NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REED SHOOK, 

Plaintiff-Appellant, 

 v. 

COUNTY OF HAWAII POLICE 

DEPARTMENT, et al., 

Defendants-Appellees.

No. 22-16554 

D.C. No. 

1:22-cv-00060-LEK-KJM 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Submitted June 14, 2024**

Honolulu, Hawai‘i

Before: CALLAHAN, HURWITZ, and H.A. THOMAS, Circuit Judges.

Reed Shook appeals the dismissal of this 42 U.S.C § 1983 action arising 

from events surrounding his non-selection for the 92nd recruitment class of the 

County of Hawai‘i Police Department (“HPD”). We have jurisdiction pursuant to 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUN 18 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

28 U.S.C. § 1291, and we affirm.

“We review de novo a district court’s order granting a motion to dismiss 

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.” Boquist v. Courtney, 32 

F.4th 764, 773 (9th Cir. 2022). We presume the parties’ familiarity with the facts 

of the case and therefore repeat them here only to the extent necessary to resolve 

the issues raised on appeal.

1. The district court correctly found the causes of action for First 

Amendment retaliation, negligence, and intentional infliction of emotional distress 

(“IIED”) arising from Shook’s disqualification untimely because they were filed 

more than two years from their accrual on February 3, 2020, when Shook was 

notified of his disqualification from candidacy. See Haw. Rev. Stat. § 657-7 

(statute of limitations for personal injury actions); Bonelli v. Grand Canyon Univ., 

28 F.4th 948, 951 (9th Cir. 2022) (§ 1983 claims are governed by the forum state’s 

statute of limitations for personal injury actions).

Shook’s First Amendment retaliation claim accrued no later than February 3, 

2020, when he learned of his disqualification from the recruitment class. See 

Bonelli, 28 F.4th at 952 (§ 1983 First Amendment retaliation claim accrues “when 

the plaintiff knows or has reason to know of the injury which is the basis of the 

action” (internal quotation marks and citation omitted)). It is irrelevant that Shook 

alleges he did not learn the official reason for his disqualification until later
3 

because by February 3, 2020, he knew he was injured, i.e., disqualified, and 

suspected that disqualification was due to unlawful discrimination. See W. Ctr. for 

Journalism v. Cederquist, 235 F.3d 1153, 1157 (9th Cir. 2000) (“[A]s long as a 

plaintiff has notice of the wrongful conduct, it is not necessary that [he] have 

knowledge of all the details . . . in order for [the] cause of action to accrue.” 

(second alteration in original) (internal quotation marks omitted)).

We reject Shook’s attempt to invoke the continuing violations doctrine. The 

HPD’s non-selection of Shook constitutes a discrete act, entirely separate from the 

Merit Appeals Board (“MAB”) hearing and the MAB’s denial of his appeal. See

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 114 (2002) (continuing 

violation doctrine cannot apply to save “discrete discriminatory acts,” “such as 

termination, failure to promote, denial of transfer, or refusal to hire” (emphasis 

added)).

Shook’s state law tort claims arising from his disqualification likewise

accrued no later than February 3, 2020. By then, Shook knew or reasonably should 

have known of his disqualification, the allegedly improper consideration of his 

overturned and expunged conviction, and the fact that his former conviction was at 

least one of the reasons he was disqualified. See Hays v. City and County of 

Honolulu, 917 P.2d 718, 723 (Haw. 1996) (Haw. Rev. Stat. § 657-7 limitations 

period begins to run at “the moment plaintiff discovers or should have discovered 
4 

the negligent act, the damage, and the causal connection between the former and 

the latter” (citation omitted)). The complaint repeatedly alleges that Officer Reyes 

and Sergeant Grouns strongly implied or expressly conveyed to Shook in their 

October 2019 conversations that the reason he would not be selected was his prior 

conviction. Thus, the district court correctly found that by February 3, 2020, 

Shook had all of the necessary facts to support his negligence and IIED claims 

arising from his disqualification.

2. The district court also correctly dismissed Shook’s cause of action under 

Hawai‘i Revised Statutes § 378-2 arising from his disqualification due to untimely 

exhaustion of administrative remedies. Shook filed his complaint with the Hawai‘i 

Civil Rights Commission at the earliest, on May 17, 2021, which was more than 

180 days after his allegedly discriminatory and retaliatory disqualification on 

February 3, 2020. See Haw. Rev. Stat § 368-11(c); Jass v. CherryRoad Techs., 

Inc., 449 F. Supp. 3d 923, 933 (D. Haw. 2020) (administrative exhaustion required 

before suing under Haw. Rev. Stat. § 378-2). Again, Shook’s later purported 

discovery of what he calls the “pretext[ual]” official reason for his disqualification 

does not change the analysis, given his many allegations that he suspected from the 

beginning that the disqualification was unlawfully based on his former conviction.

3. We also affirm the dismissal of Shook’s causes of action involving the

MAB’s adverse decision in Shook’s administrative appeal. Shook advances no 
5 

theory by which any of the defendants in this action are liable for the conduct of 

the MAB, an independent third party not named as a defendant.

4. Shook fails to present a meaningful argument that the district court erred 

by dismissing his First Amendment retaliation cause of action arising from the 

officers’ allegedly false testimony at his MAB hearing. We are not persuaded that 

the possibility that one’s retaliators might falsely testify about their claimed 

retaliation would deter a reasonable person from reporting retaliation in the first 

place. See Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 778 (9th Cir. 2022) 

(for adverse action element of prima facie First Amendment retaliation claim, 

plaintiff “must prove that the employer’s action was reasonably likely to deter 

them from engaging in constitutionally protected speech” (cleaned up)).

5. The district court did not abuse its discretion in finding that Shook’s state 

law claims for negligence and IIED based on the officers’ allegedly false MAB 

testimony were barred by the doctrine of issue preclusion. Spirit of Aloha Temple 

v. County of Maui, 49 F.4th 1180, 1193 (9th Cir. 2022) (“[W]e review de novo if 

collateral estoppel applies and for abuse of discretion the district court’s decision 

giving preclusive effect.”). Shook does not contest the availability of issue 

preclusion from the MAB decision, arguing only that the district court erred in 

applying Hawai‘i’s issue preclusion test. We disagree, finding all elements 

satisfied. See id. (reciting issue preclusion elements under Hawai‘i law).
6 

The MAB decision was a final judgment on the merits, notwithstanding 

Shook’s choice not to seek judicial review of that decision in the appropriate 

Hawai‘i circuit court. See Haw. Rev. Stat. §§ 76-47(e), 91-14; Wehrli v. County of 

Orange, 175 F.3d 692, 694 (9th Cir. 1999) (noting that “a losing party cannot 

obstruct the preclusive use of [a] state administrative decision simply by foregoing 

her right to appeal” to state court (quoting Plaine v. McCabe, 797 F.2d 713, 719 

n.12 (9th Cir. 1986)).

Next, while the individual defendants here were not technically respondents 

in the MAB appeal, it is sufficient that Shook—the party against whom preclusion 

is sought—was. See Santos v. Haw., Dep’t of Transp., Kauai Div., 646 P.2d 962, 

965 (Haw. 1982) (recognizing that Hawai‘i courts have “partially abandoned the 

traditional requirement of identity of parties” so that preclusion can apply when 

“‘raised defensively by one not a party in a prior suit against one who was a party 

in that suit and who himself raised and litigated the fact or issue’” (quoting Ellis v. 

Crockett, 451 P.2d 814, 822 (Haw. 1969)).

Finally, the record supports the district court’s finding that the MAB must 

have decided that the testimony of the HPD witnesses was not false in order to 

deny Shook’s appeal. See Spirit of Aloha Temple, 49 F.4th at 1193 (first and 

fourth elements of Hawai‘i collateral estoppel test together require an “identical”

issue “actually litigated, finally decided, and essential to” the prior judgment 
7 

(quoting Dannenberg v. State, 383 P.3d 1177, 1198 (Haw. 2016)). Thus, Shook 

was properly precluded from litigating the falsity of that testimony in the context 

of his present state tort claims.

6. Shook fails to present a meaningful argument that the district court erred 

by dismissing his Haw. Rev. Stat. § 378-2 cause of action arising from the officers’ 

allegedly false MAB testimony on the grounds that giving such testimony is not a 

discriminatory practice proscribed by that statute. In the absence of any developed 

argument, we are not persuaded that the district court erred.

The judgment of the district court is AFFIRMED.