Dowkin v. City of Honolulu

SERGEANT SHERMON DEAN DOWKIN, OFFICER FEDERICO DELGADILLO MARTINEZ, JR.,and OFFICER CASSANDRA BENNETT HUIHUI, Plaintiffs, v. THE CITY AND COUNTY OF HONOLULU,FORMER CHIEF OF POLICE BOISSE CORREA, CURRENT CHIEF OF POLICE LOUIS KEALOHA,ASSISTANT CHIEF MICHAEL TAMASHIRO, MAJOR KENNETH SIMMONS, MAJOR JOHN MCENTIRE,CAPTAIN NYLE DOLERA, LIEUTENANT MICHAEL SERRAO, LIEUTENANT DAN KWON,LIEUTENANT WILLIAM AXT, SERGEANT WAYNE FERNANDEZ, SERGEANT RALSTAN TANAKA,OFFICER COLBY KASHIMOTO, PAT AH LOO, Defendants.

CIVIL 10-00087 LEK-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

July 24, 2015

ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND JOINDERS THERETO

Before the Court are the following motions, all filed on April 15, 2015: (1) Defendant Lieutenant William Axt's ("Axt") Motion for Partial Summary Judgment Against Plaintiff Sergeant Shermon Dean Dowkin on the Fifth Cause of Action of the Third Amended Complaint (Intentional Infliction of Emotional Distress) ("Axt IIED Motion"); (2) Defendants Sergeant Ralstan Tanaka ("Tanaka") and Officer Colby Kashimoto's ("Kashimoto") Motion forSummary Judgment Regarding Punitive Damages and Any Other Outstanding Claims ("Tanaka & Kashimoto Punitive Damages Motion"); (3) Defendants Lieutenant Dan Kwon ("Kwon") and Sergeant Wayne Fernandez's ("Fernandez") Motion for Partial Summary Judgment Against All Plaintiffs on the Third Cause of Action in the Third Amended Complaint (Violations of the Hawaii Civil Rights Law - HRS Section 378-2(3)) ("Kwon & Fernandez § 378-2(3) Motion");¹ and (4) Kwon and Fernandez's Motion for Summary Judgment as to Punitive Damages ("Kwon & Fernandez Punitive Damages Motion," all collectively, "Motions"). [Dkt. nos. 586, 588, 591, 593.] Defendant the City and County of Honolulu ("the City") filed a joinder in each motion on April 21, 2015. [Dkt. nos. 603-06.]

Plaintiffs Sergeant Shermon Dean Dowkin ("Dowkin"), Frederico Delgadillo Martinez, Jr. ("Delgadillo"), and Cassandra Bennett Huihui² ("Bennett Huihui," collectively "Plaintiffs") filed a memorandum in opposition to each motion on June 15, 2015. [Dkt. nos. 686, 689, 682, 684.] Axt, Tanaka and Kashimoto, and Kwon and Fernandez filed their respective replies on June 22,2015. [Dkt. nos. 698, 695, 697, 696.]

These matters came on for hearing on July 6, 2015. After careful consideration of the Motions, supporting and opposing memoranda, and the arguments of counsel, this Court rules as follows: the Axt IIED Motion is HEREBY GRANTED; the Tanaka & Kashimoto Punitive Damages Motion is HEREBY GRANTED IN PART AND DENIED IN PART; the Kwon & Fernandez § 378-2(3) Motion is HEREBY DENIED; and the Kwon & Fernandez Punitive Damages Motion is HEREBY DENIED.

BACKGROUND

The general factual and procedural background of this case is set forth in this Court's May 1, 2015 order addressing four previous defense motions for summary judgment ("5/1/15 Order"). [Dkt. no. 615.] This Court will only repeat the background that is relevant to the Motions currently before it.

I. Axt IIED Motion

Count V, Plaintiffs' intentional infliction of emotional distress ("IIED") claim, alleges that, "[b]y committing the acts and omissions" that Plaintiffs allege, "Defendant Axt inflicted emotional distress on Plaintiffs Dowkin and Delgadillo." [Third Amended Complaint for Compensatory, Statutory and Punitive Damages ("Third Amended Complaint"), filed 1/17/12 (dkt. no. 221), at ¶ 167.]

The Axt IIED Motion contends that Dowkin and Delgadillo have not presented any evidence to establish that Axt engaged in the type of outrageous conduct necessary to support an IIED claim. Axt notes that paragraph 112 of the Third Amended Complaint provides a list of dates on which Dowkin and/or Delgadillo were allegedly denied back-up cover when Axt was on-duty or otherwise available. However, during his deposition, Dowkin testified that he has no independent recollection of the denials of cover that the Third Amended Complaint alleges occurred on: February 22 and 29, 2008; March 8, 16, and 26, 2008; April 19, 2008; and June 7, 2008. [Separate & Concise Statement of Facts in Supp. of Axt IIED Motion ("Axt's IIED CSOF"), filed 4/15/15 (dkt. no. 587), Decl. of Jerold T. Matayoshi ("Matayoshi Decl."), Exh. A (Excerpts of Trans. of 4/4/11 Depo. of Shermon Dowkin ("Axt's Dowkin Depo.")) at 243-44, 246-49, 253-254, 258.] Dowkin's deposition testimony also indicates that, during some of these incidents, Delgadillo or another officer arrived on the scene to provide back-up cover or other assistance to Dowkin. [Id. at 244-50, 254-55.] Moreover, even assuming, arguendo, that there was a denial of back-up cover, Plaintiffs have failed to present any evidence that Axt was responsible for those incidents. Axt argues that the mere fact that he was on-duty when an alleged failure to provide cover occurred is not enough for Dowkin's IIED claim to survive summary judgment.

As to Delgadillo, Axt emphasizes that Delgadillo testified that he had no independent recollection of the alleged failure to cover incidents on February 22 and 29, 2008, April 6, 2008, and June 7, 2008. [Matayoshi Decl., Exh. B (Excerpts of Trans. of 4/6/11 Depo. of Officer Federico Delgadillo Martinez, Jr. ("Axt's Delgadillo Depo.")) at 65-66, 105-07, 157.] Delgadillo testified that he covered Dowkin during the April 6, 2008 alleged incident, and several times on June 7, 2008. However, he could not recall if he covered Dowkin on the specific June 7 back-up calls at issue in this case. [Id. at 65-66, 157-59.] Axt argues that, as with Dowkin's allegations of failure to provide back-up cover, there is no evidence that he was directly responsible.

Dowkin and Delgadillo also testified that Axt: subjected them to unfair enforcement of Honolulu Police Department ("HPD") rules and other unfair internal orders; gave Dowkin poor performance ratings that he did not deserve; pressured Delgadillo not to complain about undeserved performance ratings by Fernandez; and transferred or threatened to transfer them in retaliation for their complaints. Axt argues that these do not rise to the level of outrageous conduct necessary to support an IIED claim.

II. Tanaka & Kashimoto Punitive Damages Motion

Tanaka and Kashimoto emphasize that the only claims against them in the Third Amended Complaint are: Count III, Plaintiffs' claim pursuant to Haw. Rev. Stat. § 378-2(3); Count V, Plaintiffs' IIED claim; and Count VI, Bennett Huihui's negligent infliction of emotional distress ("NIED") claim against Tanaka. The Third Amended Complaint seeks punitive damages against Tanaka and Kashimoto, among others. In light of the 5/1/15 Order, the following claims remain: Bennett Huihui's IIED claim against Tanaka based on the Porky's Incident; Dowkin's IIED claim against based on the April 6, 2008 incident; and Dowkin's IIED claim against Kashimoto based on the October 11, 2010 incident.³

Tanaka and Kashimoto argue that Delgadillo has no remaining claims against either of them, and Bennett Huihui has no remaining claims against Kashimoto. Thus, they argue that this Court should grant this motion as to Delgadillo's request for punitive damages against Tanaka and as to Bennett Huihui's and Delgadillo's request for punitive damages against Kashimoto. Tanaka and Kashimoto also argue that, as to the remaining claims against them, they are entitled to summary judgment on the request for punitive damages because Plaintiffs have notidentified evidence that constitutes clear and convincing evidence that Tanaka and Kashimoto "acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations." [Tanaka & Kashimoto Punitive Damages Reply at 11 (internal quotation marks omitted).]

III. Kwon & Fernandez § 378-2(3) Motion

The Kwon & Fernandez § 378-2(3) Motion first argues that they are entitled to summary judgment as to Count III because Plaintiffs failed to exhaust their administrative remedies. The arguments that they raise are the same as those addressed in the 5/1/15 Order, which granted summary judgment to Tanaka and Kashimoto as to the claims in Count III against them. Plaintiffs raise the same arguments that they raised in their opposition to Tanaka and Kashimoto's motion for summary judgment as to Count III. However, they note that, unlike Tanaka and Kashimoto, Kwon and Fernandez were named within the factual statements of Plaintiffs' charges of discrimination.

Kwon and Fernandez also argue that, even if this Court concludes that Plaintiffs properly exhausted their § 378-2(3) claims against them, Kwon and Fernandez are still entitled to summary judgment because Plaintiffs have not presented evidence to establish necessary elements of their claims.

IV. Kwon & Fernandez Punitive Damages Motion

Kwon and Fernandez emphasize that, in its June 18, 2015 Order Granting Defendants' Motions for Summary Judgment and Joinders Thereto ("6/18/15 Order"), this Court granted summary judgment in their favor as to Counts V and VI. [Dkt. no. 692.⁴] They argue that, if this Court also grants the Kwon & Fernandez § 378-2(3) Motion, this Court will have granted summary judgment in their favor as to all claims against them, and it should also grant summary judgment as to Plaintiffs' request for punitive damages against them. Even if this Court denies the Kwon & Fernandez § 378-2(3) Motion, they argue that this Court should still grant summary judgment in their favor as to Plaintiffs' request for punitive damages. They contend that Plaintiffs have not shown that there is admissible evidence that they acted "wantonly, oppressively, and/or with malice or such want of care that would raise the presumption of conscious indifference to consequences." [Kwon & Fernandez Punitive Damages Reply at 3.]

DISCUSSION

I. Axt IIED Motion

The standards that this Court must apply to Plaintiffs' IIED claims are set forth in the 5/1/15 Order. In that order, this Court found that, "if Plaintiffs can prove that Tanaka denied ...