Jeanniton v. City and County of Honolulu

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI`I

___________________________________

)

PATRICK JEANNITON, )

)

Plaintiff, )

)

v. ) Civ. No. 20-00369 ACK-WRP

)

THE CITY AND COUNTY OF HONOLULU, )

MARK FIESTA, Honolulu Police )

Officer )

)

)

Defendants. )

___________________________________)

ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE FOURTEENTH AMENDMENT

CLAIM, GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION

TO STRIKE NEW ALLEGATIONS AND REQUEST FOR INJUNCTIVE RELIEF, AND

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL DISMISSAL (ECF No. 49)

Plaintiff Patrick Jeanniton was placed in a chokehold

after Defendant Honolulu Police Officer Mark Fiesta (“Officer

Fiesta”) responded to a call reporting a domestic dispute at

Jeanniton’s residence. After speaking with Jeanniton through

the screen door, Officer Fiesta entered Jeanniton’s residence

without a warrant, placed Jeanniton in a chokehold, and arrested

Jeanniton. Jeanniton alleges violations of his rights under the

United States Constitution and the Hawaii Constitution, and

asserts claims for intentional infliction of emotional distress,

assault, and battery.

There are three motions currently before the Court.

The City and County of Honolulu and Officer Fiesta (together,

“Defendants”) filed a Motion for Partial Dismissal of Third

Amended Complaint, Motion to Strike Fourteenth Amendment Claim,

Motion to Strike New Allegations, and Motion for Enlargement of

Time to Answer the Third Amended Complaint, ECF No. 49. The

Court previously issued an order on June 28, 2021 granting the

Motion for Enlargement of Time.

For the reasons discussed below, the Court GRANTS

Defendants’ Motion to Strike Fourteenth Amendment Claim, GRANTS

IN PART AND DENIES IN PART Defendants’ Motion to Strike New

Allegations, and GRANTS IN PART and DENIES IN PART Defendants’

Motion for Partial Dismissal.

BACKGROUND

The following facts are principally drawn from the

Third Amended Complaint. 3d Am. Compl. (“TAC”), ECF No. 48.1/

I. Factual Background

On January 28, 2019, Jeanniton and his girlfriend had

a verbal argument in their apartment. TAC ¶¶ 8,9. The argument

escalated, and a neighbor called the police. Id. ¶ 9. When

Officer Fiesta and another officer responded to the call, they

approached Jeanniton’s apartment and demanded that he open the

1/ Jeanniton refers to the Third Amended Complaint as a “Second Amended

Complaint.” Because Jeanniton had already filed a Second Amended Complaint,

ECF No. 44, the Court refers to ECF No. 48 (the operative complaint) as the

Third Amended Complaint.

door. Id. ¶ 10. In response, Jeanniton yelled through the door

that he would not open it, that there was nothing to see, and

that the officers should leave. Id. ¶ 11. The officers

continued knocking and yelling to open the door. Id. ¶ 12.

Jeanniton eventually opened the front door, but left

the screen door closed. He told the officers that he did not

call them, that no one needed them, and that they should go

home. Id. During this interaction, Jeanniton’s girlfriend

stood on the stairs behind him, visible to the officers. Id.

When Jeanniton attempted to close the front door,

Officer Fiesta opened the screen door and shoved his foot

forward to prevent Jeanniton from closing the door. Id. ¶ 13.

Officer Fiesta then physically forced his way into the

apartment, punching and grabbing Jeanniton. Id. During this

altercation, Officer Fiesta put Jeanniton into a chokehold,

which rendered him unconscious. Id. Disoriented, Jeanniton

woke up on the floor in a pool of his blood. Id. Jeanniton

suffered injuries to his eyes, nose, and tongue from his

altercation with Officer Fiesta, as well as injuries to his

wrists from the handcuffs Officer Fiesta employed. Id. ¶¶ 13,

14. Jeanniton’s girlfriend showed the officers that she did not

have any injuries and said that they were only arguing. Id. ¶

15.

The officers debated what to charge Jeanniton with

after he had been handcuffed in his living room. Id. ¶ 17.

Jeanniton was ultimately charged with harassing Officer Fiesta,

which was dismissed in court. Id.

II. Procedural Posture

Jeanniton filed this lawsuit in state court on July

16, 2020. See ECF No. 62 at 1. Jeanniton amended his complaint

soon thereafter. See ECF No. 1-2. Defendants then removed the

case to federal court. See ECF No. 1. Jeanniton alleged that

Officer Fiesta entered his residence without justification,

assaulted him, and falsely arrested and falsely imprisoned him

using excessive force. See ECF No. 1-2 ¶¶ 8-17, 44. On March

16, 2021, Jeanniton sought leave to file a proposed second

amended complaint. See ECF No. 25-1 at 16-19. Magistrate Judge

Porter granted Jeanniton’s request for leave to assert claims

against Officer Fiesta in his individual capacity for violations

of the First and Fourth Amendments under 42 U.S.C. § 1983. See

ECF No. 39 at 18-19. However, Magistrate Judge Porter denied

Plaintiff’s request for leave to assert: (1) a Section 1983

claim against Officer Fiesta in his individual capacity for

violations of the Fourteenth Amendment, (2) a Section 1983 claim

against the City and County of Honolulu, and (3) a Section 1983

claim against Officer Fiesta in his official capacity. Id.

Jeanniton then filed a Second Amended Complaint. ECF

No. 44. Neither party appealed Magistrate Judge Porter’s order.

Shortly thereafter, the parties met and conferred and Jeanniton

agreed to dismiss any Section 1983 claims against the City, the

Section 1983 claims against Defendants for violations of the

Fifth, Sixth, Eighth, Ninth, Twelfth, and Thirteenth Amendments

to the United States Constitution, all claims against Officer

Fiesta in his official capacity, all claims for injunctive

relief against Defendants, and all claims for punitive damages

against the City.2/ See ECF No. 45. The parties then submitted

a stipulation seeking partial dismissal of certain claims

against Defendants under Rule 41(a)(1)(A)(ii). Id. Magistrate

Judge Porter construed the parties’ stipulation as written

consent to file an amended complaint under Rule 15(a)(2). Id.

Magistrate Judge Porter warned Jeanniton that the amended

complaint must “conform[] to the parties’ stipulation.” Id.

Jeanniton filed a Third Amended Complaint, ECF No. 48.

Defendants filed the present Motions, ECF No. 49, and Jeanniton

2/ The Court notes that while Jeanniton in his Third Amended Complaint

requests both punitive and exemplary damages, they are one and the same. See

Durham v. Cty. of Maui, 692 F. Supp. 2d 1256, 1261 (D. Haw. 2010) (“Punitive

or exemplary damages are generally defined as those damages assessed in

addition to compensatory damages for the purpose of punishing the defendant

for aggravated or outrageous misconduct and to deter the defendant and others

from similar conduct in the future.”) (citation omitted).

filed his Opposition, ECF No. 59. Defendants filed a Reply, ECF

No. 60.3/ A hearing on the Motions was held on July 29, 2021.

STANDARDS

I. Rule 12(f)

Rule 12(f) provides that the “court may strike from a

pleading an insufficient defense or any redundant, immaterial,

or scandalous matter.” Fed. R. Civ. P. 12(f). Immaterial

matter is “that which has no essential or important relationship

to the claim for relief or the defenses being pleaded . . . .

‘Impertinent’ matter consists of statements that do not pertain,

and are not necessary, to the issues in question.” Fantasy Inc.

v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (citations

omitted), rev’d on other grounds by Fogerty v. Fantasy, Inc.,

510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994).

The function of a Rule 12(f) motion is to avoid

spending time and money litigating spurious issues by dispensing

with those issues before trial. Sidney-Vinstein v. A.H. Robbins

Co., 697 F.2d 880, 885 (9th Cir. 1983). Grounds for a motion to

strike must be readily apparent from the face of the pleadings

3/ Defendants’ Reply contains an Attendant Motion to Strike Jeanniton’s

Opposition. Defendants argue that the Opposition does not include a

certification that it contains no more than 6,250 words despite it exceeding

twenty-five pages in length in violation of Local Rules 7.4(a), (b), and (e).

Although Jeanniton’s Opposition does exceed the Court’s page limits, the

Court will allow the over-sized brief. In the future, the parties are

admonished to follow all rules of this Court or face appropriate sanctions.

or from materials judicially noticed. Wailua Assocs. v. Aetna

Cas. & Sur. Co., 183 F.R.D. 550, 554 (D. Haw. 1998). A matter

will not be stricken from a pleading unless it is clear that it

can have no possible bearing on the subject matter of the

litigation. Id. Ultimately, whether to grant a motion to

strike lies within the sound discretion of the district court.

Fantasy, 984 F.2d at 1528.

II. Rule 12(b)(6)

Rule 12(b)(6) authorizes the court to dismiss a

complaint that fails “to state a claim upon which relief can be

granted.” Rule 12(b)(6) is read in conjunction with Rule 8(a),

which requires only “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). The court may dismiss a complaint either because it

lacks a cognizable legal theory or because it lacks sufficient

factual allegations to support a cognizable legal theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

1988).

In resolving a Rule 12(b)(6) motion, the court must

accept all well-pleaded factual allegations as true and construe

them in the light most favorable to the plaintiff. Sateriale v.

R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012).

The complaint “must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

Mere conclusory statements in a complaint or “formulaic

recitation[s] of the elements of a cause of action” are not

sufficient. Twombly, 550 U.S. at 555, 127 S. Ct. 1955, 167 L.

Ed. 2d 929. Thus, the court discounts conclusory statements,

which are not entitled to a presumption of truth, before

determining whether a claim is plausible. Iqbal, 556 U.S. at

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868.

“Dismissal with prejudice and without leave to amend

is not appropriate unless it is clear . . . that the complaint

could not be saved by amendment.” Harris v. Cty. of Orange, 682

F.3d 1126, 1131 (9th Cir. 2012) (quoting Eminence Capital, LLC

v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)).

DISCUSSION

As discussed above, the Court must decide whether to

(1) strike Jeanniton’s Fourteenth Amendment claim, (2) strike

the new allegations and request for injunctive relief, and (3)

partially dismiss the Third Amended Complaint.4/

4/ The Motion does not seek dismissal of the respondeat superior claim

against the City, or the state law claims against Officer Fiesta for assault,

battery, and intentional infliction of emotional distress, nor the Fourth

Amendment claims of excessive force, unlawful arrest, and malicious

(Continued . . .)

First, the Court strikes the Fourteenth Amendment

claim because Jeanniton was not granted leave to assert that

claim. It then declines to strike new factual pleadings for

which Jeanniton was likewise not granted leave to amend, and

also strikes Jeanniton’s requested injunctive relief given the

parties’ prior stipulation. The Court goes on to address

Defendants’ motion for partial dismissal. In that regard, the

Court dismisses the claims brought under the Hawaii Constitution

and the request for declaratory judgment. Finally, the Court

turns to the Section 1983 First and Fourth Amendment claims,

which it finds are sufficiently pleaded to survive Defendants’

motion to dismiss. At this stage, Defendants are not entitled

to a favorable ruling on qualified immunity.5/

I. Motion to Strike Fourteenth Amendment Claim

Defendants first request that the Court strike

portions of Jeanniton’s Third Amended Complaint in which

Jeanniton has asserted a Fourteenth Amendment claim, given that

prosecution. At the hearing, Jeanniton’s counsel stated that Jeanniton is

asserting a false imprisonment claim. This claim was asserted in Jeanniton’s

First Amended and Second Amended Complaints and thus did not require

Magistrate Judge Porter’s permission to be included in the Third Amended

Complaint, and was not addressed by Magistrate Judge Porter in his order.

5/ Defendants also seek clarification that they may answer what remains

of the Third Amended Complaint within fourteen days after the Court enters

its Order on the Motions. The Court does not further address this matter

because the Court issued an order on June 28, 2021 informing the Parties that

it granted the Motion for Enlargement of Time. The Court reiterates that

Defendants are required to serve their answer within fourteen days of the

Court’s Order on this Motion.

Jeanniton was previously denied leave to assert such a claim.

Mot. at 9-10.

The Court agrees. Although not listed as a separate

claim, Jeanniton alleges that Officer Fiesta’s conduct violated

his “[f]irst Amendment Rights to Free Speech and Fourth and

Fourteenth Amendment right to be free from illegal searches and

seizures.” TAC ¶ 25.

Pursuant to Rule 12(f), a court may strike claims from

a pleading for failure to comply with a court order. See

Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., No. CIV. 03-

3013-CO, 2005 WL 2675189, at *2 (D. Or. Oct. 19, 2005) (striking

claims because they were in contravention of the court’s

previous order limiting such claims), aff’d, 565 F.3d 545 (9th

Cir. 2009); Provencio v. Vazquez, No. 1:07-CV00069-AWIBAK, 2010

WL 653881, at *2 (E.D. Cal. Feb. 19, 2010) (striking provisions

of amended complaint that “violate[d] the court’s order” which

limited any amendment to new theories about a specific

defendant); Cork v. CC-Palo Alto, Inc., No. 5:14-cv-00750-EJD,

2021 WL 1561644, at *3 (N.D. Cal. Apr. 21, 2021) (noting that

the court granted a motion to strike claims the court previously

dismissed without leave to amend).

Magistrate Judge Porter previously denied Jeanniton

leave to assert any Fourteenth Amendment claim. ECF No. 39 at

14-15 (“Plaintiff’s request for leave to add a due process claim

under the Fourteenth Amendment against Defendant Fiesta in his

individual capacity is denied.”).6/ Accordingly, to the extent

that Jeanniton now asserts a claim under the Fourteenth

Amendment in his Third Amended Complaint, that claim is

STRICKEN.

II. Motion to Strike New Allegations and Injunctive Relief

Defendants further ask the Court to strike the new

allegations in the Third Amended Complaint, as well as

Jeanniton’s request for injunctive relief.7/

a. New Allegations

Defendants move to strike on the grounds that portions

of the Third Amended Complaint do not comply with Magistrate

Judge Porter’s April 20, 2021 order. Defendants argue that

Jeanniton was not given leave to amend his complaint to include

new allegations, nor did the parties stipulate to such. Mot. at

21-23.

When the language of an order clearly states that a

plaintiff may only amend to address certain deficiencies

6/ Moreover, the Court notes that Jeanniton’s claim is already covered

by the Fourth Amendment and therefore the duplicative due process claim is

inappropriate. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 833, 118 S.

Ct. 1708, 1710, 140 L. Ed. 2d 1043 (1998) (observing that “if a

constitutional claim is covered by a specific constitutional provision, such

as the Fourth or Eighth Amendment, the claim must be analyzed under the

standard appropriate to that specific provision, not under the rubric of

substantive due process.”).

7/ Defendants’ motion is titled “Motion to Strike New Allegations.”

But because Defendants’ Motion to Strike New Allegations encompasses the

request to also strike the injunctive relief, Mot. at 21, the Court addresses

the issues together.

identified in the order, courts have held that a plaintiff is

barred from adding new claims or parties. See Jameson Beach

Property Owners Ass’n v. U.S., No. 2:13-cv-01025-MCE-AC, 2014 WL

4925253, at *4 (E.D. Cal. Sept. 29, 2014) (collecting cases).

Here, Magistrate Judge Porter granted in part and

denied in part Jeanniton’s motion for leave to amend his

complaint. Specifically, Jeanniton was granted leave to amend

only to assert a Section 1983 claim against Officer Fiesta in

his individual capacity for violations of the First and Fourth

Amendment. ECF No. 39 at 18-19. But in his subsequent Third

Amended Complaint, Jeanniton included additional factual detail

about the underlying incident. See, e.g., TAC ¶ 3 (adding that

a chokehold is an inherently dangerous maneuver which has caused

death); id. ¶ 9 (adding that neighbor called about “verbal

discussion” rather than “noise”); id. ¶ 12 (clarifying that

Jeanniton “indicated” rather than “pointed,” and adding that

Fiesta was able to see Jeanniton’s girlfriend); id. ¶ 13 (adding

that Jeanniton woke up “very disoriented due to lack of oxygen

to the brain”); id. ¶ 16 (adding that Jeanniton did not give

officers permission to invade his privacy); id. ¶ 17 (adding

that officers were aware that they did not have probable cause);

id. ¶ 19-20 (adding that Officer Fiesta used force excessively,

out of anger, and in violation of HRS § 703-307).

Jeanniton’s additional allegations are permissible.

They merely expand on the facts of the underlying incident, as

opposed to adding new claims or parties. Moreover, while the

Third Amended Complaint does include additional facts to the

claims against Defendants, the facts stated in Jeanniton’s

Second and Third Amended Complaints are substantially the same.

See supra. Any additional factual assertions only flesh out

existing claims. See Baranyi v. Univ. of Hawaii, Civ. No. 13-

00667 SOM/KSC, 2014 WL 4457195, at *3 (D. Haw. Sept. 9, 2014);

see also Carbajal v. Dorn, No. CV-09-283-PHX-DGC, 2010 WL

487433, at *2 (D. Ariz. Feb. 4, 2010) (granting motion to strike

where amended complaint “greatly exceeds the limited amendment

permitted by the Court’s order”) (emphasis added). The Court

does not consider such additional factual detail to violate the

previous order, and Defendants have not demonstrated any

prejudice resulting from the additional detail.

Because a motion to strike is a “severe measure” that

should be viewed “in the light most favorable to the

plaintiffs,” this Court declines to strike the additional

factual allegations made in the Third Amended Complaint. See

Baranyi at *3 (D. Haw. Sept. 9, 2014). Insofar as the Motions

ask the Court to strike additional factual material, they are

DENIED.

b. Request for Injunctive Relief

Defendants also move to strike Jeanniton’s request for

injunctive relief in the Third Amended Complaint. In doing so,

Defendants argue that Jeanniton stipulated to dismiss any

request for injunctive relief, and that the Court indicated that

Jeanniton was to file an amended complaint that conformed to the

parties’ stipulation. Mot. at 21-22.

Defendants are correct that the parties submitted a

stipulation to dismiss certain claims as well as any request for

punitive damages or injunctive relief. Mot. at 6. When

Magistrate Judge Porter construed the parties’ stipulation as

written consent to file an amended complaint, he explicitly

instructed Plaintiff to file an amended complaint “that conforms

to the parties’ stipulation.” ECF No. 45 (“Specifically, the

Third Amended Complaint shall remove the following claims [:] .

. . all claims for injunctive relief against Defendants . . .”).

As discussed supra, a court may strike claims from a

pleading for failure to comply with the court’s orders.

Accordingly, insofar as the Motions seek to have the request for

injunctive relief stricken, the Court GRANTS the Motions.

III. Motion for Partial Dismissal of Third Amended Complaint

The Court now turns to Defendants’ Motion for Partial

Dismissal. Defendants request dismissal with prejudice of: (1)

Jeanniton’s claim under the Hawaii State Constitution, (2)

Jeanniton’s request for a declaratory judgment, (3) the First

Amendment claim against Officer Fiesta, and (4) the Fourth

Amendment claim for warrantless entry against Officer Fiesta.

For the reasons set forth below, the Court GRANTS the Motion

with regard to the claims under the Hawaii Constitution and the

declaratory judgment but DENIES the Motion with regard to the

First Amendment claim and Fourth Amendment claim for warrantless

entry against Officer Fiesta.

a. Claims Under the Hawaii Constitution

Counts I-IV of the Third Amended Complaint assert

claims under the Hawaii State Constitution against Officer

Fiesta. See TAC ¶¶ 19-38. Defendants argue that Jeanniton is

unable to use violations of the Hawaii Constitution as an

independent cause of action. The Court agrees.

Hawaii courts have declined to recognize a direct

private cause of action for violations of rights guaranteed

under the Hawaii Constitution. Kaahu v. Randall, No. CV 14-

00266HG-RLP, 2018 WL 472996, at *7 (D. Haw. Jan. 18, 2018);

Davis v. Abercrombie, No. CIV. 11-00144 LEK-BMK, 2014 WL

3809499, at *15 (D. Haw. July 31, 2014); Galario v. Adewundmi,

Civ. No. 07–00159 DAE–KSC, 2009 WL 1227874, at *11 (D. Haw. May

1, 2009) (granting summary judgment against a plaintiff because

such a cause of action has not been recognized); Makanui v.

Dep't of Educ., 721 P.2d 165, 170 n.2 (Haw. Ct. App. 1986).

Hawaii does not have a statutory or judicially created

equivalent to Section 1983, the federal statute that permits a

private cause of action for violations of the United States

Constitution. Ilae v. Tenn, No. CIV. 12-00316 ACK-KSC, 2013 WL

4499386, at *17 (D. Haw. Aug. 20, 2013).

For those reasons, Jeanniton is unable to bring claims

predicated on violations of the Hawaii Constitution. Because

the Court cannot conceive of—and Jeanniton has not explained—how

any amendment to the Third Amended Complaint that would overcome

the legal shortcomings described above, the Court GRANTS the

Motion to Dismiss as to the four claims under the Hawaii

Constitution WITH PREJUDICE.8/

b. Declaratory Judgment

In the Third Amended Complaint, Jeanniton seeks a

declaratory judgment “that the Plaintiff’s rights have been

violated as alleged.” TAC, Request for Relief.9/ Defendants

8/ In his Opposition, Jeanniton argues that this Court has “concurrent

jurisdiction” over the claims under the Hawaii Constitution. Opp. at 8. But

Jeanniton ignores the inherent issue with his claim-that there is no private

right of action under the Hawaii Constitution.

9/ The Third Amended Complaint requests “[a] declaratory judgment be

issued that the Plaintiff’s rights have been violated as alleged.” TAC

Request for Relief. For the first time in his Opposition, Jeanniton

references a request for a declaratory judgment “banning the use of ‘Choke

Holds’ on non-armed citizens in their homes, who are not fleeing felons and

only suspected of possible misdemeanor offenses.” Opp. at 24. An opposition

to a motion to dismiss is an improper vehicle to assert additional facts or

claims not initially alleged, which Plaintiff may properly assert through an

amended complaint. Nathanson v. Polycom, Inc., 87 F. Supp. 3d 966, 985 (N.D.

Cal. 2015) (declining to address allegations raised in plaintiff's opposition

brief but not his complaint). The Court therefore declines to address

(Continued . . .)

argue that such a request must be dismissed with prejudice

because it is duplicative of the other relief sought by

Jeanniton. Mot. at 20-21. The Court agrees.

“A declaratory judgment, like other forms of equitable

relief, should be granted only as a matter of judicial

discretion, exercised in the public interest.” Eccles v.

Peoples Bank of Lakewood Vill., Cal., 333 U.S. 426, 431, 68 S.

Ct. 641, 644, 92 L. Ed. 784 (1948); see also Leadsinger, Inc. v.

BMG Music Publ’g, 512 F.3d 522, 533 (9th Cir. 2008).

Declaratory relief should be denied “when it will neither serve

a useful purpose in clarifying and settling the legal relations

in issue nor terminate the proceedings and afford relief from

the uncertainty and controversy faced by the parties.” United

States v. State of Wash., 759 F.2d 1353, 1357 (9th Cir. 1985)

(en banc) (per curiam); see also L.A. Cty. Bar Ass’n v. Eu, 979

F.2d 697, 703 (9th Cir. 1992).

Declaratory relief is further limited if it is

duplicative of other claims or if it seeks only to redress past

harms. A request for declaratory relief “is not cognizable as

an independent cause of action under the Declaratory Judgment

Act, 28 U.S.C. § 2201, where it is based on Defendant’s past

wrongs and simply duplicates Plaintiff’s other causes of

Jeanniton’s revised request for a declaratory judgment in his Opposition, and

will instead evaluate the request for a declaratory judgment found in his

Third Amended Complaint.

action.” Gray v. OneWest Bank, Fed. Sav. Bank, No. Civ. 13-

00547 JMS-KSC, 2014 WL 3899548, at *12 (D. Haw. Aug. 11, 2014).

The purpose of a declaratory judgment is to “set controversies

at rest before they cause harm to the plaintiff, not to remedy

harms that have already occurred.” Ruiz v. Mortgage Elec.

Registration Sys., Inc., No. CIV S-09-0780 FC DDAD, 2009 WL

2390824, at *5 (E.D. Cal. Aug. 3, 2009) (dismissing claim for

declaratory judgment when foreclosure had already occurred and

the plaintiff was seeking “to redress past wrongs”).

Jeanniton’s request for relief both duplicates his

claim for damages and is based on Defendants’ alleged past

actions. See Salem v. Arakawa, No. 15-00384 LEK-KJM, 2016 WL

7972144, at *8 (D. Haw. Dec. 20, 2016) (dismissing request for

declaratory relief because “[p]laintiff’s allegations [] seek to

remedy harms that have already occurred.”). There is also no

indication that Jeanniton will be subject to future

unconstitutional interactions with Defendants. See Guerra v.

Sutton, 783 F.2d 1371, 1376 (9th Cir. 1986).

Jeanniton’s request for a declaratory judgment fails

under Hawaii law as well because Hawaii’s declaratory judgment

statute is no broader than the Declaratory Judgment Act. See

Haw. Rev. Stat. § 632-1. Under Hawaii law, courts must not

exercise jurisdiction “over Hawaii state law declaratory

judgment actions where the wrongful acts complained of have

already been committed and are encompassed by other causes of

action.” Gray, 2014 WL 3899548, at *13 (citing Kaleikau v.

Hall, 27 Haw. 420, 428 (1923)). As stated above, the wrongful

acts Jeanniton complains of in his Third Amended Complaint

related to his request for declaratory judgment have already

been committed and are encompassed by other causes of action.

Accordingly, Jeanniton’s claim for declaratory

judgment fails under both federal and state law. Because the

Court finds that further amendment would be futile, Jeanniton’s

request for declaratory judgment is DISMISSED WITH PREJUDICE.

c. First Amendment Claim

Jeanniton pleads a First Amendment claim based on

Officer Fiesta’s physical force as retaliation “for Plaintiff

exercising his First Amendment right of Free speech to

articulate his basic Constitutional Right of the established

expectation of the Privacy in his home; and to be free from

unlawful searches and seizures . . . after stating his

opposition to the warrantless entry and search of his home.”

TAC ¶ 26. Defendants contend that (1) the Third Amended

Complaint fails to state a First Amendment claim against Officer

Fiesta, and (2) that Officer Fiesta is entitled to qualified

immunity on the First Amendment claim. The Court rejects both

arguments and finds that Jeanniton has sufficiently alleged his

First Amendment claim and that Officer Fiesta is not entitled to

qualified immunity at this stage.

i. Adequacy of Pleading

Defendants first argue that Jeanniton’s Third Amended

Complaint does not state a claim under the First Amendment.

“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. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th

Cir. 2019) (quoting O’Brien v. Welty, 818 F.3d 920, 932 (9th

Cir. 2016)). To prevail on such a claim, a plaintiff must

establish that the defendant’s retaliatory animus was the “but-

for” cause of the plaintiff’s injury, “meaning that the adverse

action against the plaintiff would not have been taken absent

the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715,

1725, 204 L. Ed. 2d. 1, (2019). The Court considers each

element below.

1. Constitutionally Protected Activity

Defendants appear to allege that Jeanniton’s words of

protest were not protected speech because Officer Fiesta “was

investigating domestic abuse, which he could not determine

without entering the apartment.” Mot. at 12. It is well

settled that the activity for which Jeanniton was allegedly

retaliated against-voicing criticism of the officers’ conduct-is

constitutionally protected. See Hartman v. Moore, 547 U.S. 250,

256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006) (“[T]he law is

settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to

retaliatory actions . . . for speaking out.”); Ford v. City of

Yakima, 706 F.3d 1188, 1192-93 (9th Cir. 2013) (per curiam)

(“While an individual’s critical comments may be ‘provocative

and challenging,’ they are ‘nevertheless protected against

censorship or punishment, unless shown likely to produce a clear

and present danger of a serious substantive evil that rises far

above public inconvenience, annoyance, or unrest.’”) (quoting

Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 93

L. Ed. 1131 (1949)), abrogated on other grounds by Nieves, 129

S. Ct. 1715, 204 L. Ed. 2d (2019). Police have been on notice

at least since 1990 that it is unlawful to use their authority

to retaliate against individuals for their protected speech.

See Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990)

(holding that a police officer’s traffic stop and subsequent

arrest of an individual who directed obscene gestures and words

toward that officer was unlawful because it was well established

that police officers may not exercise their authority for

personal motives, especially in response to an individual’s

criticism or insults); see also Beck v. City of Upland, 527 F.3d

853, 871 (9th Cir. 2008) (holding that Duran clearly established

that police offices could not use their power to retaliate

against an individual for his free speech). Jeanniton’s

criticism of the police falls “squarely within the protective

umbrella of the First Amendment and any such action to punish or

deter such speech . . . is categorically prohibited by the

Constitution.” Duran, 904 F.2d at 1378.

2. Chilling Effect

The Court’s inquiry under this prong is not whether

Officer Fiesta’s actions actually chilled Jeanniton, but whether

the alleged retaliation “would chill a person of ordinary

firmness from continuing to engage in the protected activity.”

O’Brien, 818 F.3d at 932 (quoting Pinard v. Clatskanie Sch.

Dist. 6J, 467 F.3d 755 (9th Cir. 2006)). Jeanniton alleges that

he verbally protested police entry into his home immediately

before Officer Fiesta stepped through the screen door and

“attacked and choked” Jeanniton. TAC ¶ 40. Such a physical

attack, to the point where Jeanniton lost consciousness, id. ¶

13, is a severe action that would chill the average person from

voicing criticism of police conduct. See Rhodes v. Robinson,

408 F.3d 599, 562 n.11 (9th Cir. 2005) (“[H]arm that is more

than minimal will almost always have a chilling effect.”).

3. Substantial or Motivating Factor

The final factor the Court must consider is whether

Jeanniton plausibly pleaded that his speech-his statement that

the police were not needed-was “a substantial or motivating

factor” in Officer Fiesta’s decision to physically restrain

Jeanniton. The Third Amended Complaint alleges that Jeanniton

“verbally protested the treatment the Defendant officers

subjected him to right before they assaulted him” and that it

“is thus apparent that Officer Fiesta attacked and ‘choked’

Plaintiff Jeanniton maliciously in response to Plaintiff

Jeanniton exercising his First Amendment right to protest the

police officers demanding illegal entry into his home . . . .”

-Id-.- ¶ 40. Jeanniton has therefore plausibly alleged that

retaliatory animus was a but-for cause of Officer Fiesta’s

actions.

Thus, for purposes of this Motion, Jeanniton has

sufficiently alleged a retaliation claim under the First

Amendment.

i. Qualified Immunity

Defendants next argue that Officer Fiesta is entitled

to qualified immunity on Jeanniton’s First Amendment claim.

The doctrine of qualified immunity protects government

officials “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d. 396 (1982). “To determine whether an

individual officer is entitled to qualified immunity, we ask (1)

whether the official violated a constitutional right and (2)

whether the constitutional right was clearly established.” C.B.

v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014) (citing

Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172

L. Ed. 2d 565 (2009).

Having determined that Jeanniton alleged a plausible

First Amendment retaliation claim based in part on a violation

of a constitutional right, the Court now moves to the second

prong of the qualified immunity analysis-whether the right was

“clearly established” at the time of Officer Fiesta’s alleged

misconduct. Pearson, 555 U.S. at 232.

“[F]or a right to be clearly established, existing

precedent must have placed the statutory or constitutional

question beyond debate,” though there need not be “a case

directly on point.” Kisela v. Hughes, 138 S. Ct. 1148, 1152,

200 L. Ed. 2d 449 (2018) (per curiam) (quoting White v. Pauly,

137 S. Ct. 548, 551, 196, L. Ed. 2d 463 (2017) (per curiam)).

“Whether the law was clearly established is an objective

standard; the defendant’s subjective understanding of the

constitutionality of his or her conduct is irrelevant.”

Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir.

2011) (quoting Fogel v. Collins, 531 F.3d 824, 833 (9th Cir.

2008)). Though to conclude that the right is clearly

established, the court need not identify an identical prior

action. See Scott v. Cty. of San Bernardino, 903 F.3d 943, 951

(9th Cir. 2018) (explaining that there need not be a case

dealing with the particular facts to find the officer’s conduct

unreasonable). The officer is entitled to qualified immunity if

the law at the time of the incident did not clearly establish

that the officer’s conduct violated the United States

Constitution and therefore failed to put the officer on fair

notice. Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596,

598, 160 L. Ed. 2d. 583 (2004) (per curiam).

At this stage, the Court is unable to say whether

Jeanniton’s claims are futile on the basis of qualified immunity

because, viewing the allegations in a light most favorable to

Jeanniton, it appears that Officer Fiesta’s alleged conduct

would have violated clearly established constitutional rights

and a reasonable officer could not have believed such conduct to

be lawful. See supra; see also O’Brien v. Welty, 818 F.3d 920,

936 (9th Cir. 2016) (holding that dismissal based on qualified

immunity is not appropriate unless it can be determined based on

the complaint alone that qualified immunity applies); see also

Hyer v. City & Cnty. of Honolulu, Civ No. 19-00586 HG-RT, 2020

WL 7038953, at *5 (D. Haw. Nov. 30, 2020) (holding that a

determination regarding qualified immunity at the pleading stage

was premature because it requires “a fact-specific analysis and

[] knowledge of all of the material facts of the specific

context of the case”). Accordingly, Defendants’ Motion to

Dismiss Jeanniton’s First Amendment claim is DENIED.10/

d. Fourth Amendment Claim: Warrantless Entry

Finally, Defendants argue that Officer Fiesta is

entitled to qualified immunity on Jeanniton’s Fourth Amendment

warrantless entry claim.11/

The Third Amended Complaint does not specify the exact

nature of the Fourth Amendment violations asserted. When

deciding whether to grant leave to amend, Magistrate Judge

Porter previously considered potential theories of unreasonable

search and seizure, unlawful arrest, excessive force, and

malicious prosecution under the Fourth Amendment based on

Jeanniton’s allegations. The instant Motion, however, seeks

dismissal only of the Fourth Amendment warrantless entry claim

on the ground that Officer Fiesta is entitled to qualified

10/ Although the Court concludes at this early stage of the litigation

that Defendants are not entitled to qualified immunity, that does not

necessarily mean that that this case will progress to trial. See O’Brien,

818 F.3d at 936 (“Once an evidentiary record has been developed through

discovery, defendants will be free to move for summary judgment based on

qualified immunity.”). The evidence may show that Officer Fiesta was

motivated by the need to forcibly enter in order to respond to an apparent

domestic abuse call irrespective of any words Jeanniton expressed to him.

11/ Unlike with the First Amendment claim, Defendants do not allege

inadequate pleading with regard to the Fourth Amendment claim.

immunity. The Court concludes below that Officer Fiesta is not

entitled to qualified immunity at this time.

i. Qualified Immunity

As discussed supra, to determine whether an officer is

entitled to qualified immunity, the Court must ask “(1) whether

the official violated a constitutional right and (2) whether the

constitutional right was clearly established.” City of Sonora,

769 F.3d at 1022.

Where there has been a warrantless entry by police of

a person’s home, “that entry violated ‘clearly established law’

if it was ‘clearly established’ that none of the exceptions to

the warrant requirement applies.” Maric v. Alvarado, 748 F.

App’x 747, 751 (9th Cir. 2018) (quoting Bonivert v. City of

Clarkston, 883 F.3d 865, 879 (9th Cir. 2018)). The general rule

is that “searches and seizures inside a home without a warrant

are presumptively unreasonable.” Payton v. New York, 445 U.S.

573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980). There

are, however, established exceptions to the warrant requirement.

United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001).

When a search occurs without a warrant, the burden of proof

rests on the government to justify the search under one of the

exceptions to the warrant requirement. United States v. Swift,

CR No. 08-00577 DAE, 2009 WL 4823804, at *3 (D. Haw. Dec. 14,

2009).

Jeanniton alleges that Officer Fiesta “forced his way

into Plaintiff’s residence without probable cause or exigent

justification, let alone any warrant . . . .” TAC ¶ 1. In

response, Defendants contend that Officer Fiesta’s warrantless

entry is constitutionally valid because the emergency aid

exception applies, and a reasonable police officer would not

have known such warrantless entry would violate the

Constitution. Mot. at 15.

The Ninth Circuit has recognized that “the exigencies

of domestic abuse cases present dangers that, in an appropriate

case, may override considerations of privacy.” United States v.

Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004). While the Ninth

Circuit has stopped short of holding that domestic abuse cases

create a “per se exigent need for warrantless entry,” courts

must evaluate, on a case-by-case basis, whether the “total

circumstances, presented to the law officer before a search . .

. relieved the officer of the customary need for a prior

warrant.” Id. Courts have looked to both the exigent

circumstances and the emergency aid exceptions to determine

whether a warrantless entry may be made when police are

responding to a domestic violence call.12/ Torres v. Hansen, No.

12/ Jeanniton erroneously relies on Lange v. California, 141 S. Ct.

2011, 2016 (2021), in which the Supreme Court ruled that pursuit of a fleeing

misdemeanor suspect does not categorically justify a warrantless entry into a

home. Because Jeanniton was not fleeing from the officers into his home,

Lange is inapplicable here.

16-cv-06607-SI, 2019 WL 4142158 (N.D. Cal. Aug. 30, 2019).

Defendants insist that the emergency aid exception is applicable

here. Mot. at 17.

The emergency aid exception to the warrant requirement

permits officers to enter a home without a warrant “to render

emergency assistance to an injured occupant or to protect an

occupant from imminent injury.” Brigham City, Utah. v. Stuart,

547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650

(2006). An entry pursuant to the emergency aid exception is

reasonable under the Fourth Amendment regardless of the

individual officer’s state of mind, “as long as the

circumstances, viewed objectively, justify [the] action.” Id.

at 404 (emphasis in original) (citation omitted).

As the name implies, there must be an actual exigency

for the emergency aid exception to apply. The Third Amended

Complaint makes clear that Jeanniton opened his front door but

not the screen door, and that he had a discussion with the

officers before they entered his apartment without a warrant.

TAC ¶ 12. Such facts do not suggest an emergency at that time.

Defendants rely on United States v. Brooks, 367 F.3d 1128, 1136

(9th Cir. 2004), where an officer made a warrantless entry into

a hotel room after receiving a 911 call that “a woman in

Brooks’s room was being beaten, a serious danger.” Notably,

when Brooks opened the hotel door, he indicated that there was a

woman present but the officer was unable to see her. Id.

Brooks is distinguishable on two major grounds. Here,

unlike in Brooks, the neighbor who called the police did so

because of a “verbal discussion,” without any explicit

allegation of domestic abuse. Second, during Jeanniton’s

conversation with the officers, Jeanniton’s girlfriend stood

behind him on the stairs “to show the officers that there were

no marks or injuries on her and she did not call for, want, or

need any help.” TAC ¶ 12. It would not be reasonable under

these circumstances for the officers to believe that Jeanniton

or his girlfriend required immediate aid, thus triggering the

emergency aid exception to the warrant requirement.

Viewing Jeanniton’s warrantless entry allegations in a

light most favorable to Jeanniton, it appears under the revised

facts alleged that Officer Fiesta’s conduct would have violated

clearly established constitutional rights and a reasonable

officer could not have believed such conduct to be lawful.13/

Therefore, at this stage, Defendants’ Motion to Dismiss

Jeanniton’s Fourth Amendment warrantless entry claim is DENIED.

13/ See footnote 10 on page 26.

CONCLUSION

For the foregoing reasons, the Court GRANTS

Defendants’ Motion to Strike Fourteenth Amendment Claim, GRANTS

IN PART and DENIES IN PART Defendants’ Motion to Strike New

Allegations and Request for Injunctive Relief, and GRANTS IN

PART and DENIES IN PART Defendants’ Motion for Partial

Dismissal, ECF No. 49, as follows:

1. To the extent that Count VII asserts a claim against

Officer Fiesta in his individual capacity for violations

of the Fourteenth Amendment, it is STRICKEN.

2. Defendants’ request to strike new factual allegations is

DENIED.

3. Jeanniton’s request for injunctive relief in the Third

Amended Complaint is STRICKEN.

4. To the extent that Counts I-IV assert violations of the

Hawaii State Constitution, they are DISMISSED WITH

PREJUDICE.

5. Given that Jeanniton’s request for a declaratory judgment

is duplicative, it is DISMISSED WITH PREJUDICE.

6. Defendants’ Motion for Partial Dismissal of Jeanniton’s

First Amendment claim is DENIED.

7. Defendants’ Motion for Partial Dismissal of Jeanniton’s

Fourth Amendment warrantless entry claim is DENIED.

8. To the extent Jeanniton is asserting punitive and

exemplary damages against the City, they are STRICKEN as

against the City.

The Court has previously granted Defendants’ Motion

for Enlargement of Time. The Court reiterates that Defendants

are required to serve their answer within fourteen days of this

Order.

IT IS SO ORDERED.

DATED: Honolulu, Hawai’i, August 4, 2021.

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Jeanniton v. County of Honolulu, Mark Fiesta, Civ. No. 20-00369 ACK-WRP,

Order Granting Defendants’ Motion to Strike Fourteenth Amendment Claim,

Granting in Part and Denying in Part Defendants’ Motion to Strike New

Allegations and Request for Injunctive Relief, and Granting in Part and

Denying in Part Defendants’ Motion for Partial Dismissal (ECF No. 49).

32