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1 Case 1:11-cv-00561-DKW-RLP Document 18
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6 80 Filed 05/31/13 Page 1 of 52 P
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7 Document 180 Filed 05/31/13 Page 3
Document 180 Filed 05/31/13 Page 38 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 15 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 22 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 2 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 23 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 5 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00

8 561-DKW-RLP Document 180 Filed 05/31
561-DKW-RLP Document 180 Filed 05/31/13 Page 7 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 52 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 39 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 49 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 9 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 17 of 52 PageID #:&#xpage;&#xID00; Cas

9 e 1:11-cv-00561-DKW-RLP Document 180
e 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 43 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 40 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 32 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 28 of 52 PageID #:&#xpage;&#xID00; Case 1:11-cv-00561-DKW-RLP Document 180 Filed 05/31/13 Page 20 of 52 PageID #:&#xpage;&#xID00; 2Paul Smith, Esq., and appearing on behalf of Defendants was D.BACKGROUND 10.On March 29, 2009,

10 an altercation11.The Plaintiff was unar
an altercation11.The Plaintiff was unarmed at the time of12.Defendant Marini shot the Plaintiff14.Defendant CITY AND COUNTY OF HONOLULU 33.Defendant MARINI was not justified in34.Defendant CITY AND COUNTY OF HONOLULU 4 105.] In that order, the Court dismissed Plaintiff’s § 1983claims in Count I against the City based upon a respondeatsuperior theory of liability, dismissed Plaintiff’s § 1983 claimsbrought under the Eighth Amendment, and denied Defendants’ motionin all other respects.I.City Motion The City now seeks summary judgment on Plaintiff’sFirst Amended Complaint on the ground that Marini was not acting 5§

11 1983 claims against both Marini and the
1983 claims against both Marini and the City are barred, and , 512 U.S. 477,114 (1994), because Plaintiff plead no contest to the criminal , Cr. No. 09-1-0466. Last, theCity argues that Plaintiff fails to establish a claim ofThe City states that the underlying incident involvingSilva and Marini was investigated by Detective Brian Johnson of 6case for prosecution, and the ARB found that Marini’s conduct did at 4-5 (citingJohnson Decl.; Tamashiro Decl.; Akagi Decl.).]With respect to Plaintiff’s Monell claim, the Cityargues that the evidence shows that Marini was adequately trained at 8 (citing Jaeger Decl.).]The

12 City argues that, even if its investigat
City argues that, even if its investigation ofMarini’s conduct was found to be inadequate, it does not at 9-11 (citing NakagawaDecl.).]As to Plaintiff’s ratification claim, the City arguesthat Plaintiff cannot establish that an official with final 7Putzulu, was informed that the ARB found that Marini’s discharge at 12-13.]The City also argues that any respondeat superiorclaims fail because Marini’s conduct was “not in the scope of hisemployment at the time of the incident.” [Id. at 14 (citingMarini Decl.; Nakagawa Decl.).] It contends that he was not on A.Plaintiff’s Opposition Plaintiff’s version of the incid

13 ent differs from thatof Marini. He clai
ent differs from thatof Marini. He claims that Marini shot him several times 8According to Plaintiff, there are issues of factregarding: (1) the extent and openness of the excessive force inAccording to Plaintiff, HPD does not hold its officersaccountable for lethal force, and, of eighty-eight instances of at 4 (citing Pl.Exh. 19 (Colburn Decl.)).] He states that sixty-three of the ] Plaintiff argues that there are genuine issues ofmaterial fact as to whether the City’s two separate 9 at 24.]With respect to his ratification theory, Plaintiffargues that the Chief of Police ratified the unconstitutional use at

14 28.] He states that “The Chief of Police
28.] He states that “The Chief of Police wrote a letter clearing at 29 (citing Pl. Exh. 29 (HPD Disposition of AdministrativePlaintiff next argues that there are issues of factwith respect to the City’s deliberate indifference in failing to B.The City’s Reply In its reply brief, the City first argues thatPlaintiff offers no evidence to suggest that the City’s officer 10investigate complaints of excessive force. It also notes thatPlaintiff does not provide evidence supporting his claim that at 3-4.] The City argues that, even ifthe investigation of Plaintiff’s own incident was “inadequate” orThe City asserts that

15 Plaintiff’s ratification claimlikewise
Plaintiff’s ratification claimlikewise fails because he provides no evidence other than his II.Marini Motion Marini moves for summary judgment on several of thesame grounds as the City; he argues that Plaintiff’s claims are 11by qualified immunity and the doctrine of conditional privilege. [Mem. in Supp. of Marini Motion at 1-2.]Marini’s Declaration sets forth the followingchronology of events from March 29, 2009: Marini was off duty at 4-6 (citing 12Marini Decl. at ¶¶ 3-6).]Marini did not know or recognize Plaintiff. Marinistates that, immediately after he fired the shots and Plaintiff at 6 (citing MariniDecl

16 . at ¶ 6).] Defendants provide video su
. at ¶ 6).] Defendants provide video surveillance footageAs to Plaintiff’s failure to render aid claim, Marini 13argues that the incident lasted approximately forty seconds, fromwhen Plaintiff exited the white Honda in the 7-Eleven parking lotMarini also argues that he did not violate Plaintiff’sFourteenth Amendment rights because his conduct does not “shock at 26-27.] Marini further argues that he is entitled to summaryjudgment on Plaintiff’s negligence claim because Plaintiff is at 28-29.] As to Plaintiff’s assault and battery claims,Marini argues that his own conduct was justified because he acted 14state c

17 ommon law claims because Plaintiff canno
ommon law claims because Plaintiff cannot prove malice byclear and convincing evidence. [Id. A.Plaintiff’s Opposition In addition to the arguments he makes in opposition tothe City’s Motion, Plaintiff claims that there are issues of fact at 19.] Next, Plaintiff argues that Marini is not entitled to 15qualified immunity because a police officer may not seize anunarmed, non-dangerous suspect under Tennessee v. Garner , 471U.S. 1, 11-12 (1985). [Id. at 21-28.]He further contends that there are issues of fact withrespect to his claim for violation of the Fourteenth Amendment at 28-29.]With respect to his state law

18 claims, Plaintiff arguesthat there are
claims, Plaintiff arguesthat there are issues of fact as to whether Marini was negligent B.Defendants’ Reply Marini first argues that he was not acting under colorof law because he was off duty at the time of the shooting, andNext, Marini argues that Heck does apply here to barPlaintiff’s excessive force claim because the conviction for UEMV 16reasonable to separate Marini’s actions from Plaintiff’sassault.” [Id. ] Marini argues that, here, there was no“investigative” phase; he simply responded with force when the at 12.]Marini argues that Plaintiff’s medical needs claimfails because he gave Marini no opportun

19 ity to provide the III.Plaintiff’s Motio
ity to provide the III.Plaintiff’s Motion Plaintiff moves for partial summary judgment and forsanctions for loss or destruction of evidence on the following(1) Lack of any genuine issue of materialfact that Defendant Keith Marini (Defendant Marini(2) Lack of any genuine issue of materialfact that at the time Defendant Marini shot the(3) Lack of any genuine issue of materialfact that prior to shooting the unarmed Plaintiff(4) Lack of any genuine issue of materialfact that Defendant Marini’s shooting of the 17constitutes excessive force in violation of theprohibition contained in the Fourth Amendment ofLastly, Plaint

20 iff requests appropriatesanctions pursua
iff requests appropriatesanctions pursuant to this Court’s inherent powers[Pl. Motion at 1-2.]Plaintiff first argues that medical evidenceestablishes that he was shot in the left lower back and left at 12 (quoting Pl. Exh. 2 (7/31/12 Report ofStephen Holmes, M.D.)).] Plaintiff asserts that he is entitled to summaryjudgment because Marini shot him twice in the the back, without 18officer cannot continue to use deadly force once the danger hasabated. [Id. at 19-20.] As to the missing photographs taken of Marini after theincident, Plaintiff argues that they would show that Marini did at 28.] Heargues that Defenda

21 nts knew a civil rights case would likel
nts knew a civil rights case would likely be at 30-32.] Plaintiff asks the Court to grantsummary judgment, “finding that the missing evidence would have B.Defendants’ Opposition Defendants argue that Plaintiff’s Motion should bedenied because there are disputed issues of material fact, and 19sanctions based on two lost photographs should be denied. [Mem.in Opp. to Pl. Motion at 3.]According to Defendant, Plaintiff’s Motion ismisleading and ignores evidence which contradicts his theory. at 5-6.] Defendants also contest Plaintiff’s recounting ofthe circumstances of the shooting, including how many shots were a

22 t 7-9.] Defendants also cite their expe
t 7-9.] Defendants also cite their expert, D.P. Van Blaricom’s at 9 (citingExh. 4 (Report of Defendants’ Police Practices Expert)).]Defendants also contest the conclusions to be drawn 20from the medical evidence. They state that hospital treatmentrecords cannot be relied upon for accurate gun shot wound at 10(citing Exh. 4 (Report of Defendants’ Police Practices Expert), at 11.]As to Plaintiff’s arguments that he was unarmed andthat Marini gave no warning before using lethal force, Defendants 21Defendants argue it is unrealistic for Marini to have given awarning before firing his weapon in defense under these

23 at 12-14.]With respect to the photograp
at 12-14.]With respect to the photographs, Defendants note thatMarini never had possession of them, or any copies thereof, at 16.] Defendants argue thatdiligent efforts have been made to locate the photographs, and C.Plaintiff’s Reply justify each gunshot fired, but that there is no justification 22shooting.” [Reply to Pl. Motion at 4-5.] Plaintiff alsomaintains that Marini had time to issue a warning or command and at 6.]Plaintiff also argues that Marini cannot avoid partialsummary judgment based on the defense expert’s statement that at 8-9.]With respect to the missing photos taken the day afterthe inciden

24 t, Plaintiff argues that absent the next
t, Plaintiff argues that absent the next day at 16.] He argues that the photos taken the day after theincident are the best evidence of whether Marini was justified toSTANDARD Pursuant to Federal Rule of Civil Procedure 56(a), aparty is entitled to summary judgment “if the movant shows thatDISCUSSION I.City Motion A.Section 1983: Under Color of Law Under 42 U.S.C. § 1983:Every person who, under color of any statute,ordinance, regulation, custom, or usage . . .Defendants argue that Marini was not acting “undercolor of law” at the time of the incident. Generally, a public , 487 U.S. 42, 50 (1988). The Supreme Cou

25 rt has interpreted the phrase “under ‘co
rt has interpreted the phrase “under ‘color’ of Stanewich , 92 F.3d 831, 838 (9th Cir. 1996) (quoting Martinez v. Colon , 54 F.3d 980, 986 (1st Cir. 1995)). The Court firstexamines several cases involving off-duty law enforcementIn Huffman v. County of Los Angeles , 147 F.3d 1054,1058 (9th Cir. 1998), an off-duty sheriff’s deputy shot and 24147 F.3d at 1058. This personal firearm, however, was loadedwith department-issued ammunition and the deputy carried his When he met the victim, whom hedid not previously know, in the bar, the deputy did not identify At some point, the conversationbecame heated and aggress

26 ive, the deputy left the bar, and theA p
ive, the deputy left the bar, and theA police officer’s actions are under pretense oflaw only if they are in some way related to theId. (internal quotations, brackets, and citations omitted).In Huffman , the Ninth Circuit noted that the deputy wasnot on duty and was not wearing his uniform. Although the weapon He never identified himself as apolice officer and never issued any commands to the plaintiffs’ 25decedent. The court found that the deputy did not act pursuantto his official duties and the facts did not support that he In Van Ort v. Estate of Stanewich ,, 92 F.3d 831 (9thCir. 1996), Stanewich, a sherif

27 f’s deputy, attempted to rob the at 838
f’s deputy, attempted to rob the at 838. Although the plaintiffs did not contestthis point, they argued that Stanewich used his status and The plaintiffs contended that, because Stanewich 26carried handcuffs and a gun and was perceived by Donald Van Ortto be acting as a police officer and allowed to enter the home at 839. The court noted that, if Stanewich hadpurported to or pretended to act under color of law, even if his The court further notedthat Stanewich could have been acting under color of state law if (quotingDang Vang v. Vang Xiong X. Toyed , 944 F.2d 476, 480 (9th Cir.1991)) (brackets omitted).

28 The court concluded that “Stanewich at
The court concluded that “Stanewich at 839–40.Finally, in Anderson v. Warner , 451 F.3d 1063 (9th Cir.2006), the Ninth Circuit considered whether a Sherriff’s , the Ninth Circuitfound that Warner was acting under color of state law “when he 27invoked his law enforcement status to keep bystanders frominterfering with his assault on Anderson.” Id. at 1068. Thecourt laid down “three critical requirements that must be at 1068–69 (quoting Martinez v. Colon , 54 F.3d 980, 987 (1st Cir.1995)). The Anderson court explained that the “third requirementmeans that Warner must have used ‘the badge of [his] authority’ at

29 1069 (citation omitted, brackets in ori
1069 (citation omitted, brackets in original).relevant to the issue of when an off-duty police officer purports 28physical control over another on the basis of his status as a lawenforcement officer that the officer’s actions may amount to , however, “[t]here is no ‘rigid formula’ for determiningwhether a state or local law official is acting under color of Co. , 505 F.2d 547, 550 (9th Cir. 1974)). Viewing the facts in the light most favorable toPlaintiff, the Court concludes that whether Marini was acting 29white Honda, he heard Marini say that he was an “officer,” whichMendoza understood to mean that he was a “c

30 op.” [Pl. Exh. 31 and Anderson non-mov
op.” [Pl. Exh. 31 and Anderson non-moving party, and when all of the circumstances of theD.Respondeat Superior Liability “Under the theory of respondeat superior, anemployer may be liable for the negligent acts of Refinery, Inc. , 76 Hawai‘i 433, 879 P.2d 538, 543(Haw. 1994). To determine whether a tort was(1) Conduct of a servant is within the scopeof employment if, but only if:(a) it is of the kind he is employed toperform; 30(b) it occurs substantially within theauthorized time and space limits; [and](c) it is actuated, at least in part, bya purpose to serve the master[.] . . .(2) Conduct of a servant is not

31 within thescope of employment if it is d
within thescope of employment if it is different inWong–Leong , 879 P.2d at 543. “In determining thescope of employment, the applicable test is at 546.“Whether an employee is acting within the scope of at 543.The Restatement of Agency section 229provides that “[t]o be within the scope of thea servant is authorized to do anything whichis reasonably regarded as incidental to theRestatement § 229 comments a and b. Following theRestatement, the Hawaii Supreme Court has noted 31State v. Hoshijo ex rel. White , 102 Hawai‘i 307,76 P.3d 550, 563 n.29 (Haw. 2003) (finding thatHo-Ching v. City & Cnty. of Honolulu C.Secti

32 on 1983: Municipal Liability 1.Failure t
on 1983: Municipal Liability 1.Failure to Train With respect to Plaintiff’s claim for failure to train,the City argues that the evidence shows that Marini was 32a whole. Defendants state that the Recruit Training Course, Useof Force Course, and HPD policies are legally sufficient, and at 8 (citingJaeger Decl.).] Only in “limited circumstances” can such an“official municipal policy” arise from “a local Thompson , 131 S. Ct. 1350, 1359 (2011).] “Amunicipality’s culpability for a deprivation of (citing Oklahoma City v. Tuttle , 471 U.S. 808, 822–23, 105 S. Ct. 2427,85 L. Ed. 2d 791 (1985)). Thus, “a municipality

33 ’s (quotingCanton [v. Harris ], 489 U.S
’s (quotingCanton [v. Harris ], 489 U.S. [378, 388 (1989)](brackets omitted).Proving “deliberate indifference” is noteasy. Connick reiterated that “‘[d]eliberateindifference’ is a stringent standard of fault, at 1360 (quoting [Bd. of County Comm’rs of] Bryan Cnty. [v. Brown] , 520 U.S. [397,] 410, 117S. Ct. 1382 [(1997)]). Disregarding “a known or If such notice exists, then amunicipality “may be deemed deliberately (citing Bryan Cnty. , 520 U.S.at 407, 117 S. Ct. 1382). 33In turn, to prove “actual or constructivenotice” of a constitutionally-significant gap in ButConnick also reaffirmed the alternative

34 “single-incident” theory of liability: a
“single-incident” theory of liability: a at 1361. Connick reemphasizedthat this single-incident theory is possible only (quoting Bryan Cnty. , 520 U.S. at 409, 117 S. Ct.1382). The situation is “rare” — “the And aviolation of a protected right must be a “highly (quoting Bryan Cnty. , 520 U.S. at 409,117 S. Ct. 1382). Emphasizing its difficulty of nevertheless left open (as ageneral matter) the exceptional possibility that a Wereb v. Maui County , 830 F. Supp. 2d 1026, 1031-32 (D. Hawai‘i2011).In the instant case, although the issue is close, theCourt finds that Plaintiff has failed to meet his burden for h

35 is 34behind; (2) a 2000 complaint by Mar
is 34behind; (2) a 2000 complaint by Marini’s wife resulting insuspension; and (3) a 2002 discharge, in which Marini’s wife at 37-38 (citing Pl. Exh. 27 (Police Report No. 94267626),Exh. 28 (HPD Suspension), and Exh. 16 (1/15/13 Marini Dep.Although the issue of whether a municipalityhas displayed a policy of deliberate indifference Oviatt By and Through Waugh v. Pearce , 954 F.2d 1470,1478 (9th Cir. 1992), the Ninth Circuit has beenBartolome v. City & Cnty. of Honolulu , Civil No. 06–00176SOM/LEK, 2008 WL 2736016, at *5 (D. Hawai‘i July 14, 2008); see id. (“[E]vidence of the failure to train a single officer isi

36 nsufficient to establish a municipality’
nsufficient to establish a municipality’s deliberate policy.”). ’s single-incident theory. Thus, even viewing the facts in the light most favorable to 2.Failure to Investigate A plaintiff “may attempt to prove the existence of acustom or informal policy with evidence of repeated Delmore , 979 F .2d 1342, 1349 (9th Cir. 1992). Here, the Courtagrees with the City that, even if its investigation of Marini’s , e.g. , Trevino v. Gates , 99 F.3d 911, 915 (9th Cir. 1996);Meehan v. Los Angeles Cnty. 3.Ratification 36Here, Acting Chief Putzulu accepted ARB’s finding thatMarini’s conduct, including discharging his firearm

37 , was Christie v. Iopa , 99 F.3d 911 at
, was Christie v. Iopa , 99 F.3d 911 at 920 (ratification requires anadoption and express approval of the acts of others who caused , 979 F.2d at 1348 (anofficial policy-maker must “make a deliberate choice from amongFurther, by a policymaker may be sufficient to approve a 37tantamount to the announcement or confirmation ofa policy for purposes of Monell .”Edenfield v. Estate of Willets , No. Civ. 05–00418 SOM/BMK, 2006WL 1041724, at *16 (D. Hawai‘i Apr. 14, 2006) (quoting Haugen v. Brosseau , 339 F.3d 857, 875 (9th Cir.2003), rev’d on othergrounds by Brosseau v. Haugen , 543 U.S. 194 (2004) (per curiam)). Here, v

38 iewing the facts in the light most favor
iewing the facts in the light most favorable to Plaintiff, id. D.Heck v. Humphrey Defendants argue that Plaintiff’s § 1983 claims arebarred by , 512 U.S. 477 (1994), to the extent heseeks damages for unlawful conviction or imprisonment, based onhis UEMV conviction under a no contest plea. Plaintiff contendsthat the Heck case does not apply here because, although he plead“no contest” to the UEMV charge, his instant § 1983 claim does 38UEMV conviction was based on events that occurred well beforeMarini exited his vehicle and shot the Plaintiff. [Id. at 17-20.]In Heck , the Supreme Court held:[T]o recover damages

39 for an allegedlyunconstitutional convic
for an allegedlyunconstitutional conviction or imprisonment, or512 U.S. at 486–87 (footnote omitted). Thus, any claim for at 487. A § 1983 “cause ofaction for damages attributable to an unconstitutional conviction at 489–90 (footnote omitted).In Smith v. City of Hemet , 394 F.3d 689 (9th Cir.2005), the Ninth Circuit stated: “Under Heck , [plaintiff] wouldbe allowed to bring a § 1983 action, however, if the use ofexcessive force occurred subsequent to the conduct on which hisconviction was based.” Id. at 698 (emphasis in original).Here, the parties contest the circumstances of theoriginal altercation, as well

40 as the location and sequence of II.Mari
as the location and sequence of II.Marini Motion For the same reasons discussed above with respect tothe City Motion, the Marini Motion is DENIED as to the A.Qualified Immunity Marini argues that all of his actions were objectivelyreasonable and that “he should face no § 1983 liability for 40standing up.” [Mem. in Supp. of Marini Motion at 25.] The defense of qualified immunity protectspolice officers from liability for civil damages City of Bremerton , 268 F.3d 646, 651 (9th Cir.2001). To apply this standard, the Court must (“If no constitutionalright was violated, the court need not inquire ; see also Saucie

41 r v. Katz , 533 U.S.194 (2001).. . . .St
r v. Katz , 533 U.S.194 (2001).. . . .States Constitution, “officers may only use such , 268 F.3d 646,651 (9th Cir. 2001) (quoting Graham v. Connor , 490U.S. 386, 397 (1989)). To determine whether the , 490 U.S. at 397. “The‘reasonableness’ of a particular use of force must Determining whether a police officer’s use offorce was reasonable or excessive “requires 41Santos v. Gates , 287 F.3d 846, 854 (9th Cir. 2002)(quoting Graham , 490 U.S. at 396). “Because suchbalancing nearly always requires a jury to sift Dawkins v. City & Cnty. of Honolulu Motion at 25 n.8.] Here, however, whether Marini’s conductviolated a

42 clearly established constitutional righ
clearly established constitutional right by subjectingPlaintiff to excessive force turns on issues of fact that are indispute, including the circumstances of the initial encounter,how Plaintiff allegedly assaulted Marini, and the circumstancesof the shooting. The Court therefore DENIES the Marini Motionwith respect to qualified immunity.B.Fourteenth Amendment Claim Through the Fourteenth Amendment’s dueprocess clause, pre-trial detainees are entitled v. Wolfish , 441 U.S. 520, 537 n.16, 99 S. Ct.1861, 60 L. Ed. 2d 447 (1979); Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1017-18 (9th Cir.2010). Failure to pro

43 vide medical treatment , 439 F.3d 1091,
vide medical treatment , 439 F.3d 1091, 1096 42(9th Cir. 2006); Farmer v. Brennan , 511 U.S. 825,834, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 , 439 F.3d at 1096 (citation andquotation omitted).Deliberate indifference requires that adetention official must “know[ ] of and , 511 U.S.at 837, 114 S. Ct. 1970. The test is a subjective at 844, 114 S. Ct. 1970.Accordingly, a plaintiff must show that an , 591 F.3d 1081,1096 (9th Cir. 2010) (citing Farmer , 511 U.S. at828, 114 S. Ct. 1970). “[A]n official’s failure to , 511 U.S.at 838, 114 S. Ct. 1970.Wereb v. Maui Cnty. , 727 F. Supp. 2d 898, 912 (D. Hawai‘i 2010).Marini

44 argues that he did not violate Plaintif
argues that he did not violate Plaintiff’sFourteenth Amendment rights because his conduct does not “shock Here, the Court notes that Plaintiff does not disputethat the incident lasted approximately forty seconds, from thetime he entered the parking lot to when Plaintiff fled in thevehicle. As a result, it appears that there was no opportunityfor Marini to provide medical aid due to the briefness of theincident and because Plaintiff himself quickly fled. Plaintiffmakes no showing sufficient to survive the motion. Even assuming that such claims are not duplicative ofhis Fourth Amendment claims, the Court finds t

45 hat Plaintiff hasnot provided sufficient
hat Plaintiff hasnot provided sufficient evidence to create a question of factwith respect to his failure to render aid or medical needs claimunder the Fourteenth Amendment. The Marini Motion is thereforeGRANTED as to this claim.C.Conditional Privilege Marini asserts that Plaintiff’s state law claims arebarred by the conditional privilege because Plaintiff fails toUnder Hawaii law, non-judicial governmentofficials acting in the performance of their , 647 P.2d 696, 702(Haw. 1982). The privilege protects the official 44by “malice and not by an otherwise properpurpose.” Id. For torts other than defamation,“actual

46 malice” must be proven to overcome the
malice” must be proven to overcome the , 727 F.Supp.2d898, 924 (D. Haw. 2010). “Actual malice” for , 165 P.3d1027, 1042 (Haw. 2007).Because actual malice involves intent,reckless disregard, or ill will, the actual malice , 2009 WL1956278, at * 2 (D. Haw. 2009) (“[W]hen ‘actual Tagawa v. Maui Pub. Co. , 448 P.2d 337, 341 (Haw. 1968) (“[M]erenegligence is not ‘actual malice.’”)[.]. . . . The existence of malice is“generally a question for the jury.” Runnels v. Okamoto , 525 P.2d 1125 (Haw. 1974).Dawkins , 2011 WL 1598788, at *15. Plaintiff argues that this “actual malice” standarddoes not apply. The Court disa

47 grees and applies the standard , Bartolo
grees and applies the standard , Bartolome , 2009 WL 1956278; Edenfield v. Estate of Willets as requiringapplication of the ‘reasonable man’ test to the facts of this 45Court’s admonition that only the most guilty of officials areliable for their tortious acts.”). Although proving subjective motivation by clear andconvincing evidence may be a difficult standard for Plaintiff to at*13. Accordingly, whether Marini was objectively justified in Edenfield , 2006 WL 1041724, at *12 n.8 (“Thenumber of shots fired is not clear and convincing evidence of III.Plaintiff’s Motion A.Fourth Amendment Claim Plaintiff seeks pa

48 rtial summary judgment on his claimsthat
rtial summary judgment on his claimsthat Marini shot him twice in the back while he was unarmed, B.Sanctions Plaintiff seeks further sanctions for Defendants’failure to produce missing photographs taken of Marini the dayThe copies of the two photographs were apparentlyproduced to Plaintiff in discovery by the Prosecutor’s Office to Defendants also note that Plaintiff has already received monetarysanctions for the failure to locate the specific photographs. According to Defendants, they have already produced to Plaintiffbetter photographs that show the exact area where Marini claimsto have been struck. Defendants

49 also set forth the efforts takento locat
also set forth the efforts takento locate the two missing photographs internally, and at theDepartment of the Prosecuting Attorney. The Prosecutor’s Officelocated the criminal case file in its “Pau Room,” and confirmedthat the criminal file did not contain any originals or copies ofthe two photographs, and that the only remaining police report inthe file was a detective’s closing report, which most likely wasan attachment to the pre-sentence investigation report. [YuenDecl. at ¶ 8.] The HPD documents clerk initially checked with 49¶¶ 1-7.] Later, she contacted Richard Perron in the ScientificInvestigation Sectio

50 n, but he told her that he did not take
n, but he told her that he did not take the at ¶¶ 14-15.]The Ninth Circuit has held that a district court hasthe authority to impose sanctions for spoliation pursuant to: Motor Co. , 762 F.2d 1334, 1337–38 (9th Cir. 1985); Fed. R. Civ.P. 37(b)(2)(c)). In light of the Court’s prior sanctions, the Court doesnot find that further sanctions in the form of the legal ruling 50their whereabouts. The Court notes that there is no indicationof willful spoliation. To the extent Plaintiff is prejudiced by Nursing Home Pension Fund v. Oracle Corp. , 254 F.R.D. 559, 564 (N.D. Cal. 2008) (citation andquotation marks omitted

51 ). Plaintiff has high quality, close-up
). Plaintiff has high quality, close-upThe Court finds that a lesser sanction is warranted,however, which would allow the case to be resolved on its merits, 51Plaintiff to present evidence at trial regarding the City’sfailure to preserve the photographs. Such testimony would,CONCLUSION On the basis of the foregoing, Defendant City andCounty of Honolulu’s Motion for Summary Judgment, filed JanuaryIT IS SO ORDERED. 52 DATED AT HONOLULU, HAWAII, May 31, 2013. /S/ Leslie E. Kobayashi Leslie E. KobayashiUnited States District JudgeKIHA SILVA V. CITY AND COUNTY OF HONOLULU, ET AL ; CIVIL NO. 11-00561 LEK-RLP

52 ; ORDER GRANTING IN PART AND DENYING IN
; ORDER GRANTING IN PART AND DENYING IN PART (1) IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAIIKIHA SILVA,Plaintiff,vs.THE CITY AND COUNTY OFHONOLULU, KEITH DAVID MARINIDefendants._____________________________)ORDER GRANTING IN PART AND DENYING IN PART (1) DEFENDANT CITY ANDCOUNTY OF HONOLULU’S MOTION FOR SUMMARY JUDGMENT AND(2) DEFENDANT KEITH DAVID MARINI’S MOTION FOR SUMMARY JUDGMENT,AND DENYING (3) PLAINTIFF KIHA SILVA’S MOTIONFOR PARTIAL SUMMARY JUDGMENT AND FOR SANCTIONS FOR DEFENDANTS’ LOSS OR DESTRUCTION OF MATERIAL EVIDENCE Before the Court are: (1) Defendant City and County ofHonolulu’s (“C

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