Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 1 of 31 PageID #: <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NAPOLEON T. ANNAN-YARTEY, ) CV. NO. 06-00166 DAE-BMK ) Plaintiff, ) ) vs. ) ) HONOLULU POLICE ) DEPARTMENT, OFFICER PIGRRE ) SHAWN, CHIEF OF POLICE ) BOISSE P. CORREA, CITY AND ) COUNTY OF HONOLULU, ) MUNICIPAL CORPORATION, ) SAFEGUARD SECURITY ) OFFICERS, CADES AND ) SCHUTTE, ) ) Defendants. ) _____________________________ ) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS CITY AND COUNTY OF HONOLULU, HONOLULU POLICE DEPARTMENT, CHIEF OF POLICE BOISSE P. CORREA AND OFFICER SHAWN PIERRE’S MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANTS CADES SCHUTTE LLP AND ERNEST H. NOMURA’S MOTION FOR SUMMARY JUDGMENT Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing Defendants City and County of Honolulu, Honolulu Police Department, Chief of Police Boisse P. Correa (“City Defendants”), and Officer Shawn Pierre’s (“Officer Pierre”) Motion for Summary Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 2 of 31 PageID #: <pageID> Judgment and Defendants Cades Schutte LLP (“Cades”) and Ernest H. Nomura’s (“Nomura”) Motion for Summary Judgment and the supporting and opposing memoranda, the Court GRANTS IN PART AND DENIES IN PART City Defendants and Officer Pierre’s Motion for Summary Judgment. Specifically, the Court GRANTS City Defendants’ motion for summary judgment as to Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, and 12; GRANTS Pierre’s motion for summary judgment as to all counts; and DENIES City Defendants’ motion for summary judgment as to Count 5 for improper training and supervision concerning the strip search, Count 11 for battery concerning the strip search, and Count 13 for IIED in relation to the strip search. The Court GRANTS Cades and Nomura’s Motion for Summary Judgment on Counts 6, 12, and 13. BACKGROUND On June 15, 2004, Plaintiff Napoleon T. Annan-Yartey was arrested for Criminal Trespass in the second degree at the Cades Schutte building. Arresting Officer Pierre (misidentified as “Pigrre Shawn” in the Complaint) arrived at the scene after receiving a call from dispatch about a previously trespassed individual that was present at the location. Upon arrival, Officer Pierre observed the building security guards, Safeguard Security (“Safeguard”), arguing with Plaintiff and insisting that he leave the premises. Despite Safeguard’s -2- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 3 of 31 PageID #: <pageID> documentation of the earlier trespass, Officer Pierre allowed Plaintiff to remain in the lobby for the express purpose of serving legal papers to Nomura, an attorney at Cades. When Plaintiff again began to argue with the security guards after serving the documents, Officer Pierre states that he warned Plaintiff multiple times to leave the property or he would be arrested. Due to Plaintiff’s alleged noncompliance, Officer Pierre then informed Plaintiff that he was under arrest and he grabbed his arm to stand him up. Although Plaintiff began to resist arrest, Officer Pierre claims that he warned him that more force would be used if he did not cooperate. Plaintiff thereafter became compliant. Officer Pierre states that he noticed a cut on Plaintiff’s finger while patting him down, so he brought him to Queen’s Hospital to have the finger examined. Hospital records indicate that Plaintiff suffered a crushed middle finger and back pain. The source of those injuries is unknown. By contrast, Plaintiff alleges in his affidavit that he received no warnings before the arrest and that Officer Pierre grabbed him with force, slammed him to the ground, kicked him in the stomach, and manhandled him during the arrest. As to the injured finger, Plaintiff attests that Officer Pierre slammed his middle finger in the car door during the arrest, thus causing the cut, rather than -3- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 4 of 31 PageID #: <pageID> having the cut already. After being treated at Queen’s Hospital for the finger injury and back pain, Plaintiff alleges that Officer Pierre brought him to the police station where another officer performed a strip search, took his fingerprints, and placed him in jail for more than thirty hours. On March 22, 2006, Plaintiff filed his Complaint, and he filed his Complaint for Damages one day later on March 23, 2006. Named defendants include: the City and County of Honolulu, the Honolulu Police Department (“HPD”), Chief of Police Boisse P. Correa (“Chief Correa”), Officer Pierre, Safeguard, Cades, and Nomura. The Complaint contains thirteen Counts: (1) 1983 – Arrest, (2) 1983 – Detention and Confinement, (3) 1983 – Strip Search, (4) 1983 – Conspiracy, (5) 1983 – Refusing or Neglecting to Prevent, (6) Malicious Prosecution, (7) Malicious Abuse of Process, (8) Violation of the Hawaii Civil Rights Act, (9) False Arrest Imprisonment, (10) Assault, (11) Battery, (12) Conspiracy, (13) Intentional Infliction of Emotional Distress. Counts 1-5 are raised under 42 U.S.C. § 1983. On July 3, 2006, Cades and Nomura filed a Motion to Dismiss for Failure to State a Claim, and, on July 11, 2006, Safeguard filed a motion to join the Motion to Dismiss. The Court granted Defendants Cades and Safeguard’s Motion to Dismiss with regard to the § 1983 claims in Counts 1 through 5 and the Hawaii -4- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 5 of 31 PageID #: <pageID> Civil Rights Act in Count 8, but denied the Motion with regard to the malicious prosecution claim in Count 6, the civil conspiracy claim in Count 12, and the intentional infliction of emotional distress claim in Count 13. On June 19, 2007, the Court granted Defendant Safeguard’s Motion for Summary Judgment, filed May 7, 2007, on the remaining counts against Safeguard, that is, Counts 6, 12, and 13. On February 28, 2007, City Defendants and Officer Pierre filed a Motion for Summary Judgment. That same day, Cades and Nomura filed a separate Motion for Summary Judgment on the remaining counts against them, that is, Counts 6, 12, and 13. On April 6, 2007, Plaintiff filed an Opposition to City Defendants and Officer Pierre’s Motion for Summary Judgment, but not to Cades and Nomura’s Motion for Summary Judgment. On April 20, 2007, City Defendants and Officer Pierre filed a reply. STANDARD OF REVIEW Rule 56 requires summary judgment to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Porter v. California Dept. of Corrections, 419 F.3d 885, 891 -5- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 6 of 31 PageID #: <pageID> (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial–-usually, but not always, the defendant–-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls upon the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). Once the moving party has carried its burden under Rule 56, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial”and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In setting forth “specific facts,” the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence -6- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 7 of 31 PageID #: <pageID> without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) (“When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties.”). “[A]t least some ‘significant probative evidence’” must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu, 198 F.3d at 1134. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id. However, inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. -7- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 8 of 31 PageID #: <pageID> DISCUSSION I. City Defendants and Officer Pierre’s Motion for Summary Judgment A. Counts 1-5: § 1983 Claims Plaintiff alleges that Defendants and their employee, Officer Pierre, deprived him of his constitutional rights under 42 U.S.C. § 1983 (“Section 1983”). To state a claim under Section 1983, a plaintiff must establish a deprivation of a right secured by the Constitution or laws of the United States and that the defendant’s action occurred under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). A plaintiff may establish municipal liability by proving that the alleged constitutional violation was committed pursuant to a formal policy or custom that constitutes the standard operating procedure; that an official with “final policy-making authority”1 committed the constitutional tort; or “that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.”2 Gillette v. Delmore, 979 F.2d 1342, 1346- 1 “Whether a particular official has final policy-making authority is a question of state law.” Gillette, 979 F.2d at 1346. 2 Because “the HPD is a department placed under the supervision of the managing director of the City and County of Honolulu (City),” and it is not an “independent legal entity,” the Court shall treat all claims against HPD and Chief -8- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 9 of 31 PageID #: <pageID> 47 (9th Cir. 1992); see Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 690-91 (1978). “[T]he word ‘policy’ generally implies a course of action consciously chosen from among various alternatives.” Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). The word custom recognizes situations where the practices of officials are permanent and well settled. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68 (1970). A plaintiff may not assert a claim under Section 1983 merely by identifying conduct properly attributable to the municipality. Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404 (1997). “The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. “To establish that a state official is personally liable in an action under 42 U.S.C. § 1983, a plaintiff must show that ‘the official, acting under color of state law, caused the deprivation of a federal right.’” Spoklie v. Montana, 411 F.3d Officer Correa (named as a party only through his employment with HPD) as claims against the City. Meyer v. City and County of Honolulu, 729 P.2d 388, 390 n.1 (Haw. Ct. App. 1986), rev’d in part on other grounds, 731 P.2d 149 (Haw. 1986). -9- Case 1:06-cv-00166-DAE-BMK Document 158 Filed 07/31/07 Page 10 of 31 PageID #: <pageID> 1051, 1060 (9th Cir. 2005) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). So long as the official’s “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” he or she has qualified immunity from civil liability under Section 1983. Id. The following must be determined for the qualified immunity defense to apply: “(1) what right has been violated; (2) whether that right was so ‘clearly established’ at the time of the incident that a reasonable officer would have been aware of its constitutionality; and (3) whether a reasonable public officer could have believed that the alleged conduct was lawful.” Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998). 1. Counts 1, 2–Arrest and Detention and Confinement As to Counts 1 and 2 with respect to City Defendants, Plaintiff has failed to allege any facts that could prove municipal liability. See Monell, 436 U.S. at 690-91. Plaintiff made no allegations of fact to demonstrate that HPD had a formal policy or custom in place pursuant to which Chief Correa or another official may have acted. The Court, therefore, GRANTS summary judgment for City Defendants on Counts 1 and 2. As to Count 1 with respect to Officer Pierre, Plaintiff claims excessive use of force in the course of making the arrest under the Fourth Amendment, -10-