes." Cadiz Decl. ¶ 29.
A reasonable officer in Defendant Cadiz's position would have believed that there was probable cause to arrest Plaintiff for criminal property damage based on the investigation conducted by Defendant Cadiz, Mr. Querido's description of the suspect as an older bald male, the confirmation of Mr. Querido's description of the incident to Defendant Cadiz by Defendant Okagawa after he viewed the surveillance footage, the identification of Plaintiff as the owner of the white truck by police dispatch, the statement by Plaintiff that he was the driver of the white truck, and the confirmation of Plaintiff's identity by his driver's license. The fact that Mr. Querido initially described the suspect as a "Samoan" man wearing a white t-shirt does not defeat the finding of probable cause given all of the other information that the Officer Defendants knew at the time of Plaintiff's arrest. Accordingly, the Court GRANTS summary judgment in favor of the Defendant Cadiz and Defendant Okagawa on Plaintiff's Section 1983 claim.
Plaintiff asserts six state law claims against the Officer Defendants: intentional infliction of emotional distress; negligence; defamation; negligent training, supervision and/or discipline; false imprisonment; and conversion. Amended Compl., ECF No. 96, at 8-12. Plaintiff also asserts two state law claims against the City: negligence under respondeat superior; and negligent training, supervision and/or discipline.
Although the title of Plaintiff's Motion includes "any and all claims asserted by Plaintiff," Plaintiff does not address any of his state law claims in his Motion.
Defendant Okagawa and Defendant Cadiz are entitled to summary judgment on all of Plaintiff's state law claims based on conditional privilege and the substance of each claim.
Under Hawaii law, "non-judicial governmental officials, when acting in the performance of their public duty, enjoy the protection of what has been termed a qualified or conditional privilege."
The Court finds that Defendant Cadiz and Defendant Okagawa are entitled to conditional privilege for all of Plaintiff's state law claims.
Even putting aside the issue of conditional privilege, the Officer Defendants are entitled to summary judgment on Plaintiff's state law claims. The Court addresses each of the six state law claims asserted in Plaintiff's Amended Complaint below.
Plaintiff alleges that the Officer Defendants were "intentional and/or reckless, outrageous, unreasonable, and without just cause or excuse" caused Plaintiff severe emotional distress. Amended Compl., ECF No. 96, ¶¶ 26-28. The elements of intentional infliction of emotional distress are: "(1) that the act allegedly causing the harm was intentional; (2) that the act was unreasonable; and (3) that the actor should have recognized that the act was likely to result in illness."
The undisputed facts of this case do not rise to the level of outrageousness required to establish a claim of intentional infliction of emotional distress. The Officer Defendants had probable cause to arrest Plaintiff, and Plaintiff has not presented any facts demonstrating outrageous or extreme conduct. Plaintiff's conclusory allegations in his Amended Complaint are not sufficient.
Plaintiff alleges that the Officer Defendants "negligently caused [Plaintiff] to suffer physical injuries, chest pains, mental anguish, server emotional distress, anxiety, embarrassment, humiliation, worry, and anger." Amended Compl., ECF No. 96, ¶ 30. Under Hawaii law, a claim for negligence requires Plaintiff to prove that Defendants "(1)[had a] duty to conform to a certain standard of conduct, (2) breach of the duty, (3) causal connection between the breach and the injury, and (4) damage to [Plaintiff]."
Here, Plaintiff's negligence claim fails as a matter of law because Plaintiff fails to plead what duty the Officer Defendants might have breached and fails to provide any evidence of actual damages. There is no duty to not arrest without probable cause.
Plaintiff alleges that Defendant Cadiz defamed Plaintiff when Defendant Cadiz referenced in his report that Plaintiff had "one (1) prior arrest" causing Plaintiff to suffer "great mental anguish, severe emotional distress, anxiety, embarrassment, humiliation, worry and anger." Amended Compl., ECF No. 96, ¶ 34. "Under both federal and Hawaii law, truth is a complete defense to an action for defamation."
During Plaintiff's deposition, he stated that he was arrested on one prior occasion.
Pl.'s Dep., ECF Nos. 112-12, 124-8, 133-9, at 41-42:16-10. Plaintiff cannot prove the falsity of Defendant Cadiz's statement because he has admitted its truth. Accordingly, the Court GRANTS summary judgment in favor of Defendant Cadiz as to the defamation claim.
Although not entirely clear from his pleading, it appears that Plaintiff asserts his claim for negligent training, supervision and/or discipline against both the City and the Officer Defendants.
To prevail on his false imprisonment claim, Plaintiff must show that no probable cause existed to arrest him.
Plaintiff alleges that the Officer Defendants "exerted dominion and control over Plaintiff's truck and cash, thereby depriving Plaintiff of the possession and use of said property and causing him damages." Amended Compl., ECF No. 96, ¶ 42. Under Hawaii law, conversion is defined as "[a]ny distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein."
Here, Plaintiff has not asserted any facts to support his allegations of conversion. Plaintiff's truck was not seized or even touched by the police officers on the night of the incident. Okagawa Decl. I ¶ 43. Neither Defendant Cadiz nor Defendant Okagawa took Plaintiff's truck from him, nor did they instruct any other officer to do so. Okagawa Decl. I ¶ 44. There is no evidence that the Officer Defendants took Plaintiff's truck or cash without his consent, that they assumed ownership of his property, that they illegally used or abused his property, or that the Officer Defendants wrongfully detained Plaintiff's property.
First, Plaintiff's negligence claim against the City is based on the City's responsibility for the negligent acts of Defendant Cadiz and Defendant Okagawa. Under Hawaii law, "if an employee is immune from suit, then the employer is also immune from suit and cannot be held liable."
Second, as to Plaintiff's claim for negligent training, supervision, and/or discipline, the evidence demonstrates that Defendant Cadiz and Defendant Okagawa have been trained that probable cause must exist before an arrest can take place and HPD policy emphasizes that arrests must be according to law and must have a probable cause basis. Cadiz Decl. ¶ 47; Okagawa Decl. I ¶¶ 47, 49. As detailed above, there is no indication that Defendant Cadiz or Defendant Okagawa were acting outside the course and scope of their employment on the night of the incident and there is no evidence that there has been a failure to discipline the Officer Defendants. Plaintiff's claim of negligent training, supervision and/or discipline is factually unsupported, and the Court GRANTS summary judgment in favor of the City as to Plaintiff's claim for negligent training, supervision, and/or discipline.
In accordance with the foregoing, the Court GRANTS the City and County of Honolulu's Motion for Summary Judgment, GRANTS Jensen Okagawa and Roberto Cadiz's Motion for Summary Judgment, and DENIES Plaintiff's Amended Motion for Summary Judgment. The Court GRANTS summary judgment in favor of Defendants on all counts and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
