Opinion
Civ. 19-00586 HG-RT
02-03-2023
STEVEN A. HYER, Individually and as Personal Representative of the Estate of Steven K. Hyer; CASSI H. HYER; THERESA L. CHANG, Plaintiffs, v. CITY AND COUNTY OF HONOLULU; PAUL V. NOBRIGA, in his individual capacity; WAYNE SILVA, in his individual capacity; MALO B. TORRES, in his individual capacity, Defendants.
ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 124) AND GRANTING DEFENDANTS PAUL V. NOBRIGA, WAYNE SILVA, AND MALO B. TORRES' MOTION FOR QUALIFIED IMMUNITY AND MOTION FOR SUMMARY JUDGMENT (ECF NO. 126)
HELEN GILLMOR, UNITED STATES DISTRICT JUDGE.
The lawsuit arises from calls to police about threats made by Steven K. Hyer to fellow tenants at their apartment house.
Honolulu Police Officers' first encounter with Hyer began in the early evening on June 22, 2018, around 6:00 p.m. Police officers arrived and met with Hyer. They found Hyer was agitated, but they determined that the situation with the tenants of other units at the rental home had abated.
Less than two hours later, police were called to the residence a second time. Hyer was considerably more agitated than on the first visit. Hyer was pacing his residence, yelling out of the window about Satan and dead people in the walls of his apartment, and threatening to “kick his neighbor's ass.” It was also reported that Hyer attempted to break in to a co-tenant's unit and parts of the house that he was not permitted to access. Hyer refused to calm down when police officers spoke with him. The officers observed that Hyer “was not making any sense when he spoke.”
The police consulted with a police psychologist about Hyer's bizarre and threatening behavior. The police psychologist instructed the officers to detain Hyer for a mental health evaluation. The process of attempting to implement the police psychologist's order lasted for over six hours. Hyer barricaded himself inside his studio and repeatedly refused to comply with police officer instructions.
Police officers utilized various methods to try to place Hyer in protective custody. Officers made verbal approaches, repeatedly requested that Hyer peacefully surrender, and utilized a variety of less than lethal force strategies in an effort to detain Hyer. Hyer appeared from his barricaded studio periodically. He yelled “kill me,” taunted the officers, and brandished weapons, including a knife and a compound bow and arrow.
The encounter ended in the early morning of June 23, 2018, at around 3:30 a.m. After more than eight hours following the first calls to police, officers deployed a police dog to capture Hyer. Hyer retreated into the studio followed by the police dog and officers. Resisting capture, Hyer stabbed the dog repeatedly with an arrow and then swung the arrow at the officers. Hyer was loading his compound bow when he was shot by an officer.
CASE HISTORY
The case was initially filed on October 25, 2019.
On January 26, 2021, Plaintiffs filed a Second Amended Complaint. The Court had previously issued two orders ruling on Defendants' two motions to dismiss.
On May 27, 2021, the Court issued a third order, granting, in part, and denying, in part, Defendants' Motion for Partial Dismissal of the Second Amended Complaint.
Before the Court today are two separate Motions for Summary Judgment filed by Defendants.
DEFENDANTS PAUL V. NOBRIGA, WAYNE SILVA, AND MALO B. TORRES' MOTION FOR QUALIFIED IMMUNITY AND FOR SUMMARY JUDGMENT (ECF No. 126)
Defendants Paul V. Nobriga, Wayne Silva, and Malo B. Torres (“Individual Officers”) seek qualified immunity for the excessive force claim against them. They also seek summary judgment on the basis that the use of force was objectively reasonable based on the undisputed facts in the record. Finally, they seek conditional privilege for the remaining state law claims against them.
Defendant Officers' Motion seeking qualified immunity is GRANTED.
Defendant Officers are entitled to summary judgment as to the excessive force and state law claims. There are no genuine disputes of material fact in the record. The undisputed facts establish that the Officers did not engage in excessive force in violation of the Fourth Amendment to the United States Constitution. Defendant Officers are entitled to conditional privilege as to the state law claims against them.
Defendant Officers' Motion for Summary Judgment (ECF No. 126) is GRANTED.
DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT (ECF No. 124)
Defendant City and County of Honolulu also filed a Motion for Summary Judgment for all claims against it.
Plaintiffs have not established a violation of Title II of the Americans With Disabilities Act. There is no evidence that the police officers discriminated against Steven K. Hyer on account of any disability.
Defendant City and County of Honolulu is entitled to summary judgment on the state law causes of action brought against it because there is no basis to find respondeat superior liability.
Defendant City and County of Honolulu's Motion for Summary Judgment (ECF No. 124) is GRANTED.
EVIDENTIARY RULINGS
A. Police Reports
In support of their position, Plaintiffs submitted police reports from the night of the encounter with their Concise Statement of Facts in Opposition to Defendants' Motions for Summary Judgment. (ECF Nos. 138 and 140).
Defendants object to the use of the police reports and argue they are hearsay and should not be considered at summary judgment.
The proper inquiry at the summary judgment stage is not the admissibility of the evidence's form, but whether the contents of the evidence are admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). There is no question as to the authenticity of the police reports filed by Plaintiffs. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). The police reports were provided by Defendants in discovery. (Hsieh Decl. at ¶¶ 5-7, 10-14, 16-19, ECF No. 138-4). The question is whether the police reports may be relied upon at summary judgment, specifically where the Court is required to consider the record in a light most favorable to Plaintiffs when reviewing Defendants' Motions. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).
Plaintiffs have asked that the reports be considered. The police reports contain relevant, probative information that could be presented in an admissible form at trial. Lawrence v. City and Cnty. of San Francisco, 258 F.Supp.3d 977, 986 (N.D. Cal. June 15, 2017) (finding police reports may be considered at summary judgment because the information can be presented at trial through the testimony of the author of the reports). The Court may rely upon the statements contained in the police reports in evaluating the Motions for Summary Judgment.
Defendants' Objection to the police reports is OVERRULED.
B. Plaintiffs' Expert Reports
Defendants also object to the admissibility of the expert reports submitted by the Plaintiffs in Opposition to Defendants' Motions for Summary Judgment.
The United States Supreme Court has held that a trial court must act as a “gatekeeper” in determining whether to admit or exclude expert evidence in accordance with Fed.R.Evid. 702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). To be admissible, expert testimony must be “not only relevant, but reliable.” Id. at 589.
Plaintiffs offer three expert opinions: (1) the opinion of A.E. Daniel, M.D. about how he believes the officers should have treated Hyer given his mental state (ECF No. 140-5); (2) the opinion of Scott A. DeFoe about his beliefs as to how the police officers should have acted pursuant to police policies (ECF No. 140-6); and, (3) the opinion of Kris Sperry, M.D. containing his own speculation about what happened at the time of the shooting. (ECF No. 140-7).
Plaintiffs' expert reports are inadmissible and do not create a genuine dispute of material fact to preclude summary judgment.
First, the expert reports inappropriately attempt to introduce facts that are not found anywhere in the record. Expert reports may not introduce facts. The experts are not fact witnesses. Plaintiffs may not use the expert reports to assert facts for purposes of summary judgment. Smith v. City of Huntsville, 2016 WL 5746216, *4 n.9 (N.D. Ala. Sept. 30, 2016) (explaining that a plaintiff cannot rely on an expert opinion to introduce facts or attempt to introduce facts based on the expert's own assumptions in a motion for summary judgment). The experts have no personal knowledge of the events that took place and no basis to provide testimony as to the facts here. Fed.R.Evid. 602.
Second, the expert reports are speculative and unreliable. The evidence regarding the shooting is limited to the police reports, the autopsy, and declarations and depositions of the police officers at the scene. The expert reports attempt to offer opinions based on their own speculation and assumptions about the facts rather than the actual evidence.
The expert report of Dr. Sperry, in particular, is based on wild speculation and conjecture. Dr. Sperry's report is based on purely hypothetical assumptions and not evidence. Dr. Sperry's three page report lacks reliability. There is no methodology provided in the report. It contains conclusory opinions. Laux v. Mentor Worldwide, LLC, 295 F.Supp.3d 1094, 1102-03 (C.D. Cal. Nov. 8, 2017) (excluding a medical expert from providing his opinion where his expert report failed to explain his methodology and was based simply on the medical doctor's “because I said so” opinion, without facts, data, or reliable principles and methods to support the conclusion).
Sperry's report makes assumptions about the “conventional position” used when shooting a compound bow and makes conclusions based on hypothetical speculation. Expert opinions without a factual basis and based on speculation or conjecture are inadmissible at trial. Such an expert report should be disregarded and should not be considered in evaluating a motion for summary judgment. Plunkett v. Best Buy Co., Inc., 2017 WL 4958579, *4 (W.D. Wash. Oct. 31, 2017).
Third, the expert reports attempt to introduce legal conclusions that would usurp the role of the Court in instructing the jury as to the applicable law. Nationwide Transport Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008).
Defendants' Objections to the Plaintiffs' expert reports are SUSTAINED. The expert reports are INADMISSIBLE.
PROCEDURAL HISTORY
On October 25, 2019, Plaintiffs Steven A. Hyer, individually and as personal representative of the Estate of Steven K. Hyer; Cassi H. Hyer; Theresa L. Chang; Thomas Fujimoto; and James Fujimoto, Jr. filed a Complaint. (ECF No. 1).
On February 5, 2020, Defendants City and County of Honolulu; Susan Ballard; and Wayne Silva filed DEFENDANTS CITY AND COUNTY OF HONOLULU, SUSAN BALLARD, AND WAYNE SILVA'S MOTION TO DISMISS PORTIONS OF THE COMPLAINT FILED ON OCTOBER 25, 2019. (ECF No. 12).
On June 10, 2020, the Court held a hearing on the Motion to Dismiss. (ECF No. 26).
On June 23, 2020, the Court issued an ORDER GRANTING DEFENDANTS CITY AND COUNTY OF HONOLULU, SUSAN BALLARD, AND WAYNE SILVA'S MOTION TO DISMISS PORTIONS OF THE COMPLAINT. (ECF No. 27).
On July 31, 2020, Plaintiffs Steven A. Hyer, individually and as personal representative of the Estate of Steven K. Hyer; Cassi H. Hyer; and Theresa L. Chang filed a FIRST AMENDED COMPLAINT. (ECF No. 28).
On August 19, 2020, Defendants Wayne Silva and the City and County of Honolulu filed a Motion to Dismiss the First Amended Complaint. (ECF No. 32).
On October 28, 2020, the Court held a hearing on Defendants City and County of Honolulu and Wayne Silva's Motion to Dismiss the First Amended Complaint. (ECF No. 48).
On November 30, 2020, the Court issued an ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS CITY AND COUNTY OF HONOLULU AND WAYNE SILVA'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT. (ECF No. 49). Plaintiffs were granted until January 12, 2021 to file a Second Amended Complaint. (Id.)
On January 11, 2021, Plaintiffs filed an EX PARTE MOTION FOR FIRST EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT. (ECF No. 51).
On January 12, 2021, the Court issued a Minute Order granting Plaintiffs' Motion for Extension of Time. (ECF No. 52).
On January 26, 2021, Plaintiffs filed their SECOND AMENDED COMPLAINT. (ECF No. 55).
On February 16, 2021, Defendants City and County of Honolulu, Paul V. Nobriga, Wayne Silva, and Malo B. Torres filed a MOTION FOR PARTIAL DISMISSAL OF THE SECOND AMENDED COMPLAINT AND ATTENDANT MOTION FOR AN ENLARGEMENT OF TIME TO ANSWER THE SECOND AMENDED COMPLAINT. (ECF No. 58).
On April 22, 2021, the Court held a hearing on Defendants' Motion for Partial Dismissal of the Second Amended Complaint. (ECF No. 68).
On May 27, 2021, the Court issued an ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS CITY AND COUNTY OF HONOLULU, PAUL V. NOBRIGA, WAYNE SILVA, AND MALO B. TORRES'S MOTION FOR PARTIAL DISMISSAL OF THE SECOND AMENDED COMPLAINT. (ECF No. 71).
On April 20, 2022, Defendant City and County of Honolulu filed its Motion for Summary Judgment. (ECF No. 124).
On the same date, Defendants Paul V. Nobriga, Malo B. Torres, and Wayne Silva filed their Motion for Summary Judgment. (ECF No. 126).
On May 6, 2022, Plaintiffs filed their Oppositions to Defendants' Motions, but the Oppositions were stricken for failing to comply with the Local Rules for the District of Hawaii. (ECF Nos. 132-36).
The Court granted Plaintiffs an extension of time to file Oppositions in conformity with the rules. (ECF No. 136).
On May 18, 2022, Plaintiffs filed their Oppositions to Defendants' Motions for Summary Judgment. (ECF Nos. 137, 139).
On May 19, 2022, Plaintiffs filed an Errata. (ECF No. 142).
On May 31, 2022, Defendants filed their Replies. (ECF Nos. 144, 146).
On June 6, 2022, the Court held a hearing on Defendants' Motions for Summary Judgment. (ECF No. 148).
On October 17, 2022, the Court held a Status Conference, following the Parties' Stipulation To Take Depositions After Discovery Cutoff until August 22, 2022. (ECF No. 165).
On October 24, 2022, Plaintiff filed a Motion For Leave To Supplement Evidence In Support Of Plaintiffs' Oppositions To Defendants' Motions for Summary Judgment. (ECF No. 167).
On October 26, 2022, the Court granted, in part, Plaintiffs' Motion To Supplement The Record. (ECF No. 169).
On November 2, 2022, Defendants filed a Motion For Reconsideration, which was denied. (ECF Nos. 170, 172).
On November 4, 2022, Plaintiffs filed their Sur-Reply Concise Statement Of Facts. (ECF No. 171).
On November 9, 2022, Defendants filed a Motion to Strike, which was denied. (ECF Nos. 173, 175).
On November 14, 2022, Defendants filed their Response to Plaintiffs' Sur-Reply. (ECF No. 174).
BACKGROUND
The Following Facts Are Undisputed Unless Otherwise Stated: HYER'S FIRST ENCOUNTER WITH POLICE AT APPROX. 6:00 P.M.
On June 22, 2018, at approximately 6:00 p.m., Honolulu Police Department (“HPD”) patrol officers responded to a 911 call saying that Steven K. Hyer (“Hyer”) was out of control and behaving erratically at his residence. (Declaration of Honolulu Police Detective Robert H. Jones (“Jones Decl.”) at ¶ 7, ECF No. 127-7).
Hyer resided in Haleiwa, a small beach community on the North Shore of Oahu. (Id. at ¶ 5). Hyer rented a studio inside a two-story dwelling that was separated into several rental units. (Id.) The home was located in a residential area. Hyer's studio was located in the back of the dwelling, and it could only be entered from a sliding glass door that opened onto a small wooden deck. (Honolulu Police Department Diagram, attached as Ex. 20 to Pl.'s Opp., ECF No. 140-24; Jones Decl. at ¶¶ 3, 5-6, 12, ECF No. 127-7).
The studio consisted of a single room with an attached bathroom. (Id.) In the studio, there was a partitioned area covered by a black canvas that enclosed several marijuana plants. (Honolulu Police Report 18-236857, by Paul V. Nobriga, attached as Ex. 12 to Pl.'s Opp., ECF No. 140-16). Officers referred to the area as the “grow room.” (See Diagram).
(Image Omitted)
When the patrol officers arrived at the scene, they met with Hyer, who appeared agitated. (Honolulu Police Report 18-236857, by Frances L. Bolibol, attached as Ex. 6 to Pl.'s Opp., ECF No. 140-10). The officers were told that Hyer had been ripping screens in the dwelling. (Id.) The officers determined that the confrontation between Hyer and the other tenants in the rental property had abated and they left. (Jones Decl. at ¶ 9, ECF No. 127-7).
HYER'S SECOND ENCOUNTER WITH POLICE AT APPROX. 8:00 P.M.
Approximately two hours later, a series of new 911 calls were made about Hyer's behavior. The callers claimed Hyer was yelling out of his window about Satan and dead people in the walls of his apartment, and that Hyer was threatening other tenants in the building and attempted to break in to their units. (Id. at ¶¶ 26-28; Honolulu Police Report 18-236857, by Frances L. Bolibol, attached as Ex. 6 to Pl.'s Opp., ECF No. 140-10).
The arriving officers observed Hyer's bizarre, erratic, and threatening behavior. (Honolulu Police Report 18-236857, by Frances L. Bolibol, at p. 2, ECF No. 140-10). Officer Frances Bolibol contacted police psychologist Dr. Vincent Tsushima to consult. (Id.) Based on Hyer's reported behavior, Dr. Tsushima concluded Hyer was a danger to himself and others, and was extremely combative. The doctor concluded there was reason to believe Hyer was in need of immediate psychological or medical attention. Dr. Tsushima concluded there was no suitable less restrictive alternative available other than involuntary examination. (Id.; Application by Police Office for Emergency Examination & Treatment, attached as Ex. 7 to Pl.'s Opp., ECF No. 140-11). Dr. Tsushima instructed the officers to take Hyer into protective custody for a mental health evaluation to Castle Medical Center. (Honolulu Police Report 18-236857, by Frances L. Bolibol, at p. 2, ECF No. 140-10).
The officers approached Hyer's studio and called for him to come out. (Id.) Hyer stepped out onto the deck in front of his studio. Hyer appeared “very agitated and hyper.” (Id.) Hyer said he was not going anywhere and told the officers to leave. (Id.) Hyer would not allow the officers on the deck. (Id.) Hyer was ordered to open the gate to the deck and he refused. (Id.)
HYER YELLED “KILL ME” AT OFFICERS AND BRANDISHED A KNIFE
Hyer's tone of voice became more angry and he repeatedly said the officers were disrespecting him. (Honolulu Police Report 18-236857, by Frances L. Bolibol, at p. 2, attached as Ex. 6 to Pl.'s Opp., ECF No. 140-10). Officers tried to open the gate to the deck, and Hyer responded by running inside, locking the sliding glass door, and brandishing a knife. (Id.) Hyer said, “go ahead just kill me” as he pounded his chest. (Id.) Hyer opened the sliding glass door with the knife in his right