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Document on Subject : "Case 111cv00561DKWRLP Document 105 Filed 103012 Page 8 of"— Transcript:

1 Case 1:11-cv-00561-DKW-RLP Document 10
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5 al times herein, Defendant4.This action
al times herein, Defendant4.This action arises under the United6.In doing the acts alleged in this8.At all times mentioned, Defendant CITY 9.Plaintiff is informed and believes and10.On March 29, 2009, an altercation 11.The Plaintiff was unarmed at the time of12.Defendant Marini shot the Plaintiff13.Plaintiff denies that he had committed a 14.Defendant CITY AND COUNTY OF HONOLULUDefendant CITY AND COUNTY OF HONOLULUuse of weapons and employing force and in theperformance of their duties as police officers. Defendant CITY trained Defendant MARINI in the useof firearms in accordanc

6 e with the statutes,ordinances, regulati
e with the statutes,ordinances, regulations, customs, and usages ofDefendant CITY and the State of Hawaii.. . . .33.Defendant MARINI was not justified in34.Defendant CITY AND COUNTY OF HONOLULU 35.The conduct of Defendants as described , 436 U.S. 658 (1978); (IV) abattery claim against Marini; and (V) a negligence and “willfulThe Court previously granted in part and denied in partDefendants’ Motion for Partial Judgment on the Pleadings with I.Defendants’ Motion A.Conclusory Allegations Defendants argue that Plaintiff makes conclusoryallegations that Marini was acting “under colo

7 r of law,” and that B.Municipal Liabilit
r of law,” and that B.Municipal Liability Next, Defendants seek dismissal of Plaintiff’s § 1983claims against the City to the extent they are based on arespondeat superior theory of municipal liability. They note 7employer of Marini, is liable under a theory of respondeatsuperior in Count I, however, municipal liability under§ 1983 may not be predicated on a theory of respondeat superior. Further, in the Court’s earlier Order, the Court held thatPlaintiff failed to allege underlying facts that would tend to at 11-12.] Defendants argue that Plaintiff again fails to pleadnonconc

8 lusory facts plausibly suggesting a fail
lusory facts plausibly suggesting a failure to train or C.General Averments Defendants note that, in the its Order, the Courtgranted Defendants’ motion as to Plaintiff’s claims of failure to 8Plaintiff’s claims under the Fourth, Eighth, and Fourteenth II.Plaintiff’s Memorandum in Opposition A.Section 1983 “Under Color of Law” Plaintiff cites the following language from the Court’sOrder regarding his claims against the City, as opposed to MariniSilva alleges that Officer Marini committedbattery when he “used his service revolver to at[paragraph] 30.] Silva alleges that, at the

9 time at [paragraph] 24,] and was‘an age
time at [paragraph] 24,] and was‘an agent, servant, and employee of defendant at [paragraph] 29]. The Court FINDSthat Silva’s allegations of the City’s intentional[Id. at 7 (quoting Order at 38-39 (alterations Plaintiff’s)).] Plaintiff argues that the Court’s finding that his allegations 9of the City, should also dispose of Defendant’s argument that the broader than for the scope of authority. [Id. at 7-8 (citingWest v. Atkins , 487 U.S. 42, 50 (1988)).] Plaintiff argues thata state actor can abuse his or her official position and still be at 8.] Plaintiffmaintains tha

10 t he has alleged sufficient facts to pla
t he has alleged sufficient facts to plausibly at 9-11.] Heasserts that his allegations show that Marini possessed the B.Municipal Liability Claims With respect to his § 1983 “policy or custom” claimagainst the City, Plaintiff argues that his First Amended claim. He contends thatthere are sufficient facts alleging a custom of failure to 10investigate or discipline police officers who use excessive forceand engage in acts of deliberate indifference to the medical at 25-28.] Plaintiff next argues that he has alleged sufficientfacts of municipal liability based on a “ratificat

11 ion” theory. at 31 (citing First Amend
ion” theory. at 31 (citing First Amended Complaint at ¶22).] He also argues that the City’s failure to discipline or at 34.]Finally, Plaintiff argues that he states a claim formunicipal liability based on the City’s failure to train and/or C.Compliance with Court’s Order Plaintiff contends that Count III, paragraph 35,complies with the Court’s Order regarding his Monell claimseeking monetary relief under § 1983. He says that his 11claims . . . to the extent any provision contained withinParagraph 35 may be dismissed, on the reference to the ‘Eighth at 39.]D.Respondeat Supe

12 rior Claims III.Defendants’ Reply offici
rior Claims III.Defendants’ Reply official duties. [Reply at 2-3.]Defendants also posit that the at 5.]Defendants also argue that Plaintiff does not allegesufficient non-conclusory facts to support his § 1983 municipal at 4.] 12STANDARD “To survive a motion to dismiss, a complaint must Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs , 521 F.3d 1061, 1065 (9th Cir. 2008). Thistenet – that the court must accept as true all of the allegations , 556 U.S. at 678. Accordingly,“[t]h

13 readbare recitals of the elements of a c
readbare recitals of the elements of a cause of action, (citing Twombly , 550 U.S. at 555). Rather, “[a] claim has facialplausibility when the plaintiff pleads factual content that (citingTwombly , 550 U.S. at 556). Factual allegations that only permitthe court to infer “the mere possibility of misconduct” do not at 1950. 13DISCUSSION I.Section 1983 Municipal Liability Under 42 U.S.C. § 1983:Every person who, under color of any statute,ordinance, regulation, custom, or usage . . .To state a § 1983 claim, a “plaintiff must demonstratea deprivation of a right secured by the C

14 onstitution or laws of , 326 F.3d 1088,
onstitution or laws of , 326 F.3d 1088, 1092 (9th Cir.2003) (citing West v. Atkins , 487 U.S. 42, 48 (1988)). First, Defendants seek dismissal of Plaintiff’s § 1983claims against the City to the extent they are based on arespondeat superior theory of municipal liability. Plaintiff,however, explains that he is not alleging any federal claimsrespondeat superior. Rather, thoseallegations apply only to Plaintiff’s state law claims in CountsVI and V. To the extent Plaintiff alleges § 1983 claims in CountI against the City based on a respondeat superior theory ofmunicipal liability

15 , they are DISMISSED. Next, as to Plaint
, they are DISMISSED. Next, as to Plaintiff’s Monell claim, Defendants arguethat Plaintiff fails to plead nonconclusory facts plausibly 14The Court previously held as follows with respect to Plaintiff’sCount I § 1983 failure to train claim:Silva fails to allege underlying facts thatwould tend to show a “policy or custom” [Wereb v. Maui Cnty. , 727 F. Supp. 2d 898, 921 (D. Hawai‘i 2010)](quoting Merritt v. County of Los Angeles , 875F.2d 765, 770 (9th Cir. 1989)).[Order at 32 (some citations omitted) (some alterations inThe First Amended Complaint sufficiently allegesunderlying

16 facts to maintain a claim for failure t
facts to maintain a claim for failure to train to 15Court’s previous Order.Plaintiff also alleges a Monell claim for failure toinvestigate or discipline. Under Ninth Circuit law, a custom or v. Cnty. of Sacramento , 652 F.3d 1225, 1233-34 (9th Cir. 2011)(quoting Nadell v. Las Vegas Metro. Police Dep’t , 268 F.3d 924,929 (9th Cir. 2001)). The First Amended Complaint alleges aPlaintiff next argues that he has alleged sufficientfacts of municipal liability based on a “ratification” theory. [The City] ratified Defendant Marini’sunconstitutional use of force in violation of the 1

17 6Fourth Amendment and failure to attend
6Fourth Amendment and failure to attend to themedical needs of the Plaintiff in violation of the[First Amended Complaint at ¶ 22(h).] Although not artfully Christie v. Iopa , 176 F.3d 1231, 1239(9th Cir. 1999) (ratification requires proof of a policymaker’s Gates , 99 F.3d 911, 920 (9th Cir. 1996) (ratification requires anadoption and express approval of the acts of others who caused , 979 F.2d II.“Under Color of Law” Defendants argue that the First Amended Complaint Ins. Co. , 505 F.2d 547, 550 (9th Cir. 1974). In order todetermine color of law, a court must examine the tot

18 ality of the In the Ninth Circuit, act
ality of the In the Ninth Circuit, acts committed by astate actor even while on duty and in uniform are not necessarily , 92 F.3d831, 838 (9th Cir. 1996). Officers who engage in confrontations 18purport or pretend to be officers do not act under color of law. Id. An officer pursuing his own goals, however, can act undercolor of law if he “purports or pretends” to do so. Id. Under Ninth Circuit law, the Court considers threerequirements to determine whether an act is committed under color Warner , 451 F.3d 1063, 1068 (9th Cir. 2006) (citation andquotation marks omitted). S

19 econd, the actor’s pretense of acting a
econd, the actor’s pretense of acting at 1069(citation omitted). Third, the challenged conduct must be acted under color of law when he shot Plaintiff with his service 19immediately apprehended”; and that, because UEMV is not such aserious offense that would justify lethal force to prevent the at ¶¶ 13, 16, 17.] The complained of conduct is related to Marini’sofficial status or apparent performance of his duties, includingOn a Rule 12(b)(6) motion, the Court takes allallegations of material fact, as opposed to legal conclusions, as , 574 F.3d 1182, 1184 (9th Cir. 202009). I

20 n this light, the Court finds that Plain
n this light, the Court finds that Plaintiff’s § 1983claims set forth sufficient factual matter to “state a claim to Twombly , 550 U.S. at570. “A claim has facial plausibility when the plaintiff pleads III.Remaining Claims To the extent Defendants seek dismissal of Plaintiff’s§ 1983 claims brought under the Eighth Amendment, the Motion isTo the extent Defendants seek dismissal of Plaintiff’s§ 1983 claims brought under the Fourteenth Amendment, the Motion Lolli v. Cnty. of Orange , 351 F.3d 410, 418-19 (9th Cir. 2003)(“Although the Fourth Amendment provides the proper framework

21 for 21Lolli’s excessive force claim, it
for 21Lolli’s excessive force claim, it does not govern his medicalneeds claim. Claims of failure to provide care for seriousTo the extent Defendants raised additional argumentsregarding legal conclusions, the sufficiency of factualCONCLUSION On the basis of the foregoing, Defendants’ MotionDismiss Plaintiff’s First Amended Complaint, filed July 30, 2012,and as to the City’s respondeat superior liability under Counts Ithrough III. The Motion is DENIED in all other respects.IT IS SO ORDERED.//// 22 DATED AT HONOLULU, HAWAII, October 29, 2012. /S/ Leslie E. Kobayashi

22 Leslie E. KobayashiUnited States Distri
Leslie E. KobayashiUnited States District JudgeKIHA SILVA V. CITY AND COUNTY OF HONOLULU, ET AL ; CIVIL NO. 11-00561 LEK-RLP; ORDER GRANTING IN PART AND DENYING IN PART 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 DEFENDANTS CITY AND COUNTY OF HONOLULU AND KEITH DAVID MARINI’S MOTION TO DISMISS FIRST AMENDED COMPLAINT Before the Court is Defendants City and County ofHonolulu (“City”) and Keith David Marini’