J. MICHAEL SEABRIGHT, Chief District Judge.
On November 1, 2016,
Currently before the court is Defendants' Motion to Dismiss Plaintiff's SAC on the ground that Plaintiff's claims are time-barred. ECF No. 31. Based on the following, the court agrees. The Motion to Dismiss is GRANTED and the SAC is DISMISSED without leave to amend.
Plaintiff, an African-American male, alleges that on December 11, 2013, Defendants arrested him, and searched and seized his belongings without probable cause after Plaintiff, who was carrying a bag of recently purchased food, crossed a street along with other pedestrians. SAC ¶¶ 8, 9, 21-23, 25-26. Muranaka and Ohira allegedly made racially derogatory remarks;
Plaintiff was charged in state court with disobeying traffic signals and littering, based on affidavits of probable cause containing allegedly false statements or omissions by the three officers. Id. ¶¶ 34, 36. Plaintiff appeared in court several times related to the allegedly false charges before they were dismissed with prejudice. Id. ¶¶ 39-40. Somewhat inconsistently, the SAC also alleges that "criminal proceedings against [Plaintiff] went to trial and the court came with a (not guilty verdict) thereafter all charges were dismissed in favor of Plaintiff[]," id. ¶ 52, and that "[a]ll 65 charges were terminated in Plaintiff's favor," id. ¶ 81.
Events listed in state court public dockets provide some clarification.
On August 3, 2014, Plaintiff was issued an unrelated citation charging him with entering a closed park in violation of Revised Ordinances of Honolulu 10-1.2(a)(12). See id. (Case No. 1DCC-14-0006812). Following a bench trial, on October 27, 2014, Plaintiff was found not guilty. Id.
Plaintiff filed this action on November 1, 2016, and filed his SAC on November 21, 2016. ECF Nos. 1, 10. Against the remaining Defendants, the SAC asserts § 1983 claims for violation of rights protected by the Fourth, Fifth, and/or Fourteenth Amendments to the United States Constitution including equal protection (Count 1); unreasonable search, seizure, and arrest without probable cause (Count 2); excessive force (Count 3); malicious prosecution (Count 4); and due process (Count 5). The SAC also alleges claims for racial discrimination and conspiracy to discriminate pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3) (Count 11); and (2) intentional and negligent infliction of emotional distress under §§ 1981, 1983, and state law (Count 12). Finally, the SAC alleges state-law claims for malicious prosecution (Count 9); and violation of rights protected by the Hawaii State Constitution including equal protection (Count 7) and unlawful search, seizure, arrest, and excessive force (Count 8).
On February 7, 2017, Defendants filed their Motion to Dismiss. ECF No. 31. On February 24, 2017, Plaintiff filed his Opposition. ECF No. 34. Defendants filed a Reply on March 3, 2017, ECF No. 35, and on March 9, 2017, Plaintiff filed an Affidavit in Support of his Opposition, ECF No. 36.
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon which relief can be granted[.]" A Rule 12(b)(6) dismissal is proper when there is either a "`lack of a cognizable legal theory or the absence of sufficient facts alleged.'" UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
"A statute-of-limitations defense, if `apparent from the face of the complaint,' may properly be raised in a motion to dismiss." Seven Arts Filmed Entm't Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)); see also Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) ("When an affirmative defense is obvious on the face of a complaint, however, a defendant can raise that defense in a motion to dismiss.") (citing Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1128-29 (9th Cir. 1999)). That said, "a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (quotation marks and citations omitted).
Plaintiff is appearing pro se; consequently, the court liberally construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court also recognizes that "[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).
Defendants argue that Plaintiff's claims are barred by the two-year statute of limitations set forth in Hawaii Revised Statutes ("HRS") § 657-7 or § 46-72.
Courts apply the forum state's statute of limitations and its tolling provisions for personal injury tort actions to federal claims under §§ 1981, 1983, and 1985. And here, a two-year statute of limitations applies. See Beckstrand v. Read, ___ F. App'x ___, 2017 WL 957210, at *2 (9th Cir. Mar. 13, 2017) ("Hawaii's two-year statute of limitations for personal injury actions applies to . . . claims under 42 U.S.C. § 1983."); Lukovsy v. City & Cty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008) (regarding claims under § 1981); McDougal v. Cty. of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991) (regarding claims under § 1985(3)). As a result, Plaintiff's claims are subject to the two-year statute of limitations set forth in Hawaii Revised Statutes ("HRS") § 657-7.
Here, Plaintiff asserts claims for injuries based on the events of December 11, 2013, and thereafter, when Defendants allegedly violated his civil rights and then maliciously prosecuted him by issuing citations and pursuing court action on those citations. Because Plaintiff brought this action on November 1, 2016 (or, as he claims, October 25, 2016), i.e., more than two years after December 11, 2013, it appears that Plaintiff's claims are time-barred unless the SAC alleges facts to support tolling of the statute of limitations or suggesting that his claims accrued less than two years prior to the filing of this action.
Plaintiff contends that the statute of limitations should be tolled for multiple reasons. First, during the March 20, 2017 hearing, he argued that HRS § 701-108(3)
Second, Plaintiff argues that pursuant to HRS § 657-23,
Finally, Plaintiff argues that the statute of limitations should be equitably tolled. See Cervantes, 5 F.3d at 1276-77 (holding that dismissal on statute of limitations grounds is disfavored when equitable tolling may apply). "To be eligible for equitable tolling of the statute of limitations under Hawaii law, a plaintiff must show that he `has been pursuing his right diligently, and . . . that some extraordinary circumstance stood in his way.'" Dela Cruz v. Todd, 2017 WL 776094, at *5 (D. Haw. Feb. 28, 2017) (quoting Office of Hawaiian Affairs v. State, 110 Haw. 338, 360, 133 P.3d 767, 789 (2006)). "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. (citing United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000)).
Plaintiff contends that he diligently pursued his rights and that he was prevented from complying with the statute of limitations because Defendants continued to maliciously prosecute him in a wholly separate action—an August 3, 2014 citation charging him with entering a closed park and subsequent trial (ending in an October 27, 2014 acquittal). See eCourt Kokua, http://jimspss1. courts.state.hi.us:8080/eCourt/ECC/CaseSearch.iface (Case No. 1DCC-14-0006812). The SAC does not allege any facts demonstrating that Plaintiff could not have filed the instant action either during or after the prosecution of that case. That is, even construing the SAC liberally, it lacks any basis whatsoever to show that Plaintiff was prevented from filing the instant action within the statute of limitations due to circumstances beyond his control. See Dela Cruz, 2017 WL 776094, at *5. Plaintiff has proved neither that he had been pursuing his right diligently nor that something stood in his way from doing so. Nor does Plaintiff, in his various filings, make such a factual allegation.
Thus, the court finds that the SAC fails to allege facts sufficient to support tolling of the statute of limitations.
Although the court looks to state law to determine the applicable statute of limitations for Plaintiff's federal claims, when a cause of action begins to accrue is a question of federal law. Wallace v. Kato, 549 U.S. 384, 388 (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."). Under federal law, "[t]he touchstone for determining the commencement of the limitations period is notice: `a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action.'" Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006) (quoting Hoesterey v. City of Cathedral City, 945 F.2d 317, 319 (9th Cir. 1991)); see also Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001).
Accrual of Plaintiff's state-law claims, however, is determined by state law, which is substantially similar to federal law of accrual. Under Hawaii law, state-law personal injury claims accrue when a plaintiff "discovers or should have discovered the negligent act, the damages, and the causal connection between the former and the latter." Yamaguchi v. Queen's Med. Ctr., 65 Haw. 84, 90, 648 P.2d 325, 693-94 (1982). See also, e.g., Hays v. City & Cty. of Honolulu, 81 Haw. 391, 396, 917 P.2d 718, 723 (1996) (reiterating that the period "commences to run when plaintiff discovers, or through the use of reasonable diligence should have discovered, (1) the damage; (2) the violation of the duty; and (3) the causal connection between the violation of the duty and the damage") (quoting Jacoby v. Kaiser Found. Hosp., 1 Haw.App. 519, 525, 622 P.2d 613, 617 (1981)).
Under either rubric, malicious prosecution claims accrue upon dismissal or acquittal. See Manuel v. City of Joliet, ___ S. Ct. ___, 2017 WL 1050976, at *7-8 (Mar. 21, 2017) (recognizing that common-law malicious prosecution claims do not accrue until termination of the underlying legal action in a plaintiff's favor); see also Heck v. Humphrey, 512 U.S. 477, 489 (1994) ("[A] cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor."); Wong v. Cayetano, 111 Haw. 462, 478-79, 143 P.3d 1, 17-18 (2006) (noting that proceedings must have been terminated in the plaintiff's favor before a malicious prosecution claim can be brought).
Here, the SAC does not include allegations suggesting that Plaintiff did not know or have reason to know of his claims, except the malicious prosecution claim, on December 11, 2013, or shortly thereafter. As alleged, at the time of the incident, Plaintiff asked Defendants "if there was any probable cause or warrant." SAC ¶ 22. The SAC further alleges that when "[h]e was . . . arrested and held without probable cause, such action violate[d] his civil right[s] under the United States Constitution also rights under Fourth and Fourteenth Amendments." Id. ¶ 25. And, even if Plaintiff did not know or have reason to know of his claims on December 11, 2013, the SAC alleges that "within ninety [days] of the incident, Plaintiff filed a written Notices of Claim upon Defendant City of Honolulu[.]" Id. ¶ 7. Nevertheless, Plaintiff argues that none of his claims accrued until the termination of his criminal cases. While this may be true for his malicious prosecution claim, it is not likely true for his remaining claims.
But, even accepting Plaintiff's argument as to all of his claims (which the court does not), all the criminal proceedings arising from the events of December 11, 2013 were dismissed by July 31, 2014—more than two years before Plaintiff filed this action. They are barred.
Plaintiff's sole remaining argument is that his claims did not accrue until October 27, 2014, when a separate, unrelated criminal action was terminated in his favor. But neither that action nor the events giving rise to that action form the basis for Plaintiff's claims in this action. Plaintiff's argument—because his claims are against HPD officers, any criminal action arising out of any HPD officer's conduct is related and therefore delays accrual or tolls the statute of limitation of his claims—is without merit.
From the face of the SAC and judicially noticed state-court dockets, it is apparent that the statute of limitations began to run on all of Plaintiff's claims no later than July 31, 2016, and therefore, Plaintiff's claims are untimely. The SAC's factual allegations demonstrate "beyond doubt that [Plaintiff] can prove no set of facts that would establish the timeliness of [his] claim[s]." Supermail Cargo, Inc., 68 F.3d at 1206-07. Accordingly, Defendants' Motion to Dismiss is GRANTED. And because "it is absolutely clear that no amendment can cure the defect," granting leave to amend would be futile. Lucas, 66 F.3d at 248.
Based on the foregoing, Defendants' Motion to Dismiss is GRANTED without leave to amend. The Clerk of Court is DIRECTED to close the case.
IT IS SO ORDERED.