Dunbar v. State ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAY-2022
07:52 AM
Dkt. 79 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JOHN P. DUNBAR, Plaintiff-Appellant,
v.
STATE OF HAWAI#I, HOLLY T. SHIKADA, OFFICE OF
THE ATTORNEY GENERAL, COUNTY OF MAUI, ANDREW
H. MARTIN, RICHARD K. MINATOYA, RYAN ANDERSON-
TESHIMA, BYRON Y. FUJIEDA, DEPARTMENT OF
PROSECUTING ATTORNEY, JOHN PELLETIER, MAUI
POLICE DEPARTMENT, GERVIN MIYAMOTO, U.S.
MARSHAL'S OFFICE DISTRICT OF HAWAI#I,
Defendants-Appellees,1
and
JOHN AND JANE DOES 1-10, DOE GOVERNMENT
AGENCIES 1-10, DOE CORPORATIONS 1-10, AND
OTHER DOE ENTITIES 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 18-1-0326)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant, John P. Dunbar (Dunbar), self-
represented, appeals from the 1) "Order Granting Defendants
County of Maui, John D. Kim, Richard K. Minatoya, Ryan Anderson-
Teshima, Department of the Prosecuting Attorney, Gary Yabuta and
1
We have corrected the spelling of the last name of Defendant-
Appellee Ryan Anderson-Teshima in the caption, as "Teshima" instead of
"Tashima," which was incorrect.
The Notice of Appeal also contained the name "L. Y. Tam Ho, Jr."
(Tam Ho) in the caption, which we have removed, because Tam Ho was not named
in Dunbar's original complaint, was not a party to the proceedings below, and
is not a party to this appeal. The record shows that Tam Ho was listed for
the first time in the caption of Dunbar's December 12, 2018 "Plaintiff's
Motion for Leave to File Amemded [sic] Complaint and Memorandum in Support of
Plaintiff's Motion" that was never disposed of, since the case was dismissed.
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Maui Police Department's [(County)] Motion to Dismiss or, in the
Alternative, for Summary Judgment, as to Plaintiff John P.
Dunbar's Complaint for Malicious Prosecution, Abuse of Process,
Criminal Conspiracy, Libel" (County's Order Granting Dismissal);2
and 2) "Order Granting Defendants David M. Louie, Office of the
Attorney General and the State of Hawaii's [(State)] Motion to
Dismiss with Prejudice" (State's Order Granting Dismissal),3 both
filed on January 24, 2019 by the Circuit Court of the Second
Circuit (Circuit Court).4
On appeal,5 Dunbar contends that the Circuit Court
erred by (1) failing to enter findings and conclusions following
its dismissal of Dunbar's complaint, (2) failing to "mention[]
that the underlying matter was, in fact, terminated" in Dunbar's
favor; and (3) "determining as a matter of law" for Dunbar's
malicious prosecution claim, that "sufficient evidence to
establish probable cause" existed to initiate Dunbar's
prosecution.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Dunbar's points of error as follows, and affirm.
The pertinent procedural history is as follows. This
appeal arises out of the dismissal of Dunbar's August 3, 2018
civil Complaint against the State and the County alleging
malicious prosecution, abuse of process, criminal conspiracy and
2
Pursuant to Hawai#i Rules of Appellate Procedure (HRAP) Rule
43(c)(1), Andrew H. Martin, Maui Prosecuting Attorney is substituted for John
D. Kim, and John Pelletier, Maui Chief of Police is substituted for Gary
Yabuta.
3
Pursuant to HRAP Rule 43(c)(1), Holly T. Shikada, Attorney General
of the State of Hawai#i is substituted for David M. Louie.
4
The Honorable Rhonda I.L. Loo presided.
5
Dunbar's Opening Brief fails to provide any record references as
required by HRAP Rule 28(b)(3), (b)(4)(ii)-(iii), (b)(4)(C), and (b)(7).
Nevertheless, to promote access to justice, pleadings prepared by self-
represented litigants should be interpreted liberally, and self-represented
litigants should not be automatically foreclosed from appellate review because
they fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020). Accordingly, we address Dunbar's appeal on the
merits to the extent his arguments can be discerned.
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libel arising out of a prior criminal prosecution of Dunbar. In
the prior prosecution, Dunbar was charged in 2014 with failing to
provide buccal swab samples after having been convicted of a
felony offense. See State v. Dunbar, 139 Hawai#i 9, 11, 383 P.3d
112, 114 (App. 2016). The circuit court granted Dunbar's motion
to dismiss where Dunbar claimed that the State had not requested
his DNA sample while he was on probation and that he was no
longer required to provide a DNA sample because he had completed
his probation. Id. at 12, 383 P.3d at 115. We upheld the
circuit court's dismissal order, holding that pursuant to the
relevant provisions in HRS Chapter 844D Part III, "Dunbar was no
longer required to provide a buccal swab sample after he had been
discharged from probation for his felony offense." Id. at 11,
383 P.3d at 114.
In the current civil action, the Circuit Court granted
both the County's motion to dismiss and the State's motion to
dismiss; and with respect to the malicious prosecution claim
pertinent to this appeal, ruled as follows:6
Plaintiff's claims for malicious prosecution, abuse of
process, and false imprisonment fail as there was probable
cause for Plaintiff's arrest and prosecution.
Probable cause is evidenced by the fact that Judge
Kobayashi of the district court made specific findings of
probable cause in the arrest warrant, and the Court also
finds that the judge's determination of probable cause was
not nullified because the ICA later found that the statutory
basis for bringing the charges were erroneous.
FOFs/COLs not required
Dunbar's first contention that no FOFs or COLS were
prepared by the Circuit Court in violation of HRAP Rule 10(f)7 is
6
The County's motion was heard on December 11, 2018, and the
State's motion was heard on December 13, 2018. The Circuit Court's oral
rulings with respect to the malicious prosecution claim were virtually
identical.
7
HRAP Rule 10(f), entitled "Request for findings of fact and
conclusions of law," provides:
In all actions where the court appealed from is not required
to enter findings of fact and conclusions of law prior to
the entry of an order, judgment, or decree, but is required
to do so once a notice of appeal is filed, the appellant
shall, no later than 10 days after filing the notice of
(continued...)
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without merit. HRAP Rule 10(f) applies to "actions where the
court appealed from is not required" to enter FOFs/COLs, "but is
required to do so once a notice of appeal is filed." Circuit
court civil actions are governed by the Hawai#i Rules of Civil
Procedure (HRCP), which do not require FOFs/COLs for the types of
motions at issue here, regardless of whether a notice of appeal
is filed or not. HRCP Rule 52, entitled "Findings by the Court,"
subsection (a) provides in relevant part:
Effect. In all actions tried upon the facts without a jury
or with an advisory jury, the court shall find the facts
specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule 58;
. . . Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 . .
. .
(Emphasis added). Thus, HRCP Rule 52(a) expressly does not
require a circuit court to enter FOFs/COLs for motions to dismiss
under HRCP Rules 12 and motions for summary judgment under HRCP
Rule 56.
The "failure to mention" contention is waived
Dunbar's contention that the Circuit Court erred by
failing to "mention[] that the underlying matter was, in fact,
terminated" in Dunbar's favor, is not supported by any record
references, any legal authority, or any argument, and is waived.
See HRAP Rule 28 (b)(4)(ii), (b)(7). Assuming arguendo the
contention is not waived, the Circuit Court's oral rulings quoted
supra show that the Court did find that the underlying matter was
terminated in Dunbar's favor.
7
(...continued)
appeal, file in the court appealed from a request for entry
of findings of fact and conclusions of law, naming the judge
who tried the action and entered the order, judgment, or
decree being appealed. The appellant shall attach a filed
copy of the notice of appeal to the request. The named
judge shall enter the requested findings of fact and
conclusions of law within 28 days after the request has been
filed. To aid the court, the court may order the parties or
either of them to submit proposed findings of fact and
conclusions of law after the filing of the request. Upon
showing of good cause, the appellate court may, on motion
and notice made by the clerk of the court or a party, extend
the time to file findings of fact and conclusions of law.
(Emphasis added).
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No disputed material facts as to probable cause
With regard to the malicious prosecution claim, Dunbar
contends that there was sufficient evidence to create a genuine
issue of material fact as to the existence of probable cause to
initiate the prosecution against Dunbar. Dunbar argues that:
an affidavit in support of warrant signed by Defendant-
Appellee L. Y. Tam Ho, Jr., in which Ho swears that
Plaintiff-Appellant was convicted of the felony offense of
"Escape in the second degree" when, in fact, Plaintiff had
been acquitted of that very offense on March 1, 2005 at a
bench trial in Maui second circuit court. It is quite clear
that Judge Kobayashi wholly abandoned his judicial role by
serving as a mere rubber stamp for the ex-police officer
Tam Ho who sought the warrant. Judge Kobayashi never
considered a probable-cause determination. Tam Ho never
possessed a good-faith belief in the validity of the arrest
warrant because he was biased and knew it to be invalid
when he signed the affidavit in support of it. When viewed
in the light most favorable to Plaintiff-Appellant,
Defendants-Appellees evidence fails to establish any
reasonable basis for prosecuting Plaintiff-Appellant.
On March 1, 2005, Plaintiff-Appellant, an honorably retired
U.S. Navy SEAL and Vietnam-era Veteran, was convicted of the
non-violent [uncharged] offense of Attempted escape in the
second degree in 2005 [from an unlawful arrest lacking
probable cause and where excessive force was used by police]
and sentenced to a term of probation that lasted until his
early release and discharge in 2008.
Opening Brief at 11-12 (emphases added). Dunbar's argument above
appears to claim that (1) the affidavit should not have stated
that Dunbar "was convicted" of "Escape in the second degree" when
Dunbar was "acquitted" of that offense on March 1, 2005; and (2)
on March 1, 2005 Dunbar "was convicted" of "Attempted escape in
the second degree[.]" Id. We construe Dunbar's argument as
asserting that there were genuine issues of material fact with
the probable cause finding by Judge Kobayashi, because the
investigator's affidavit in support of the arrest warrant stated
that Dunbar was convicted of the felony of escape in the second
degree, instead of attempted escape in the second degree.
Because the Circuit Court considered matters outside
the pleadings, we apply a summary judgment standard of review for
the motions to dismiss. See Goran Pleho, LLC v. Lacy, 144
Hawai#i 224, 236, 439 P.3d 176, 188 (2019) ("[a] motion seeking
dismissal of a complaint is transformed into a [HRCP] Rule 56
motion for summary judgment when the circuit court considers
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matters outside the pleadings.") (quoting Wong v. Cayetano, 111
Hawai#i 462, 476, 143 P.3d 1, 15 (2006) (internal quotation marks
and citations omitted)). On appeal, we review the grant or
denial of summary judgment de novo. Ralston v. Yim, 129 Hawai#i
46, 55, 292 P.3d 1276, 1285 (2013) (citation omitted).
"[S]ummary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Id.A claim for malicious prosecution requires proof "(1)
that the prior proceedings were terminated in the plaintiff's
favor; (2) that the prior proceedings were initiated without
probable cause; and (3) that prior proceedings were initiated
with malice." Reed v. City & Cty. of Honolulu, 76 Hawai#i 219,
230, 873 P.2d 98, 109 (1994) (emphasis, brackets and citations
omitted). Dunbar's contention focuses on the second element that
"the prior proceedings be initiated without probable cause." Id."Probable cause exists when the facts and circumstances within
one's knowledge and of which one has reasonably trustworthy
information are sufficient in themselves to warrant a person of
reasonable caution to believe that an offense has been
committed." State v. Navas, 81 Hawai#i 113, 116, 913 P.2d 39, 42
(1996) (citation omitted).
The arrest warrant and probable cause determination
were based on the suspicion that Dunbar had violated HRS §§
844D-31(a) and -111(a) by failing to provide a buccal swab. HRS
§ 844D-31(a)(2014) requires individuals convicted of "any felony
offense" to provide a buccal swab sample. (Emphasis added.) The
affidavit stated that Dunbar was convicted of the felony offense
of "Escape in the Second Degree[,]" and that Dunbar had refused
to comply with requests to provide a buccal swab sample, leading
to the investigator's belief that Dunbar "appears to have
violated H.R.S. § 844D-111(a)[.]"8
8
At the time of the alleged offense in this case, HRS § 844D–111
(2014) provided:
(continued...)
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"A fact is material if proof of that fact would have
the effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties." Goran Pleho, LLC, 144 Hawai#i at 236, 439 P.3d at 188
(internal citations omitted) (quoting Balthazar v. Verizon
Hawaii, Inc., 109 Hawai#i 69, 72, 123 P.3d 194, 197 (2005). The
fact that Dunbar was convicted of an attempt to commit the
substantive offense of second-degree escape, rather than the
second-degree escape itself, is not a material distinction where
both offenses carry the same penalty. See HRS § 705-502 (2014)
("An attempt to commit a crime is an offense of the same class
and grade as the most serious offense which is attempted.") The
distinction between a second-degree escape and an attempted
second-degree escape conviction is immaterial to the probable
cause determination, where it is undisputed that Dunbar was
convicted of a felony and thus subject to HRS § 844D-31(a). See
State v. McKnight, 131 Hawai#i 379, 394, 319 P.3d 298, 313 (2013)
(holding that where "[t]he issuing judge misdated the warrant,
but the actual date of issuance was never in dispute" and there
was probable cause, the warrant was valid). That the undisputed
fact of a felony escape conviction was missing the word
"attempted" did not create a genuine disputed issue of material
fact as to whether probable cause, an essential element of a
malicious prosecution claim, was established. See Goran Pleho,
LLC, 144 Hawai#i at 236, 439 P.3d at 188. The Circuit Court did
not err in granting the motions to dismiss the malicious
8
(...continued)
§ 844D–111 Refusal or failure to provide specimen for
forensic identification. (a) A person commits the offense
of refusal or failure to provide specimen for forensic
identification if the person is required by this chapter to
provide any blood specimens, buccal swab samples, or print
impressions and intentionally or knowingly refuses or fails
to provide any of the required blood specimens, buccal swab
samples, or print impressions after the person has received
written notice from the department, the department of public
safety, any law enforcement personnel, or officer of the
court that the person is required to provide each and every
one of the blood specimens, buccal swab samples, and print
impressions required by this chapter.
(b) Any person who negligently or recklessly fails to comply
with this section shall be guilty of a misdemeanor.
Dunbar, 139 Hawai#i at 10 n.1, 383 P.3d at 113 n.1 (quoting HRS § 844D-111).
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prosecution claim. See Ralston, 129 Hawai#i at 55, 292 P.3d at
1285.
For the foregoing reasons, the (1) "Order Granting
Defendants County of Maui, John D. Kim, Richard K. Minatoya, Ryan
Anderson-Teshima, Department of the Prosecuting Attorney, Gary
Yabuta and Maui Police Department's Motion to Dismiss or, in the
Alternative, for Summary Judgment, as to Plaintiff John P.
Dunbar's Complaint for Malicious Prosecution, Abuse of Process,
Criminal Conspiracy, Libel"; and the 2) "Order Granting
Defendants David M. Louie, Office of the Attorney General and the
State of Hawaii's Motion to Dismiss with Prejudice," both filed
and entered on January 24, 2019 by the Circuit Court of the
Second Circuit, are affirmed.
DATED: Honolulu, Hawai#i, May 17, 2022.
On the briefs:
/s/ Katherine G. Leonard
John P. Dunbar Presiding Judge
Self Represented Plaintiff-
Appellant /s/ Karen T. Nakasone
Associate Judge
Ewan C. Rayner
Deputy Solicitor General /s/ Sonja M.P. McCullen
for Defendants-Appellees Associate Judge
Holly T. Shikada, Department
of the Attorney General and
State of Hawai#i
Caleb P. Rowe
Deputy Corporation Counsel
County of Maui
for Defendants-Appellees
County of Maui, Andrew H.
Martin, Department of the
Prosecuting Attorney, John
Pelletier, Maui Police
Department
8