Hall v. City and County of Honolulu

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
ROBIN HALL,
Plaintiff,
vs.
CITY AND COUNTY OF HONOLULU,
CHRISTOPHER KOANUI, LEONARD
LETOTO, DEBRA MAIOHO-POHINA,
DOE OFFICER 1, 	DOE OFFICER 2,
JOHN LEO CASTILLO,
Defendants.
CIV. NO. 21-00248 LEK-KJM
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT CITY AND COUNTY OF HONOLULU’S AND
DEFENDANT DEBRA MAIOHO-POHINA’S MOTIONS TO DISMISS
Before the Court are: Defendant City and County of
Honolulu’s (“the City”) Motion to Dismiss Second Amended
Complaint Filed October 28, 2021 (“City Motion”), filed on
November 12, 2021; and Defendant Debra Maioho-Pohina’s (“Maioho-
Pohina”) Motion to Dismiss Second Amended Complaint Filed
October 28, 2021 (“Maioho-Pohina Motion”), also filed on
November 12, 2021. 	[Dkt. nos. 43, 44.] 	Plaintiff Robin Hall
(“Hall”) filed her memorandum in opposition to the City Motion
and her memorandum in opposition to the Maioho-Pohina Motion on
January 28, 2022. 	[Dkt. nos. 53, 54.] 	On February 1, 2022,
Defendant Leonard Letoto (“Letoto”) filed a statement of no
position as to each motion. 	[Dkt. nos. 55, 56.] 	On February 4,
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2022, the City and Maioho-Pohina filed their respective replies.
[Dkt. nos. 58, 59.] 	These matters came on for hearing on
February 18, 2022. 	The City Motion and the Maioho-Pohina Motion
are hereby granted in part and denied in part for the reasons
set forth below.
BACKGROUND
The instant case arises from an incident that occurred
on June 10, 2019. 	See Second Amended Complaint for Declaratory
and Injunctive Relief and Damages (“Second Amended Complaint”),
filed 10/28/21 (dkt. no. 36), at ¶ 1. 	Hall arranged for Letoto,
one of the owners of Exceptional Obedience, LLC (“EOL”), a
business that she had been working for, to meet her at her home
to finalize matters related to her resignation. 	According to
Hall, Letoto attempted to force his way into her home, and she
called 911 to report a crime in progress. 	[Id. at ¶¶ 27-37.]
Defendants Christopher Koanui (“Koanui”) and John Leo Castillo
(“Castillo”), police officers with the Honolulu Police
Department (“HPD”), later arrived at Hall’s home. 	[Id. at
¶¶ 15, 18, 49.]
Hall alleges Koanui is a co-owner/member of EOL, and a
close friend of Letoto. 	[Id. at ¶¶ 15, 28.] 	Hall gave Koanui
her account of what happened, and Hall told him she wanted to
file a police report against Letoto, but Koanui refused to make
a report. 	Instead, Koanui made a false report against Hall,
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alleging she stole a phone that had been issued to her for her
work with EOL, and arrested her. 	[Id. at ¶¶ 56-59, 63.] 	Hall
alleges that, because of his relationship with Letoto, Koanui
had a conflict of interest in the situation, and Koanui
ultimately violated Hall’s constitutional rights and retaliated
against her because she attempted to exercise her rights. 	[Id.
at ¶¶ 58, 62-66.]
After being threatened with arrest, Hall called 911
again, and Maioho-Pohina arrived at Hall’s home. 	Hall alleges
Maioho-Pohina did nothing to stop Koanui’s improper conduct,
[id. at ¶¶ 67-68,] even though, at all relevant times, Maioho-
Pohina was acting as a supervising officer, [id. at ¶ 197].
Later that night, Hall called 911 again and asked if Maioho-
Pohina would speak to Hall’s son, who was traumatized by the
incident. 	Maioho-Pohina offered to return to Hall’s home. 	Once
there, Maioho-Pohina informed Hall of her rights, and Maioho-
Pohina said Hall was a suspect in a criminal investigation.
[Id. at ¶¶ 69-71.] 	However, “Maioho-Pohina acknowledged to
Plaintiff that there was something very wrong with the situation
around [Koanui’s and Castillo’s] response to the incident.”
[Id. at ¶ 72.] 	Maioho-Pohina offered to help Hall, but the only
thing that Maioho-Pohina did was call Hall the next day and tell
Hall that Koanui was on duty when Hall made her original 911
call. 	[Id.]
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In the days that followed, Hall learned that Koanui
was a co-owner of EOL, and she attempted to pursue an internal
HPD complaint. 	However, HPD staff would not allow her to obtain
a copy of the police report about the incident, purportedly
because she was a suspect in the case that arose from the
incident. 	[Id. at ¶¶ 73-78.] 	Finally, “[o]n May 19, 2021,
Plaintiff sent a letter to two of Defendant City’s official
policy-makers—i.e., HPD’s then-Chief Susan Ballard and HPD’s
now-Interim Chief Rade Vanic—describing the myriad ways in which
HPD, through Defendant Officer Koanui, had violated her
constitutional rights” (“5/19/21 Hall Letter”). 	[Id. at ¶ 226.]
Hall alleges Interim Chief Vanic’s June 4, 2021 letter
responding to her letter (“6/4/21 Vanic Response”) ratified
Koanui’s unconstitutional conduct. 	[Id. at ¶¶ 228-30.] 	Hall
alleges the City violated, and showed deliberate indifference
to, her constitutional rights by: 1) having “a facially
deficient conflict-of-interest policy that allows the very kind
of abuse that Plaintiff suffered”; 2) failing to train and
supervise HPD officers regarding the type of constitutional
violations that occurred here; and 3) endorsing, approving, and
ratifying Koanui’s unconstitutional conduct. 	[Id. at ¶ 79.]
The Second Amended Complaint alleges thirteen claims.
Relevant to the instant motions, Hall alleges:
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-a 42 U.S.C. § 1983 claim against Koanui, Maioho-Pohina,
Castillo, Doe Officer 1, and Doe Officer 2 for malicious
abuse of process, in violation of her Fourteenth Amendment
rights (“Claim 4”);
-a § 1983 claim against Koanui, Maioho-Pohina, Castillo, Doe
Officer 1, and Doe Officer 2 for violation of her
Fourteenth Amendment equal protection rights (“Claim 5”);
-a § 1983 claim against Maioho-Pohina and Doe Officer 1, based
on supervisory liability (“Claim 7”);
-a § 1983 claim, pursuant to Monell v. Department of Social
Services of N.Y.C., 436 U.S. 658 (1978), against the City,
based on its facially deficient policies (“Claim 8”);
-a Monell claim against the City, based on the failure to train
and supervise (“Claim 9”); and
-a Monell claim against the City, based on its ratification of
unconstitutional conduct (“Claim 10”).
The City Motion seeks the dismissal of the three
Monell claims (Claims 8 through 10), with prejudice, on the
ground that the claims are insufficiently pled. 	The Maioho-
Pohina Motion seeks the dismissal, with prejudice, of all of
Hall’s claims against Maioho-Pohina, on the grounds that they
are insufficiently pled and because of qualified immunity.
DISCUSSION
I. 	Incorporation by Reference
The City Motion includes a copy of the 6/4/21 Vanic
Response, [City Motion, Decl. of Counsel, Exh. A,] and the City
argues this Court can consider the response’s contents without
converting the motions to dismiss into motions for summary
judgment.
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“Ordinarily, a court may look only at the
face of the complaint to decide a motion to
dismiss.” 	Van Buskirk v. Cable News Network,
Inc., 284 F.3d 977, 980 (9th Cir. 2002).
However, “[u]nder the ‘incorporation by
reference’ rule of this Circuit, a court may look
beyond the pleadings without converting the
Rule 12(b)(6) motion into one for summary
judgment.” 	Id. 	Specifically, a court may
consider documents “incorporated into the
complaint by reference.” 	Tellabs[, Inc. v. Makar
Issues & Rts., Ltd.], 551 U.S. [308,] 322, 127 S.
Ct. 2499 [(2007)]. 	Such documents are “assume[d]
. . . [to be] true for purposes of a motion to
dismiss.” 	Khoja [v. Orexigen Therapeutics,
Inc.], 899 F.3d [988,] 1003 [(9th Cir. 2018)]
(quoting Marder v. Lopez, 450 F.3d 445, 448 (9th
Cir. 2006)). 	Thus, where the complaint makes
“conclusory allegations that are contradicted by
documents referred to [or incorporated] in the
complaint,” a court may decline to accept such
conclusory allegations as true. 	Tritz v. U.S.
Postal Serv., 721 F.3d 1133, 1135 n.1 (9th Cir.
2013). 	On the other hand, “it is improper to
assume the truth of an incorporated document if
such assumptions only serve to dispute facts
stated in a well-pleaded complaint.” 	Khoja, 899
F.3d at 1003 (emphasis added).
J.K.J. v. City of San Diego, 17 F.4th 1247, 1254 (9th Cir. 2021)
(emphasis and some alterations in J.K.J.). 	A document is
incorporated by reference in a complaint “if the plaintiff
refers extensively to the document or the document forms the
basis of the plaintiff’s claim.” 	Khoja, 899 F.3d at 1002
(quotation marks and citation omitted).
The 6/4/21 Vanic Response is the basis for Hall’s
ratification claim. 	See Second Amended Complaint at ¶¶ 228-30.
This Court therefore concludes that the 6/4/21 Vanic Response is
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incorporated by reference into the Second Amended Complaint, and
the response can be considered without converting the motions to
dismiss into motions for summary judgment.
The City also argues that, if this Court finds it is
necessary to consider the policies that HPD had in place during
the relevant period, HPD Policy Number 2.21 and HPD Policy
Number 8.06 are incorporated by reference in the Second Amended
Complaint. 	Policy Number 2.21 is quoted in the Second Amended
Complaint, [Second Amended Complaint at ¶ 60,] and Hall relies
upon both policies to support her position that HPD had
inadequate policies to address officers’ conflicts of interest.
[Id. at ¶¶ 82-84.] 	This Court therefore concludes that HPD
Policy Number 2.21 and HPD Policy Number 8.06 are incorporated
by reference into the Second Amended Complaint, and those
policies can be considered without converting the motions to
dismiss into motions for summary judgment.
II. 	Liability Under § 1983
42 U.S.C. § 1983 states, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . , subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .
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A. 	Claims Against the City
Section 1983 liability cannot be based on respondeat
superior. 	Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th
Cir. 2009).
A municipality may be held liable as a “person”
under 42 U.S.C. § 1983 when it maintains a policy
or custom that causes the deprivation of a
plaintiff’s federally protected rights. 	Monell,
436 U.S. at 694, 98 S. Ct. 2018. 	To state such a
claim, a plaintiff must allege either that (1) ”a
particular municipal action itself violates
federal law, or directs an employee to do so”; or
(2) the municipality, through inaction, failed to
implement adequate policies or procedures to
safeguard its community members’ federally
protected rights. 	Board of Commissioners of
Bryan County v. Brown, 520 U.S. 397, 404, 407–08,
117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997); see
also Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1143 (9th Cir. 2012). 	When, as here, a plaintiff
pursues liability based on a failure to act, she
must allege that the municipality exhibited
deliberate indifference to the violation of her
federally protected rights. 	Tsao, 698 F.3d at
1143.
Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1141 (9th Cir.
2020) (emphasis in Park).
1. 	Claim 8 (Facially Deficient Policies)
Hall acknowledges that HPD has a policy addressing
conflicts of interest, but she contends it is “grossly
inadequate and facially deficient.” 	[Second Amended Complaint
at ¶ 205.] 	The HPD Code of Ethics states, in relevant part: “I
will never act officiously or permit personal feelings,
prejudices, animosities, or friendships to influence my
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decisions. 	With no compromise for crime and with relentless
prosecution of criminals, I will enforce the law courteously and
appropriately without fear or favor, malice or ill will . . . .”
Honolulu Police Department Policy - Organization, Management,
and Administration, Policy Number 2.21 (Dec. 1, 2016),
https://www.honolulupd.org/wp-
content/uploads/2020/01/StandardsofConduct-03-21-2017-20-10-
41.pdf, at art. V. 	Policy Number 2.21, article V prohibits the
alleged violation in this case - Koanui allegedly allowed his
personal feelings and his friendship with Letoto to influence
his decisions as a police officer during the incident at Hall’s
home.
Hall also relies upon Policy Number 8.06, which
states, in relevant part: “An on-duty officer shall prepare a
numbered report each time he or she receives a complaint or
observes a violation of law, motor vehicle collision, or unusual
occurrence.” 	Honolulu Police Department Policy - Auxiliary and
Technical Services, Policy Number 8.06 (Nov. 1, 2016),
https://www.honolulupd.org/wp-
content/uploads/2020/01/PoliceReports-12-15-2016-21-57-49.pdf,
at § II.A. 	This provision also prohibits the alleged violation
in this case - Koanui, an on-duty police officer, refused to
prepare a report when he received a complaint from Hall.
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Neither Policy Number 2.21 nor Policy Number 8.06
directed Koanui to violate Hall’s rights. 	Thus, Claim 8 is
based upon the City’s alleged inaction and failure to implement
adequate polices.
When . . . a plaintiff pursues liability based on
a failure to act, she must allege that the
municipality exhibited deliberate indifference to
the violation of her federally protected rights.
Tsao, 698 F.3d at 1143. . . .
Deliberate indifference is “a stringent
standard of fault, requiring proof that a
municipal actor disregarded a known or obvious
consequence of his action.” 	Brown, 520 U.S. at
410, 117 S. Ct. 1382. 	Deliberate indifference
exists when the need “for more or different”
action “is so obvious, and the inadequacy [of
existing practice] so likely to result in the
violation of constitutional rights, that the
policymakers of the city can reasonably be said
to have been deliberately indifferent to the
need.” 	City of Canton v. Harris, 489 U.S. 378,
390 & n.10, 109 S. Ct. 1197, 103 L.Ed.2d 412
(1989). 	A plaintiff can meet this standard in
one of two ways. 	In some circumstances, the
policy may be so facially deficient that any
reasonable policymaker would recognize the need
to take action. 	Brown, 520 U.S. at 409, 117 S.
Ct. 1382. 	When that is the case, a plaintiff
need point only to the policy itself to establish
that the municipality’s policymakers were on
notice that the plaintiff’s federally protected
rights would likely be violated if they failed to
act. 	See id. 	Alternatively, if the policy is
not obviously, facially deficient, a plaintiff
must ordinarily point to a pattern of prior,
similar violations of federally protected rights,
of which the relevant policymakers had actual or
constructive notice. 	Connick v. Thompson, 563
U.S. 51, 62, 131 S. Ct. 1350, 179 L. Ed. 2d 417
(2011); Clouthier v. County of Contra Costa, 591
F.3d 1232, 1253 (9th Cir. 2010), overruled on
other grounds by Castro [v. Cnty. of Los
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Angeles], 833 F.3d [1060,] 1070 [(9th Cir.
2016)].
Park, 952 F.3d at 1141–42 (alteration in Park) (footnote
omitted). 	The factual allegations in the Second Amended
Complaint do not describe a policy that is “so facially
deficient that any reasonable policymaker would recognize the
need to take action.” 	See id. at 1141.
Nor do the factual allegations describe “a pattern of
prior, similar violations of federally protected rights, of
which the relevant policymakers had actual or constructive
notice.” 	See id. at 1142 (emphasis added). 	Claim 8 therefore
fails to plead a plausible Monell claim based on allegedly
deficient policies and must be dismissed. 	See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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.” (citation and internal quotation marks omitted));
Fed. R. Civ. P. 12(b)(6) (stating the defense of “failure to
state a claim upon which relief can be granted” may be asserted
by motion).
2. 	Claim 9 (Failure to Train and Supervise)
Claim 9 also alleges HPD has facially inadequate
training and supervision regarding officers’ conflicts of
interest. 	[Second Amended Complaint at ¶ 214.] 	In addition,
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Hall alleges the City had “actual and/or constructive knowledge
of instances demonstrating the deficiencies in [HPD’s] training
and supervision,” and therefore the City knew or should have
known that HPD’s training and supervision was inadequate in this
area. 	[Id. at ¶ 220.]
The United States Supreme Court has stated:
A municipality’s culpability for a deprivation of
rights is at its most tenuous where a claim turns
on a failure to train. 	See Oklahoma City v.
Tuttle, 471 U.S. 808, 822–823 (1985) (plurality
opinion) (“[A] ‘policy’ of ‘inadequate training’”
is “far more nebulous, and a good deal further
removed from the constitutional violation, than
was the policy in Monell”). 	To satisfy the
statute, a municipality’s failure to train its
employees in a relevant respect must amount to
“deliberate indifference to the rights of persons
with whom the [untrained employees] come into
contact.” 	Canton, 489 U.S., at 388. 	Only then
“can such a shortcoming be properly thought of as
a city ‘policy or custom’ that is actionable
under § 1983.” 	Id., at 389.
Connick, 563 U.S. at 61 (alterations in Connick). 	Similarly, a
plausible failure-to-supervise claim must allege “that any
violation of his constitutional rights was caused by a county
‘policy’ or ‘governmental “custom.”’” 	See, e.g., Thompson v.
Rahr, 714 Fed. App’x 805, 807 (9th Cir. 2018) (quoting Monell v.
Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978)) (affirming the district
court’s dismissal of the plaintiff’s failure-to-supervise
claims).
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Reading Claim 9 in the context of the Second Amended
Complaint as a whole and in light of the relevant case law, this
Court concludes that Claim 9 is related to Claim 8, and that
Claim 9 fails to state a plausible claim for relief for the same
reasons set forth as to Claim 8. 	Claim 9 must therefore be
dismissed.
3. 	Claim 10 (Ratification)
Claim 10 alleges the 6/4/21 Vanic Response constitutes
ratification of Koanui’s unconstitutional conduct and subjects
the City to liability. 	[Second Amended Complaint at ¶¶ 226-30.]
Another way that municipal liability can be
established is if “an official with final policymaking authority
‘ratifies a subordinate’s decision and the basis for it[.]’”
Jessen v. Cnty. of Fresno, 808 F. App’x 432, 435 (9th Cir. 2020)
(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108
S. Ct. 915, 99 L. Ed. 2d 107 (1988)). 	“Whether a particular
official has final policy-making authority is a question of
state law.” 	Id. (citing Pembaur v. City of Cincinnati, 475 U.S.
469, 483, 106 S. Ct. 1292 (1986) (plurality opinion)). 	This
Court has stated:
“As to matters of police policy, the chief of
police under some circumstances may be considered
the person possessing final policy-making
authority.” 	Trevino v. Gates, 99 F.3d 911, 920
(9th Cir. 1996) (citing Larez v. City of Los
Angeles, 946 F.2d 630, 646 (9th Cir. 1991)).
Under Haw. Rev. Stat. § 52D-3, “[t]he chief of
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police shall have the powers and duties as
prescribed by law, the respective county charter,
and as provided by this chapter.” 	Section 6-1601
of the Revised Charter of the City and County of
Honolulu 1973 (Amended 2017 Edition) (“City
Charter”) states “[t]he chief of police shall be
the administrative head of the police
department.” 	City Charter § 6-1604 governs the
powers, duties, and functions of the chief of
police. 	“The chief of police shall . . .
detect[] and arrest . . . offenders” and
“[t]rain, equip, maintain and supervise the force
of police officers.” 	City Charter § 6-1604(a),
(b). 	Although the “chief [of police] shall serve
at the pleasure of the police commission,” City
Charter § 6-1603(1), “neither the [police]
commission nor its members shall interfere in any
way with the administrative affairs of the
department,” City Charter § 6-1606(h).
Puana v. Kealoha, CIV. NO. 16-00659 LEK-WRP, 2022 WL 604726, at
*14 (D. Hawai`i Feb. 28, 2022) (alterations in Puana). 	This
Court therefore finds, that for purposes of the City Motion, the
Second Amended Complaint plausibly alleges that Interim Chief
Vanic had final, policy-making authority as to the HPD policies
relevant to this case.
The 6/24/21 Vanic Response states: the public is
encouraged to report alleged misconduct by HPD officers to HPD
management; complaints alleging officer misconduct are taken
very seriously; and HPD has investigation and discipline
procedures in place. 	However, Interim Chief Vanic explained
that, pursuant to the collective bargaining agreement between
HPD and the police officers’ union, an administrative
investigation of a complaint against an officer must be
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conducted within one year of the alleged incident. 	[City
Motion, Decl. of Counsel, Exh. A at 1.] 	Interim Chief Vanic
stated that, because Hall submitted a formal complaint to HPD
more than a year after the incident, “by operation of the
collective bargaining agreement, HPD cannot conduct an
administrative investigation against Officer Christopher
Koanui.” 	[Id.] 	He also opined that Koanui’s alleged conflict
of interest “had no role in the initiation of the criminal case
against [Hall]” because Koanui was not the officer who initiated
the criminal case against Hall; another officer did so. 	[Id.]
This Court therefore concludes that, standing alone, the 6/4/21
Vanic Response does not constitute ratification of Koanui’s
allegedly unconstitutional conduct. 	Claim 10 fails to state a
plausible Monell claim based on ratification and must be
dismissed.
B. 	Claims Against Maioho-Pohina
For purposes of the Maioho-Pohina Motion, this Court
accepts Hall’s allegation that Maioho-Pohina was acting as a
supervisor at all relevant times. 	See Second Amended Complaint
at ¶ 197; see also Iqbal, 556 U.S. at 678 (“for the purposes of
a motion to dismiss we must take all of the factual allegations
in the complaint as true”). 	The Ninth Circuit has stated:
We have long permitted plaintiffs to hold
supervisors individually liable in § 1983 suits
when culpable action, or inaction, is directly
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attributed to them. 	We have never required a
plaintiff to allege that a supervisor was
physically present when the injury occurred. 	In
Larez v. City of Los Angeles, 946 F.2d 630 (9th
Cir. 1991), we explained that to be held liable,
the supervisor need not be “directly and
personally involved in the same way as are the
individual officers who are on the scene
inflicting constitutional injury.” 	Id. at 645.
Rather, the supervisor’s participation could
include his “own culpable action or inaction in
the training, supervision, or control of his
subordinates,” “his acquiescence in the
constitutional deprivations of which the
complaint is made,” or “conduct that showed a
reckless or callous indifference to the rights of
others.” 	Id. at 646 (internal citations,
quotation marks, and alterations omitted).
. . . .
We therefore conclude that a plaintiff may
state a claim against a supervisor for deliberate
indifference based upon the supervisor’s
knowledge of and acquiescence in unconstitutional
conduct by his or her subordinates.
. . . .
A defendant may be held liable as a
supervisor under § 1983 “if there exists either
(1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient
causal connection between the supervisor’s
wrongful conduct and the constitutional
violation.” 	Hansen v. Black, 885 F.2d 642, 646
(9th Cir. 1989). 	“[A] plaintiff must show the
supervisor breached a duty to plaintiff which was
the proximate cause of the injury. 	The law
clearly allows actions against supervisors under
section 1983 as long as a sufficient causal
connection is present and the plaintiff was
deprived under color of law of a federally
secured right.” 	Redman [v. Cnty. of San Diego],
942 F.2d [1435,] 1447 [(9th Cir. 1991)] (internal
quotation marks omitted).
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“The requisite causal connection can be
established . . . by setting in motion a series
of acts by others,” id. (alteration in original;
internal quotation marks omitted), or by
“knowingly refus[ing] to terminate a series of
acts by others, which [the supervisor] knew or
reasonably should have known would cause others
to inflict a constitutional injury,” Dubner v.
City & Cnty. of San Francisco, 266 F.3d 959, 968
(9th Cir. 2001). 	“A supervisor can be liable in
his individual capacity for his own culpable
action or inaction in the training, supervision,
or control of his subordinates; for his
acquiescence in the constitutional deprivation;
or for conduct that showed a reckless or callous
indifference to the rights of others.” 	Watkins
v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.
1998) (internal alteration and quotation marks
omitted).
Starr v. Baca, 652 F.3d 1202, 1205–08 (9th Cir. 2011) (some
alterations in Starr).
1. 	Claim 4 - Abuse of Process
Maioho-Pohina argues Hall’s abuse of process claim is
not cognizable under § 1983. 	This district court has stated:
The Ninth Circuit has not determined whether
an abuse of process claim is cognizable under
Section 1983. 	See West [v. City of Mesa], 708 F.
App’x [288,] 292 [(9th Cir. 2017)] (stating,
“[e]ven assuming an abuse of process claim is
cognizable under § 1983 in our circuit,” West
failed to plead sufficient facts to state a
claim). 	Most federal courts to consider the
issue have concluded that there is no
constitutional violation for abuse of process
under Section 1983 without conscience-shocking,
egregious wrongdoing. 	See Martin A. Schwartz,
Section 1983 Claims and Defenses, § 3.18
Malicious Prosecution; Abuse of Civil Process
(4th ed. 2018 Supp.) (collecting cases); Brown v.
Lever, 2018 WL 1903120, at *6 (D. Nev. Apr. 20,
2018) (dismissing abuse of process claim). 	An
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abuse of process claim is essentially a malicious
prosecution clam, which requires a showing that
the defendant prosecuted the plaintiff with
malice, without probable cause, and for the
purpose of denying equal protection or some other
specific constitutional right, and that the
criminal case terminated in favor of the accused.
Lacey v. Maricopa Cty., 693 F.3d 896, 919 (9th
Cir. 2012) (en banc).
Char v. Simeona, CIV. NO. 18-00303 DKW-KJM, 2018 WL 5815519, at
*4 (D. Hawai`i Nov. 6, 2018).
Hall points out that the Ninth Circuit in West
affirmed the dismissal of the plaintiff’s § 1983 abuse of
process claim for failure to state a claim - not because such a
claim is not recognized in the Ninth Circuit - but because the
plaintiff failed to allege sufficient facts regarding the color
of law requirement. 	See West, 708 F. App’x at 292; see also
Navarro v. City of S. Gate, 81 F. App’x 192, 196 (9th Cir. 2003)
(reversing the district court’s grant of summary judgment to the
defendants on, inter alia, the plaintiff’s abuse of process
claim). 	Hall argues the Ninth Circuit looks to the
corresponding state law claim to determine the elements of
common law torts, like abuse of process, in the § 1983 context,
and she urges this Court to use the elements of a malicious
abuse of process claim under Hawai`i law as the elements of the
§ 1983 abuse of process claim. 	[Mem. in Opp. to Maioho-Pohina
Motion at 10 (some citations omitted) (citing Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Young v. Allstate
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Ins. Co., 119 Haw. 403, 412, 198 P.3d 666, 675 (Haw. 2008)). 1 ]
Young defined the elements of an abuse of process claim as:
“(1) an ulterior purpose and (2) a wilful act in the use of the
process which is not proper in the regular conduct of the
proceeding.” 	119 Hawai`i at 412, 198 P.3d at 67. 	Thus, under
Hawai`i law, egregious conduct that shocks the conscience is not
required.
At this stage of the case, the Court need not decide
whether the Hawai`i law elements of an abuse of process claim
also constitute a § 1983 abuse of process claim or whether
egregious conduct that shocks the conscience is required
because, under either standard, Hall fails to plead a plausible
abuse of process claim. 	Hall alleges that, when Maioho-Pohina
arrived at Hall’s home, Koanui was present and Hall told Maioho-
Pohina that Koanui had committed misconduct, but Maioho-Pohina
did nothing to stop the misconduct. 	[Second Amended Complaint
at ¶¶ 67-68, 198.] 	Hall describes other contacts with Maioho-
Pohina in the hours after the incident, as well as a telephone
call the next day. 	According to Hall, although Maioho-Pohina
offered to help Hall, the only additional information Maioho-
1 In Awadby, the Ninth Circuit stated it would “look to
California law . . . because we have incorporated the relevant
elements of the common law tort of malicious prosecution into
our analysis under § 1983.” 	368 F.3d at 1066 (some citations
omitted) (citing Usher v. City of Los Angeles, 828 F.2d 556, 562
(9th Cir. 1987)).
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Pohina provided was a confirmation that Koanui was on duty when
Hall called 911. 	[Id. at ¶¶ 70-72.] 	Hall, however, does not
allege that Maioho-Pohina was aware of Koanui’s alleged conflict
of interest at the time of Maioho-Pohina’s contacts with Hall,
and thus it appears that Maioho-Pohina was not aware of Koanui’s
alleged abuse of power. 	See id. at ¶ 200 (alleging Koanui’s
“conduct—in a situation presenting unambiguous conflicts of
interest—violated Plaintiff’s constitutional rights and
constituted an improper abuse of power”). 	The Second Amended
Complaint does not plead sufficient factual allegations to state
a plausible § 1983 abuse of process claim, either as the claim
is described in Char or as the similar tort claim is defined
under Hawai`i law. 	Claim 4 must therefore be dismissed.
2. 	Claim 5 - Equal Protection
The Equal Protection Clause of the
Fourteenth Amendment requires that persons who
are similarly situated be treated alike. 	See
City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985); Shakur v. Schriro, 514 F.3d
878, 891 (9th Cir. 2008). 	An equal protection
claim may be established by showing that
defendants intentionally discriminated against an
individual based on his or her membership in a
protected class. 	See Comm. Concerning Cmty.
Improvement v. City of Modesto, 583 F.3d 690,
702–03 (9th Cir. 2009); Serrano v. Francis, 345
F.3d 1071, 1082 (9th Cir. 2003); Lee [v. City of
Los Angeles], 250 F.3d [668,] 686 [(9th Cir.
2001)]. . . .
An equal protection claim can also be stated
by a showing that defendants intentionally
treated similarly situated individuals
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differently without a rational relationship to a
legitimate state purpose. 	See Engquist v. Or.
Dep’t of Agric., 553 U.S. 591, 601–02 (2008);
Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546
F.3d 580, 592 (9th Cir. 2008).
Makanani v. Wagutsuma, CIV. NO. 19-00546 JAO-RT, 2019 WL
7373030, at *4 (D. Hawai`i Dec. 31, 2019).
Hall alleges her rights to equal protection were
violated when: the officers refused to file a report against
Letoto, even though Hall wanted to pursue a complaint; the
officers filed a false misleading report against Hall, with
Letoto as the purported victim; and the officers interrogated
and arrested Hall without probable cause, while Letoto was not
arrested. 	[Second Amended Complaint at ¶ 185.] 	Hall relies
upon her membership in a protected class - her attempt to
exercise her First Amendment rights by pursuing a police
complaint against Letoto. 	[Id. at ¶ 189.] 	When Maioho-Pohina
arrived, she was acting in a supervisory capacity, 2 [id. at
¶ 197,] and Hall “explained the multiple ways in which Officer
Koanui had committed misconduct against [Hall]” to Maioho-
2 At the hearing, Hall’s counsel argued Claim 5 also pleads
a plausible § 1983 equal protection claim against Maioho-Pohina,
based on Maioho-Pohina’s direct liability, without regard to her
role as a supervisor. 	This Court, however, declines to address
that argument because the Second Amended Complaint does not
plead a factual basis for that theory of liability, and
therefore this Court does not construe Claim 5 as asserting a
direct liability claim against Maioho-Pohina.
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Pohina, 3 [id. at ¶ 198]. 	However, Maioho-Pohina failed to act to
stop the violation of Hall’s constitutional rights. 	[Id. at
¶¶ 200-03.] 	In addition, Hall asserts a class-of-one theory,
based on the fact that Letoto, a similarly situated person who
received more favorable treatment than Hall received, was a
friend and business partner of Koanui, and Hall was not. 	[Id.
at ¶¶ 187-88.] 	Hall’s factual allegations are sufficient to
state a plausible § 1983 equal protection claim.
Maioho-Pohina also urges this Court to dismiss Hall’s
equal protection claim based on qualified immunity. 	The Ninth
Circuit has stated:
Qualified immunity “shields government officials
performing discretionary functions from liability
for civil damages ‘insofar as their conduct does
not violate clearly established statutory or
constitutional rights of which a reasonable
person would have known.’” 	Scott v. Henrich, 39
F.3d 912, 914 (9th Cir. 1994) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
73 L. Ed. 2d 396 (1982)). 	When an officer claims
qualified immunity, we ask “(1) whether there has
been a violation of a constitutional right; and
(2) whether that right was clearly established at
the time of the officer’s alleged misconduct.”
Jessop v. City of Fresno, 936 F.3d 937, 940 (9th
Cir. 2019) (quoting Lal v. California, 746 F.3d
1112, 1116 (9th Cir. 2014)). 	Courts have
discretion to decide which of the two prongs
3 Koanui’s conflict of interest because of his pre-existing
relationship with Letoto was not among the alleged misconduct
that Hall reported to Maioho-Pohina because Hall was not aware
of the relationship at that time. 	See Second Amended Complaint
at ¶ 73 (“In the following days, Plaintiff was shocked to learn
that Defendant Officer Koanui was, in fact, the co-owner of
Exceptional Obedience, along with Defendant Letoto.”).
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“should be addressed first in light of the
circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236, 129 S.
Ct. 808, 172 L. Ed. 2d 565 (2009). 	“Addressing
the second prong before the first is especially
appropriate where ‘a court will rather quickly
and easily decide that there was no violation of
clearly established law.’” 	Jessop, 936 F.3d at
940 (quoting Pearson, 555 U.S. at 239, 129 S. Ct.
808).
Saved Mag. v. Spokane Police Dep’t, 19 F.4th 1193, 1198 (9th
Cir. 2021).
Law enforcement officials are entitled to
qualified immunity even where their conduct
violated a constitutional right unless that right
was clearly established at the time of the
violation. 	Saucier v. Katz, 533 U.S. 194, 202,
121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). 	The
dispositive inquiry is whether “it would be clear
to a reasonable officer that his conduct was
unlawful in the situation he confronted.” 	Id.
Thus, our “task is to determine whether the
preexisting law provided the defendants with
‘fair warning’ that their conduct was unlawful.”
Flores [v. Morgan Hill Unified Sch. Dist.], 324
F.3d [1130,] 1136–37 [(9th Cir. 2003)] (quoting
Hope v. Pelzer, 536 U.S. 730, 740, 122 S. Ct.
2508, 153 L. Ed. 2d 666 (2002)).
Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010).
Based on the analysis regarding whether Hall pleads a
plausible § 1983 equal protection claim, there are sufficient
allegations to satisfy the first factor of the qualified
immunity analysis, for purposes of a motion to dismiss. 	As to
the second factor, the right to non-discriminatory treatment by
law enforcement when reporting a crime is well established. 	See
id. (“The right to non-discriminatory administration of
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protective services is clearly established.”). 	The Maioho-
Pohina Motion is denied, to the extent that it seeks dismissal
of Claim 5 on the basis of qualified immunity. 	The denial is
without prejudice to Maioho-Pohina revisiting the issue at
summary judgment or at trial, if warranted by the evidence at
that time.
3. 	Claim 7 - Supervisor Liability
Claim 7 merely pleads the theory of liability that
supports Claims 4 and 5. 	As the three claims are currently
pled, Claim 7 does not plead a claim for relief which is
separate and distinct from Claims 4 and 5. 	The Maioho-Pohina
Motion is therefore granted, insofar as Claim 7 is dismissed.
III. Summary and Leave to Amend
The Maioho-Pohina Motion has been denied as to Hall’s
claim against Maioho-Pohina in Claim 5, but the Maioho-Pohina
Motion has been granted, insofar as Hall’s claims against
Maioho-Pohina in Claims 4 and 7 have been dismissed. 	The City
Motion has been granted, insofar as all of Hall’s claims against
the City - Claims 8, 9, and 10 - have been dismissed. 	The City
and Maioho-Pohina argue the dismissal of these claims should be
with prejudice because Hall has already had two opportunities to
amend her original complaint in this case.
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A. 	Punitive Damages
This Court turns first to Hall’s request for an award
of punitive damages against the City. 	See Second Amended
Complaint at pg. 60, ¶ G. 	“It is well established that a
municipality is immune from punitive damages pursuant to 42
U.S.C. § 19[8]3 . . . .” 	Hyer v. City & Cnty. of Honolulu, CIV.
NO. 19-00586 HG-RT, 2020 WL 7038953, at *16 (D. Hawai`i Nov. 30,
2020) (citing Newport v. Fact Concerts, 453 U.S. 247, 271
(1981)). 	Because it is not possible for Hall to obtain an award
of punitive damages in her Monell claims against the City, Hall
will not be permitted to re-assert her request for an award of
punitive damages against the City.
B. 	All Other Portions of the Dismissed Claims
“Dismissal 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.” 	See Hoang v. Bank
of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018) (quotation
marks and citation omitted)). 	Often, the failure to cure
defects in prior opportunities to amend “is a strong indication
that the plaintiffs have no additional facts to plead.” 	See
Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th
Cir. 2009) (citation and internal quotation marks omitted). 	In
light of the procedural history of this case, and having
considered the representations made by Hall during the hearing
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about the theories behind her claims, this Court finds that it
may be possible to save the dismissed claims by amendment. 	The
dismissal of Claims 8, 9, and 10, and Hall’s claims against
Maioho-Pohina in Claims 4 and 7 must therefore be without
prejudice.
Although it is theoretically possible for Hall to cure
the defects in her claims by amendment, the fact that this will
be the fourth version of Hall’s pleading suggests that she may
be unable to cure the defects. 	Therefore, Hall is not granted
leave to file a third amended complaint. 	Hall must file a
motion for leave to file a third amended complaint, and such
motion will be considered by the magistrate judge.
CONCLUSION
For the foregoing reasons, the City’s Motion to
Dismiss Second Amended Complaint Filed October 28, 2021 and
Maioho-Pohina’s Motion to Dismiss Second Amended Complaint Filed
October 28, 2021, both filed November 12, 2021, are HEREBY
GRANTED IN PART AND DENIED IN PART. 	The City Motion is GRANTED,
insofar as all of Hall’s claims against the City are DISMISSED.
The City Motion is DENIED, insofar as the dismissal is WITHOUT
PREJUDICE. 	The City Motion is also GRANTED, insofar as Hall’s
proposed third amended complaint may not include a request for
punitive damages against the City.
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The Maioho-Pohina Motion is GRANTED, insofar as Hall’s
claims against Maioho-Pohina in Claim 4 and Claim 7 are
DISMISSED. 	The Maioho-Pohina Motion is DENIED as to Hall’s
claim against Maioho-Pohina in Claim 5, and the motion is
DENIED, insofar as the dismissal of Hall’s claims against
Maioho-Pohina in Claim 4 and Claim 7 is WITHOUT PREJUDICE.
Hall is GRANTED permission to file a motion seeking
leave to file a third amended complaint. 	Hall’s motion for
leave must be filed by May 26, 2022, and it will be considered
by the magistrate judge. 	If Hall does not file a motion for
leave, the claims that were dismissed without prejudice in this
Order will be dismissed with prejudice, and the case will
proceed as to the remaining claims in Hall’s Second Amended
Complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 26, 2022.
ROBIN HALL VS. CITY AND COUNTY OF HONOLULU, ET AL; CV 21-00248
LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CITY AND COUNTY OF HONOLULU’S AND DEFENDANT DEBRA MAIONO-
POHINA’S MOTIONS TO DISMISS
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