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.
_____________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil NO. 21-00011 SOM-RT
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
SECOND MOTION FOR PARTIAL
JUDGMENT ON THE PLEADINGS
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ SECOND
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. His primary
contention appears to be that Kelley and Himongala arrested him
without probable cause.
Those two officers (the “Moving Defendants”) have moved
for partial judgment on the pleadings. While they do not
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 1 of 14
PageID.<pageID>

challenge Denis’s claims that he was arrested without probable
cause, they contend that several peripheral claims should be
dismissed. Their motion is granted in part and denied in part.
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, informed Denis that he
was violating state and county laws that required him to wear a
mask in public places because of the coronavirus pandemic (the
“Mask Mandates”), and arrested him. 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. Id. at 15. He also maintained that he suffered several
injuries during his arrest. Id. Denis appeared to be bringing
two Fourth Amendment claims: (1) a claim that the two officers
wrongfully arrested him without probable cause, and (2) a claim
that the manner of the arrest violated the Fourth Amendment
because the officers used excessive force. Id. at 16. However,
Denis also cited several other constitutional provisions,
2
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 2 of 14
PageID.<pageID>

including the First Amendment and Fourteenth Amendment. ECF No.
1, PageID # 10-11.
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
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 without
prejudice. ECF No. 62.
3
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 3 of 14
PageID.<pageID>

On June 4, 2021, Denis filed an amended complaint. ECF
No. 62. He largely repeated his allegations against Defendants
Ige, Connors, Kawakami and Raybuck, although he did add some	1
additional details. See generally id. His claims against Kelley
and Himongala, on the other hand, 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. Instead of reproducing his
earlier, more detailed allegations concerning the officers’
conduct and his injuries, however, 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 their first motion for partial
judgment on the pleadings. ECF No. 100. Kelley and Himongala
argued that, because Denis had deleted his more detailed
The First Amended Complaint did not include claims	1
against Kaneshiro. See ECF No. 63.
4
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 4 of 14
PageID.<pageID>

allegations about the injuries he said he had suffered, the First
Amended Complaint failed to alleged a plausible Fourth Amendment
excessive force claim. ECF No. 100-1. This court agreed. ECF
No. 117, PageID # 1308. The court dismissed the claim without
prejudice and permitted Denis to move for leave to file a Second
Amended Complaint. Id. Denis, however, failed to comply with
this court’s orders and the applicable local rules, leading to
the dismissal of his excessive force claim. ECF Nos. 121, 124,
127, 128.
On January 26, 2022, Kelley and Himongala filed their
second motion for partial judgment on the pleadings, which is the
subject of this order. ECF No. 131-1. Again, Kelley and
Himongala do not challenge Denis’s claims that the officers
violated his Fourth Amendment rights by arresting him without
probable cause. Instead, they maintain that, to the extent Denis
is bringing claims against them based on the First Amendment, the
Fourteenth Amendment, or various provisions of the Hawaii
constitution, those claims should be dismissed. Id. at 1413-
1424.
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
5
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 5 of 14
PageID.<pageID>

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
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.”
6
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 6 of 14
PageID.<pageID>

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
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 Moving Defendants are Not Entitled To Judgment
on the Pleadings on Denis’s Claim that the
Officers Retaliated Against His Exercise of His
First Amendment Rights.
The Moving Defendants first contend that, to the extent
that Denis is claiming that the officers retaliated against his
exercise of his First Amendment rights, that claim must be
dismissed. ECF No. 131-1, PageID # 1413. “As a general matter,
7
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 7 of 14
PageID.<pageID>

the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions for engaging in
protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722
(2019) (internal quotation marks omitted). “To state a First
Amendment retaliation claim, a plaintiff must plausibly allege
that (1) he was engaged in a constitutionally protected activity,
(2) the defendant’s actions would chill a person of ordinary
firmness from continuing to engage in the protected activity and
(3) the protected activity was a substantial or motivating factor
in the defendant’s conduct.” Capp v. Cty. of San Diego, 940 F.3d
1046, 1053 (9th Cir. 2019) (internal quotation marks omitted).
According to the Moving Defendants, Denis has failed to
adequately allege the third element, because he does not
specifically identify a “retaliatory animus” or “retaliatory
motive” that led to his arrest. ECF No. 131-1, PageID # 1415.
The pleading requirements for a First Amendment
retaliation claim are not stringent. The Ninth Circuit has
recognized that “[b]ecause direct evidence of retaliatory intent
rarely can be pleaded in a complaint, allegation of a chronology
of events from which retaliation can be inferred is sufficient to
survive dismissal.” Watison v. Carter, 668 F.3d 1108, 1114 (9th
Cir. 2012); accord Capp, 940 F.3d at 1055 (citing Watison).
Denis has alleged such a chronology of events here.
According to the First Amended Complaint, Denis was arrested
8
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 8 of 14
PageID.<pageID>

while he “was engaged in a peaceful protest on a public
sidewalk.” ECF No. 63, PageID # 725. Denis also maintains that
the officers lacked probable cause to arrest him, because, even
though he was not wearing a mask, he was at least 18 yards away
from any other protestor and therefore exempt from the Mask
Mandates. Id. As the Supreme Court has recognized, the absence
of probable cause “generally provide[s] weighty evidence that the
officer’s animus caused the arrest.” Nieves, 139 S. Ct. at 1724.
By alleging that he was engaged in a peaceful protest when he was
arrested without probable cause, Denis has stated a plausible
claim that he was arrested because of his exercise of his First
Amendment rights. The Moving Defendants’ motion for judgement on
the pleadings on this claim is denied.
B. The Moving Defendants are Entitled To Judgment on
the Pleadings on Denis’s Fourteenth Amendment
Claim.
The Moving Defendants also argue that Denis’s
Fourteenth Amendment claims duplicate his Fourth Amendment claims
and must be dismissed. The Supreme Court has repeatedly held
that if “a particular Amendment provides an explicit source of
constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing” any
claims covered by the more specific amendment. Albright v.
Oliver, 510 U.S. 266, 273 (1994); accord Graham v. Connor, 490
9
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 9 of 14
PageID.<pageID>

U.S. 386, 395 (1989) (“Because the Fourth Amendment provides an
explicit textual source of constitutional protection against this
sort of physically intrusive governmental conduct, that
Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims.”). The
Moving Defendants argue that because Denis alleges that he was
arrested without probable cause in violation of the Fourth
Amendment, his Fourteenth Amendment claim based on violations of
his substantive due process rights must be dismissed. ECF No.
131-1, PageID # 1419.
Denis has not responded to that argument. He has	2
never asserted that his Fourteenth Amendment claims are distinct
from his Fourth Amendment claims, and this court cannot discern
any difference between the two. Because any claim of arrest
without probable cause must be analyzed under the Fourth
Amendment, the Moving Defendants’ motion for judgment on the
pleadings on Denis’s Fourteenth Amendment claims is granted. See
Albright, 510 U.S. at 273; Graham, 490 U.S. at 395.
Denis’s opposition is difficult to follow and includes	2
numerous assertions that have nothing to do with the legal issues
before this court. For instance, Denis states that unless the
Moving Defendants can “provide irrefutable proof of being
[Denis’s] creator of many names, then there is nothing left to
discuss.” ECF No. 135, PageID # 1437. This court cannot
ascertain any response in Denis’s filing to the specific issues
raised by the Moving Defendants.
10
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 10 of 14
PageID.<pageID>

C. The Moving Defendants are Entitled To Judgment on
the Pleadings on Denis’s Claim Against them in
their Official Capacities.
The Moving Defendants also argue that, to the extent
Denis is bringing claims against them in their official
capacities, those claims must be dismissed because Denis has not
alleged that any Kauai County policy or custom led to his
wrongful arrest. ECF No. 131-1, PageID # 1416-18. This court
agrees.
In cases brought under 42 U.S.C. § 1983, “[o]fficial
capacity suits generally represent only another way of pleading
an action against an entity of which an officer is an agent.”
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690 n.55 (1978). In other words, “an official capacity suit is,
in all respects other than name, to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985).
“[T]hus, in an official-capacity suit the entity’s ‘policy or
custom’ must have played a part in the violation of federal law.”
Id.; accord Hyun Ju Park v. City & Cty. of Honolulu, 952 F.3d
1136, 1141 (9th Cir. 2020); Lowry v. City of San Diego, 858 F.3d
1248, 1255 (9th Cir. 2017).
The Moving Defendants maintain that the only Kauai
County policy or custom alleged in the complaint is the Kauai
Mayor’s Mask Mandate. ECF No. 131-1, PageID # 1418. Denis does
not dispute that assertion. This court has already dismissed
11
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 11 of 14
PageID.<pageID>

Denis’s constitutional claims based on the Mask Mandates. ECF
No. 97. Accordingly, Denis has not identified a policy or custom
that could support a claim against the County of Kauai. This
court has considered whether Denis should be allowed to identify
such a custom in a further amended pleading. The court declines
to permit such an amendment given Denis’s total silence on that
matter and given the absence in the record of any suggestion of
such a policy or custom. The Moving Defendants’ motion for
judgment on the pleadings on Denis’s official capacity claims
against them is granted.
D. The Moving Defendants are Entitled To Judgment on
the Pleadings on Denis’s Claims Based on the
Hawaii Constitution.
Finally, the Moving Defendants seek judgment on the
pleadings on Denis’s claims based on various provisions of the
Hawaii constitution. ECF No. 131-1, PageID # 1421-24. They
argue that (1) there is no private cause of action for damages
under the Hawaii constitution, and (2) Denis’s claims against
Officers Kelley and Himongala do not entitle him to injunctive or
declaratory relief. Id. Denis fails to respond to either
assertion. The court construes that failure as a concession on
both points and a failure to prosecute these claims. Accordingly,
the Moving Defendants’ motion for judgment on the pleadings on
12
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 12 of 14
PageID.<pageID>

Denis’s claims under the Hawaii constitution is granted.3
V. CONCLUSION.
The motion for partial judgment on the pleadings is
granted in part and denied in part.
“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.” Eminence Cap., LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The court
has ruled that Denis’s Fourteenth Amendment claims, his official
capacity claims, and his claims based on the Hawaii constitution
fail on legal grounds. Moreover, Denis’s opposition brief failed
to even attempt to articulate a basis that would permit him to
move forward on those claims. On that basis, this court
concludes that the dismissed claims could not be saved by
amendment. Denis’s Fourteenth Amendment claims, his official
capacity claims, and his claims based on the Hawaii constitution
are dismissed with prejudice. The motion is denied to the extent
it sought dismissal of Denis’s First Amendment retaliation claim.
That claim remains for further adjudication, along with the
Fourth Amendment claim that was not the subject of the motion.
This court also notes that the pertinent provisions of	3
the Hawaii constitution appear to be coextensive with the
provisions of the federal Constitution that are at issue in this
case. Cf. ECF No. 97, PageID # 1077-80. Thus, even if any of
Denis’s claims based on the Hawaii constitution remained in the
case, Denis would not recover more damages, although that is not
the basis for the present ruling.
13
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 13 of 14
PageID.<pageID>

It is so ordered.
DATED: Honolulu, Hawaii, April 7, 2022
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Denis v. Ige et al., Civil No. 21-00011 SOM-RT, ORDER GRANTING IN PART AND DENYING IN
PART SECOND MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
14
Case 1:21-cv-00011-HG-RT Document 146 Filed 04/07/22 Page 14 of 14
PageID.<pageID>