Denis v. Ige et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
:MEGESO-WILLIAM-ALAN: DENIS
a.k.a. WILLIAM DENIS
Plaintiff,
vs.
DAVID Y. IGE, CLARE E.
CONNORS, DEREK S.K. KAWAKAMI,
TODD RAYBUCK, DEREK KELLEY,
RUSSELL HIMONGALA, and ARRYL
KANESHIRO,
Defendants.
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Civil NO. 21-00011 SOM-RT
ORDER GRANTING MOTION FOR
PARTIAL JUDGMENT ON THE
PLEADINGS
ORDER GRANTING MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
I. 	INTRODUCTION
On December 5, 2020, Plaintiff Megeso-William-Alan
Denis was arrested during a protest in Kapaa, on the island of
Kauai. 	According to Denis, even though he was socially distanced
from other people, police officers arrested him because he was
not wearing a face mask. 	Denis, proceeding pro se, has sued two
of the police officers involved in his arrest, Defendant Derrick
Kelley and Defendant Joseph Russell Himongala. 	He appears to
assert that Kelley and Himongala arrested him without probable
cause, and that they used excessive force during the arrest.
Those two officers (the “Moving Defendants”) now argue
that they are entitled to partial judgment on the pleadings on
Denis’s excessive force claim. 	They contend that even though
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Denis included more detailed allegations in a prior complaint,
because the operative First Amended Complaint only includes
conclusory allegations in support of the excessive force claim,
the claim should be dismissed. 	This court agrees. 	It is
obvious, however, that Denis can cure the defects in the First
Amended Complaint. 	Accordingly, the dismissal is without
prejudice, and Denis may move for leave to file a Second Amended
Complaint.
II. 	BACKGROUND
On December 5, 2020, Denis attended a protest in Kapaa,
Kauai. 	ECF No. 1, PageID # 14. 	At the protest, Denis allegedly
held a “free speech sign.” 	Id. 	At some point, according to
Denis, several police officers arrived and informed Denis that he
was violating state and county laws that required him to wear a
mask in public places (the “Mask Mandates”). 	Id. 	Denis contends
that he did not need to wear a mask because he was more than 18
yards away from any other protestor. 	Id.
On January 6, 2021, Denis, proceeding pro se, filed
this action. 	In the initial complaint, Denis alleged that Kelley
and Himongala wrongfully arrested him because he had not violated
any law. 	He also maintained that, during the arrest, Kelley and
Himongala “manhandle[d]” him, causing “physical injuries to his
hands, wrists, and shoulder area.” 	Id. at 15. 	He claimed that
he “received additional injuries to his hands, wrists, shoulder,
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and neck while being forcibly placed in the police cruiser.” 	Id.
The officers took Denis to Mahelona Hospital for evaluation,
where he was allegedly “diagnosed [with] a cervical sprain to the
neck area, soft tissue damage to the shoulder and soft tissue
damage and bone bruising in the wrists.” 	Id. 	Denis said that,
after leaving the hospital, he was incarcerated for several
hours, until he posted bail. 	Id.
On that basis, Denis claimed that Kelley and Himongala
violated his rights by carrying out “an unjust arrest and
incarceration . . . based on the premise that he was failing to
abide by the Governor’s rules related to COVID-19.” 	ECF No. 1,
PageID # 7. 	In short, Denis appeared to be arguing that the two
officers wrongfully arrested him without probable cause, and that
the manner of the arrest violated the Fourth Amendment because
the officers used excessive force. 	Id. at 16. 	Kelley and
Himongala did not move to dismiss the initial complaint.
Instead, they filed answers on March 9, 2021. 	ECF Nos. 34, 35.
The initial complaint also included claims against
Defendants David Y. Ige (Hawaii’s Governor), Clare E. Connors
(Hawaii’s Attorney General), Derek S.K. Kawakami (Kauai’s Mayor),
Defendant Todd Raybuck (Kauai’s Police Chief) and Defendant Arryl
Kaneshiro (the Chairperson of Kauai’s County Council). 	Denis
maintained that Defendants Ige, Connors, and Kawakami violated
his constitutional rights by promulgating the Mask Mandates and
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that Raybuck and Kaneshiro were indirectly responsible for his
arrest because of their positions of authority. 	Id. at 6-7.
Those defendants all filed motions to dismiss. 	Ige, Kawakami,
and Connors argued that Denis failed to state a claim against
them because the Mask Mandates were not unconstitutional. 	See
ECF Nos. 24, 31, 48. 	Raybuck and Kaneshiro similarly argued that
Denis had failed to state a claim against them because he had not
alleged that they were responsible for any harm he purportedly
suffered. 	See ECF Nos. 21, 24. 	On May 12, 2021, this court
agreed, and filed an order dismissing the claims against Ige,
Connors, Kawakami, Raybuck, and Kaneshiro, but gave Denis leave
to amend his pleading. 	ECF No. 62.
On June 4, 2021, Denis filed an amended complaint. 	ECF
No. 62. 	He largely repeated his allegations against Defendants
Ige, Connors, Kawakami and Raybuck, 1 although he did add some
additional details. 	See generally id. 	His claims against Kelley
and Himongala, however, were less detailed than the claims in the
initial complaint. 	Denis again contended that he was complying
with the Mask Mandates at the time of his arrest, and that, as a
result, Kelly and Himongala did not have probable cause to arrest
him. 	Id. at 725. 	However, instead of reproducing his earlier,
more detailed allegations concerning the officers’ conduct and
1 	The First Amended Complaint did not include claims
against Kaneshiro. 	See ECF No. 63.
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his injuries, Denis only alleged that he “received bodily harm”
from both of the officers, and that he incurred hospital bills as
a result. 	Id. at 725, 737.
Defendants Ige, Connors, Kawakami, and Raybuck moved to
dismiss the First Amended Complaint, while Kelley and Himongala
again filed answers. 	ECF Nos. 64, 66, 67, 70. 	On August 31,
2021, this court dismissed the claims against Ige, Connors,
Kawakami, and Raybuck with prejudice. 	ECF No. 97. 	On October
22, 2021, Kelley and Himongala, the only remaining Defendants,
filed a motion for partial judgment on the pleadings. 	ECF No.
100.
III. 	LEGAL STANDARD.
Rule 12(c) of the Federal Rules of Civil Procedure
states, “After the pleadings are closed--but early enough not to
delay trial--a party may move for judgment on the pleadings.”
The standard governing a Rule 12(c) motion for judgment on the
pleadings is “functionally identical” to that governing a Rule
12(b)(6) motion. 	United States ex rel. Caffaso v. Gen. Dynamics
C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011); accord
Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th
Cir. 2015) (“Analysis under Rule 12(c) is ‘substantially
identical’ to analysis under Rule 12(b)(6) because, under both
rules, a court must determine whether the facts alleged in the
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complaint, taken as true, entitle the plaintiff to a legal
remedy.”).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party. 	Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996). 	However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss. 	Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). 	Pro se
litigants’ pleadings must be liberally construed, and all doubts
should be resolved in their favor. 	See Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010) (citations omitted).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
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obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.” 	Twombly, 550 U.S. at 555. 	The complaint must “state a
claim to relief that is plausible on its face.” 	Id. at 570. 	“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.” 	Iqbal,
556 U.S. at 678.
IV. 	ANALYSIS
A. 	The First Amended Complaint Attempts to Raise an
Excessive Force Claim.
The Moving Defendants first argue that Denis has
“voluntarily waived any claim of Fourth Amendment excessive force
by not raising such a claim” in the First Amended Complaint. 	ECF
No. 100-1, PageID # 1107. 	Although Denis has alleged that he was
harmed by Kelley and Himongala during his arrest, the Moving
Defendants appear to contend that because Denis did not
specifically mention the Fourth Amendment in the First Amended
Complaint, Denis has not even attempted to plead a Fourth
Amendment excessive force claim. 	See id.
That assertion fails to account for Denis’s pro se
status. 	Courts have “an obligation where the petitioner is pro
se, particularly in civil rights cases, to construe the pleadings
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liberally and to afford the petitioner the benefit of any doubt.”
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal
quotation marks omitted). 	This court construes Denis’s
allegations that he was harmed by Kelley and Himongala during his
arrest as an attempt to assert an excessive force claim. 	Denis
has not waived that claim.
B. 	The First Amended Complaint Fails to State an
Excessive Force Claim.
The Moving Defendants also contend that Denis has
failed to state an excessive force claim because his allegations
concerning “bodily harm” and “injuries” are conclusory. 	ECF No.
100-1, PageID # 1006. 	This court agrees. 	A plaintiff may not
state a claim through “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678. 	In other words, a complaint must contain
more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” 	Id. 	Denis’s claims that he suffered “bodily harm,”
without any elaboration, are insufficient under that standard.
“Bodily harm” that takes the form of, for example, a minuscule
scratch that was unintentional might not qualify as excessive
force. 	Some further detail is needed to place the alleged
“bodily harm” into the excessive force category. 	The motion for
partial judgment on the pleadings is granted. 	Denis’s excessive
force claims are dismissed.
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C. 	The Excessive Force Claim is Dismissed Without
Prejudice.
The only remaining issue is whether the dismissal
should be with prejudice. 	The Ninth Circuit has held that
“[d]ismissal with prejudice and without leave to amend is not
appropriate unless it is clear on de novo review that the
complaint could not be saved by amendment.” 	Eminence Cap., LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 	Here, two
different documents demonstrate that the excessive force claims
could be saved.
First, in his initial complaint, Denis alleged that the
two officers “manhandle[d]” him, and that he “received additional
injuries to his hands, wrists, shoulder, and neck while being
forcibly placed in the police cruiser.” 	ECF No. 1, PageID # 15.
Those more detailed allegations suffice to state an excessive
force claim. 	Had Denis included those allegations in his First
Amended Complaint, the present motion would fail. 2
2 	It is unclear if the Moving Defendants are arguing that
Denis has forever waived his ability to rely on those allegations
because he did not include them in the First Amended Complaint.
See ECF No. 100-1, PageID # 1106. 	The Moving Defendants cite
authorities that state that “[a]ll causes of action alleged in an
original complaint which are not alleged in an amended complaint
are waived.” 	See, e.g., King v. Atiyeh, 814 F.2d 565, 567 (9th
Cir. 1987) (emphasis added), overruled on other grounds by Lacey
v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012). 	Both the initial
complaint and the First Amended Complaint included causes of
action against Kelley and Himongala based on Denis’s claims that
they used excessive force. 	Denis has not waived that cause of
action. 	And the Moving Defendants have not cited any cases that
suggest that a pro se plaintiff, who may not understand the
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Second, in his opposition, 3 Denis contends that he was
“handcuffed and roughed up for no reason,” and that this
treatment caused “bodily harm to his wrists, neck, and shoulder
areas.” 	ECF No. 112, PageID # 1228. 	A plaintiff may not amend
his complaint through an opposition brief. 	See Rodriguez v.
Kwok, 2014 WL 889570, at *6 (N.D. Cal. Mar. 3, 2014) (“Statements
made in an opposition brief cannot amend the complaint.”); see
also Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107
(7th Cir. 1984)(“it is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss”).
However, this court may consider those allegations in deciding
whether to dismiss with prejudice. 	See Orion Tire Corp. v.
Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137 (9th Cir. 2001).
The assertions in Denis’s opposition, if incorporated in an
formal rules of pleading, forever loses his ability to rely on
specific factual allegations in an earlier complaint if he fails
to include the same specific allegations in a later complaint.
See generally Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1988) (“This court recognizes that it has a duty to
ensure that pro se litigants do not lose their right to a hearing
on the merits of their claim due to ignorance of technical
procedural requirements.”).
3 	The Local Rules limit an opposition brief to 25 pages,
unless the brief includes a certification that it contains no
more than 6,250 words. 	Local Rule 7.4. 	Denis’s opposition brief
is 32 pages, and it does not include the requisite certification.
Denis has already been warned on several that he must follow all
court rules, including those rules setting page limits. 	ECF No.
51, 62. 	Accordingly, this Court disregards anything in Denis’s
opposition brief beyond the 25th page. 	Future filings that do
not comply with court rules may be disregarded entirely.
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amended complaint, would also allow Denis to state an excessive
force claim.
Thus, dismissal without prejudice is not warranted.
However, this court does not simply grant Denis leave to amend.
Denis’s opposition suggests that any amended complaint may
include new claims that are patently frivolous. 	As just a few
illustrative examples, Denis’s opposition discusses claims based
on the King James Bible and the Nuremberg Code. 	ECF No. 112,
PageID # 1243-44. 	Denis also points to several claims that
appear to be based on state and federal criminal statutes. 	See
generally ECF No. 112. 	None of those claims is properly the
subject of a federal civil action.
This court therefore gives Denis leave to file, by no
later than December 13, 2021, a motion seeking leave to file an
amended complaint under Federal Rules of Civil Procedure Rule
15(a)(2). 	The court sets this deadline notwithstanding the
deadline of March 28, 2022, set forth in the Rule 16 Scheduling
Order, ECF No. 82, for motions to join additional parties or to
amend the pleadings. 	That motion must include as an attached
exhibit a copy of the proposed amended complaint that Denis seeks
to file. 	The proposed Second Amended Complaint must be a
freestanding document that does not incorporate any earlier
complaint or any opposition memorandum filed by Denis in this
case. 	Moreover, the amended complaint should only include
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allegations against Defendants Kelley and Himongala. 	This court
will strike any allegations against Defendants Ige, Connors,
Kawakami, Raybuck, or Kaneshiro, because the claims against those
Defendants have already been dismissed with prejudice. 	For the
same reason, this court will strike any allegations that suggest
that the Mask Mandates issued by Governor Ige or Mayor Kawakami
were unconstitutional. 	Denis’s position in that regard is
already preserved in his prior filings, and this order in no way
diminishes his ability to challenge on appeal this court’s
earlier rulings once a final judgment has been entered.
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V. 	CONCLUSION.
The motion for partial summary judgment is granted.
Denis may file, by no later than December 13, 2021, a motion
seeking leave to file an amended complaint under Federal Rules of
Civil Procedure Rule 15(a)(2). 	That motion must comply with the
requirements discussed in this order. 	If Denis fails to file
such a motion by December 13, 2021, his claims against Kelley and
Himongala will be dismissed with prejudice.
It is so ordered.
DATED: Honolulu, Hawaii, November 15, 2021.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Denis v. Ige et al., Civil No. 21-00011 SOM-RT, ORDER GRANTING MOTION FOR PARTIAL
JUDGMENT ON THE PLEADINGS
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