Spriestersbach v. State of Hawaii

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
JOSHUA SPRIESTERSBACH,
Plaintiff,
vs.
STATE OF HAWAII, 	CITY AND
COUNTY OF HONOLULU, OFFICER
ABRAHAM K. BRUHN, 	DEPARTMENT OF
PUBLIC SAFETY, 	OFFICE OF THE
PUBLIC DEFENDER, NIETZSCHE LYNN
TOLAN, MICHELLE MURAOKA, LESLIE
MALOIAN, JACQUELINE ESSER, JASON
BAKER, MERLINDA GARMA, SETH
PATEK, DR. JOHN COMPTON, DR.
MELISSA VARGO, DR. SHARON TISZA,
HAWAII STATE HOSPITAL, DR.
ALLISON GARRETT, 	JOHN/JANE DOES
1-20,
Defendants.
CIV. NO. 21-00456 LEK-RT
ORDER GRANTING IN PART AND DENYING IN PART THE PD DEFENDANTS’
MOTION TO DISMISS PLAINTIFF JOSHUA SPRIESTERSBACH’S
FIRST AMENDED COMPLAINT FILED ON OCTOBER 18, 2023
On November 1, 2023, Defendants Office of the Public
Defender (“OPD”), Nietzsche Lynn Tolan, Michele Muraoka, Lesley
Maloian, Jason Baker, and Seth Patek (collectively “PD
Defendants”) filed their Motion to Dismiss Plaintiff Joshua
Spriestersbach’s First Amended Complaint Filed on October 18,
2023, and on November 14, 2023 they filed an errata to the
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motion. 1 [Dkt. nos. 261, 267.] Plaintiff Joshua Spriestersbach
(“Spriestersbach”) filed his memorandum in opposition on
December 29, 2023, and the PD Defendants filed their reply on
January 12, 2024. [Dkt. nos. 297, 307.]
This matter came on for hearing on February 12, 2024. 2
The PD Defendants’ Motion is hereby granted in part and denied
in part for the reasons set forth below. The Motion is granted
insofar as all of Spriestersbach’s claims against the
PD Defendants are dismissed, and the Motion is denied insofar as
the dismissal is without prejudice, except for Spriestersbach’s
legal malpractice claim against OPD. That claim is dismissed
with prejudice in the instant case, but the dismissal is without
prejudice to the filing of the claim in state court.
BACKGROUND
Spriestersbach filed his original Complaint on
November 21, 2021. [Dkt. no. 1.] The operative pleading is his
October 18, 2023 First Amended Complaint (“Amended Complaint”).
[Dkt. no. 250.] This Court previously issued an order addressing
some of Spriestersbach’s claims in the original Complaint. See
Order: Granting in Part and Denying in Part Defendant City and
1 The PD Defendants’ motion, as amended by their errata,
will be referred to as the “Motion.”
2 The PD Defendants’ Motion was heard with three other
motions, which will be addressed in separate orders.
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County of Honolulu’s Motion for Judgment on the Pleadings;
Granting Defendant Dr. Sharon Tisza’s Motion to Dismiss
Complaint; and Granting Defendants Dr. John Compton and
Dr. Melissa Vargo’s Substantive Joinder in Defendant Dr. Sharon
Tisza’s Motion to Dismiss Complaint, filed 8/18/22 (dkt.
no. 151) (“8/18/22 Order”). 3
The case arises from Spriestersbach’s May 11, 2017
arrest and prosecution for crimes committed by Thomas R.
Castleberry and Spriestersbach’s subsequent detention and civil
commitment related to that arrest until January 17, 2020. See
Complaint, filed 11/21/21 (dkt. no. 1), at ¶¶ 2, 4. Relevant to
the instant Motion, the claims in the Amended Complaint are: 4
-a disability discrimination claim against Defendant City and
County of Honolulu (“the City”) and OPD, based upon
violations of the Americans with Disabilities Act (“ADA”),
Title 42 United States Code Section 12101, et seq.
(“Count III”);
-an intentional infliction of emotional distress (“IIED”) claim
against Defendants Nietzsche Lynn Tolan, Michele Muraoka,
Lesley Maloian, Jason Baker, and Seth Patek (collectively
“Individual PD Defendants”), the City, Defendant Allison
Garrett, M.D. (“Dr. Garrett”), and Doe Defendants 11-15
(“Count XI”);
3 The 8/18/22 Order is also available at 622 F. Supp. 3d
948.
4 The claims that are not alleged against the PD Defendants,
including Spriestersbach’s claims against Doe Defendants 1-10
and Doe Defendants 16-20, are not relevant to his claims against
the PD Defendants and will not be addressed in this Order. Doe
Defendants 11-15 are unknown public defenders. See Amended
Complaint at ¶ 152.
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-a negligent infliction of emotional distress (“NIED”) claim
against the City, the Individual PD Defendants,
Dr. Garrett, and Doe Defendants 11-15 (“Count XII”); and
-a legal malpractice claim against the PD Defendants and Doe
Defendants 11-15 (“Count XIII”).
Only the factual allegations relevant to
Spriestersbach’s claims against the PD Defendants will be
addressed in this Order.
On May 11, 2017, Honolulu Police Department (“HPD”)
officers arrested Spriestersbach based upon a bench warrant
issued for Thomas R. Castleberry and transported him to HPD’s
Central Police Station. [Amended Complaint at ¶ 79.] The arrest
report listed “Joshua Spriestersbach” as the defendant and
included his state identification number, birth date, and social
security number. The arrest report also listed “Thomas R.
Castleberry” as an alias, with Thomas Castleberry’s social
security number. [Id. at ¶¶ 99-100.] On May 12, 2017,
Spriestersbach was transported to the State of Hawai`i First
Circuit Court (“state court”) and later to Defendant Department
of Public Safety’s Oahu Community Correctional Center (“OCCC”).
[Id. at ¶ 142.]
Defendant Nietzsche Lynn Tolan, a Deputy Prosecuting
Attorney (“Tolan”), was appointed to represent Spriestersbach. 5
5 The case was State of Hawai`i v. Thomas R. Castleberry,
Case No. 1PC-06-1-001421 (“Castleberry Criminal Case”).
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Before his first court hearing, Spriestersbach told Tolan that
he was not Thomas Castleberry and that he was not on O`ahu when
Castleberry’s crimes were committed. Spriestersbach also
provided his personal identifying information to Tolan.
According to Spriestersbach, Tolan did not attempt to verify his
statements, and instead requested an evaluation by a three-
doctor panel to determine whether Spriestersbach was fit to
proceed (“competency evaluation”). The state court granted the
request and appointed a panel. 6 [Id. at ¶¶ 146-49.]
Spriestersbach was held at Defendant Hawai`i State
Hospital’s facility (“HSH”) under the name Thomas R. Castleberry
while the competency evaluation and related hearings were
pending. During that time, Spriestersbach was represented by six
other deputy public defenders, including Defendants Michelle
Muraoka (“Muraoka”), Lesley Maloian (“Maloian”), Jason Baker
(“Baker”), Seth Patek (“Patek”), and Doe Defendants 11-15. None
of the deputy public defenders who represented Spriestersbach
verified the information that he gave them when he attempted to
6 The three doctors appointed to the panel were Dr. John
Compton, Dr. Melissa Vargo, and Dr. Sharon Tisza (collectively
“the Examiner Defendants”). [Amended Complaint at ¶¶ 16, 148.]
The Amended Complaint refers to them as the “Medical
Defendants,” [id. at pg. 2 n.1,] and as the “Individual
Psychiatric and Psychological Defendants,” [id. at ¶ 16].
Spriestersbach’s claims against the Examiner Defendants were
dismissed with prejudice. See 8/18/22 Order, 622 F. Supp. 3d at
971.
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show that he was not Thomas Castleberry. [Id. at ¶ 149.] The
Individual PD Defendants used Spriestersbach’s protests that he
was not Thomas Castleberry as evidence that he was incompetent.
Spriestersbach provided them with his real name, birth date, and
social security number. Even though they had access to his
records and files, until 2020, no one attempted to confirm his
claim that he was not Thomas Castleberry. [Id. at ¶¶ 152-53.]
According to the Amended Complaint, on January 20,
2020, after Spriestersbach had been released from HSH, Patek and
Doe Defendants 11-15 met with “representatives of the attorney
general, and the prosecutor all met in court in an off the
record session, without notice to [Spriestersbach] and without
him being present. These representatives discussed
[Spriestersbach]’s release from the hospital, and they worked
collectively to cover up [Spriestersbach]’s false imprisonment
and unwanted medical treatment.” [Id. at ¶ 160.]
Spriestersbach argues generally that:
At all times relevant to this case the
Defendants acted recklessly, willfully and with
deliberate indifference to the rights and health
of [Spriestersbach]. Defendants, individually and
collectively, owed a duty to [Spriestersbach] and
breached their duty to [Spriestersbach] by
failing to investigate and confirm his identity
so that he would not be unlawfully held in
custody for someone else’s crimes.
[Id. at ¶ 164.]
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In the instant Motion, the PD Defendants ask this
Court to take judicial notice of the following:
-docket number 54 in the Castleberry Criminal Case, which is the
“Bench Warrant/Return of Service for Bench Warrant, a true
and correct copy, Bates-stamped OPD 000001,” with the
handwritten notation of Spriestersbach’s name (“Castleberry
Warrant”); see Motion, Mem. in Supp. at 4 (emphasis
omitted); see also Motion, Declaration of Justine Hura
(“Hura Decl.”), Exh. A (Castleberry Warrant);
-the docket sheet in the Castleberry Criminal Case, Bates-
stamped OPD 000003-19; Motion, Mem. in Supp. at 4-5; see
also Hura Decl., Exh. B;
-the May 12, 2017 Order Pertaining to Bail in the Castleberry
Criminal Case, Bates-stamped OPD 000002; Motion, Mem. in
Supp. at 5; see also Hura Decl., Exh. C;
-the Notice of Setting filed as docket number 173 in the
Castleberry Criminal Case; Motion, Mem. in Supp. at 5; see
also Hura Decl., Exh. D; and
-docket entry 175 in the Castleberry Criminal Case, the
January 22, 2020 minutes of a status conference in
chambers, [Motion, Mem. in Supp. at 5].
The PD Defendants argue Spriestersbach’s claims
against them should be dismissed because he fails to state a
claim upon which relief can be granted. [Id. at 25.] The PD
Defendants assert: Spriestersbach’s state law claims against OPD
are precluded because of sovereign immunity; [id. at 24;] the
factual allegations of the Amended Complaint do not support any
plausible claims against the PD Defendants; [id. at 9-18;];
Count III fails to state a plausible ADA claim against OPD; [id.
at 19-24;] and the Individual PD Defendants are entitled to the
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conditional privilege as to Spriestersbach’s state law claims,
[id. at 18-19].
DISCUSSION
I. 	Judicial Notice
The PD Defendants ask this Court to take judicial
notice of the docket and certain filings in the Castleberry
Criminal Case. [Id. at 4-5.]
Generally, district courts may not consider
material outside the pleadings when assessing the
sufficiency of a complaint under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Lee v. City
of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001).[ 7 ] When “matters outside the pleading are
presented to and not excluded by the court,” the
12(b)(6) motion converts into a motion for
summary judgment under Rule 56. Fed. R. Civ.
P. 12(d). Then, both parties must have the
opportunity “to present all the material that is
pertinent to the motion.” Id.
Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th
Cir. 2018). Judicial notice under Federal Rule of Evidence 201
is one of the exceptions to this general rule. Id.
Judicial notice under Rule 201 permits a
court to notice an adjudicative fact if it is
“not subject to reasonable dispute.” Fed. R.
Evid. 201(b). A fact is “not subject to
reasonable dispute” if it is “generally known,”
7 Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125–26
(9th Cir. 2002), overruled Lee on grounds not relevant to the
issues presented in the instant Motion. See, e.g., Cortez v.
Klique Car Club, Inc., Case No. 2:23-cv-07210-MEMF-MAA, 2024 WL
988374, at *1 (C.D. Cal. Mar. 6, 2024). Galbraith was abrogated
on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). See, e.g., Higa v. Kobayashi, CIV. NO. 19-00664 LEK-WRP,
2020 WL 2027290, at *4 (D. Hawai`i Apr. 27, 2020).
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or “can be accurately and readily determined from
sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(1)–(2).
Accordingly, “[a] court may take judicial
notice of matters of public record without
converting a motion to dismiss into a motion for
summary judgment.” Lee, 250 F.3d at 689
(quotation marks and citation omitted). But a
court cannot take judicial notice of disputed
facts contained in such public records. Id.
Id. at 999 (some alterations in Khoja). Public records that a
district court can take judicial notice of include “documents
filed with courts, ‘both within and without the federal judicial
system, if those proceedings have a direct relation to the
matters at issue.’” Bartolotti v. Maui Mem’l Med. Ctr., Civil
No. 14-00549 SOM/KSC, 2015 WL 4545818, at *3 (D. Hawai`i
July 28, 2015) (quoting United States v. Borneo, Inc., 971 F.2d
244, 248 (9th Cir. 1992)). This Court therefore grants the
PD Defendants’ request and takes judicial notice of the docket
in the Castleberry Criminal Case and the specific filings
identified in the Motion, but this Court does not take judicial
notice of the disputed facts within those filings.
II. 	Eleventh Amendment Immunity
This Court turns first to the PD Defendants’ Eleventh
Amended immunity argument. “The ultimate guarantee of the
Eleventh Amendment is that nonconsenting States may not be sued
by private individuals in federal court.” Bd. of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (citation omitted);
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see also U.S. Const., amend. XI. “It is well established that
agencies of the state are immune under the Eleventh Amendment
from private damages or suits for injunctive relief brought in
federal court.” Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d
923, 928 (9th Cir. 2017) (citation and quotation marks omitted);
see also P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 144 (1993) (“Absent waiver, neither a State nor
agencies acting under its control may be subject to suit in
federal court.” (citations and internal quotation marks
omitted)). As such, “[s]tates, their agencies, and their
officials in their official capacities are immune from damage
suits under state or federal law by private parties in federal
court unless there is a valid abrogation of that immunity or an
unequivocal express waiver by the state.” 8 Monet v. Hawai`i, Civ.
No. 11-00211 SOM/RLP, 2011 WL 2446310, at *4 (D. Hawai`i
June 14, 2011) (some citations omitted) (citing Sossamon v.
Tex., 131 S. Ct. 1651, 1658 (2011)).
OPD is a state agency for purposes of the Eleventh
Amendment. See Daniels v. Novant Health, Inc., Case No. 22-cv-
00295-DKW-WRP, 2023 WL 3434933, at *3 (D. Hawai`i May 12, 2023)
(“the State of Hawai`i itself, the Department of Public Safety,
the Department of Transportation, [and] the Office of the Public
8 The Individual PD Defendants are only being sued in their
individual capacity. See Amended Complaint at ¶ 15.
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Defender . . . each qualifies as ‘a state, an arm of the state,
its instrumentalities, or its agencies’” (some internal
quotation marks omitted) (quoting Franceschi v. Schwartz, 57
F.3d 828, 831 (9th Cir. 1995))); see also Haw. Rev. Stat.
§ 802-8 (“An office of state public defender is hereby created
within the department of budget and finance for administrative
purposes.”).
In the ADA, Congress abrogated the states’ Eleventh
Amendment immunity “insofar as Title II creates a private cause
of action for damages against the States for conduct that
actually violates the Fourteenth Amendment.” United States v.
Georgia, 546 U.S. 151, 159 (2006) (emphasis in original). The PD
Defendants appear to acknowledge this, and they seek only the
dismissal of Spriestersbach’s state law claims against OPD based
on sovereign immunity. See Motion, Mem. in Supp. at 24. The only
state law claim that Spriestersbach asserts against OPD is
Count XIII, his legal malpractice claim. See Amended Complaint
at pg. 62. This Court concludes that Spriestersbach’s claim
against OPD in Count XIII is barred by OPD’s Eleventh Amendment
immunity and must be dismissed because Spriestersbach fails to
state a claim upon which relief can be granted. See Fed. R. Civ.
P. 12(b)(6).
“Dismissal with prejudice and without leave to amend
is not appropriate unless it is clear . . . that the complaint
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could not be saved by amendment.” Hoang v. Bank of Am., N.A.,
910 F.3d 1096, 1102 (9th Cir. 2018) (citation and quotation
marks omitted)). Because it is clear that Spriestersbach cannot
cure the defect in his legal malpractice claim against OPD by
amendment, the dismissal of Spriestersbach’s claim against OPD
in Count XIII is with prejudice. However, the dismissal is
without prejudice to an attempt to assert the claim in state
court. 9
III. ADA Claim
Title II of the ADA
prohibits a public entity from discriminating
against any “qualified individual with a
disability.” Sheehan v. City and Cnty. of San
Francisco, (Sheehan I), 743 F.3d 1211, 1231 (9th
Cir.) cert. granted sub nom., 574 U.S. 1021
(2014), and rev’d in part, cert. dismissed in
part sub nom. City and Cnty. of San Francisco,
Calif., (Sheehan II), 575 U.S. 600, 617 (2015).
Title II of the ADA was expressly modeled
after Section 504 of the Rehabilitation Act,
which provides:
No otherwise qualified individual with a
disability shall, solely by reason of her or
his disability, be excluded from the
participation in, be denied the benefits of,
or be subjected to discrimination under any
program or activity receiving Federal
financial assistance.
29 U.S.C. ¶ [sic] 794.
9 This Court makes no findings or conclusions regarding the
merits of Spriestersbach’s legal malpractice claim against OPD.
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To state a claim pursuant to Title II of the
ADA, a plaintiff must show:
(1) 	she is an individual with a disability;
(2) 	she was excluded from participation in
or otherwise discriminated against with
regard to the public entity’s services,
programs, or activities; and,
(3) 	such exclusion or discrimination was by
reason of her disability.
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.
2002).
Taylor v. City & Cnty. of Honolulu, 666 F. Supp. 3d 1098, 1127
(D. Hawai`i 2023), appeal filed (9th Cir. Apr. 6, 2023).
A. 	Public Entity
The PD Defendants first argue that Spriestersbach’s
ADA claim against OPD should be dismissed because OPD is not a
“public entity” for purposes of Title II of the ADA. [Motion,
Mem. in Supp. at 22 (citing Walker v. City of New York, 2022 WL
4539514 (E.D.N.Y. 2002)).] The ADA provides that, for purposes
of Title II:
The term “public entity” means--
(A) 	any State or local government;
(B) 	any department, agency, special purpose
district, or other instrumentality of a
State or States or local government; and
(C) 	the National Railroad Passenger
Corporation, and any commuter authority (as
defined in section 24102(4) of Title 49).
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42 U.S.C. § 12131. As previously stated, OPD is an agency of the
State of Hawai`i. Thus, a plain language reading of
Section 12131 suggests that OPD is a public entity for purposes
of ADA Title II. This Court is not aware of any binding legal
authority addressing the issue of whether a state or local
public defender’s office is a public entity for purposes of ADA
Title II, nor have the parties identified any binding authority
addressing that issue.
The PD Defendants rely primarily on Walker as
persuasive authority. This Court has considered the ADA Title II
analysis in Walker and concludes that it is not persuasive. The
plaintiff, Michael Walker (“Walker”), brought claims under Title
42 United States Code Section 1983, ADA claims, and other claims
against the City of New York, alleging the city
violated his rights under the ADA . . . and
failed to protect his constitutional rights by
(i) failing to train and supervise the Brooklyn
Defender Services (“BDS”) attorney who
represented Plaintiff in his criminal case,
(ii) failing to accommodate Plaintiff’s visual
impairments, and (iii) creating a policy or
custom that resulted in the deprivation of
Plaintiff’s rights. In particular, Plaintiff
alleges that the BDS counsel who represented
Plaintiff in his criminal proceeding failed to
accommodate Plaintiff’s visual impairment when
she visited him in prison and during his criminal
proceeding.
Walker v. City of New York, 20-CV-5240(PKC)(TAM), 2022 WL
4539514, at *1 (E.D.N.Y. Sept. 28, 2022) (citations omitted).
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In ruling that Walker’s ADA claim failed, the district
court cited its Section 1983 analysis and concluded that the
City of New York was not liable for the actions of Walker’s BDS
counsel. Id. at *5 (citing Browdy v. Karpe, 131 F. App’x 751,
753–54 (2d Cir. 2005) (summary order) (“[Plaintiff’s] ADA claims
also were properly dismissed because he has sued his [public
defenders], not [a] public entity[.]”)). The plaintiff in Browdy
attempted to sue a Connecticut public defender and Connecticut’s
chief public defender, who were “employees of the Connecticut
Public Defender Services, a state agency.” 131 F. App’x at 752-
53. There is no indication in the Second Circuit’s opinion that
the agency itself was named a defendant. The Second Circuit’s
holding was essentially that the individual public defenders
could not be sued under Title II of the ADA. See id. at 754
(“Browdy’s ADA claims . . . were properly dismissed because he
has sued his lawyers, not the public entity that provides
competency hearings. Moreover, Title II of that statute does not
provide for individual capacity suits against state officials.”
(citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280
F.3d 98, 107 (2d Cir. 2001))). In Walker, the district court’s
reliance on Browdy is misplaced because the conclusion that
individual public defenders could not be public entities does
not require a conclusion that the government agency that employs
the public defenders cannot be public entity.
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This Court also disagrees with the ADA analysis in
Walker because the district court relied on its analysis of
Walker’s Section 1983 claims. The district court stated,
public defenders do “not act under color of state
law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal
proceeding.” Polk Cty. v. Dodson, 454 U.S. 312,
325 (1981). In other words, public defenders are
not state actors, Georgia v. McCollum, 505 U.S.
42, 53 n.9 (1992), and their actions therefore
cannot be “the moving force of the constitutional
violation [that can] establish the liability of a
government body under § 1983,” Polk Cnty, [sic]
454 U.S. at 326 (citation and internal quotation
marks omitted). This is true even if “the state
pays for the services [public defenders]
provide.” Milan v. Wertheimer, 808 F.3d 961, 964
(2d Cir. 2015)
Walker, 2022 WL 4539514, at *4 (some alterations in Walker)
(footnote omitted). However, the statement in Polk County that
“a public defender does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding” was made in the analysis of
the plaintiff’s Section 1983 claims against the individual
public defender. See Polk Cnty., 454 U.S. at 314, 325. Moreover,
the Section 12131 definition of a public entity does not contain
“color of law” language such as in Section 1983. See 42 U.S.C.
§ 1983 (“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
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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 . . . .”).
For all of these reasons, this Court declines to
follow Walker. Based on the plain language reading of
Section 12131, this Court concludes that OPD is a public entity
for purposes of Title II of the ADA.
B. 	Sufficiency of the Allegations
Spriestersbach states that he
suffers from a “disability” within the meaning
and scope of 42 U.S.C. § 12102.[ 10 ] In particular,
Joshua’s disability and the perception of him by
those in authority makes it difficult for his
statements of fact about his identity to be
trusted; makes his statements regarding his
10 Title 42 United States Code Section 12102(1) states, in
relevant part:
The term “disability” means, with respect to an
individual—
(A) 	a physical or mental impairment that
substantially limits one or more major life
activities of such individual;
(B) 	a record of such an impairment; or
(C) 	being regarded as having such an
impairment (as described in paragraph (3)).
42 U.S.C. § 12102(1). The definitions in Section 12102 apply
Title 42, Chapter 126, which consists of the four titles of the
ADA.
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understanding of legal proceedings to be
discounted; and causes him to be confused, all
resulting in difficulty in locating and staying
in touch with his mother and sister and other
family, difficulty in expressing his mental
health treatment needs, and otherwise meeting his
daily medical, shelter, food, and mental health
needs. Thus his disability substantially
interferes with his ability to work, secure food,
secure housing, navigate interactions with police
and persons in authority, and remain safe without
reasonable accommodation.
Amended Complaint at ¶ 189; see also id. at ¶ 49 (alleging that,
on April 14, 2011, one of Spriestersbach’s sisters made a
missing person report with the City and stated that
Spriestersbach “had been diagnosed with, inter alia
schizophrenia and bipolar disorder”). For purposes of the
instant Motion, this Court assumes that the factual allegations
in the Amended Complaint are true. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“for the purposes of a motion to dismiss
we must take all of the factual allegations in the complaint as
true” (citation omitted)). This Court therefor concludes that
the Amended Complaint’s factual allegations, if proven, would
establish that Spriestersbach is an individual with a disability
for purposes of the ADA.
The service that OPD provides is legal representation
for indigent persons under certain circumstances.
Any indigent person who is:
(1) 	Arrested for, charged with, or
convicted of an offense or offenses
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punishable by confinement in jail or prison
or for which the person may be or is subject
to the provisions of chapter 571;
(2) 	Threatened by confinement, against the
indigent person’s will, in any psychiatric
or other mental institution or facility;
(3) 	The subject of a petition for assisted
community treatment under chapter 334; or
(4) 	The subject of a petition for
involuntary medical treatment under
chapter 353,
shall be entitled to be represented by a public
defender. . . .
Haw. Rev. Stat. § 802-1(a). Spriestersbach alleges OPD denied
him its services – i.e., reasonable legal representation -
because OPD “is vicariously liable for the acts of” the
Individual PD Defendants and because OPD “fail[ed] to provide
reasonable accommodations for [Spriestersbach], including
through its failure to provide reasonable training and policies
accommodating or interacting with the mentally ill.” See Amended
Complaint at ¶ 197.
Vicarious liability applies in ADA Title II claims.
See Reed v. Fox, No. 2:19-cv-0275 AC P, 2023 WL 6930802, at *8
(E.D. Cal. Oct. 19, 2023) (“When a plaintiff brings suit under
. . . Title II of the ADA against a public entity, that entity
is vicariously liable for the acts of its employees.” (citing
Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir.
2001))). However, because Spriestersbach seeks damages as to all
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claims, see Amended Complaint at pg. 64, he will ultimately be
required to prove intentional discrimination in connection with
his ADA claim against OPD. See Duvall, 260 F.3d at 1138.
Spriestersbach has not pled factual allegations that are
sufficient to support a reasonable inference that the Individual
PD Defendants intentionally discriminated against him. See
Iqbal, 556 U.S. at 678 (“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.
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.” (citations and internal quotation marks omitted)).
Spriestersbach relies upon Tolan’s decision to request
a competency evaluation instead of investigating
Spriestersbach’s assertion that he was not Thomas Castleberry.
See Amended Complaint at ¶¶ 146-48. Spriestersbach also alleges
the other Individual PD Defendants also failed to verify his
assertion that he was not Thomas Castleberry. [Id. at ¶ 149.]
However, Spriestersbach does not include any specific factual
allegations regarding the representation provided by Muraoka,
Maloian, Baker, and Patek while Spriestersbach was being held at
HSH. Spriestersbach alleges Patek participated in the
January 20, 2020 meeting during which a cover-up of
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Spriestersbach’s wrongful imprisonment was allegedly discussed.
[Id. at ¶ 160.] This allegation is arguably relevant to the
issue of Patek’s intent, but it does not address how Patek
allegedly discriminated against Spriestersbach when Patek
represented Spriestersbach while Spriestersbach was being held
at HSH. Spriestersbach has failed to allege sufficient factual
allegations to support his position that OPD is vicariously
liable for intentional disability discrimination by Muraoka,
Maloian, Baker, and Patek while they represented Spriestersbach.
As to Tolan, Spriestersbach alleges she discriminated
against him based on his disability when she chose to request a
competency evaluation instead of investigating his assertion of
mistaken identity. Hawai`i Revised Statutes Section 704-404
states, in pertinent part: “Whenever there is reason to doubt
the defendant’s fitness to proceed, the court may immediately
suspend all further proceedings in the prosecution . . . .” The
Hawai`i Supreme Court has held that a state court abused its
discretion by failing to sua sponte order a fitness examination
because “the record was clear that there was ‘reason to doubt’
[the defendant’s] fitness during the sentencing proceedings”
where the defendant “seemed delusional when speaking with the
court” and made “bizarre statements at sentencing.” State v.
Harter, 134 Hawai`i 308, 331–32, 340 P.3d 440, 463–64 (2014).
Based on the factual allegations of the Amended Complaint and
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the legal standards applicable to requests for a competency
evaluation, the fact that Tolan chose to request an evaluation
instead of investigating Spriestersbach’s assertion of mistaken
identity by itself is insufficient to support a reasonable
inference that she intentionally discriminated against him based
on his disability. The portion of Spriestersbach’s ADA Title II
claim alleging that ODC is vicariously liable for the Individual
PD Defendants’ actions and omissions fails to state a plausible
claim for relief.
The portion of Spriestersbach’s ADA Title II claim
based on failure to train and failure to implement policies
regarding interacting with mentally ill clients also fails to
state a plausible claim for relief. Spriestersbach merely makes
conclusory allegations, unsupported by any specific factual
allegations, that OPD’s training and policies are inadequate.
Spriestersbach’s ADA Title II claim against OPD must
be dismissed. However, it may be possible for Spriestersbach to
cure the defects in this claim by amendment. In fact, at the
hearing on the Motion, Spriestersbach’s counsel represented that
they have obtained additional information regarding the PD
Defendants in discovery and that additional factual allegations
could be pled based on that discovery. The dismissal of
Spriestersbach’s ADA Title II claim against OPD is therefore
without prejudice.
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III. Qualified/Conditional Privilege
The PD Defendants argue Spriestersbach’s state law
claims against the Individual PD Defendants must be dismissed
because they have a qualified or conditional privilege.
Hawaii law provides that a nonjudicial
government official has a qualified or
conditional privilege with respect to his or her
tortious actions taken in the performance of his
or her public duty. Towse v. State of Hawaii, 647
P.2d 696, 702 (Haw. 1982); Runnels v. Okamoto,
525 P.2d 1125, 1128 (Haw. 1974). This privilege
shields all but the most guilty nonjudicial
officials from liability, but not from the
imposition of a suit itself. Towse, 647 P.2d at
702. The privilege is the result of the Hawaii
Supreme Court’s balancing of competing interests.
It protects the innocent public servant’s
pocketbook, yet it allows an injured party to be
heard. See Medeiros v. Kondo, 522 P.2d 1269, 1272
(Haw. 1974).
For a tort action to lie against a
nonjudicial government official, the injured
party must allege and demonstrate by clear
and convincing proof that the official was
motivated by malice and not by an otherwise
proper purpose. Towse, 647 P.2d at 702–03;
Medeiros, 522 P.2d at 1272. When a public
official is motivated by malice, and not by
an otherwise proper purpose, Hawaii law
provides that the cloak of immunity is lost
and the official must defend the suit the
same as any other defendant. Marshall v.
Univ. of Haw., 821 P.2d 937, 946 (Haw. Ct.
App. 1991), abrogated on other grounds by
Hac v. Univ. of Haw., 73 P.3d 46 (Haw.
2003).
The existence or absence of malice is
generally a question for the jury. Runnels,
525 P.2d at 1129. However, when the
existence or absence of malice is
demonstrated to the court via uncontroverted
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affidavits or depositions, the court may
rule on the existence or absence of malice
as a matter of law. See id.
Edenfield v. Estate of Willets, Civ. No. 05–00418 SOM–
BMK, 2006 WL 1041724, at *11–12 (D. Haw. Apr. 14,
2006) (parallel citations omitted).
Begley v. Cnty. of Kauai, CIVIL 16-00350 LEK-KJM, 2018 WL
3638083, at *6 (D. Hawai`i July 31, 2018) (some citations
omitted). “Except in claims for defamation, an actual malice
standard applies as to all tort claims.” Id. (citation and
internal quotation marks omitted). The qualified or conditional
privilege under Hawai`i law will be referred to in this Order as
the “conditional privilege.”
First, Spriestersbach argues conditional privilege is
not available to the Individual PD Defendants. See Mem. in Opp.
at 7 (“Case law has long established that the work of a public
defender is not governmental work of the sort deserving
immunity.” (emphasis in original)). He contends public defenders
perform a private function that is traditionally performed by
retained counsel. [Id. (quoting Cox v. Hellerstein, 685 F.2d
1098, 1099 (9th Cir. 1982)).] Cox, however, addressed a civil
rights action brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Cox,
685 F.2d at 1099. The Ninth Circuit affirmed the dismissal of
the Bivens action, relying on the Section 1983 analysis in Polk
County, 454 U.S. 312. Cox, 685 F.2d at 1098-99. The “under color
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of state law” analysis in Polk County that the Ninth Circuit
relied upon in Cox is distinguishable from the conditional
privilege analysis, which asks whether the state officials were
“acting in the performance of their public duty.” See Towse, 64
Haw. at 631, 647 P.2d at 702.
Spriestersbach also argues the conditional privilege
does not apply to state officials who are subject to
professional codes of conduct, such as physicians and attorneys.
[Mem. in Opp. at 7 (citing Slingluff v. State Dep’t of Pub.
Safety, 131 Hawai`i 239, 249 (Ct. App. 2013)).] In Slingluff,
the Hawai`i Intermediate Court of Appeals (“ICA”) stated that
the primary purpose of [conditional privilege] is
to ensure that public officers and employees are
not unduly hampered, deterred and intimidated in
the discharge of their duties by the threat of
lawsuits. It seeks to avoid making public
officials unduly fearful in their exercise of
authority and to avoid discouraging them from
taking prompt and decisive action.
131 Hawai`i at 246, 317 P.3d at 690 (brackets, citations, and
internal quotation marks omitted). However, the ICA ultimately
held that “the exercise of purely medical judgment is not
entitled to the shield of [the conditional privilege].” Id. at
247, 317 P.3d at 691. The circuit court had concluded that:
the defendant physicians were negligent in:
(1) failing to promptly treat Slingluff in order
to apply [an incision and drainage] treatment to
the abscess, and that the delay in treatment fell
below the standard of care; (2) prescribing the
wrong dosage of antibiotic; and (3) failing to
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prescribe a different antibiotic when it became
apparent that the original antibiotic was not
working.
Id. at 249–50, 317 P.3d at 693–94. On appeal, the ICA held that
the physician defendants were not entitled to the conditional
privilege as to these matters because they “all pertain to the
exercise of purely medical discretion because they involved
strictly medical diagnosis and treatment. The decisions made did
not involve policy making or any other type of governmental
discretion.” Id. at 250, 317 P.3d at 694. Thus, Slingluff does
not stand for the proposition that the conditional privilege is
never available to government physicians, attorneys, or other
similar professionals. The ICA merely held that the conditional
privilege does not protect such professionals when they fail to
perform their usual duties in a reasonable and competent manner.
See, e.g., id. at 249, 317 P.3d at 693 (“Providing immunity for
medical malpractice of prison physicians effectively denies
prisoners reasonable, competent medical care.” (citation and
internal quotation marks omitted)). This Court therefore
concludes that the conditional privilege may, under appropriate
circumstances, apply to public defenders.
In the instant case, the only decision clearly at
issue is Tolan’s decision to request a competency evaluation
instead of investigating Spriestersbach’s assertion that he was
not Thomas Castleberry. As to Muraoka, Maloian, Baker, and
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Patek, there are insufficient factual allegations about their
representation of Spriestersbach for this Court to determine
whether the conditional privilege applies to them.
Tolan’s decision to request a competency evaluation
was not an exercise of her legal discretion, such as a choice
between two strategic options. Her decision to request a
competency evaluation and not to undertake an investigation into
his identity was an exercise of government discretion because,
in additional to legal considerations, it involved medical
considerations and because the investigation would have required
Tolan to question, inter alia, HPD’s and OCCC’s records
identifying Spriestersbach as Thomas Castleberry. This Court
therefore concludes that Tolan’s decision is protected by the
conditional privilege. 11
Spriestersbach next argues that, even if the
conditional privilege would otherwise apply, Tolan is not
entitled to the protection of the privilege because she acted in
reckless disregard of his rights. [Mem. in Opp. at 8 (some
citations omitted) (citing Blair v. Ing, 95 Haw. 247, 259
(2001)).] The Amended Complaint does not contain a specific
11 This Court also notes that a ruling that Tolan is
protected by the conditional privilege does not leave
Spriestersbach without recourse. For example, he can pursue his
legal malpractice claim against OPD in state court. See supra
Discussion Section II.
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allegation that Tolan acted with malice or in reckless disregard
of his rights when she decided to request a competency
evaluation instead of investigating his report of mistaken
identification. Spriestersbach makes only general allegations
applicable to several defendants. See, e.g., Amended Complaint
at ¶ 22 (alleging “wrongful acts and/or omissions by any
individual defendant was done intentionally, maliciously, or
with reckless disregard for the rights of Joshua”). Such
conclusory assertions of malice and reckless disregard, which
are not supported by other factual allegations, are insufficient
for Spriestersbach’s state law claims to survive dismissal. See
Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do
not suffice.” (citation omitted)).
As previously noted, ultimately, to defeat Tolan’s
assertion of conditional privilege, Spriestersbach will have to
“demonstrate by clear and convincing proof that [Tolan] was
motivated by malice and not by an otherwise proper purpose.” See
Edenfield, 2006 WL 1041724 at *12 (citing Towse, 647 P.2d at
702–03; Medeiros, 522 P.2d at 1272). Spriestersbach has not pled
factual allegations that, if proven to be true, would establish
by clear and convincing evidence that Tolan “was motivated by
malice and not by an otherwise proper purpose.” This Court
therefore concludes that Tolan is entitled to the protection of
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the conditional privilege. All of Spriestersbach’s state law
claims against her must be dismissed because he has failed to
state a claim upon which relief can be granted.
The dismissal of Spriestersbach’s state law claims
against Tolan is without prejudice because it may be possible
for Spriestersbach to amend his allegations to render the
conditional privilege inapplicable, at least for purposes of a
motion to dismiss.
IV. 	Sufficiency of the State Law Claims
Having dismissed all of Spriestersbach’s claims
against OPD and Tolan, this Court turns to the PD Defendants’
argument that Spriestersbach’s claims against Muraoka, Maloian,
Baker, and Patek are insufficiently pled. Counts XI, XII, and
XII are the only claims alleged against Muraoka, Maloian, Baker,
and Patek.
The Hawai`i Supreme Court has stated:
[T]he tort of IIED consists of four elements:
“1) that the act allegedly causing the harm was
intentional or reckless, 2) that the act was
outrageous, and 3) that the act caused 4) extreme
emotional distress to another.” Hac [v. Univ. of
Hawai`i], 102 Hawai`i [102,] 106–07, 73 P.3d
[46,] 60–61 [(2003)]. “The term ‘outrageous’ has
been construed to mean without just cause or
excuse and beyond all bounds of decency.” Enoka
v. AIG Hawai`i Ins. Co., Inc., 109 Hawai`i 537,
559 128 P.3d 850, 872 (2006) (citations and some
internal quotation marks omitted). “The question
whether the actions of the alleged tortfeasor are
unreasonable or outrageous is for the court in
the first instance, although where reasonable
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people may differ on that question it should be
left to the jury.” Takaki v. Allied Machinery
Corp., 87 Hawai`i 57, 68, 951 P.2d 507, 518 (App.
1998) (quotations and quotation marks omitted).
Young v. Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d 666,
692 (2008) (footnote omitted).
This district court has stated the elements of a NIED
claim are:
(1) 	that the defendant engaged in negligent
conduct;
(2) 	that the plaintiff suffered serious
emotional distress; and,
(3) 	that such negligent conduct by the
defendant was a legal cause of the serious
emotional distress.
Kauhako v. State of Hawaii Bd. Of [sic] Ed., Civ.
No. 13-00567 DKW-BMK, 2015 WL 5312359, *11 (D.
Haw. Sept. 9, 2015).
An NIED claim is merely a negligence claim
alleging a wholly psychic injury. Duty and breach
of duty are essential elements of an NIED claim
and are analyzed utilizing ordinary negligence
principles. Kahoohanohano v. Dep’t of Human
Servs., 178 P.3d 538, 582 (Haw. 2008).
Ricks v. Matayoshi, CIV. NO. 16-00044 HG-KSC, 2017 WL 1025170,
at *11 (D. Hawai`i Mar. 16, 2017), aff’d sub nom. Ricks v. Dep’t
of Educ., 752 F. App’x 518 (9th Cir. 2019). Further, under
Hawai`i law, as part of the plaintiff’s requirement to prove
actual injury, he must prove “that someone was physically
injured by the defendant’s conduct, be it the plaintiff himself
or herself or someone else.” Doe Parents No. 1 v. State, Dep’t
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of Educ., 100 Hawai`i 34, 69–70, 58 P.3d 545, 580–81 (2002)
(citation omitted).
Finally, there are four elements of a legal
malpractice claim under Hawai`i law: “(1) the parties had an
attorney-client relationship, (2) the defendant committed a
negligent act or omission constituting breach of that duty,
(3) there is a causal connection between the breach and the
plaintiff’s injury, and (4) the plaintiff suffered actual loss
or damages.” Thomas v. Kidani, 126 Hawai`i 125, 129, 267 P.3d
1230, 1234 (2011) (citations omitted).
The Amended Complaint contains insufficient factual
allegations regarding Muraoka, Maloian, Baker, and Patek to
state plausible IIED, NIED, and legal malpractice claims against
them. Spriestersbach alleges they represented him while he was
being held at HSH and they failed to “verif[y] the identity of
their client [Spriestersbach], his presence on Oahu in 2006, or
otherwise acted on the information [Spriestersbach] provided to
establish that he was not Thomas R. Castleberry.” [Amended
Complaint at ¶ 149.] The minimal and conclusory allegations
regarding Muraoka, Maloian, Baker, and Patek are insufficient to
allege a plausible basis to find that each of them was aware
that Spriestersbach asserted he was not Thomas Castleberry and
that each of them made an intentional and/or negligent decision
not to act upon Spriestersbach’s assertion of mistaken identity.
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Spriestersbach also pleads the additional allegation that Patek
participated in the January 20, 2020 meeting where a cover-up
was allegedly discussed. See Amended Complaint at ¶ 160. Even
accepting that Patek participated in such a meeting,
Spriestersbach does not allege that he suffered an injury or
emotional distress caused by Patek’s participation in the
meeting.
This Court therefore concludes that the portions of
Counts XI, XII, and XIII alleging claims against Muraoka,
Maloian, Baker, and Patek must be dismissed. The dismissal is
without prejudice because it may be possible for Spriestersbach
to add further factual allegations that would cure the defects
in these claims.
This Court has already dismissed all of
Spriestersbach’s claims against Tolan without prejudice, based
on conditional privilege. If Spriestersbach chooses to file a
second amended complaint, the new factual allegations that he
includes in an attempt to address the issue of whether Tolan is
protected by the conditional privilege are likely to affect the
other defects that the PD Defendants allege exist in the Amended
Complaint’s claims against Tolan. This Court therefore declines
to address the other arguments raised in the Motion regarding
Spriestersbach’s claims against Tolan.
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CONCLUSION
For the foregoing reasons, the PD Defendants’
November 1, 2023 Motion to Dismiss Plaintiff Joshua
Spriestersbach’s First Amended Complaint Filed on October 18,
2023 is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is
GRANTED insofar as:
-the portion of Count XIII asserting a legal malpractice claim
against OPD is DISMISSED WITH PREJUDICE in the instant
case, but the dismissal is without prejudice to any attempt
to pursue that claim in state court; and
-all of Spriestersbach’s other claims against the PD Defendants
are DISMISSED.
The Motion is DENIED insofar as the dismissal of
Spriestersbach’s claims against the PD Defendants, with the
exception of the legal malpractice claim against OPD, is WITHOUT
PREJUDICE.
Spriestersbach is GRANTED leave to file a second
amended complaint to cure the defects identified in this Order.
Spriestersbach shall file his second amended complaint by
March 29, 2024. If Spriestersbach chooses not to file a second
amended complaint, this case shall proceed as to the remaining
claims in his First Amended Complaint, filed October 18, 2023.
Spriestersbach is CAUTIONED that he may not add any
additional parties in the second amended complaint, nor may he
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add any additional claims or theories of liability against the
PD Defendants. Spriestersbach is also CAUTIONED that the
deadline to file his second amended complaint will not be
affected by the filing of any motion for reconsideration of this
Order. If a motion for reconsideration is filed and granted
after the filing of his second amended complaint, Spriestersbach
will be granted leave to file a third amended complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 15, 2024.
JOSHUA SPRIESTERSBACK VS. STATE OF HAWAII, ET AL; CV 21-00456
LEK-RT; ORDER GRANTING IN PART AND DENYING IN PART THE PD
DEFFENDANTS’ MOTION TO DISMISS PLAINTIFF JOSHUA SPRIESTERSBACH’S
FIRST AMENDED COMPLAINT FILED ON OCTOBER 18, 2023
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