FSM SUPREME COURT TRIAL DIVISION

Cite as Annes v. Primo, 14 FSM Intrm. 196 (Pon. 2006)

[14 FSM Intrm. 196]

WAIRY ANNES,

Plaintiff,

vs.

OFFICER ADELINO PRIMO, individually and in his

official capacity as Police Officer, Pohnpei State

Public Safety Department, STATE OF POHNPEI,

and the POHNPEI STATE DEPARTMENT OF

PUBLIC SAFETY,

Defendants.

CIVIL ACTION NO. 2004-063

OPINION AND ORDER GRANTING IN PART, DENYING IN PART, MOTION TO DISMISS

Andon L. Amaraich

Chief Justice

Decided: April 21, 2006

APPEARANCES:

For the Plaintiff:   Paul E. McIlrath, Esq.

                              Law Office of Andrea S. Hillyer, Esq.

                              P.O. Drawer D

                              Kolonia, Pohnpei   FM   96941

For the Defendants:   Salomon Saimon, Esq.

                                     Assistant Attorney General

                                     Pohnpei Department of Justice

                                     P.O. Box 1555

                                     Kolonia, Pohnpei   FM   96941

* * * *

HEADNOTES

Civil Procedure ) Dismissal

    In determining whether a plaintiff has failed to state a claim, the court must accept as true the allegations made in his complaint and will grant the defendants’ motion to dismiss only if it appears to a certainty that no relief could be granted under any set of facts which could be proven in support of the claim. Annes v. Primo, 14 FSM Intrm. 196, 200 (Pon. 2006).

Civil Procedure ) Dismissal; Civil Procedure ) Summary Judgment

    When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss shall be treated as one for summary judgment, but when the parties have presented matters outside the pleadings and neither party desires summary adjudication or that the court convert the

[14 FSM Intrm. 197]

motion, the court may exercise its discretion to exclude the matters outside the pleadings and treat the motion as one to dismiss. Annes v. Primo, 14 FSM Intrm. 196, 200 (Pon. 2006). Annes v. Primo, 14 FSM Intrm. 196, 200 (Pon. 2006).

Civil Rights; Federalism ) Abstention and Certification; Jurisdiction ) Arising under National Law

    Since an allegation of police brutality implicates both the national and state constitutions and a plaintiff asserting a right arising under national law has a right to be heard in the FSM Supreme Court even if state courts may also assert jurisdiction, the fact that the Pohnpei Supreme Court may be equally equipped to decide the case will not divest the plaintiff of his day in the FSM Supreme Court. Annes v. Primo, 14 FSM Intrm. 196, 201 (Pon. 2006).

Civil Procedure ) Dismissal

    In ruling on a motion to dismiss, the court must accept as true the plaintiff’s version of the facts. Thus the court cannot dismiss a case on the ground the plaintiff’s facts are incorrect, especially when the facts upon which the defendants urge dismissal are not dispositive. Annes v. Primo, 14 FSM Intrm. 196, 201 (Pon. 2006).

Constitutional Law ) Equal Protection

    Equal protection of the law means the protection of equal laws. The clause requires that those similarly situated must be similarly treated. Equal protection forbids only invidious discrimination. Annes v. Primo, 14 FSM Intrm. 196, 202 (Pon. 2006).

Constitutional Law ) Equal Protection

    Both sections 3 and 4 of Article IV are designed to protect individuals from discrimination based on their membership in a class. A plaintiff’s failure to allege intent to discriminate based on his membership in a particular class is fatal to his equal protection claim. Annes v. Primo, 14 FSM Intrm. 196, 202 (Pon. 2006).

Constitutional Law ) Equal Protection

    The failure to allege class-based discrimination may be fatal only to strict scrutiny analysis, that is, a plaintiff who fails to allege class-based discrimination is not dismissed but receives only rational basis review, but when the plaintiff is not challenging any particular law, the case is not susceptible to rational basis review. Annes v. Primo, 14 FSM Intrm. 196, 202 n.1 (Pon. 2006).

Civil Rights; Constitutional Law ) Due Process; Constitutional Law ) Equal Protection

    In the FSM, claims of police brutality or excessive force generally implicate due process, rather than equal protection. Annes v. Primo, 14 FSM Intrm. 196, 202 (Pon. 2006).

Civil Rights

    The express language of 11 F.S.M.C. 701(3) prohibits persons from depriving others of their civil rights. It does not apply only to states. Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006).

Civil Procedure ) Dismissal; Civil Procedure ) Pleadings

    Although the complaint is not artfully drafted, the court will not dismiss the claims made under a count headed "due process" simply because the count is "overstuffed" since notice pleading requires only a short and plain statement of the claim and fair notice of the factual wrong on the basis of the facts asserted. A plaintiff need not even advance a legal theory. Nor must the theory, if advanced, be correct. Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006).

Civil Procedure ) Dismissal; Civil Procedure ) Pleadings

    When the plaintiff asserts a tort claim for assault and battery by the police officers, although the

[14 FSM Intrm. 798]

claim should have been set forth independently, the facts alleged in the complaint were sufficient to place the defendants on notice of an assault and battery claim. Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006).

Civil Rights

    The duty to inform an arrestee of the reason for the arrest does exist in the FSM, but liability will not attach to an officer who breaches the duty if a court concludes that the arrestee had the requisite knowledge in the particular situation. Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006).

Civil Procedure ) Dismissal; Civil Rights

    When a plaintiff alleges that he was arrested without cause, not that the officer failed to inform him of the grounds for the arrest, the difference in the two allegations is more than semantic, because a plaintiff may claim that an arrest was without just cause even when the arresting officer recites the grounds for the arrest. Whether there was cause for the arrest presents a factual matter that cannot be resolved at the Rule 12(b)(6) motion stage of the proceedings. Annes v. Primo, 14 FSM Intrm. 196, 203-04 (Pon. 2006).

Civil Rights; Criminal Law and Procedure ) Arrest and Custody

    A claim of failure to inform an arrestee of his rights and denying him legal counsel and access to the courts is a statutory claim, not a constitutional one. An arrested person’s rights are codified at 12 F.S.M.C. 218, which provides that, at the time of arrest, a police officer must inform the arrestee of her rights, including the right to counsel, prior to any questioning and that the officer must either release the arrestee or bring her before a judicial officer within twenty-four hours of the arrest. Annes v. Primo, 14 FSM Intrm. 196, 204 (Pon. 2006).

Torts ) Governmental Liability; Torts ) Respondeat Superior

    The doctrine of respondeat superior may be applied to impose liability upon a state for the negligent torts of its employees. The theory may also be applied to intentional torts when committed by a police officer or other official in an apparent use of official authority. In other words, a state may only be held liable for torts committed in the scope of employment. Annes v. Primo, 14 FSM Intrm. 196, 204 (Pon. 2006).

Civil Procedure ) Dismissal; Torts ) Governmental Liability; Torts ) Respondeat Superior

    Generally, the question of whether a police officer acted within the scope of employment is a question of fact, rather than a legal question, although, if the facts are undisputed and can support only one conclusion, the inquiry becomes legal. Thus to survive a defendant’s motion to dismiss, it is enough that the plaintiff has alleged assault and battery by a government employee cloaked with the authority of the state. Annes v. Primo, 14 FSM Intrm. 196, 204 & n.3 (Pon. 2006).

Civil Rights; Torts ) Governmental Liability

    A state may be held liable if, through subsequent conduct, it ratifies the tort of an individual defendant. Annes v. Primo, 14 FSM Intrm. 196, 204 n.4 (Pon. 2006).

Civil Rights; Torts ) Governmental Liability

A state may be held liable for alleged civil rights violations when policymakers are involved in the challenged action and have made a deliberate choice to follow a particular course of action. This type of liability is not vicarious; it is direct, but when a plaintiff has not alleged that an individual with policymaking authority was involved in his injury, there is no basis upon which to impose liability on the state for a police officer’s alleged civil rights violations. Annes v. Primo, 14 FSM Intrm. 196, 205 (Pon. 2006).

[14 FSM Intrm. 199]

Civil Rights; Torts ) Governmental Liability

    Although a state may not be held vicariously liable for the due process violations of its agents, it may be held liable in both tort and civil rights for failure to train. Annes v. Primo, 14 FSM Intrm. 196, 205 (Pon. 2006).

Civil Procedure ) Dismissal; Civil Rights

    A plaintiff’s failure to specify the appropriate level of care and to prove that the level of care provided by the state was deficient does not warrant dismissal of his claim when the plaintiff has alleged injury by a state police officer and failure to train by the state because the plaintiff must be given the opportunity to put forth evidence in support of his claim and a motion to dismiss may be granted only if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint. Annes v. Primo, 14 FSM Intrm. 196, 205 (Pon. 2006).

Civil Procedure ) Dismissal

    An argument that the plaintiff is responsible for any injury he has suffered because he became combative with the police officer is an attempt to engage the court in a factual analysis that is not appropriate at the Rule 12(b)(6) motion for dismissal stage. Annes v. Primo, 14 FSM Intrm. 196, 205 (Pon. 2006).

Civil Procedure ) Pleadings

    The purpose of including a prayer for relief in a complaint is to give notice to the court and to the parties of the claims being presented and the relief being sought. Annes v. Primo, 14 FSM Intrm. 196, 205 (Pon. 2006).

Torts ) Damages ) Punitive; Torts ) Governmental Liability

    The State of Pohnpei cannot be held liable for punitive damages. Annes v. Primo, 14 FSM Intrm. 196, 206 (Pon. 2006).

Civil Rights; Torts ) Damages

    Damages under the civil rights act generally include only compensatory damages. Annes v. Primo, 14 FSM Intrm. 196, 206 (Pon. 2006).

Civil Rights

    FSM civil rights law is derivative of the body of federal civil rights law in the United States, particularly 42 U.S.C. § 1983 and cases interpreting that statute. Annes v. Primo, 14 FSM Intrm. 196, 206 n.6 (Pon. 2006).

Civil Procedure ) Dismissal; Torts ) Damages ) Punitive

    Although punitive damages claims against the state will be dismissed, when the state is not the only defendant, an unchallenged punitive damage claim against a police officer will not be stricken. Annes v. Primo, 14 FSM Intrm. 196, 206 (Pon. 2006).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

I.   Introduction

    This is a civil rights case involving a claim of police brutality. Before the Court is a motion to

[14 FSM Intrm. 200]

dismiss by Defendants, Officer Adelino Primo, the State of Pohnpei, and the Pohnpei State Department of Public Safety. On June 13, 2005, the parties stipulated to waive oral argument and have the Court render a decision based on the briefs. Having reviewed the parties’ briefs and the applicable law, the Court hereby

grants in part and denies in part Defendants’ motion.

II.   Factual Background

    Plaintiff, Wairy Annes, alleges that, on December 29, 2002, he was arrested at a private residence in Nett and taken to the State police station in Kolonia. After he had been placed in handcuffs, Officer Adelino Primo slapped and beat him several times, inside the police station. Officer Primo then took Annes outside and placed him in a police vehicle, intending, ostensibly, to transport Annes to the jail. Instead of taking him to jail, Officer Primo pulled Annes out of the vehicle and administered another beating, kicking and hitting him in the face, chest, and lower abdomen. After the second beating, two other officers took Annes to the hospital.

    Annes filed this lawsuit pursuant to 11 F.S.M.C. 701(3), which establishes civil liability for constitutional violations. Annes claims violations of equal protection and due process.

Ill.   Legal Standard

    Defendants have titled their motion a Rule 12(b) motion to dismiss. They urge the Court to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. If it appears that subject matter jurisdiction is lacking, the Court will dismiss the complaint. FSM Civ. R. 12(h)(3). In determining whether Annes has failed to state a claim, the Court must accept as true the allegations made in his complaint. The Court will grant Defendants’ motion only if it appears to a certainty that no relief could be granted under any set of facts which could be proven in support of the claim. Rubin v. Fefan Election Comm’n, 11 FSM Intrm. 573, 578 (Chk. S. Ct. Tr. 2003).

    Where matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss shall be treated as one for summary judgment. FSM Civ. R. 12(b); Rudolph v. Louis Family, Inc., 13 FSM Intrm. 118, 125 (Chk. 2005). Here, the parties have presented matters outside the pleadings. However, neither party desires summary adjudication. The decision to exclude matters outside the pleadings and treat the motion as one to dismiss is within the Court’s discretion. Latte Motors, Inc. v. Hainrick, 7 FSM Intrm. 190, 192 (Pon. 1995). Because neither party wishes the Court to convert the motion, the Court will exercise its discretion to exclude the matters outside the pleadings and treat the motion as one to dismiss.

IV.   Discussion

A.  Dismissal for Lack of Jurisdiction

    Defendants first argue that Annes’ complaint must be dismissed because he failed to comply with the Pohnpei Government Liability Act of 1991, Pon. S.L. No. 2L-192-91, § 24(1) (Liability Act). Pursuant to the Liability Act, a potential plaintiff may not file suit against a state agency unless the plaintiff first presents his or her claim to the appropriate state agency and gives the agency fifty days to act on the claim. In other words, a plaintiff must exhaust all available administrative remedies prior to filing suit.

    In his complaint, Annes erroneously referred to the Pohnpei State Code, rather than the Liability Act. Defendants argue that, because the Pohnpei State Code does not yet exist, Annes could not have exhausted the administrative process.

[14 FSM Intrm. 201]

    Defendants’ argument is without merit. Annes states that he submitted a written claim to the Attorney General on September 5, 2003; however, he never received a response. Annes did not file the instant lawsuit until December 8, 2004. Thus, he gave the Attorney General’s office more than the requisite fifty days to act on his complaint. Because Annes complied with the substance of the Liability Act, this Court will not dismiss his complaint simply because he erroneously referred to the Liability Act as the Pohnpei State Code.

    Next, Defendants urge the Court to dismiss Annes’ complaint on the ground that the Pohnpei Supreme Court "is more than capable of addressing civil rights issues." Defendants rely on Hadley v. Kolonia Town, 3 FSM Intrm. 101 (Pon. 1987), wherein three Pohnpeian residents challenged the constitutionality of a Kolonia Town ordinance concerning drinking permits. In Hadley, this Court certified the constitutional issue to the Pohnpei Supreme Court Appellate Division, stating:

While national law requires this Court to protect persons against violations of civil rights, strong considerations of federalism and local self-government suggest that local institutions should be given an opportunity to address local issues, even civil rights issues, especially when this can be done without placing the rights of the parties in serious jeopardy and when the local decision may obviate the need for a constitutional ruling by the national court.

Id. at 103.

Because the Hadley plaintiffs were residents of Kolonia Town and were objecting to an ordinance enacted by their municipality, the Court characterized the dispute as essentially local. The Court concluded that the plaintiffs’ rights would not be jeopardized if they first sought relief from a local tribunal. Id.

    The Court rejects Defendants’ comparison to Hadley. A local drinking ordinance, arising from the operation of local self-governance, can, in most cases, easily be characterized as an essentially local matter. Police brutality has nothing in common with the establishment of rules for those who live in a particular area or locality. On the contrary, an allegation of police brutality implicates both the national and State constitutions. This Court has stated that a plaintiff asserting a right arising under national law has a right to be heard in the FSM Supreme Court, even if state courts may also assert jurisdiction. Naoro v. Walter, 11 FSM Intrm. 619, 621 (Chk. 2003) (citing Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94, 100 (Pon. 2002)). The fact that the Pohnpei Supreme Court may be equally equipped to decide this case will not divest Annes of his day in this Court.

B.  Dismissal Due to Inaccuracies in the Complaint

    Defendants also urge the Court to dismiss Annes’ complaint due to certain factual inaccuracies contained therein. First, Annes asserted that the State did not file criminal charges against him. Defendants state that charges were indeed filed. Second, Defendants dispute the date of the alleged incident. They say it occurred on February 2, 2003, whereas Annes stated in the complaint that it occurred on December 29, 2002. Annes’ response brief does not address these alleged inaccuracies.

    In ruling on a motion to dismiss, the Court must accept as true Annes’ version of the facts. Even if the Court were not bound to accept Annes’ version, the Court would reject Defendants’ argument on the ground that the facts upon which Defendants urge dismissal ) that criminal charges were filed against Annes and that the incident occurred in February 2003 rather than December 2002 ) are not dispositive.

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C.  Dismissal for Failure to State a Claim

1.  Equal Protection

    In his complaint, Annes alleged that, by subjecting him to arbitrary police brutality, Defendants violated his constitutional right to equal protection of the laws. Defendants argue that this claim must be dismissed because Annes failed to state that he is a member of a protected class. Defendants rely on Youp v. Pingelap, 9 FSM Intrm. 215 (Pon. 1999) and Samuel v. Pryor, 5 FSM Intrm. 91 (Pon. 1991).

    The plaintiff in Youp merely alleged ) as does Annes ) that the police, in battering him, violated his constitutional rights. He relied on Article IV § 4 of the FSM Constitution, which states that equal protection of the laws "may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status." This Court dismissed the case on the ground that the plaintiff failed to allege discrimination on the basis of membership in one of the delineated classes. Youp, 9 FSM Intrm. at 217. See also Davis v. Kutta, 7 FSM Intrm. 536, 547 (Chk. 1996) (under § 4, victim of stray police bullet could not assert claim of equal protection where there was no evidence of an intent to discriminate against her based on gender or other invidious reason).

In Samuel, the Court explained:

Equal protection of the law means the protection of equal laws. The clause requires that those similarly situated must be similarly treated . . . . For illustration purposes, equal protection requires "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons . . . should have like access to the courts of the country for the protection of their persons and property . . . ." However, equal protection forbids only invidious discrimination.

Samuel, 5 FSM Intrm. at 106 (quoting the Micronesian Constitutional Convention on Civil Liberties, SCREP No. 23, II J. of Micro. Con. Con. 793) (emphasis added).

    Annes argues ) without authority ) that he need not allege class-based discrimination, because he relies on section 3 of Article IV, rather than section 4. Section 3 provides that no person may be "deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws." Section 3 does not delineate the classifications that invoke constitutional protection.

    Defendants are correct. In FSM Social Security Administration v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon. 1995), the Court explained that both sections 3 and 4 of Article IV are designed to protect individuals from discrimination based on their membership in a class. Annes’ failure to allege intent to discriminate based on his membership in a particular class is fatal to his equal protection claim. Furthermore, in the FSM, claims of police brutality or excessive force generally implicate due process, rather than equal protection. See, e.g., Plais v. Panuelo, 5 FSM Intrm. 179 (Pon. 1991); Paul v. Celestine, 4 FSM Intrm. 205 (App. 1990); Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 (Kos. 1986).

[14 FSM Intrm. 203]

Thus, this claim must be dismissed.

2.  Due Process

    Defendants next argue that Annes cannot establish a violation of his civil rights without demonstrating that his injuries were the result of state action. Defendants are incorrect. The express language of 11 F.S.M.C. 701(3) prohibits persons from depriving others of their civil rights. It does not apply only to states. See Davis, 7 FSM Intrm. at 547 ("Plaintiff may recover damages if she can demonstrate a violation of her constitutional rights by the police officers or by the Chief of Police and the State.").

    Defendants also urge dismissal of Annes’ due process claim on the ground that it is "bloated," meaning that Annes is asserting several claims under the rubric of "due process." Based upon this Court’s reading of the complaint, Annes is alleging, as components of his due process claim, the following: failure to inform him of his rights and the ground for the arrest; denial of counsel and access to a neutral, detached magistrate; respondeat superior and failure of the State to train its officers; and, under a liberal interpretation of the complaint, assault and battery. Although the complaint was not artfully drafted, the Court will not dismiss the claims made under the heading "due process" simply because the count is overstuffed. Notice pleading requires only a short and plain statement of the claim and fair notice of the factual wrong on the basis of the facts asserted. A plaintiff need not even advance a legal theory. Nor must the theory, if advanced, be correct. Semwen v. Seaward Holdings. Micronesia, 7 FSM Intrm. 111, 113 -14 (Chk. 1995).

a.  Assault and Battery

    In his complaint, at paragraph 20, Annes stated, "The acts, conduct, and behavior of defendants and the force used by the defendant Primo against the plaintiff were an apparent use of his official authority." He further stated that Officer Primo "assaulted the plaintiff under his authority as a police officer." In his response to Defendants’ motion, Annes states, "The Defendants acknowledge in their Motion to Dismiss, at page 6, that the Plaintiff asserts a tort claim for assault and battery by the police officers." Although the claim should have been set forth independently, the facts alleged in the complaint were sufficient to place Defendants on notice of an assault and battery claim.

b.  Failure to Inform of Ground(s) for the Arrest

    Based on Defendants’ interpretation of the complaint, Annes alleged that Officer Primo failed to inform him of the grounds for the arrest. Defendants argue that, in the FSM, there is no duty to inform an arrestee of the grounds for an arrest, particularly where the arrestee knows he is dealing with the police and that he is likely to be arrested. Defendants are almost correct as to the status of the law. Title 12 F.S.M.C. 214(1) provides: "Any person making an arrest shall, at or before the time of the arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest." In Conrad v. Kolonia Town, 8 FSM Intrm. 183, 193 (Pon. 1997), this Court promulgated the rule cited by Defendants: Even if an officer fails to inform an arrestee of the grounds for the arrest, liability will not be imposed if the arrestee knew he was dealing with police who could arrest him, that he was likely to be arrested, and why. To be precise, then, the duty to inform does exist in the FSM. However, liability will not attach to an officer who breaches the duty if a court concludes that the arrestee had the requisite knowledge in the particular situation.

    Based upon the Court’s construction of the complaint, Annes alleged that he was arrested without cause, not that Officer Primo failed to inform him of the grounds for the arrest. CompI. ¶ 19. The difference in the two allegations is more than semantic, because a plaintiff may claim that an arrest

[14 FSM Intrm. 204]

was without just cause even where the arresting officer recites the grounds for the arrest. Whether there was cause for the arrest presents a factual matter that cannot be resolved at this stage of the proceedings.

c.  Failure to Inform of Rights, Denial of Counsel, and Denial of Access to a Neutral, Detached Magistrate

    A claim of failure to inform an arrestee of his rights and denying him legal counsel and access to the courts is a statutory claim, not a constitutional one. FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987). The rights of arrested persons are codified at 12 F.S.M.C. 218. This statute provides that, at the time of arrest, a police officer must inform the arrestee of her rights, including the right to counsel, prior to any

questioning. Further, the officer must either release the arrestee or bring her before a judicial officer within twenty-four hours of the arrest. Whether Annes was informed of his rights, given access to legal counsel, and either released or taken before a judicial officer within twenty-four hours are factual matters that must be resolved by summary judgment or trial.

d.  Respondeat Superior Liability

    Defendants assert that the State may not be held liable under the doctrine of respondeat superior because no policymaking individual was involved in the alleged incident of brutality. Annes responds that, if Officer Primo is liable, the State may be held vicariously liable. The policymaking argument applies only to the civil rights claims, not the tort claims. The Court will first address respondeat superior as applied in tort.

    Both parties cite Plais v. Panuelo, 5 FSM Intrm. 179 (Pon. 1991). There, the plaintiff, a prisoner, claimed that on the day he was recaptured after having escaped, his jailers beat and kicked him and burned him with a cigarette. He sued not only the jailers but the State of Pohnpei and the FSM.

    The Plais Court held that the doctrine of respondeat superior may be applied to impose liability upon a state for the negligent torts of its employees. The theory may also be applied to intentional torts when committed "by a police officer [or other official] in an apparent use of official authority." Id. at 201. In other words, a state may only be held liable for torts committed in the scope of employment. Conrad, 8 FSM Intrm. at 192. Generally, the question of whether a police officer acted within the scope of employment is a question of fact, rather than a legal question. See generally Davis, 7 FSM Intrm. at 545-46. To survive Defendants’ motion to dismiss, it is enough that Annes has alleged assault and battery by a government employee cloaked with the authority of the State.4

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    A state may be held liable for alleged civil rights violations where policymakers are involved in the challenged action and have made a deliberate choice to follow a particular course of action. Plais, 5 FSM Intrm. at 206. However, this type of liability is not vicarious; it is direct. Annes has not alleged that an individual with policymaking authority was involved in his injury. Thus, there is no basis upon which to impose liability on the State for Officer Primo’s alleged civil rights violations.

e.  Failure to Train

    Annes asserted in his complaint, at paragraph 20, that the State failed to adequately train its police officers, and the failure to train resulted in a violation of Annes’ due process rights. Although a state may not be held vicariously liable for the due process violations of its agents, it may be held liable in both tort and civil rights for failure to train. See. e.g., Davis, 7 FSM Intrm. at 547-48 (failure to train constitutes the tort of negligence and is a due process violation).

    Defendants urge the Court to dismiss this claim on the ground that failure to train police officers "is a delicate and volatile issue that must be constantly weighed at the backdrop of this country’s constitutional requirements." Defendants also assert that such training would be very expensive, and they implore the Court to consider "the customary and traditional stature of the individual police officer in the Pohnpeian society." Defendants invoke the following passage from Conrad:

[H]ere, the plaintiff has failed to prove by any competent evidence that the level of training provided by Kolonia Town to its officers was deficient, or that that level of training violated the proper standard of care in the community, or even what level of training would be appropriate giving due consideration to the social and geographical configuration of the Federated States of Micronesia.

Conrad, 8 FSM Intrm. at 194.

    The critical difference between Conrad and the instant case is that the Court in Conrad was writing a post-trial opinion, meaning that the plaintiff had been given an opportunity to put forth evidence showing a failure to train. The Court was not ruling on a motion to dismiss. Annes’ failure to specify the appropriate level of care and to prove that the level of care provided by the State was deficient does not warrant dismissal of his claim. Annes has alleged injury by a State police officer and failure to train by the State. He must be given the opportunity to put forth evidence in support of this claim. A motion to dismiss may be granted "only if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint." Rubin, 11 FSM Intrm. at 578.

Finally, Defendants argue that Annes is responsible for any injury he has suffered because he became combative with Officer Primo. This is yet another attempt to engage the Court in a factual analysis that is not appropriate at the dismissal stage.

D.  Damages

1.  Alleged Improper Pleading

    Defendants take issue with Annes’ prayer for relief, since there is no mention of damages in the fact or cause-of-action portions of the complaint. The purpose of including a prayer for relief in a complaint is "to give notice to the court and to the parties of the claims being presented and the relief being sought." 61A Am. Jur. 2d Pleading § 153 (1999). Annes’s prayer for relief, which is confined to a paragraph at the conclusion of his complaint, is sufficient to provide notice to the Court and

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Defendants of the relief which Annes seeks. Defendants’ argument is unavailing.

2.  Punitive Damages

    Next, Defendants argue that the Court must strike the punitive damages section of Annes’s complaint, since the State cannot be held liable for punitive damages. Where the State is concerned, Defendants are correct. This Court has recognized that, in tort, the State cannot be held liable for punitive damages. Warren v. Pohnpei State Dep’t of Pub. Safety, 13 FSM Intrm. 154, 155 (Pon. 2005) (citing the Pohnpei Governmental Liability Act, S.L. No. 2L-192-91). Damages under the civil rights act generally include only compensatory damages. See. e.g., Herman v. Municipality of Patta, 12 FSM Intrm. 130, 137-38(Chk. 2003).6

    The State is not the only defendant, however. Defendants have not challenged the punitive damages claim against Officer Primo, and the Court, therefore, will not strike that portion of the complaint.

V.  Conclusion

    Defendants’ motion is granted with respect to Annes’ equal protection claim and his claim for punitive damages against the State of Pohnpei. The motion is also granted insofar as Annes’ complaint can be interpreted to include vicarious or respondeat superior liability against the State for Officer Primo’s alleged civil rights violations. The motion is denied in all other respects.

A scheduling order issues herewith.

___________________________

Footnotes:

1.  The Court is mindful that it has, on certain occasions, viewed the failure to allege class-based discrimination as fatal only to strict scrutiny analysis. In other words, a plaintiff who fails to allege class-based discrimination is not dismissed but receives only rational basis review. E.g., FSM Social Security Admin. v. Weilbacher. 7 FSM Intrm. 137, 146 (pon. 1995). However, because Annes is not challenging any particular law, this case is not susceptible to rational basis review.

2.  The Court in FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987), explained that title 12 F.S.M.C. 218 codified the constitutional principles set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, in the FSM, claims pertaining to failure to inform of an arrestee of his or her rights can generally be resolved without resort to lengthy constitutional analysis.

3.  If, however, the facts are undisputed and can support only one conclusion, the inquiry becomes legal.

4.  The Court in Plais v. Panuelo, 5 FSM Intrm. 179, 202-03 (Pon. 1991), also set forth an independent ground for liability. A state may be held liable if, through subsequent conduct, it ratifies the tort of the individual defendant. In Plais, the Court found ratification where the State of Pohnpei, upon learning of an assault and battery by the defendants, failed to punish them, paid the attorney fees of one of the defendants, and gave that defendant a satisfactory evaluation within months of the alleged incidents. Id. at 203. Here, Annes has not made an allegation of ratification by the State.

5.  To support their argument that Annes’ prayer for relief is deficient and should be stricken, Defendants cite 61A Am. Jur. 2d Pleading §§ 120 & 123. However, the quotes contained in Defendants’ brief are not a true reflection of the language of 61A Am. Jur. 2d Pleading §§ 120 & 123. Even if it were, the Court would deem Annes’s prayer for relief adequate.

6.  Our civil rights law is derivative of the body of federal civil rights law in the United States, particularly 42 U.S.C. § 1983 and cases interpreting that statute. United States federal courts have consistently held that section 1983 does not permit an award of punitive damages against governmental entities. See, e.g., Powell v. Alexander. 391 F.3d 1 (1st Cir. 2004); Youren v. Tintic Sch. Dist., 343 F.3d 1296 (10th Cir. 2003).

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