FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2006-1008

PTHREE HAUK and ANIRIKO (INCA) HAUK,
Plaintiffs,

vs.

JIMMY EMILIO, as Director of the Department of Public Safety, DEPARTMENT OF PUBLIC SAFETY; and CHUUK STATE GOVERNMENT,
Defendants.
_______________________________________________

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dennis K. Yamase
Associate Justice

Trial: June 1, 4, 2007
Decided: January 18, 2008

APPEARANCES:

For the Plaintiffs: Frank Casiano
Tino Donre, Esq. (supervising attorney)
Micronesian Legal Services Corp.
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants: Julius J. Sapelulat, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Parties

When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Hauk v. Emilio, 15 FSM Intrm. 476, 478 (Chk. 2008).

Civil Procedure  Dismissal; Civil Procedure  Parties

Unnamed persons listed as John Doe defendants who were never identified or served process will be dismissed. Hauk v. Emilio, 15 FSM Intrm. 476, 478 (Chk. 2008).

Civil Rights; Torts  Governmental Liability

A governmental entity is liable for battery by its police officers when the entity ratified the battery by failing to charge the officers and by the lack of any internal discipline whatsoever and a governmental entity that employs untrained police officers and permits their use of excessive force will be held responsible for the officers' unlawful acts for violation of the plaintiffs' civil rights. Hauk v. Emilio, 15 FSM Intrm. 476, 479 (Chk. 2008).

Civil Rights; Constitutional Law  Due Process

Plaintiffs' due process civil rights were violated when police officers beat them without reason or justification. Further due process violations occurred when one of them was detained and arrested without being told the reason, and when he was held in police custody for six hours. Hauk v. Emilio, 15 FSM Intrm. 476, 479 (Chk. 2008).

Civil Rights; Constitutional Law  Due Process

A person commits an offense if he willfully, whether or not acting under color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of any right, privilege, or immunity secured to him by the FSM Constitution or laws and a private cause of action is provided for any such violation. Due process is a right secured by the FSM Constitution. Hauk v. Emilio, 15 FSM Intrm. 476, 479 (Chk. 2008).

Civil Rights; Torts  Governmental Liability

Where the plaintiffs were set upon and beaten by police officers and one plaintiff was arrested and no reason was provided to that plaintiff when the officers detained and arrested him, nor was any reason subsequently given although 12 F.S.M.C. 214(1) provides that any person making an arrest must, at or before the time of arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest, the plaintiff's detention for six hours was without any justification, precisely the sort of conduct that 11 F.S.M.C. 701 was meant to protect against. The assaulting police officers were acting under color of law and as agents of the defendant Chuuk Department of Public Safety, which is an agency of the defendant Chuuk state government. Thus these defendants are liable for the violation of the plaintiffs' civil rights under 11 F.S.M.C. 701. Hauk v. Emilio, 15 FSM Intrm. 476, 479 (Chk. 2008).

Torts  Damages

Civil rights plaintiffs are entitled damages for pain and suffering from a police beating and the arrested plaintiff is also entitled to damages for not being advised at the time of his arrest of the reason for his arrest, and for the time that he spent in police custody from the time of his arrest until his release six hours later. Hauk v. Emilio, 15 FSM Intrm. 476, 480 (Chk. 2008).

Torts  Damages

When a plaintiff presents no evidence about any wages lost from being off work for a week, or about any cost for the local massage, she is not entitled to those damages. Hauk v. Emilio, 15 FSM Intrm. 476, 480 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This matter was tried on June 1 and 4, 2007. Both plaintiffs, Pthree and Aniriko Hauk appeared with their counsel Mr. Frank Casiano, supervised by Mr. Tino Donre, Esq. of the Micronesian Legal Services Corporation.

Defendants were represented by Mr. Joey Sapelalut, Esq. of the Office of the Attorney General, State of Chuuk.

Plaintiff's witnesses included both plaintiffs Pthree and Aniriko Hauk, and Dr. Felix Youmai. Defendant's witness was William Eugene Stinnett, Director of Public Safety, who had not yet been named Director when the incident occurred.

Sometime after trial and before the court's decision, Stinnett, who had been named as a defendant in his official capacity as Director of Public Safety, left that position. When it came to the court's attention that Stinnett no longer held that office, the court by its September 24, 2007 order, substituted Director Jimmy Emilio as defendant because when a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. FSM Civ. R. 25(d)(1). The complaint also listed unnamed persons as John Doe defendants. They were never identified or served process. The John Doe defendants are hereby dismissed. Moses v. Oyang Corp., 10 FSM Intrm. 210, 213 (Chk. 2001).

Findings of Fact

1.	On April 9, 2005, at around 5:00 p.m., plaintiffs Pthree Hauk, also known as Kasmiro Hauk, and Aniriko (Inca) Hauk were parked in their vehicle in the vicinity of Yumi's Store.

2.	At that time, six unidentified persons wearing shirts with "Police" printed on them and riding in a pick-up truck with "Police" painted on it also parked in the vicinity of Yumi's Store. These persons were untrained and unpaid police "trainees." They were, however, acting under color of law and under the authority of the Chuuk Department of Public Safety.

3.	The six persons grabbed, pinned down, kicked, punched, and handcuffed plaintiff Pthree Hauk. This amount of force was not needed to place Mr. Hauk in custody and was thus unnecessary. The six persons then carried Mr. Hauk to their pick-up truck, threw him in the back of the pick-up truck, and transported him to the police station and jail. Mr. Hauk was never informed of the reason why he was detained and imprisoned.

4.	While being transported to the police station and jail, one of the officers stepped on Mr. Hauk's arm while his hands were handcuffed.

5.	Mr. Hauk was imprisoned until around 11:00 p.m. that night when he was released. Plaintiff was never informed of why he was being detained although he requested that information.

6.	Due to the actions of the six persons who arrested Mr. Hauk, he suffered pain and swelling of his right arm, tenderness to his neck and right shoulder, and abrasions to his wrists.

7.	During the incident, plaintiff Aniriko Hauk, was also struck by one of the six persons who grabbed her and kicked her left thigh. This person also used a baton to push the plaintiff against a vehicle and also pushed her onto the ground and kicked her in the back. At the time this occurred, Mrs. Hauk was seven months pregnant.

8.	The incident caused pain and bruising of her leg where she was kicked, pain in her stomach, legs, and back. Plaintiff got treatment for her injuries by local massage and missed a week of her work as a cashier at Seaside.

9.	Plaintiff Pthree Hauk went to the hospital for treatment of his injuries after two days of unsuccessfully trying to recover at home. Dr. Felix Youmai examined plaintiff and found his right arm swollen from humerus to wrist with moderate degree of tenderness, limited flex, extension, and abduction of the right shoulder, and noticeable abrasions on bilateral wrists. Dr. Youmai provided him with ibuprofen and antibiotics, and advised him to rest his arm in a sling in a neutral position.

10.	The defendants are governmental entities and a governmental officer.

Conclusions of Law

A governmental entity is liable for battery by its police officers when the entity ratified the battery by failing to charge the officers and by the lack of any internal discipline whatsoever. Conrad v. Kolonia Town, 8 FSM Intrm. 183, 195 (Pon. 1997). Cf. Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 14 (Chk. 2001) (Public Safety Director ratified shift supervisor's and jailer's actions by failing to investigate). A governmental entity that employs untrained police officers and permits their use of excessive force will be held responsible for the officers' unlawful acts. Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 280 (Truk 1986); Moses v. Municipality of Polle, 2 FSM Intrm. 270, 271 (Truk 1986). Defendants are liable to the plaintiffs for violation of the plaintiffs' civil rights pursuant to 11 F.S.M.C. 701.

Plaintiffs' due process civil rights were violated when police officers beat them without reason or justification. Further due process violations occurred when Mr. Hauk was detained and arrested without being told the reason, and when he was held in police custody for six hours.

Section 701(1) of Title 11 of the Code of the Federated States of Micronesia provides in pertinent part that

[a] person commits an offense if he willfully, whether or not acting under color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of . . . any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia.

Section 701(3) provides a private cause of action for any violation of section 701(1). Due process is a right secured by the FSM Constitution. FSM Const. art. IV, § 3.

This case falls squarely within the parameters of the statute. Pthree and his wife Aniriko were set upon and beaten by police officers while parked at Yumi's store. No reason was provided to Mr. Hauk at the time that the officers detained and arrested him, nor was any reason subsequently given.

The failure to inform Mr. Hauk directly violated of 12 F.S.M.C. 214(1), which provides that "[a]ny person making an arrest shall, at or before the time of arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest." Mr. Hauk's detention for six hours was without any justification.

The evidence adduced at trial showed precisely the sort of conduct that 11 F.S.M.C. 701 was meant to protect against. The assaulting police officers were acting under color of law and as agents of the defendant Chuuk Department of Public Safety, which is an agency of the defendant Chuuk State Government. Thus the defendants are liable for the violation of the plaintiffs' civil rights under 11 F.S.M.C. 701.

Damages

The compensable components of Pthree Hauk's damages are 1) the pain and suffering resulting from the physical injuries that he suffered; 2) the fact that he was never informed why he was being arrested; and 3) the time that he was detained from when he was arrested at approximately 5 p.m. until he was released that same day at approximately 11 p.m.

Aniriko Hauk's damages are for pain and suffering. Mrs. Hauk may have also been entitled to the loss of wages from taking off work as a result of her injuries, but no evidence was provided as to whether such a loss actually occurred or what her lost wages were, if any.

Mr. Hauk was grabbed, pinned down, kicked, punched, and handcuffed, and as a result suffered pain and swelling of his right arm, tenderness to his neck and right shoulder, and abrasions to his wrists. The injuries were severe enough that he sought medical attention after two days of attempted convalescence at home. The sum of $800.00 is awarded for the pain and suffering attendant upon these injuries. Cf. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 154, 156 (Pon. 2005) (awarding $150 for the pain and suffering associated with stomach problems and lingering swelling of wrist); Elymore v. Walter, 9 FSM Intrm. 450, 459 (Pon. 2000) ($700 awarded for pain and suffering resulting from broken glass cuts to head and hands); Plais v. Panuelo, 5 FSM Intrm. 179, 185 (Pon. 1991) (awarding $300 for pain and suffering when lit cigarette was ground out in plaintiff's back); Meitou v. Uwera, 5 FSM Intrm. 139, 147 (Chk. S. Ct. Tr. 1991) (awarding $800 for pain and suffering when plaintiff was beaten unconscious).

Pthree Hauk is also entitled to damages for not being advised at the time of his arrest of the reason for his arrest, and for the time that he spent in police custody from the time of his arrest until his release six hours later. In Warren, the plaintiff was awarded $10.00 for each hour that he was wrongfully held in police custody, and was awarded $500 for not being informed of the reason for his arrest. Warren provides guidance in these respects. Mr. Hauk is awarded $120 for the time he was held in police custody from 5:00 p.m. to 11:00 p.m. (6 x $20), and $600 because he was never told of the reason for his arrest. In total, Pthree Hauk is awarded $1,520.00 in damages.

Aniriko Hauk, who was seven months pregnant, is awarded $500.00 for the pain and suffering that she experienced as a result of being kicked in the left thigh, and being pushed to the ground and being kicked in the back. Since no evidence was presented about any wages lost from being off work for a week, or about any cost for the local massage, she is not entitled to damages. Total damages for Mrs. Hauk are $500.00.

Conclusion

Let clerk enter judgment accordingly.

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