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
DEFENDANTS DEBRA MAIOHO-POHINA AND JOHN LEO CASTILLO’S
MOTION TO DISMISS THIRD AMENDED COMPLAINT
Before the Court is Defendants Debra Maioho-Pohina
(“Maioho-Pohina”) and John Leo Castillo’s (“Castillo” and
collectively “City Defendants”) Motion to Dismiss Third Amended
Complaint (“Motion”), filed on July 3, 2023. [Dkt. no. 110.]
Plaintiff Robin Hall (“Plaintiff” or “Hall”) filed her
memorandum in opposition on August 25, 2023, and Maioho-Pohina
and Castillo filed their reply on September 1, 2023. [Dkt.
nos. 126, 127.] Defendants Leonard Letoto (“Letoto”) and
Christopher Koanui (“Koanui”) filed statements of no position on
August 25, 2023. [Dkt. nos. 124, 125.] Hall filed a supplemental
memorandum on September 18, 2023, and the City Defendants filed
a response to Hall’s supplemental memorandum on September 28,
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2023. [Dkt. nos. 132, 133.] The Court finds this matter suitable
for disposition without a hearing pursuant to Rule LR7.1(c) of
the Local Rules of Practice for the United States District Court
for the District of Hawaii (“Local Rules”). The City Defendants’
Motion is hereby granted in part and denied in part for the
reasons set forth below. The Motion is granted insofar as the
following claims are dismissed with prejudice: the abuse of
process claim against the City Defendants; the First Amendment
claim against Maioho-Pohina; the portion of the First Amendment
retaliation claim against Maioho-Pohina that is based upon
Hall’s arrest at Hall’s residence; the Fourth Amendment claim
against Maioho-Pohina; and the equal protection claim against
Maioho-Pohina. The Motion is denied in all other respects.
BACKGROUND
Hall filed her original complaint on June 9, 2021.
[Dkt. no. 1.] She filed her First Amended Complaint for
Declaratory and Injunctive Relief and Damages on September 2,
2021, and she filed her Second Amended Complaint for Declaratory
and Injunctive Relief and Damages (“Second Amended Complaint”)
on October 28, 2021. [Dkt. nos. 27, 36.] On April 26, 2022, this
Court issued an order that, among other things, granted in part
and denied in part Maioho-Pohina’s motion to dismiss the Second
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Amended Complaint (“4/26/22 Order”). [Dkt. no. 67. 1 ] In the
4/26/22 Order, this Court: dismissed Hall’s Title 42 United
States Code Section 1983 abuse of process of process claim;
denied Maioho-Pohina’s request to dismiss Hall’s Section 1983
equal protection claim based on qualified immunity; and
dismissed Hall’s supervisory liability claim because it merely
pled the theory of liability that Hall’s other two claims
against Maioho-Pohina were based upon. 4/26/22 Order, 2022 WL
1229965, at *8-9. The dismissal of Hall’s abuse of process claim
and supervisory liability claim against Maioho-Pohina was
without prejudice to Hall’s filing of a motion for leave to file
a third amended complaint. Id. at *10.
Maioho-Pohina took an interlocutory appeal from that
portion of the 4/26/22 Order. See Maioho-Pohina’s notice of
appeal, filed 5/6/22 (dkt. no. 71); Ninth Circuit Memorandum,
filed 5/3/23 (dkt. no. 97), at 2 n.1 (noting that the appeal
only involved the portion of the order denying Maioho-Pohina’s
motion to dismiss Hall’s equal protection claim). 2 The Ninth
Circuit reversed and remanded with instructions to dismiss
Hall’s equal protection claim because Hall’s Second Amended
Complaint did not adequately plead supervisory liability, and
1 The 4/26/22 Order is also available at 2022 WL 1229965.
2 The Ninth Circuit Memorandum is also available at 2023 WL
3220909.
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Maioho-Pohina was entitled to qualified immunity because Hall
failed to allege a constitutional violation. See Ninth Circuit
Memorandum, 2023 WL 3220909, at *3.
On remand, this Court dismissed Hall’s equal
protection claim in the Second Amended Complaint against Maioho-
Pohina. [Order Dismissing, Without Prejudice, Plaintiff’s Equal
Protection Claim Against Defendant Debra Maioho-Pohina, filed
5/30/23 (dkt. no. 99). 3 ] On June 6, 2023, the magistrate judge
granted Hall leave to file a third amended complaint. [Order
Granting in Part and Denying in Part Plaintiff’s Motion for
Leave to File Third Amended Complaint, filed 6/6/23 (dkt.
no. 102).]
Hall filed her Third Amended Complaint for Declaratory
and Injunctive Relief and Damages (“Third Amended Complaint”) on
June 20, 2023. [Dkt. no. 106.] The core factual allegations of
the Third Amended Complaint are the same as those of the Second
Amended Complaint. They are summarized in the 4/26/22 Order and
will not be repeated here. See 4/26/22 Order, 2022 WL 1229965,
at *1. Briefly, Hall called 911 after a confrontation with
Letoto, her boss, at her home on June 10, 2019. Koanui, a
Honolulu Police Department (“HPD”) Officer and close friend and
3 The May 30, 2023 order is also available at 2023 WL
3728209.
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business partner of Letoto, responded to Hall’s 911 call.
Because of his relationship with Letoto, Koanui refused to allow
Hall to make a police report against Letoto. Further, he made a
false criminal report against Hall and arrested her. Castillo,
another HPD officer, arrived at the scene with Koanui, and
Maioho-Pohina, an HPD sergeant, arrived at the scene later. 4 Hall
alleges Koanui, Castillo, and Maioho-Pohina conspired to protect
Letoto by refusing to take Hall’s report and by filing false
police reports against her. Hall alleges that, in this process,
Koanui, Castillo, and Maioho-Pohina (collectively “Officer
Defendants”) violated her constitutional rights. [Third Amended
Complaint at ¶¶ 2-6.]
The new factual allegations that Hall added in the
Third Amended Complaint will be summarized below, to the extent
that they are relevant to the instant Motion. Hall alleges
“Sergeant Maioho-Pohina was acting in her capacity as
supervising officer of Officers Koanui and Castillo at all
relevant times.” [Id. at ¶ 18.] Hall also adds the allegation
that Castillo (as opposed to only Koanui) retaliated against her
by falsely arresting her and that the Officer Defendants filed
false police reports against her, alleging she committed theft.
4 Hall made a second 911 call after she spoke to Koanui, and
Maioho-Pohina arrived at the scene in response to that call.
[Third Amended Complaint at ¶ 72.]
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[Id. at ¶ 38.] As to the specific events of June 10, 2019, Hall
alleges that, although Koanui and Castillo were purportedly on
the scene to respond to Hall’s 911 call during which she
reported an ongoing assault and breaking and entering, they
ignored Letoto when they arrived on the scene, and they did not
speak to him during the entire period that they were on the
scene. [Id. at ¶¶ 50-52.] Hall alleges Koanui and Castillo did
not speak to Letoto because Koanui had informed Castillo of his
connection with Letoto and Koanui and Castillo agreed to resolve
the situation in Letoto’s favor. [Id. at ¶ 54.]
As in the Second Amended Complaint, Hall alleges
Koanui refused to allow Hall to make a police report against
Letoto, in violation of Hall’s First Amendment rights. Compare
Second Amended Complaint at ¶ 58 with Third Amended Complaint at
¶ 61. Hall adds the allegation that Castillo violated her First
Amendment rights because, although he observed Koanui’s
interactions with Hall – i.e., Castillo presumably saw Koanui
refuse to allow Hall to make complaint against Letoto, Castillo
“did not take down, or offer to take down, a report from
Plaintiff.” [Third Amended Complaint at ¶ 62.]
As in the Second Amended Complaint, Hall alleges
Koanui filed a police report alleging Hall committed theft, even
though he did not conduct a reasonable investigation and did not
have probable cause to support a theft charge against Hall.
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Koanui relied exclusively on information provided by Letoto. 5
Compare Second Amended Complaint at ¶ 62 with Third Amended
Complaint at ¶ 66. Hall adds the following allegations:
Defendant Officer Castillo and Defendant
Sergeant Maioho-Pohina also knowingly and
maliciously provided false, inaccurate, and/or
misleading and incomplete information on their
official reports in violation of HPD Policy
Number 2.21 by corroborating Defendant Officer
Koanui’s account of the incident. In addition,
both Defendant Officer Castillo and Defendant
Sergeant Maioho-Pohina’s reports made no mention
of Koanui’s conflict of interest, thus furthering
their mutually agreed-upon goal to protect Letoto
at the expense of Plaintiff.
[Third Amended Complaint at ¶ 67.]
Hall alleges that, when Maioho-Pohina arrived at
Hall’s residence, Maioho-Pohina spoke to Koanui and Castillo in
Hall’s driveway for approximately four minutes, and they spoke
amongst themselves at the scene at least two more times after
that. Hall alleges that, during the first private conversation,
Koanui disclosed his connection with Letoto and that he wanted
to protect Letoto. The Officer Defendants agreed to work
together to accomplish this, at Hall’s expense. [Id. at ¶¶ 73-
74.] Hall states she spoke to Maioho-Pohina at least two
5 Hall alleges Letoto called Koanui when she began to make
her first 911 call. [Third Amended Complaint at ¶¶ 40-41.]
During that call, Letoto allegedly “alert [Koanui] about the
ongoing 911 call, request that he intervene by responding to the
dispatch, and otherwise enlist his help in preventing Plaintiff
from successfully filing a police complaint against Defendant
Letoto.” [Id. at ¶ 41.]
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separate times on June 10, 2019 and, when Hall spoke to Maioho-
Pohina, Hall “explained the multiple ways in which Officer
Koanui had committed misconduct against her.” [Id. at ¶ 75.]
Thus, Maioho-Pohina had knowledge of Hall’s complaints about
Koanui and Koanui’s conflict of interest, but Maioho-Pohina did
nothing to stop Koanui’s misconduct. In addition, Maioho-Pohina
did not allow Hall to file a police report, and Maioho-Pohina
filed a false police report corroborating Koanui’s report and
failing to disclose Koanui’s conflict of interest. [Id. at
¶¶ 76-77, 79.]
Hall alleges Castillo was also aware of Koanui’s
conflict of interest, observed Koanui’s interactions with Hall,
and spoke with Koanui several times at the scene, but Castillo
did not act upon Koanui’s misconduct. Castillo wrote his own
police report, but he also failed to disclose Koanui’s conflict
of interest. [Id. at ¶¶ 78-79.]
Relevant to the instant Motion, Hall asserts the
following claims:
-a Section 1983 claim against the Officer Defendants, alleging
violation of her First Amendment right to petition the
government to seek redress of grievances (“Claim 1”);
-a Section 1983 claim against the Officer Defendants, alleging
retaliation in violation of her First Amendment rights
(“Claim 2”);
-a Section 1983 claim against the Officer Defendants, alleging
false arrest and imprisonment in violation of her Fourth
Amendment rights (“Claim 3”);
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-a Section 1983 claim against the Officer Defendants, alleging
malicious abuse of process in violation of her Fourteenth
Amendment rights (“Claim 4”);
-a Section 1983 claim against the Officer Defendants, alleging
violation of her Fourteenth Amendment equal protection
rights (“Claim 5”);
-a Section 1983 claim against the Officer Defendants and Letoto
(all collectively “Defendants”), alleging conspiracy to
interfere with her civil rights (“Claim 6”);
-an intentional infliction of emotional distress (“IIED”) claim
against Defendants (“Claim 10”); and
-a civil conspiracy claim against Defendants (“Claim 11”).
[Id. at pgs. 46-55, 62-63.]
The City Defendants argue Hall fails to state a claim
against them upon which relief can be granted, and they ask this
Court to dismiss all claims against them with prejudice. [Motion
at 2 (some citations omitted) (citing Fed. R. Civ.
P. 12(b)(6)).] The City Defendants argue Hall’s Section 1983
claims against them fail because they are entitled to qualified
immunity, [Motion, Mem. in Supp. at 6-22,] and they argue Hall’s
state law claims against them fail because they are entitled to
the qualified or conditional privilege, [id. at 22-24]. In
addition, the City Defendants argue Hall’s state law claims are
insufficiently pled. [Id. at 24-25.]
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DISCUSSION
I. 	Qualified Immunity
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
“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).
A. 	Constitutional Violation
1. 	Castillo
The elements of a Section 1983 claim are: “(1) a
person acting under color of State law; (2) subjects or causes
to be subjected to deprivation; (3) a U.S. citizen or person in
the jurisdiction of the United States; (4) of a right,
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privilege, or immunity secured by the Constitution and laws.”
Chaudhry v. Aragón, 68 F.4th 1161, 1169 & n.9 (9th Cir. 2023).
Hall alleges that, at all relevant times, Castillo was employed
by HPD as a police officer, and Hall’s allegations regarding
Castillo describe conduct in the course of the performance of
his duties. See Third Amended Complaint at ¶ 19; see also, e.g.,
id. at ¶¶ 48-56. Hall states she “is and has been a resident of
the City and County of Honolulu, State of Hawai`i at all
relevant times.” [Third Amended Complaint at ¶ 14.] Thus, Hall
has alleged sufficient facts regarding the first and third
elements of her Section 1983 claims. This Court will address the
second and fourth elements as to each of Hall’s claims against
Castillo.
a. 	Claim 1 – First Amendment Right to Petition
The basis of Claim 1 is that Hall attempted to
exercise her First Amendment right to petition the government
for redress by “filing a complaint of criminal activity against
Defendant Letoto” and by filing a report against Letoto, but she
was not permitted to do so. See id. at ¶¶ 169, 173. Hall
specifically alleges she “told Defendant Officer Koanui that she
wanted to file a police report against Defendant Letoto for
breaking and entering, for assault, and for false imprisonment,”
but he refused to take her report. [Id. at ¶¶ 60-61.] Hall also
alleges that, “[w]hen Plaintiff continued to request that
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Defendant Officer Koanui file a report against Defendant Letoto,
Officer Koanui told Plaintiff that she could file a report
against Letoto if she wanted, but that Officer Koanui now had an
open case to arrest her for theft.” [Id. at ¶ 70.] Thus, Hall
has adequately alleged the fourth element of her Section 1983
First Amendment claim – that there was a violation of her First
Amendment right to petition the government for redress. See
Entler v. Gregoire, 872 F.3d 1031, 1043 (9th Cir. 2017)
(“Although we have not had occasion to opine on the foundational
constitutional principle, we join our two sister circuits that
have held that the filing of criminal complaints falls within
the embrace of the First Amendment.” (citations omitted)).
As to the second element, whether Castillo subjected
Hall to that constitutional violation or caused her to be
subjected to that constitutional violation, Hall alleges
Castillo “separately infringed upon [her] First Amendment rights
by not allowing her to file a report against Defendant Letoto.”
[Third Amended Complaint at ¶ 172.] Hall does not allege that
she asked Castillo to file a report against Letoto or take her
statement. However, Hall alleges Castillo was “present on the
scene and observed Officer Koanui’s interactions with Plaintiff,
yet also did not take down, or offer to take down, a report from
Plaintiff.” [Id. at ¶ 62.] Thus, one of Hall’s theories of
liability as to Castillo is that he had the opportunity to
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intercede when he saw Koanui violate her constitutional rights
by refusing to take Hall’s criminal complaint, but Castillo
failed to intercede. See, e.g., id. at ¶ 190 (alleging Castillo
“both separately caused, contributed to, and failed to intervene
to prevent the continued unlawful arrest, detention, and/or
imprisonment of Plaintiff”). The Ninth Circuit has stated that
“police officers have a duty to intercede when
their fellow officers violate the constitutional
rights of a suspect or other citizen.” Cunningham
v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)
(quoting United States v. Koon, 34 F.3d 1416,
1447 n.25 (9th Cir. 1994), aff’d in part, rev’d
in part on other grounds, 518 U.S. 81, 116 S. Ct.
2035, 135 L. Ed. 2d 392 (1996)). If an officer
fails to intercede, “the constitutional right
violated by the passive defendant is analytically
the same as the right violated by the person who”
performed the offending action. Koon, 34 F.3d at
1447 n.25. For example, “an officer who failed to
intercede when his colleagues were depriving a
victim of his Fourth Amendment right to be free
from unreasonable force in the course of an
arrest would, like his colleagues, be responsible
for subjecting the victim to a deprivation of his
Fourth Amendment rights.” Id.; see also Robins v.
Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995)
(holding that “a prison official can violate a
prisoner’s Eighth Amendment rights by failing to
intervene” when another official acts
unconstitutionally). “[H]owever, officers can be
held liable for failing to intercede only if they
had an opportunity to intercede.” Cunningham, 229
F.3d at 1289; see also Ramirez v. Butte-Silver
Bow Cnty., 298 F.3d 1022, 1029–30 (9th Cir. 2002)
(no violation of duty to intercede where there
was no evidence that the defendant was aware of
the constitutional violation as it occurred),
aff’d sub nom. Groh v. Ramirez, 540 U.S. 551, 124
S. Ct. 1284, 157 L. Ed. 2d 1068 (2004).
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Tobias v. Arteaga, 996 F.3d 571, 583–84 (9th Cir. 2021)
(alteration in Tobias).
Hall has sufficiently alleged the second element of
her Section 1983 First Amendment claim against Castillo in
Claim 1.
b. 	Claim 2 – First Amendment Retaliation Claim
The elements of a First Amendment retaliation claim
are:
“(1) [the plaintiff] engaged in constitutionally
protected activity; (2) as a result, [the
plaintiff] was subjected to adverse action by the
defendant that would chill a person of ordinary
firmness from continuing to engage in the
protected activity; and (3) there was a
substantial causal relationship between the
constitutionally protected activity and the
adverse action.”
Boquist v. Courtney, 32 F.4th 764, 775 (9th Cir. 2022) (quoting
Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010)).
Hall engaged in a constitutionally protected activity by
attempting to file a criminal complaint against Letoto. See
supra Discussion Section I.A.1.a.
As previously noted, Hall alleges Koanui told her that
she could file a report against Letoto, but he warned her that
she could be arrested for theft. See Third Amended Complaint at
¶ 70. Hall states she
understood this comment as a threat that
Defendant Officer Koanui would take her into the
station if she persisted, and that he would
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arrest her again and take her to the police
station in the future if she continued to try to
exercise her First Amendment rights. As a result,
Defendant Koanui’s actions dissuaded and
prevented Plaintiff from filing the report
against Defendant Letoto, both on the scene that
day and in the future.
[Id. at ¶ 71.] Koanui had already engaged in conduct that
constituted an arrest of Hall. See id. at ¶ 68. Hall has pled
sufficient factual allegations to support a reasonable inference
that “a person of ordinary firmness” would be deterred from
continuing to attempt to file a criminal complaint. See Boquist,
32 F.4th at 775; see also 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)); id. (“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.” (citation
omitted)). Thus, Hall has adequately alleged the fourth element
of her First Amendment retaliation claim – that she was
retaliated against for attempting to exercise her First
Amendment right to petition the government for redress.
As to the second element, whether Castillo subjected
Hall to the retaliation or caused her to be subjected to the
retaliation, Hall alleges Castillo and Koanui “retaliat[ed]
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against [her] by falsely arresting and imprisoning her.” See
Third Amended Complaint at ¶ 38. Hall also describes her arrest
and imprisonment as follows:
Defendant Officer Koanui also arrested Plaintiff.
Specifically, in detaining and interrogating
Plaintiff within the residence, Defendant Officer
Koanui’s statements and conduct restrained
Plaintiff’s liberty such that Plaintiff was not —
and did not reasonably feel — free to leave.
Confined to a small space in the home, Defendant
Officer Koanui assumed an authoritative, open-
legged stance, stood over Plaintiff while she sat
on the couch, and questioned her in an
intimidating, accusatory manner. In the meantime,
Defendant Letoto’s van continued to block the
exit to her property, and Defendant Officer
Castillo rotated in and out of the house, often
standing outside on the porch, blocking
Plaintiff’s front door.
[Id. at ¶ 68.] The questioning of Hall constituted an arrest
because a reasonable person under the circumstances would
believe that she was not free to leave. See United States v.
Butler, 249 F.3d 1094, 1100-01 (9th Cir. 2001).
Hall also alleges Castillo “observed much of
[Koanui’s] interactions with Plaintiff” and “wrote and filed a
false and misleading report against Plaintiff for theft,” i.e.,
the charge that Koanui included in his report about the
incident. See Third Amended Complaint at ¶ 181. Hall further
alleges
Officers Koanui, Castillo, and Maioho-Pohina and
Letoto acted jointly with the specific common
purpose of silencing Plaintiff. They did this by
preventing her from filing a police report
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against Letoto, and instead opening a false and
misleading police report against her, and using
that police report to threaten further arrest if
she persisted in trying to exercise her
constitutional rights.
Id. at ¶ 206.
Reading the allegations of the Third Amended Complaint
as a whole, Hall has sufficiently alleged the second element of
her Section 1983 First Amendment retaliation claim against
Castillo in Claim 2.
c. 	Claim 3 – Fourth Amendment Claim
A required element of a Section 1983 claim alleging
false arrest and imprisonment in violation of the Fourth
Amendment is that there was no probable cause for the
plaintiff’s arrest. See Cabrera v. City of Huntington Park, 159
F.3d 374, 380 (9th Cir. 1998) (per curiam). 6 Hall alleges Koanui
filed his police report “without conducting a genuine
investigation, and without any legitimate probable cause,” and
Koanui’s arrest and imprisonment of Hall occurred in the process
of writing the police report that lacked probable cause. [Third
Amended Complaint at ¶¶ 66, 68.] This is a legal conclusion
phrased as a factual allegation, and therefore this Court is not
required to assume that it is true. See Iqbal, 556 U.S. at 678
(“Although for the purposes of a motion to dismiss we must take
6 Cabrera was disapproved of on other grounds by Shalabi v.
City of Fontana, 489 P.3d 714 (Cal. 2021).
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all of the factual allegations in the complaint as true, we are
not bound to accept as true a legal conclusion couched as a
factual allegation.” (citation and internal quotation marks
omitted)).
However, Hall has pled sufficient factual allegations
to allow this Court to reasonably infer that there was no
probable cause supporting her arrest. Hall alleges that: the
information that Koanui included in his report about the alleged
theft by Hall “came exclusively from Defendant Letoto,” even
though Koanui was purportedly responding to Hall’s 911 call
reporting conduct by Letoto; and Koanui failed to disclose his
connection with Letoto in his report. [Third Amended Complaint
at ¶ 66.] Hall also alleges:
While Plaintiff was under arrest, Plaintiff
explained to Defendant Officer Koanui that th[e
theft] allegation was entirely false and that she
had not been withholding the work phone. She then
attempted to return the phone by giving it to
Defendant Officer Koanui, but he refused to take
it. Eventually another witness on the scene
helped Plaintiff, who was too shaken up and
injured to confront Defendant Letoto again, by
taking the phone outside and giving it to Letoto.
[Id. at ¶ 69.] Thus, Hall has adequately alleged the fourth
element of this Section 1983 claim – that she was wrongfully
arrested and detailed, in violation of her Fourth Amendment
rights.
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As to the second element, this Court has ruled that
Hall has adequately alleged that Castillo subjected Hall to, or
caused her to be subjected to, arrest. See supra Discussion
Section I.A.1.b. This Court therefore concludes that Hall has
adequately alleged the second element of her Section 1983 Fourth
Amendment claim against Castillo in Claim 3.
d. 	Claim 4 – Abuse of Process Claim
In the 4/26/22 Order, this Court noted that is unclear
whether an abuse of process claim can be asserted under
Section 1983 and, if so, what the elements of such a claim are.
2022 WL 1229965, at *7. Some cases suggest that “egregious
conduct that shocks the conscience is required,” but other cases
suggest that the elements of the Hawai`i law abuse of process
claim, which does not require conscious shocking conduct, are
sufficient. See id. (citing cases). In the 4/26/22 Order, this
Court concluded that it was not necessary to decide which
description of the elements of a Section 1983 abuse of process
claim was correct because Hall failed to state a claim against
Maioho-Pohina under either standard. Id. at *8.
Under Hawai`i law, the elements of an abuse of process
claim are “‘(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.’” Id. at *7 (quoting Young v. Allstate Ins. Co.,
119 Hawai`i 403, 412, 198 P.3d 666, 675 (2008)). Hall does
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allege Castillo had an ulterior purpose – to protect Letoto,
Koanui’s friend and business partner. See Third Amended
Complaint at ¶ 54. The Hawai`i Supreme Court has noted that
“‘[p]rocess,’ as used in the tort of ‘abuse of process,’ has
been interpreted broadly to encompass the entire range of
‘procedures’ incident to litigation.” Young, 119 Hawai`i at 412,
198 P.3d at 675 (ellipsis, citation, and some internal quotation
marks omitted) (emphasis in Young). Further, the supreme court
stated:
The most recent edition of Professor Prosser’s
treatise on torts teaches that “[s]ome definite
act or threat not authorized by the process, or
aimed at an objective not legitimate in the use
of the process, is required; and there is no
liability where the defendant has done nothing
more than carry out the process to its authorized
conclusion, even though with bad intentions.”
Prosser and Keeton on Torts § 121, at 898 (5th
ed., W. Page Keeton et al. eds., 1984) (emphases
added) (footnotes omitted). Thus, more is
required than the issuance of the process itself.
Id. at 414–15, 198 P.3d at 677–78 (brackets and emphasis in
Young) (footnote and some citations omitted).
Arguably, submitting a police report about the
officers’ response to Hall’s 911 call is an act that is within
the scope of the usual law enforcement process. However, Hall
alleges that Castillo did more than submitting a police report
minimizing Letoto’s conduct. Hall alleges Castillo intentionally
prepared and submitted a police report that corroborated
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Koanui’s false report, which reflected that Hall committed
theft. See, e.g., Third Amended Complaint at ¶ 63 (alleging the
Officer Defendants “wr[ote] up false and misleading reports
claiming that Plaintiff had stolen the phone that Defendant
Letoto had given her for work purposes”). This is sufficient to
allege conduct beyond the scope of the usual process.
To the extent that conscious-shocking conduct is
required, this Court findings that, for purposes of a motion to
dismiss, Hall’s allegations are sufficient to allege conscious-
shocking conduct by Castillo. See 4/26/22 Order, 2022 WL
1229965, at *7 (“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.” (some citations omitted) (citing
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))).
Thus, regardless of whether conscious-shocking conduct
is required or whether the Hawai`i law elements of an abuse of
process claim are sufficient to state a Section 1983 abuse of
process claim, Hall has adequately alleged that Castillo
subjected her to, or caused her to be subjected to, an abuse of
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process, in violation of her Fourteenth Amendment right to due
process.
e. 	Claim 5 – Equal Protection
In the 4/26/22 Order, this Court stated:
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) . . . .
An equal protection claim can also be stated
by a showing that defendants intentionally
treated similarly situated individuals
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).
2022 WL 1229965, at *8 (alteration in 4/26/22 Order) (some
citations omitted).
In the Third Amended Complaint, Hall alleges Koanui
violated her rights under the equal protection clause by:
“fil[ing] a false and misleading report and unlawfully
interrogat[ing] and arrest[ing] Plaintiff without probable
cause”; [Third Amended Complaint at ¶ 199;] and failing to file
a report against Letoto, the suspect in Hall’s report of assault
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and breaking and entering, [id at ¶ 200]. Hall alleges there was
no rational basis for the differential treatment of Hall and
Letoto, and that Hall was discriminated against because she
attempted to exercise her First Amendment right to petition the
government for redress. [Id. at ¶¶ 201-03.] Hall alleges
Castillo assisted Koanui in the conduct that violated her
constitutional rights. [Id. at ¶ 199.] As previously noted, Hall
has alleged that: Castillo filed a false police report
corroborating Koanui’s account of the incident between Hall and
Letoto; Castillo participated in the arrest of Hall; and
Castillo had the opportunity to intervene when he observed
Koanui refuse to allow Hall to make a criminal complaint, but
Castillo failed to do so. Therefore, for purposes of the instant
Motion, this Court concludes that Hall has adequately alleged
that Castillo subjected her to, or caused her to be subjected
to, a violation of her rights under the Equal Protection Clause
of the Fourteenth Amendment.
f. 	Claim 6 – Conspiracy
In the context of a motion for summary judgment, the
Ninth Circuit has stated:
To establish liability for a conspiracy in a
§ 1983 case, a plaintiff must “demonstrate the
existence of an agreement or meeting of the
minds” to violate constitutional rights.
Mendocino Envtl. Ctr. v. Mendocino County, 192
F.3d 1283, 1301 (9th Cir. 1999) (internal
quotation marks omitted). “Such an agreement need
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not be overt, and may be inferred on the basis of
circumstantial evidence such as the actions of
the defendants.” Id. “To be liable, each
participant in the conspiracy need not know the
exact details of the plan, but each participant
must at least share the common objective of the
conspiracy.” United Steelworkers of Am. v. Phelps
Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989)
(en banc).
Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010).
Hall alleges Koanui informed Castillo of his
connection with Letoto, and Koanui and Castillo agreed that they
would work together to protect Letoto at Hall’s expense. [Third
Amended Complaint at ¶ 54.] Further, Castillo was present when
Koanui conveyed similar information to Maioho-Pohina, and the
three Officer Defendants agreed to work together to protect
Letoto at Hall’s expense. [Id. at ¶ 74.] Hall also alleges
Castillo acted upon this agreement by preparing and submitting a
false and/or misleading police report to protect Letoto at
Hall’s expense. [Id. at ¶ 67.] As previously noted, Castillo
participated in the arrest of Hall, and he chose not to
intercede when he observed Koanui refuse to allow Hall to make a
criminal complaint against Letoto. Therefore, for purposes of
the instant Motion, this Court concludes that Hall has
adequately alleged that Castillo conspired to deprive her of her
constitutional rights.
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2. 	Maioho-Pohina
Similar to her allegations against Castillo, Hall
alleges that, at all relevant times, Maioho-Pohina was employed
by HPD as a police officer, and Hall’s allegations regarding
Castillo describe conduct in the course of the performance of
his duties. See Third Amended Complaint at ¶ 18; see also id. at
¶¶ 72-77. Thus, Hall has alleged sufficient facts as to the
first element of her Section 1983 claims against Maioho-Pohina.
As previously noted, Hall has alleged sufficient facts as to the
third element of her Section 1983 claims. This Court will
address the second and fourth elements as to each of Hall’s
claims against Maioho-Pohina.
The Ninth Circuit Memorandum set forth the applicable
standard to determine whether Hall has adequately alleged that
Maioho-Pohina, in her capacity as Koanui and Castillo’s
supervisor, violated Hall’s Fourteenth Amendment rights.
Under § 1983, to establish supervisory liability
for equal protection violations that are premised
on the suppression of First Amendment protected
activity, the plaintiff must allege that the
supervisor (1) knew of the constitutional
violation and (2) acquiesced to that violation.
OSU Student Alliance v. Ray, 699 F.3d 1053, 1075
(9th Cir. 2012). Acquiescence requires “a
sufficient causal connection between the
supervisor’s wrongful conduct and the
constitutional violation.” Starr v. Baca, 652
F.3d 1202, 1207 (9th Cir. 2011) (internal
quotations and alterations omitted). This causal
connection can be established by the supervisor’s
initiating the violation or by his “knowingly
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refusing” to end ongoing actions that are
reasonably likely to cause a constitutional
violation. Id. at 1207–08 (cleaned up). Thus, our
caselaw regarding acquiescence has focused on
future or ongoing harms that occur due to a
supervisor’s inaction but has never established
that supervisory liability can be premised on a
supervisor’s “acquiescing” to past, completed
constitutional wrongs by inaction. See OSU, 699
F.3d at 1072 (quoting Preschooler II v. Clark
Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th
Cir. 2007), for the proposition that a supervisor
is liable when he knowingly “fail[s] to act to
prevent” constitutional violations from happening
(emphasis added)). It does seem difficult to
prevent what has already happened.
Ninth Circuit Memorandum, 2023 WL 3220909, at *2 (alteration and
emphasis in Ninth Circuit Memorandum). The same analysis also
applies to Hall’s other Section 1983 claims against Maioho-
Pohina.
a. 	Claim 1 – First Amendment Right to Petition
The Ninth Circuit held that the Second Amended
Complaint’s only alleged violations of Hall’s First Amendment
right to petition the government for redress occurred before
Maioho-Pohina arrived on the scene, and the Second Amended
Complaint attempted to hold Maioho-Pohina liable for inaction
after the alleged constitutional violation. Id. As to the Second
Amended Complaint’s allegation that Maioho-Pohina failed to take
Hall’s police report, the Ninth Circuit noted that “Hall did not
allege that she had asked Maioho-Pohina to ensure that a police
report detailing Hall’s side of the story was filed, even though
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the other officers failed to do so, or that Hall had even asked
Maioho-Pohina to take down her statement.” Id. at *3.
First, as to Hall’s theory that Maioho-Pohina violated
her constitutional rights because Maioho-Pohina herself failed
to record Hall’s statements in a police report, Hall adds the
allegation that, when Hall spoke to Maioho-Pohina, Hall
“explained the multiple ways in which Officer Koanui had
committed misconduct against her.” [Id. at ¶ 75.] However, Hall
still does not allege that she asked Maioho-Pohina to ensure
that the police report reflected Hall’s side of the story or
that Hall asked Maioho-Pohina to take Hall’s statement. See
Ninth Circuit Memorandum, 2023 WL 3220909, at *3; compare Third
Amended Complaint at ¶ 60 (“Plaintiff told Defendant Officer
Koanui that she wanted to file a police report against Defendant
Letoto for breaking and entering, for assault, and for false
imprisonment.”). Thus, to the extent that Hall’s Section 1983
claims against Maioho-Pohina are based upon the allegation that
Maioho-Pohina failed to take Hall’s statement or write a police
report reflecting Hall’s account of the incident, those portions
of Hall’s Section 1983 claims fail to state a plausible claim
for relief.
As to the portions of Hall’s Section 1983 claims based
upon supervisory liability, Hall has added the allegation that,
when Maioho-Pohina arrived at the scene, Maioho-Pohina spoke
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privately with Koanui and Castillo and, during that
conversation, Koanui told Maioho-Pohina about his connection
with Letoto, and “Maioho-Pohina agreed with Koanui and Castillo
to work together to protect Letoto (at the expense of
Plaintiff).” [Third Amended Complaint at ¶¶ 73-74.] Further,
Hall alleges Maioho-Pohina wrote a false and/or misleading
police report that “corroborat[ed] Officer Koanui’s account of
the incident, furthering their mutually agreed-upon goal to
protect Letoto at the expense of Plaintiff.” [Id. at ¶ 77.]
These are factual allegations that must be assumed to be true
for purposes of the instant Motion. See 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” (citation
omitted)). So construed, Hall’s Third Amended Complaint
sufficiently alleges that Maioho-Pohina was aware of and
acquiesced to Koanui’s constitutional violation. See Ninth
Circuit Memorandum, 2023 WL 3220909, at *2.
However, according to Hall’s allegations, Koanui’s
refusals to allow Hall to make a criminal complaint against
Letoto and Castillo’s refusal to intercede occurred before
Maioho-Pohina arrived on the scene. See Third Amended Complaint
at ¶ 72 (“Confused why she was being threatened with arrest
after calling the police as a victim of a crime, Plaintiff
dialed 911 a second time after speaking with Defendant Officer
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Koanui and requested further help. As a result, Defendant HPD
Sergeant Debra Maioho-Pohina arrived while Defendants Officer
Koanui and Officer Castillo were still on the scene.”). Even
though Maioho-Pohina allegedly acquiesced in the violation of
Hall’s constitutional rights, she could not prevent
constitutional violations that already happened. See Ninth
Circuit Memorandum, 2023 WL 3220909, at *2. The Third Amended
Complaint does not include any allegations that Hall’s First
Amendment right to petition the government for redress was
violated after Maioho-Pohina agreed with Koanui and Castillo to
protect Letoto at Hall’s expense.
Therefore, to the extent that Hall’s Section 1983
First Amendment claim against Maioho-Pohina is based upon
supervisory liability, that portion the claim fails to state a
plausible claim for relief. Because Claim 1 does not adequately
allege a constitutional violation by Maioho-Pohina, Maioho-
Pohina is entitled to qualified immunity. See Ninth Circuit
Memorandum, 2023 WL 3220909, at *3. Hall’s claims against
Maioho-Pohina in Claim 1 are therefore dismissed.
Although only the equal protection claim was at issue
in Hall’s interlocutory appeal, the Ninth Circuit’s analysis
gave Hall notice of what was required to plead an adequate
Section 1983 First Amendment claim against Maioho-Pohina. In
spite of this notice, Hall was unable to plead sufficient
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factual allegations regarding Maioho-Pohina to support Claim 1.
This Court therefore concludes that it is clear that Hall could
not save her First Amendment claim against Maioho-Pohina after
further amendment. The dismissal is therefore with prejudice.
See Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir.
2018) (“Dismissal with prejudice and without leave to amend is
not appropriate unless it is clear . . . that the complaint
could not be saved by amendment.” (citation and quotation marks
omitted))).
b. 	Claim 2 – First Amendment Retaliation Claim
To the extent that Claim 2 is based upon the arrest of
Hall in her residence, this also occurred before Maioho-Pohina
arrived on the scene, and for the same reasons set forth as to
Claim 1, Maioho-Pohina cannot be liable as a supervisor for that
portion of Claim 2. Because that portion of Claim 2 does not
adequately allege a constitutional violation by Maioho-Pohina,
Maioho-Pohina is entitled to qualified immunity, and that
portion of Claim must be dismissed. For the same reasons stated
as to Claim 1, this Court concludes that it is clear that Hall
could not save the portion of her First Amendment retaliation
claim against Maioho-Pohina that is based on the arrest of Hall
in her residence on June 10, 2019. The dismissal of this portion
of Claim 2 is therefore with prejudice.
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However, Claim 2 also alleges Hall was threatened with
future arrest “if she persisted in trying to report Defendant
Letoto’s crimes to the police.” [Third Amended Complaint at
¶ 180.] After Maioho-Pohina agreed with Koanui and Castillo to
protect Letoto at Hall’s expense, Maioho-Pohina prepared and
submitted a false and/or misleading police report corroborating
Koanui’s report accusing Hall of theft. See id. at ¶ 182. Hall
believed the false theft reports could be used against her in
the future as the basis for a criminal investigation and/or
arrest. See, e.g., id. at ¶ 7 (“for the several years since the
incident occurred, the knowledge that a criminal theft
investigation against her is pending has loomed over
Plaintiff”). At the time she wrote the allegedly false and/or
misleading report, Maioho-Pohina knew of the violation of Hall’s
constitutional rights and acquiesced in that violation by
agreeing to work with Koanui and Castillo to protect Letoto. See
Ninth Circuit Memorandum, 2023 WL 3220909, at *2. Although
Koanui’s threat to Hall of future arrest occurred before Maioho-
Pohina arrived at the scene, see Third Amended Complaint at
¶¶ 70-72, that threat of future arrest or investigation
continued after Maioho-Pohina agreed to help protect Letoto, and
Maioho-Pohina contributed to that threat by submitting an
allegedly false and/or misleading police report that
corroborated Koanui’s report, which alleged Hall committed
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theft. Hall has sufficiently pled allegations that Maioho-Pohina
subjected Hall to, or caused Hall to be subjected to, First
Amendment retaliation through the threat of a future theft
investigation and/or arrest.
c. 	Claim 3 – Fourth Amendment Claim
Hall’s arrest on June 10, 2019 occurred before Maioho-
Pohina arrived on the scene, and Hall’s claim against Maioho-
Pohina in Claim 3 is based solely on supervisory liability. For
the reasons set forth in the Ninth Circuit Memorandum, Hall
fails to state a plausible Section 1983 Fourth Amendment claim
against Maioho-Pohina. Because Claim 3 fails to plead a
constitutional violation by Maioho-Pohina, she is entitled to
qualified immunity as to Claim 3. See Ninth Circuit Memorandum,
2023 WL 3220909, at *2-3. Hall’s claim against Maioho-Pohina in
Claim 3 is therefore dismissed, and the dismissal is with
prejudice because this Court concludes it is clear that Hall
cannot cure the defect in this claim by amendment.
d. 	Claim 4 – Abuse of Process Claim
Similar to her allegations regarding Castillo, Hall
alleges Maioho-Pohina prepared and filed a false and/or
misleading police report that corroborated Koanui’s report,
which alleged Hall committed theft. See, e.g., Third Amended
Complaint at ¶ 67. For the same reasons set forth as to
Castillo, Hall has adequately alleged that Maioho-Pohina
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subjected her to, or caused her to be subjected to, an abuse of
process, in violation of her Fourteenth Amendment right to due
process. See supra Discussion Section I.A.1.d.
e. 	Claim 5 – Equal Protection
Claim 5 is based upon the Officer Defendants’ “fil[ing
of] a false and misleading report and unlawful[] interrogat[ion]
and arrest[ of] Plaintiff without probable cause.” [Third
Amended Complaint at ¶ 199.] Hall alleges the Officer Defendants
provided police protection to Letoto by preparing a police
report regarding his allegation that Hall committed theft, but
failed to provide police protection to Hall. See id. at ¶ 202.
As previously noted, Maioho-Pohina was not present when Hall was
interrogated and effectively arrested, and therefore she did not
have the opportunity to prevent that alleged constitutional
violation. Therefore, the portion of Claim 5 based upon Hall’s
interrogation/arrest fails to state an equal protection claim
against Maioho-Pohina.
The portion of Claim 5 based on the failure to take
Hall’s criminal complaint or statement fails for the same
reasons noted in the Ninth Circuit Memorandum – Hall does not
plead sufficient factual allegations “that could tie Maioho-
Pohina to the purportedly unconstitutional conduct.” See Ninth
Circuit Memorandum, 2023 WL 3220909, at *3. The factual
allegations that Hall added in the Third Amended Complaint do
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not cure this defect that the Ninth Circuit held existed in the
equal protection claim of the Second Amended Complaint.
Claim 5 of the Third Amended Complaint fails to state
a plausible equal protection claim against Maioho-Pohina.
Because Claim 5 fails to plead a constitutional violation by
Maioho-Pohina, she is entitled to qualified immunity as to
Claim 3. See Ninth Circuit Memorandum, 2023 WL 3220909, at *2-3.
Hall’s claims against Maioho-Pohina in Claim 5 are therefore
dismissed, and the dismissal is with prejudice because this
Court concludes it is clear that Hall cannot cure the defect in
this claim by amendment.
f. 	Claim 6 – Conspiracy
Similar to Castillo, Hall alleges Koanui informed
Maioho-Pohina of his connection with Letoto, and Maioho-Pohina
agreed with Koanui and Castillo to work together to protect
Letoto at Hall’s expense. [Third Amended Complaint at ¶ 74.]
Hall also alleges Maioho-Pohina acted upon this agreement by
preparing and submitting a false and/or misleading police report
to protect Letoto at Hall’s expense. [Id. at ¶ 77.] As
previously noted, the false and/or misleading police reports by
the Officer Defendants were used to dissuade Hall from
attempting to report Letoto’s alleged crimes. At the time she
wrote the allegedly false and/or misleading report, Maioho-
Pohina knew of the violation of Hall’s constitutional rights and
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acquiesced in that violation by agreeing to work with Koanui and
Castillo to protect Letoto. See Ninth Circuit Memorandum, 2023
WL 3220909, at *2. Maioho-Pohina’s false and/or misleading
report contributed to the threat of future criminal
investigation and/or arrest of Hall, if she attempted to make a
future report about Letoto’s alleged crimes during the June 10,
2019 incident. Therefore, for purposes of the instant Motion,
this Court concludes that Hall has adequately alleged that
Maioho-Pohina conspired to deprive her of her constitutional
rights.
B. 	Clearly Established
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 case law cited in the discussion of
Hall’s Section 1983 First Amendment claim and First Amendment
retaliation claim against Castillo, see supra Discussion
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Sections I.A.1.a, b, this Court concludes that the First
Amendment right to petition the government for redress of
grievances by filing a criminal complaint and the right to be
free from retaliation for the exercise of the right to petition
the government were clearly established rights at the time of
the June 10, 2019 incident at issue in this case. Because this
Court has also concluded that Hall adequately alleged a
constitutional violation against Castillo in Claim 1 and Claim 2
and against Maioho-Pohina in the portion of Claim 2 based upon
the threat of future criminal investigation and/or arrest, Hall
has pled sufficient allegations to overcome the City Defendants’
assertion of qualified immunity as to those claims. The City
Defendants’ Motion is denied as to those claims. The denial is
without prejudice to the City Defendants revisiting the issue of
qualified immunity on summary judgment or at trial, if warranted
by the record at that time.
Based on the case law cited in the discussion of
Hall’s Section 1983 Fourth Amendment claim against Castillo, see
supra Discussion Sections I.A.1.c, this Court concludes that the
Fourth Amendment right to be free from wrongful arrest or
imprisonment was clearly established at the time of the
incident. Because this Court has also concluded that Hall
adequately alleged a constitutional violation against Castillo
in Claim 3, Hall has pled sufficient allegations to overcome
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Castillo’s assertion of qualified immunity as to Claim 3. The
City Defendants’ Motion is denied as to Hall’s claim against
Castillo in Claim 3. The denial is without prejudice to Castillo
revisiting the issue of qualified immunity on summary judgment
or at trial, if warranted by the record at that time.
As noted in the discussion of Hall’s abuse of process
claim against Castillo, it is unclear whether an abuse of
process claim is cognizable under Section 1983 and, if so, what
the elements of the claim are. See supra Discussion
Section I.A.1.d. In light of the uncertainty regarding
Section 1983 abuse of process claims, this Court cannot conclude
that the constitutional rights at issue in Claim 4 of Hall’s
Third Amended Complaint were so clearly established that a
reasonable police officer in Castillo’s or Maioho-Pohina’s
position would have known that his or her conduct constituted an
abuse of process. Castillo and Maioho-Pohina are therefore
entitled to qualified immunity as to Claim 4. Hall’s claims
against the City Defendants in Claim 4 are dismissed, and the
dismissal is with prejudice because this Court concludes it is
clear that Hall cannot cure the defect in this claim by
amendment.
As to Hall’s equal protection claim against Castillo,
the right to non-discriminatory treatment by law enforcement
when reporting a crime is well established. See Elliot-Park, 592
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F.3d at 1008 (“The right to non-discriminatory administration of
protective services is clearly established.”). Because this
Court has also concluded that Hall adequately alleged a
constitutional violation against Castillo in Claim 5, Hall has
pled sufficient allegations to overcome Castillo’s assertion of
qualified immunity as to Claim 5. The City Defendants’ Motion is
denied as to Hall’s claim against Castillo in Claim 5. The
denial is without prejudice to Castillo revisiting the issue of
qualified immunity on summary judgment or at trial, if warranted
by the record at that time.
Based on the case law cited in the discussion of
Hall’s Section 1983 conspiracy claim against Castillo, see supra
Discussion Sections I.A.1.f, this Court concludes that the right
to be free from conspiracies to violate a person’s
constitutional rights was clearly established at the time of the
June 10, 2019 incident at issue in this case. Because this Court
has also concluded that Hall adequately alleged a constitutional
violation against the City Defendants in Claim 6, Hall has pled
sufficient allegations to overcome the City Defendants’
assertion of qualified immunity as to Claim 6. The City
Defendants’ Motion is denied as to Claim 6. The denial is
without prejudice to the City Defendants revisiting the issue of
qualified immunity on summary judgment or at trial, if warranted
by the record at that time.
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II. 	Qualified/Conditional Privilege
As to Hall’s state law claims, the City Defendants
first argue the claims against them 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.” 7
Hall alleges the City Defendants acted knowingly and
maliciously when they prepared and submitted their false and/or
misleading police reports that corroborated Koanui’s account of
the June 10, 2019 incident. See Third Amended Complaint at ¶ 67;
see also id. at ¶ 77 (similar allegation regarding Maioho-
Pohina). Hall also alleges in Claim 1 that “Defendants acted
knowingly, willfully, with malicious intent, and in reckless
disregard for Plaintiff’s constitutional rights.” Third Amended
Complaint at ¶ 176; see also id. at ¶¶ 187, 192 (alleging the
7 The qualified or conditional privilege is sometimes
referred to as “qualified immunity.” See, e.g., Slingluff v.
Hawai`i, 131 Hawai`i 239, 244, 317 P.3d 683, 688 (Ct. App.
2013). Because this order also discusses qualified immunity
under federal law, the term “conditional privilege” is used in
this Order to distinguish between the two.
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same in Claims 2, 3, respectively); id. at ¶ 239 (similar
allegation in Claim 10). Further, in Claim 4, she alleges
Defendants “maliciously and deliberately misused and abused
their authority to initiate and maintain a criminal
investigation and/or proceeding to intimidate, threaten, and
dissuade Plaintiff from pursuing legitimate claims against
Defendant Letoto.” [Third Amended Complaint at ¶ 195.]
Hall has pled that the City Defendants acted with
malice, and she has pled sufficient factual allegations to allow
this Court to reasonably infer that the City Defendants acted
with malice. Thus, the Third Amended Complaint contains
sufficient factual allegations to overcome the City Defendants’
assertion of the conditional privilege as to Hall’s state law
claims. To the extent that the Motion seeks dismissal based on
the conditional privilege, the Motion is denied. The denial is
without prejudice to the City Defendants revisiting the issue of
conditional privilege on summary judgment or at trial, if
warranted by the record at that time.
III. Other Arguments Regarding the State Law Claims
A. 	Claim 10 - IIED
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
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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
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). As to the fourth element of the
claim, the supreme court stated:
“extreme emotional distress” constitutes, among
other things, mental suffering, mental anguish,
nervous shock, and other “highly unpleasant
mental reactions.” 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). “[M]ental distress may be found
where a reasonable [person], normally
constituted, would be unable to adequately cope
with the mental stress engendered by the
circumstances of the case.” Shoppe v. Gucci Am.,
Inc., 94 Hawai`i 368, 387, 14 P.3d 1049, 1068
(2000) (quoting Rodrigues v. State, 52 Haw. 156,
173, 472 P.2d 509, 520 (1970)).
Id. at 429 n.26, 198 P.3d at 692 n.26 (alterations in Young).
The City Defendants argue Hall’s IIED claim should be
dismissed because she has not adequately alleged outrageous
conduct, nor has shall alleged that a reasonable person in her
position would have been unable to cope with their conduct.
[Motion, Mem. in Supp. at 24-25.] According to the factual
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allegations in the Third Amended Complaint, Hall called 911 to
report that Letoto had assaulted her at her home and was
attempting to force his way into the house, but the police
officers who responded to the call, Koanui and Castillo, did not
help her and treated her as the suspect. Although Koanui told
Hall she could file a criminal complaint against Letoto, Koanui
warned her that he had an open case against her for theft and
could arrest her. After Hall spoke to Koanui, she called 911
again, and Maioho-Pohina arrived at the scene in response to
that call. The three Officer Defendants agreed to protect
Letoto, at Hall’s expense, because of Koanui’s personal and
business relationship with Koanui. In furtherance of this
agreement, Castillo and Maioho-Pohina filed false and/or
misleading police reports that corroborated Koanui’s report,
which alleged Hall committed theft. This Court finds that
reasonable people could differ as to the question of whether
such conduct constitutes outrageous conduct for purposes of an
IIED claim. See Young, 119 Hawai`i at 429, 198 P.3d at 692.
Therefore, Hall has sufficiently pled outrageous conduct by the
City Defendants.
Hall alleges
the psychological harms caused by Officers
Koanui, Castillo, and Maioho-Pohina — the very
people whom Ms. Hall believed would protect her
and her family from Mr. Letoto’s assault — also
continue to haunt and traumatize her to this day.
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And for the several years since the incident
occurred, the knowledge that a criminal theft
investigation against her is pending has loomed
over Plaintiff, causing serious psychological
distress, and also causing her to refrain from
applying to desired job opportunities with the
government, which require thorough criminal
background checks.
[Third Amended Complaint at ¶ 7.] She also alleges that, “[a]s a
direct and proximate result of . . . Defendant HPD officers’
conduct, Plaintiff has suffered intense stress, physical pain,
mental anguish, anxiety, fear, helplessness, embarrassment,
anger, and severe emotional distress.” [Id. at ¶ 160.] For
purposes of the instant Motion, this Court accepts Hall’s
allegations about the harms she suffered as true. The harms she
describes constitute extreme emotional distress and, based on
the circumstances alleged in Third Amended Complaint, “a
reasonable person, normally constituted, would be unable to
adequately cope with the mental stress” caused by those
circumstances. See Young, 119 Hawai`i at 429 n.26, 198 P.3d at
692 n.26 (brackets, quotation marks and citation omitted). This
Court therefore concludes that Claim 10 of the Third Amended
Complaint alleges a plausible IIED claim against the City
Defendants. The Motion is therefore denied as to Claim 10.
B. 	Claim 11 – Civil Conspiracy
Federal District Courts in the District of
Hawaii have interpreted Hawaii case law on civil
conspiracy as requiring a plaintiff to allege
three elements:
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(1) 	the formation of a conspiracy;
(2) 	wrongful conduct in furtherance of the
conspiracy, i.e., an actionable claim based
upon deceit; and
(3) 	damage.
Pro Flexx LLC v. Yoshida, Civ No. 20-00512 SOM-
KJM, 2021 WL 297126, at *9 (D. Haw. Jan. 28,
2021) (noting that a civil conspiracy claim is
not necessarily restricted to circumstances
involving deceit or fraud).
A plaintiff is not required to allege a
formal agreement between the parties in order to
show the formation of a conspiracy. Stanton [v.
Bank of Am., N.A., Civ. No. 09-00404 DAE-LEK],
2010 WL 4176375, at *18 [(D. Haw. Oct. 19,
2010)]. It is sufficient for a plaintiff to
allege facts showing a “concert of action, all
the parties working together understandingly,
with a single design for the accomplishment of a
common purpose.” Id. (quoting Marino v. United
States, 91 F.2d 691, 694 (9th Cir. 1937)).
A civil conspiracy is not an independent
cause of action in itself. Weinberg v. Mauch, 890
P.2d 277, 286 (1995). It is not enough for a
plaintiff to allege that defendants
understandingly engaged in concerted misconduct
to accomplish a common purpose. The wrongful
conduct in furtherance of a civil conspiracy must
be based on an underlying actionable claim. Id.
David Sansone Co. v. Waiaha Ridge LLC, Civ. No. 20-00411 HG-RT,
2022 WL 1212922, at *5–6 (D. Hawai`i Apr. 25, 2022).
The City Defendants allege Claim 11 is insufficiently
pled because Hall does not allege the criminal or unlawful
purpose and means of the conspiracy. [Motion, Mem. in Supp. at
25.] Hall alleges Koanui and Castillo “agreed to work together
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to protect Letoto at the expense of Plaintiff,” [Third Amended
Complaint at ¶ 54,] and Maioho-Pohina later “agreed with Koanui
and Castillo to work together to protect Letoto (at the expense
of Plaintiff),” [id. at ¶ 74]. Hall alleges Castillo and Maioho-
Pohina furthered “their mutually agreed-upon goal to protect
Letoto at the expense of Plaintiff” by “provid[ing] false,
inaccurate, and/or misleading and incomplete information on
their official reports . . . by corroborating Defendant Officer
Koanui’s account of the incident.” [Id. at ¶ 67.] Hall’s factual
allegations are sufficient to allege that a conspiracy was
formed and the wrongful conduct in furtherance of the
conspiracy. See David Sansone Co., 2022 WL 1212922, at *5.
The City Defendants also argue “the conspiracy claims
fails because all of the other state law claims fail.” [Motion,
Mem. in Supp. at 25.] This Court rejects that argument because
Hall’s IIED claim and some of her Section 1983 claims remain
against the City Defendants.
Claim 11 states a plausible civil conspiracy claim
against the City Defendants. The Motion is therefore denied as
to Claim 11.
CONCLUSION
For the foregoing reasons, the City Defendants’ Motion
to Dismiss Third Amended Complaint, filed July 3, 2023, is
HEREBY GRANTED IN PART AND DENIED IN PART. Specifically, the
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Motion is GRANTED insofar as the following claims are dismissed
with prejudice:
-Hall’s claims against the City Defendants in Claim 4;
-Hall’s claims against Maioho-Pohina in Claims 1, 3, and 5; and
-the portion of Claim 2 alleging a First Amendment retaliation
claim against Maioho-Pohina based upon the arrest of Hall
in Hall’s residence on June 10, 2019.
The Motion is DENIED as to the following claims:
-Hall’s claims against the City Defendants in Claims 6, 10, and
11;
-Hall’s claims against Castillo in Claims 1, 2, 3, and 5; and
-the portion of Claim 2 alleging a First Amendment retaliation
claim against Maioho-Pohina based upon the threat of future
criminal investigation and/or arrest.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 29, 2024.
ROBIN HALL VS. CITY AND COUNTY OF HONOLULU, ET AL; CV 21-00248
LEK; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS DEBRA
MAIOHO-POHINA AND JOHN LEO CASTILLO’S MOTION TO DISMISS THIRD
AMENDED COMPLAINT
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