Defendant's Attorney: Page C. Ogata, David J. Minkin, Jordan K. Inafuku
Description: Honolulu, Hawaii civil rights lawyer represented Plaintiff who sued Defendants for violating his constitutional rights with the result he was wrongfully convicted and incarcerated for sexual assault.
On August 4, 2003, a jury found Plaintiff Roynes J. Dural II
guilty of five separate Sexual Assault crimes in Hawaii State
Court. Plaintiff was sentenced to 20 years imprisonment.
Plaintiff appealed the convictions to the Hawaii Intermediate
Court of Appeals.
On June 29, 2005, the Hawaii Intermediate Court of Appeals
affirmed Plaintiff’s convictions. Plaintiff subsequently sought
review of his convictions by the Hawaii Supreme Court, which was
denied on August 10, 2005.
On July 31, 2006, Plaintiff filed a motion for post-
conviction relief pursuant to Hawaii Rules of Penal Procedure
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Rule 40, which was denied. Plaintiff appealed the denial of the
Rule 40 Motion to the Hawaii Intermediate Court of Appeals, which
affirmed the denial on November 20, 2008. Plaintiff sought
review of the denial to the Hawaii Supreme Court, which was
denied.
On May 1, 2009, Plaintiff filed a Second Rule 40 Motion with
the Hawaii Circuit Court.
In December 2011, while the Second Rule 40 Motion was
pending, Plaintiff was paroled after serving eight years in
prison.
On April 5, 2013, Plaintiff’s Second Rule 40 Motion was
denied by the Hawaii Circuit Court. Plaintiff appealed the
decision to the Hawaii Intermediate Court of Appeals.
On February 27, 2018, the Hawaii Intermediate Court of
Appeals granted Plaintiff’s Second Rule 40 Motion. The Hawaii
Intermediate Court of Appeals ruled that newly discovered
evidence warranted a remand to the Hawaii State Circuit Court for
a new trial to allow Plaintiff to present the evidence in his
defense.
On November 27, 2019, on remand, the City and County of
Honolulu filed a Motion to Nolle Prosequi Without Prejudice in
Hawaii Circuit Court. The prosecutors filed the Motion in order
to provide the victim, Shyla Combis, with more time to decide
whether she would be willing to testify against Plaintiff Dural
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in a new trial. The victim was now an adult and it had been more
than fifteen years since the trial. By 2019, Plaintiff Dural had
been out of prison for eight years.
On January 3, 2020, the Hawaii Circuit Court denied the
request and dismissed the criminal case against Plaintiff Dural
with prejudice.
On November 24, 2021, Plaintiff Dural filed a Complaint in
the United States District Court for the District of Hawaii.
Plaintiff’s lawsuit asserted that his 2003 prosecution was
improper and claimed that underlying witnesses lied in order to
convict him.
On June 3, 2022, Plaintiff filed a First Amended Complaint.
The Defendant City and County of Honolulu filed a Motion to
Dismiss all eleven claims against it.
On February 17, 2023, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, DEFENDANT CITY AND COUNTY OF
HONOLULU’S MOTION TO DISMISS WITH PARTIAL LEAVE TO AMEND. The
Court dismissed with prejudice seven causes of action asserted
against the Defendant City and County of Honolulu. The Court
granted Plaintiff leave to amend the negligence and emotional
distress claims against the Defendant City and County of
Honolulu.
On March 14, 2023, Plaintiff filed the Second Amended
Complaint. Plaintiff failed to cure the deficiencies in the
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remaining causes of action against the Defendant City and County
of Honolulu for which he was granted leave to amend.
On March 28, 2023, Defendant City and County of Honolulu
filed a Motion to Dismiss the claims against it in the Second
Amended Complaint.
Defendant City and County of Honolulu’s Motion to Dismiss
the claims against it in the Second Amended Complaint (ECF No.
57) is GRANTED.
PROCEDURAL HISTORY
On November 24, 2021, Plaintiff Roynes J. Dural II filed his
Complaint. (ECF No. 1).
On June 3, 2022, Plaintiff filed his First Amended
Complaint. (ECF No. 37).
On June 16, 2022, Defendant City and County of Honolulu
filed a Motion to Dismiss the First Amended Complaint. (ECF No.
44).
On February 17, 2023, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, DEFENDANT CITY AND COUNTY OF
HONOLULU’S MOTION TO DISMISS WITH PARTIAL LEAVE TO AMEND. (ECF
No. 52).
On March 14, 2023, Plaintiff filed the SECOND AMENDED
COMPLAINT. (ECF No. 54).
On March 28, 2023, the Defendant City and County of Honolulu
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filed its MOTION TO DISMISS SECOND AMENDED COMPLAINT. (ECF No.
57).
On March 30, 2023, the Court issued a briefing schedule and
elected to decide the Motion without a hearing pursuant to Local
Rule 7.1(c). (ECF No. 58).
On April 21, 2023, Plaintiff filed his Opposition. (ECF No.
59).
On May 4, 2023, the Defendant City and County of Honolulu
filed its Reply. (ECF No. 60).
BACKGROUND
According to the Second Amended Complaint:
I. Plaintiff Dural Was Convicted In Hawaii State Court On
Multiple Counts Of Sexual Assault of a Minor
Plaintiff Roynes J. Dural II filed this civil case seeking
damages relating to the criminal prosecution against him in
Hawaii state court.
On August 3, 2001, a criminal report was made against
Plaintiff Dural to the Honolulu Police Department.
Defendants in this case, Vibiana Kealoha-Wong and her then-
minor daughter, Shyla Combis, reported to Honolulu Police
Department Detective Sheryl Sunia that Plaintiff Roynes J. Dural
II had sexually assaulted the then-minor child, Shyla Combis.
(Second Amended Complaint (“SAC”) at ¶¶ 33, ECF No. 54).
Plaintiff Dural alleges that he did not sexually assault
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Shyla Combis. Plaintiff Dural claims that two other individuals
sexually assaulted Shyla Combis, and asserts that they were
Defendant herein Nathan Slutter (Defendant Kealoha-Wong’s
husband) and Defendant herein Chad Kalawaia. (Id. at ¶¶ 19-20).
Plaintiff Dural claims that Defendant herein Detective Sunia
negligently performed her duties as a police officer. He also
claims that Detective Sunia and unnamed and unidentified
individuals from the Department of the Prosecuting Attorney knew
or should have known that Defendants Slutter and Kalawaia
assaulted Combis and that Dural did not. (Id. ¶¶ 66-73).
On August 4, 2003, following a three-day trial, Plaintiff
Dural was convicted of one count of Sexual Assault in the First
Degree and four counts of Sexual Assault in the Third Degree
pursuant to Hawaii State law. (Id. at ¶¶ 62, 74). Plaintiff was
sentenced to 20 years imprisonment.
Plaintiff appealed the convictions to the Hawaii
Intermediate Court of Appeals and the convictions were affirmed.
(Id. at ¶ 92).
On July 21, 2006, Plaintiff filed a Motion for post-
conviction relief pursuant to Hawaii Rules of Penal Procedure
Rule 40, which was denied. (Id. at ¶¶ 94-95). Plaintiff
appealed the denial of the Rule 40 Motion. On November 20, 2008,
the Hawaii Intermediate Court of Appeals affirmed the denial of
the Rule 40 Motion. (Id. at ¶ 96). Plaintiff sought review of
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the denial by the Hawaii Supreme Court, which was denied on
January 27, 2009. (Id. at ¶ 98).
On May 1, 2009, Plaintiff Dural filed a Second Rule 40
Motion with the Hawaii Circuit Court. (Id. at ¶ 99).
In December 2011, while the Second Rule 40 Motion was
pending, Plaintiff was paroled after serving eight years in
prison. (Id. ¶ 100).
On April 5, 2013, Plaintiff’s Second Rule 40 Motion was
denied by the Hawaii Circuit Court. (Id. at ¶ 101). Plaintiff
appealed the denial to the Hawaii Intermediate Court of Appeals.
(Id.)
II. Plaintiff’s Convictions Were Overturned
On February 27, 2018, the Hawaii Intermediate Court of
Appeals issued a memorandum opinion that vacated Plaintiff’s
convictions.1
On May 9, 2018, the Hawaii Intermediate Court of Appeals
issued judgment on appeal and remanded the case to the Circuit
Court of the First Circuit, State of Hawaii, for a new trial.
In Dural v. State, 413 P.3d 405 (Haw. Ct. App. 2018), the1
opinion of the Hawaii Intermediate Court of Appeals (“ICA”) was
issued on February 27, 2018. Judgment was entered by the
Intermediate Court of Appeals and the case was remanded to the
Circuit Court on May 9, 2018. (ICA Judgment on Appeal in Dural
v. State, CAAP-13-0003694, Dkt. Entry 172). The Intermediate
Court of Appeals’s February 27, 2018 Order appears on the Hawaii
Circuit Court Docket as Entry 133 on May 9, 2018. (State of
Hawaii v. Dural, 1-PC-02-1-002791, Dkt. Entry 133).
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(Id. at ¶ 102).
According to the First Amended Complaint, the City and
County of Honolulu continued to pursue charges against Plaintiff
through 2018 and 2019. (First Amended Complaint (“FAC”) at ¶ 169,
ECF No. 37).
On remand before the Hawaii Circuit Court, on November 27,
2019, the City and County of Honolulu filed a “Motion to Nolle
Prosequi Without Prejudice,” seeking time to allow the victim,
Defendant Combis, to decide if she would testify against
Plaintiff at a new trial. (SAC at ¶ 107, ECF No. 54). The
original trial took place more than fifteen years earlier.
Plaintiff Dural at this point had already been released from
prison more than eight years earlier. (Id. at ¶ 100)
On or around January 3, 2020, the trial court denied the
prosecution’s Motion to Nolle Prosequi Without Prejudice. The
Hawaii trial court did not provide the prosecution with more time
and dismissed the charges against Plaintiff Dural with prejudice.
(Id. at ¶ 109).
On November 24, 2021, Plaintiff filed his Complaint in the
United States District Court for the District of Hawaii. (ECF
No. 1).
STANDARD OF REVIEW
The Court must dismiss a complaint as a matter of law
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pursuant to Federal Rule of Civil Procedure 12(b)(6) where it
fails “to state a claim upon which relief can be granted.” When
considering a Rule 12(b)(6) motion to dismiss, the Court must
presume all allegations of material fact to be true and draw all
reasonable inferences in favor of the non-moving party. Pareto
v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Conclusory
allegations of law and unwarranted inferences are insufficient to
defeat a motion to dismiss. Id.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 663 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.” AE ex rel. Hernandez v. Cnty of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (citation and internal
quotation marks omitted).
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ANALYSIS
I. Scope of the Order and Applicable Law
A. This Order Is Limited To Defendant City and County of
Honolulu’s Second Motion to Dismiss (ECF No. 57)
As a preliminary matter, this Order is limited to the Motion
to Dismiss the Second Amended Complaint filed by the Defendant
City and County of Honolulu on March 14, 2023, as to the
remaining three claims against it. (ECF No. 54).
The Second Amended Complaint asserts 7 Counts total. The
claims are brought against several Individual Defendants (Sheryl
Sunia, Vibiana Kealoha-Wong, Shyla Combis, Chad Kalawaia, and
Nathan Slutter) as well as against the Defendant City and County
of Honolulu. (ECF No. 37).
Counts I-IV are brought against certain of the Individual
Defendants, in their individual capacities only, pursuant to 42
U.S.C. § 1983. These counts are not subject to the Motion before
the Court.
Count V for Negligence, Count VI for Intentional Infliction
of Emotional Distress, and Count VIII for Negligent Infliction2
of Emotional Distress are brought against both the Defendant City
and County of Honolulu and certain Individual Defendants pursuant
There is no Count VII in the Second Amended Complaint.2
The Second Amended Complaint identifies “Count VIII” as Negligent
Infliction of Emotional Distress.
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to Hawaii state law.
This Order only addresses the three Counts against the
Defendant City and County of Honolulu.
The claims against the individually named Defendants Sheryl
Sunia, Vibiana Kealoha-Wong, Shyla Combis, Chad Kalawaia, and
Nathan Slutter are not subject to the City’s Motion to Dismiss
and are not addressed in this Order.
B. Applicable Law
Plaintiffs’ Second Amended Complaint invokes federal
question jurisdiction against the Individual Defendants and
supplemental jurisdiction against Defendant City and County of
Honolulu. (Second Amended Complaint (“SAC”) at ¶ 2, ECF No. 54).
The Court applies Hawaii state substantive law to the
supplemental state law claims against the Defendant City and
County of Honolulu. Mason and Dixon Intermodal, Inc. v.
Lapmaster Intern. LLC, 632 F.3d 1056, 1060 (9th Cir. 2011).
Federal law governs the pleading standard, not Hawaii state
law as argued by the Plaintiff. The federal pleading standard
set forth in Twombly and Iqbal applies in federal court.
The Court applies federal procedural law in evaluating the
Defendant City and County’s Motion to Dismiss the Second Amended
Complaint. Ye Jiang v. Zhong Fang, Civ. NO. 20-00100 JAO-KJM,
2020 WL 6889169, *3 (D. Haw. Nov. 23, 2020) (explaining that
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federal procedural law applies in federal court when evaluating a
motion to dismiss claims brought pursuant to state law).
II. The Claims Asserted Against The Defendant City And County Of
Honolulu In The Second Amended Complaint
COUNT V: Negligence Against Defendant City and County
of Honolulu Pursuant to Hawaii State Law
COUNT VI: Intentional Infliction Of Emotional Distress
Against Defendant City and County of Honolulu
Pursuant to Hawaii State Law
COUNT VIII: Negligent Infliction Of Emotional Distress
Against Defendant City and County of Honolulu
Pursuant to Hawaii State Law
A. Plaintiff’s Claims Against The Defendant City And
County Of Honolulu Are Time-Barred
1. Plaintiff’s Claims Against Defendant City and
County of Honolulu Are Subject To The Notice
Requirement Set Forth In Haw. Rev. Stat. § 46-72
Section 46-72 of the Hawaii Revised Statutes requires
written notice to be provided to the City and County of Honolulu
before an individual may recover damages for certain tort claims.
The written notice must be provided within two years after the
injuries accrued.
Hawaii Revised Statutes § 46-72 provides:
Before the county shall be liable for damages to any
person for injuries to person or property received upon
any of the streets, avenues, alleys, sidewalks, or
other public places of the county, or on account of any
negligence of any official or employee of the county,
the person injured, or the owner or person entitled to
the possession, occupation, or use of the property
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injured, or someone on the person's behalf, within two
years after the injuries accrued shall give the
individual identified in the respective county's
charter, or if none is specified, the chairperson of
the council of the county or the clerk of the county in
which the injuries occurred, notice in writing of the
injuries and the specific damages resulting, stating
fully when, where, and how the injuries or damage
occurred, the extent of the injuries or damages, and
the amount claimed.
Plaintiff’s three state law claims against the Defendant
City and County of Honolulu are tort law claims that are subject
to the two-year notice requirement set forth in Haw. Rev. Stat. §
46-72. Fatai v. City and Cnty. of Honolulu, Civ. No. 19-00603
DKW-WRP, 2021 WL 1063790, at *17 (D. Haw. Mar. 18, 2021).
The notice requirement functions as a “statute of
limitations” to limit the time for which a person or an estate
may bring certain claims for injuries against a county in Hawaii.
Silva v. City and County of Honolulu, 165 P.3d 247, 254 (Haw.
2007). The purpose of the notice requirement is to timely inform
municipal authorities of the details of a claim in order to aid
an investigation and to guard the municipality against fraudulent
and unfounded claims. Oakley v. State, 505 P.2d 1182, 1185-86
(Haw. 1973).
The plain language of Section 46-72 requires that the notice
be filed with the individual identified in the respective
county’s charter, or if none is specified, the chairperson of the
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council or with the clerk of the county.3
Here, there are no allegations in the Second Amended
Complaint that Plaintiff complied with the requirements of
Section 46-72.
Count V for negligence, Count VI for intentional infliction
of emotional distress, and Count VIII for negligent infliction of
emotional distress are DISMISSED for failure to comply with the
notice requirement set forth in Haw. Rev. Stat. § 46-72.
2. Plaintiff’s Negligence And Emotional Distress
Causes Of Action Are Subject To The Two-Year
Statute Of Limitations Set Forth In Haw. Rev.
Stat. § 657-7
Plaintiff’s failure to timely comply with the notice
requirement set forth in Section 46-72 of the Hawaii Revised
Statutes is dispositive of his Hawaii state law negligence,
intentional infliction of emotional distress, and negligent
infliction of emotional distress claims against the Defendant
City and County of Honolulu.
Even if Plaintiff had timely complied with Haw. Rev. Stat. §
46-72, Plaintiff’s state law claims against the Defendant City
and County of Honolulu fail on other grounds.
Plaintiff’s three tort causes of action against the
Section 13-111 of the Revised Charter of the City and3
County of Honolulu requires notice to be filed with the
Corporation Counsel. See Silva, 165 P.3d at 250.
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Defendant City and County of Honolulu are subject to the two-year
statute of limitations period provided in Haw. Rev. Stat. § 657-
7. Aana v. Pioneer Hi-Bred Int’l, Inc., 965 F.Supp.2d 1157,4
1178-79 (D. Haw. 2013).
Pursuant to the “discovery rule,” a cause of action “accrues
under section 657–7 and the statute of limitations commences,
when a plaintiff has actual or imputed knowledge of: (1) his
injury; (2) the defendant’s negligence or breach of legal duty
and (3) the causal connection between the two.” In re Hawaii
Federal Asbestos Cases, 854 F.Supp. 702, 706 (D. Haw. 1994).
a. Plaintiff’s Alleged Injuries Relating To His
2003 Prosecution Began To Accrue More Than
Two-Years Before He Filed His Complaint
Plaintiff’s Second Amended Complaint alleges that he was
harmed because he was convicted by a jury on August 4, 2003, and
was wrongfully imprisoned. In December 2011, Plaintiff was
paroled after serving eight years in prison. (SAC at ¶ 100, ECF
No. 54).
Plaintiff did not file his original complaint in this case
until November 24, 2021, more than 18 years after he was
convicted and nearly 10 years after he was released from custody.
Haw. Rev. Stat. § 657-7 provides that “[a]ctions for the4
recovery of compensation for damage or injury to persons or
property shall be instituted within two years after the cause of
action accrued, and not after, except as provided in section 657-
13.”
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In the Second Amended Complaint, Plaintiff asserts that
Honolulu Police Detective Sheryl Sunia and unnamed prosecutors
and investigators for the City and County of Honolulu between
2001 and 2003 should have known that Plaintiff did not commit
sexual assault crimes against Defendant Combis. Plaintiff
alleges that but for their negligence between 2001 and 2003, he
would not have been found guilty by the jury on August 4, 2003.
Defendant Detective Sheryl Sunia is the only named
individual in the Second Amended Complaint who was alleged to
have been employed by the Defendant City and County of Honolulu.
Plaintiff claims that Detective Sherly Sunia was negligent in
performing her duties as a police officer with the Honolulu
Police Department. All of the allegations regarding Sheryl Sunia
occurred between 2001 and 2003. There are no allegations of
misconduct by Detective Sunia following the August 4, 2003 jury
verdict.
Pursuant to Hawaii law, Plaintiff’s claims began to accrue
when the plaintiff knew or when he should have known of the
defendant’s negligence or act causing emotional distress. Mansha
Consulting LLC v. Alakai, 236 F.Supp.3d 1267, 1272-73 (D. Haw.
2017).
Plaintiff’s claims against the Defendant City and County of
Honolulu on account of acts performed by Detective Sunia began to
accrue in August 2003, at the time of the last acts of Sunia.
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Faaita v. Liang, 2009 WL 3124765, at *4 (D. Haw. Sept. 29, 2009)
(explaining that negligence claims against Honolulu Police
Officers began to accrue when the last acts of the officers
occurred, not after the dismissal of the case).
b. Plaintiff Had All Of The Necessary Facts To
Support His Claims Against The Defendant City
and County of Honolulu On February 27, 2018
Plaintiff has not identified any other basis for his
negligence or emotional distress claims based on specific acts of
employees of the Defendant City and County of Honolulu.
Even if Plaintiff had identified specific actors,
Plaintiff’s negligence claims began to accrue, at the very
latest, on February 27, 2018. On February 27, 2018, the Hawaii
Intermediate Court of Appeals issued a memorandum opinion that
vacated Plaintiff’s convictions and remanded the case for a new
trial. Plaintiff had all of the necessary facts to support his
state law negligence and emotional distress claims relating to
his 2003 prosecution at the time of the Hawaii Intermediate Court
of Appeals’ ruling on February 27, 2018. At the time his
convictions were vacated, Plaintiff knew the basis for such
claims. Shook v. Cnty. of Hawaii Police Dep’t., 2022 WL 3915566,
at *3 (D. Haw. Aug. 31, 2022).
Plaintiff asserts in his Opposition that he learned
additional facts following the remand all through 2019.
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Plaintiff argues that the prosecution should not have sought to
retry him following remand and seeks to toll the limitations
period through the 2019 proceedings. These allegations do not
alter the statute of limitations or the discovery rule relating
to the 2003 prosecution and acts by Detective Sunia. Plaintiff
had all of the necessary facts regarding the alleged improper
prosecution in 2003 at the time of his convictions were vacated
on February 27, 2018. Hays v. City & Cnty. of Honolulu, 917 P.2d
718, 725 (Haw. 1996). Plaintiff did not file his original
Complaint in this case until November 24, 2021, more than two
years after his claims began to accrue.
Plaintiff’s Second Amended Complaint does not allege any
wrongful acts following remand in 2018 or in 2019. Plaintiff
simply argues that they should not have continued to prosecute
him. Plaintiff makes conclusory allegations that the entire
Department of the Prosecuting Attorney was negligent without
identifying any specific individuals.
The February 27, 2018 decision by the Hawaii Intermediate
Court of Appeals specifically directed that the case be remanded
for a new trial. There was no finding by the Hawaii Intermediate
Court of Appeals of improper acts by any employee of the
Defendant City and County of Honolulu. Plaintiff’s allegations
that the Department of the Prosecuting Attorney, as a whole, was
negligent in 2019 is insufficient to state a claim.
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Plaintiff has not pointed to any actions by individuals
employed by the Defendant City and County of Honolulu following
the remand that would support a negligence or emotional distress
cause of action. Rather, Plaintiff’s claims are based on acts
that occurred between 2001 and his conviction on August 4, 2003,
and continued through his release from imprisonment in December
2011. Plaintiff’s convictions were vacated on February 27, 2018.
Plaintiff did not file a complaint within the two-year statute of
limitations for a Hawaii state law tort claim and the claims are
untimely.
The Court previously provided notice to Plaintiff in its
February 17, 2023 Order as to the issues relating to the statute
of limitations regarding Plaintiff’s negligence and emotional
distress state law tort claims against the Defendant City and
County of Honolulu. The Court provided Plaintiff with leave to
amend to address the deficiencies relating to the statute of
limitations. Plaintiff has failed to cure the pleadings with
respect to the statute of limitations.
The Court declines to give Plaintiff additional leave to
amend. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1045 (9th Cir. 2011) (explaining that a district court may
dismiss a claim if the running of the statute of limitations is
apparent on the face of the complaint); Abagninin v. AMVAC Chem.
Corp., 545 F.3d 733, 742 (9th Cir. 2008) (explaining leave to
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amend is properly denied when previous amendment failed to cure
the deficiencies identified by the court).
Count V for negligence, Count VI for intentional infliction
of emotional distress, and Count VIII for negligent infliction of
emotional distress are DISMISSED as untimely pursuant to the
statute of limitations set forth in Haw. Rev. Stat. § 657-7.
B. The Second Amended Complaint Does Not Plausibly Allege
A Hawaii State Law Tort Claim Against The Defendant
City And County Of Honolulu
Even if Plaintiff had timely complied with Haw. Rev. Stat. §
46-72 and Haw. Rev. Stat. § 657-7, Plaintiff has failed to state
a claim for negligence, intentional infliction of emotional
distress or negligent infliction of emotional distress against
the Defendant City and County of Honolulu.
1. Plaintiff Has Not Provided Sufficient Facts To
Plausibly State A Negligence Cause Of Action
Against The Defendant City And County Of Honolulu
Pursuant to Hawaii law, a plaintiff bringing a negligence
claim must allege the following four elements:
(1) a duty, or obligation, recognized by law, requiring the
actor to conform to a certain standard of conduct, for
the protection of others against unreasonable risks;
(2) a failure on the actor’s part to conform to the
standard required;
(3) a reasonable close casual connection between the
conduct and the resulting injury; and,
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(4) actual loss or damage resulting to the interests of
another.
Ono v. Applegate, 612 P.2d 533, 538-39 (Haw. 1980).
The Second Amended Complaint merely makes conclusory
allegations that the Defendant City and County of Honolulu and
the entire Department of the Prosecuting Attorney are liable for
negligence. Plaintiff’s pleading fails to comply with the
plausibility standard set forth in Iqbal and Twombly.
In order to state a negligence claim against Defendant City
and County of Honolulu, Plaintiff must specify the specific actor
who had a duty of care and describe the failure of an individual
to conform to that duty. In a footnote on page 38 of the Second
Amended Complaint, Plaintiff alleges that “Dwight Nadamoto was
the Acting Prosecutor for the City and County of Honolulu at the
time.” (SAC at p. 38, n.1, ECF No. 54). Plaintiff does not
allege a single fact about what Nadamoto did, knew, or directed.
He does not specify any actions or involvement by Nadamoto.
In order to state a claim, Plaintiff must plead sufficient
facts to establish a duty of care that was breached that caused
harm to Plaintiff by the individual for which the Defendant City
and County of Honolulu may be held liable. Allegations in a
complaint may not simply recite the elements of a cause of
action, but the complaint must contain sufficient allegations of
underlying facts to give fair notice to enable the opposing party
to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216
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(9th Cir. 2011).
Plaintiff’s Opposition incorrectly argues that the pleading
standard in Iqbal/Twombly does not apply. Plaintiff has provided
no legal authority for his position.
It is well-established that the federal pleading standard
applies in federal court to state law causes of action. See
Taylor v. United States, 821 F.2d 1428, 1432 (9th Cir. 1987)
(federal pleading rules apply to pendent state law claims).
The Court previously issued an Order on February 17, 2023
dismissing Plaintiff’s negligence cause of action against the
Defendant City and County of Honolulu with leave to amend. The
Court identified the numerous deficiencies in Plaintiff’s
pleading. Rather than address the deficiencies, Plaintiff’s
Second Amended Complaint provides nearly identical conclusory
allegations. Plaintiff makes general allegations about actions
by the Department of the Prosecuting Attorney without specifying
any individuals, the acts of such individuals, or the duty of any
specific person which they allegedly breached.
2. Plaintiff Has Not Identified Any Individuals For
Whom The Defendant City And County Of Honolulu May
Be Liable For Negligence Pursuant To A Theory Of
Respondeat Superior
In order to state a tort claim against Defendant City and
County of Honolulu pursuant to a respondeat superior theory,
Plaintiff must allege sufficient facts to plausibly assert: (1) a
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negligent act of the employee which breached a duty that is the
legal cause of Plaintiff’s injury (2) that occurred within the
employee’s scope of employment. Carroll v. Cnty. of Maui, Civ.
No. 13-00066 DWK-KSC, 2015 WL 1470732, at *11 (D. Haw. Mar. 31,
2015); see Henderson v. Prof. Coatings Corp., 819 P.2d 84, 88
(Haw. 1991).
Plaintiff’s Second Amended Complaint fails to state a
negligence claim against the Defendant City and County of
Honolulu based on a theory of respondeat superior. No acts of
any individual employees, other than Sheryl Sunia, are identified
in the Second Amended Complaint.
As previously discussed the alleged acts of Defendant Sunia
occurred in 2001, more than 22 years ago and are time-barred. No
other individual is named in the Second Amended Complaint that
could provide a basis to find Defendant City and County liable
for his or her acts based on respondeat superior liability.
Plaintiff’s reliance on the Hawaii Rules of Professional
Conduct is unpersuasive. The Hawaii Supreme Court has explained
that a violation of the Rules of Professional Responsibility does
not alone give rise to any civil liability. In re Disciplinary
Bd. of Hawaii Supreme Court, 984 P.2d 688, 695 (Haw. 1999).
Plaintiff must demonstrate how an individual employee breached a
legal duty of care for which the Defendant City and County of
Honolulu may be liable in order to state a claim. Hyun Ju Park
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v. City & Cnty. of Honolulu, 292 F.Supp.3d 1080, 1101-02 (D. Haw.
2018). Plaintiff has failed to do so.
Count V for Negligence is DISMISSED WITH PREJUDICE for
failure to state a claim pursuant to Fed. R. Civ. P. 8 and
12(b)(6).
3. The Second Amended Complaint Does Not Plausibly
Allege An Emotional Distress Claim Against The
Defendant City And County Of Honolulu
a. Intentional Infliction Of Emotional Distress
The tort of intentional infliction of emotional distress
requires a plaintiff to demonstrate that defendant committed an
outrageous act, either intentionally or recklessly, that caused
another to suffer extreme emotional distress. Young v. Allstate
Ins. Co., 198 P.3d 666, 692 (Haw. 2008).
The standard for “outrageous” conduct is a very high one.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community. Ross v.
Stouffer Hotel Co., 879 P.2d 1037, 1048 n.12 (Haw. 1994).
The Second Amended Complaint does not contain sufficient
facts to plausibly state an intentional infliction of emotional
distress claim against Defendant City and County of Honolulu.
Plaintiff does not specify what specific acts, by whom, on which
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date, were outrageous.
Plaintiff does not set forth a theory as to how the
Defendant City and County of Honolulu may be liable for such
acts.
b. Negligent Infliction Of Emotional Distress
The elements for a negligent infliction of emotional
distress claim require a plaintiff to demonstrate that the
defendant engaged in negligent conduct causing the plaintiff to
suffer serious emotional distress. Caraang v. PNC Mortg., 795
F.Supp.2d 1098, 1122 (Haw. 2011). Hawaii law requires that a
negligent infliction of emotional distress claim be supported by
a physical injury or mental illness. Haw. Rev. Stat. § 663-8.9;
U.S. E.E.O.C. v. NCL Am., 535 F.Supp.2d 1149, 1171 (D. Haw.
2008).
The Second Amended Complaint does not provide sufficient
allegations to state a negligent infliction of emotional distress
claim. Plaintiff’s conclusory allegations that he suffered
physical injury and mental illness are insufficient. Plaintiff
must allege the specific injuries or illnesses he suffered, when
he suffered them, and how they were caused by an individual
employee of the Defendant City and County of Honolulu’s
negligence.
The Second Amended Complaint’s allegations regarding the
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emotional distress causes of action are conclusory, lack
specificity, and fail to comply with Federal Rule of Civil
Procedure 8. Moss v. U.S. Secret Serv., 572 F.3d 962, 968-69
(9th Cir. 2009); McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th
Cir. 1996) (affirming dismissal of complaint where “one cannot
determine from the complaint who is being sued, for what relief,
and on what theory, with enough detail to guide discovery”).
Plaintiff’s failure to specify the individuals allegedly
responsible for his emotional distress is fatal to his claims.
The Court previously granted Plaintiff leave to amend these
claims and notified him of the pleading deficiencies. The Court
explained that Plaintiff must demonstrate that the Defendant City
and County of Honolulu is responsible for any alleged emotional
distress. Plaintiff has failed to do so.
Count VI for Intentional Infliction of Emotional Distress
and Count VIII for Negligent Infliction of Emotional Distress are
DISMISSED WITH PREJUDICE for failure to state a claim pursuant to
Fed. R. Civ. P. 8 and 12(b)(6).
CC.. The Second Amended Complaint Does Not Plausibly Allege
An Employee Of The Defendant City And County Of
Honolulu Acted With Malice
As the Court explained in the February 17, 2023 Order,
conditional privilege shields Defendant City and County of
Honolulu government officials from liability unless the plaintiff
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plausibly alleges that the official was motivated by malice and
not by an otherwise proper purpose. See Taylor v. City and Cnty.
of Honolulu, Civ. No. 22-00013 HG-KJM, 2022 WL 1674966, at *2 (D.
Haw. May 25, 2022).
Conclusory allegations that unnamed and unidentified
employees of the Defendant City and County of Honolulu were
motivated by malice are insufficient to state a claim. Silva v.
City and Cnty. of Honolulu, 851 Fed. Appx. 697, 700 (9th Cir.
2021) (explaining that a plaintiff must plead facts sufficient to
overcome the officers’ state law qualified immunity defense for a
Hawaii state law tort claim).
Plaintiff has failed to identify any acts by specific
employees of the Defendant City and County of Honolulu that
plausibly demonstrate that the official acted with malice.
Plaintiff’s failure to overcome the conditional privilege
standard is fatal to Plaintiff’s state law tort claims against
the Defendant City and County of Honolulu. Krizek v. Queens Med.
Ctr., Civ. NO. 18-00293 JMS-WRP, 2019 WL 6255469, at *6 (D. Haw.
Nov. 22, 2019) (explaining that plaintiff has not alleged
anything to corroborate purported malicious intent and simply
claiming malice is a legal conclusion and does not demonstrate
plausibility under Iqbal and Twombly).
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CONCLUSION
Defendant City and County of Honolulu’s Motion to Dismiss
the claims against it in the Second Amended Complaint (ECF No.
57) is GRANTED.
The following causes of action pursuant to Hawaii state law
against Defendant City and County of Honolulu are DISMISSED WITH
PREJUDICE:
COUNT V: Negligence
COUNT VI: Intentional Infliction of Emotional Distress
COUNT VIII: Negligent Infliction of Emotional Distress
There are no remaining causes of action against the Defendant
City and County of Honolulu.
IT IS SO ORDERED.
DATED: June 22, 2023, Honolulu, Hawaii.
Roynes J. Dural II v. City and County of Honolulu; Sheryl Sunia;
Vibiana Kealoha-Wong; Shyla Combis; Chad Kalawaia; Nathan
Slutter; Does 1-20, Civ. No. 21-00461 HG-WRP; ORDER GRANTING
DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION TO DISMISS THE
CLAIMS AGAINST IT IN THE SECOND AMENDED COMPLAINT (ECF No. 57)
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Outcome: ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS THE CLAIMS AGAINST IT IN THE SECOND AMENDED COMPLAINT (ECF NO. 57 ) - Signed by SENIOR JUDGE HELEN GILLMOR on 6/22/2023.
Defendant City and County of Honolulu's Motion to Dismiss the claims against it in the Second Amended Complaint (ECF No. 57) is GRANTED.
The following causes of action pursuant to Hawaii state law against Defendant City and County of Honolulu are DISMISSED WITH PREJUDICE:
COUNT V: Negligence
COUNT VI: Intentional Infliction of Emotional Distress
COUNT VIII: Negligent Infliction of Emotional Distress
There are no remaining causes of action against the Defendant City and County of Honolulu.
Plaintiff's Experts:
Defendant's Experts:
Comments: