Miller v. Kaneshiro

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2026
• Docket: 25-1994
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL MILLER, Jr.; EUGENE No. 25-1994 SIMEONA, Jr.; PJY ENTERPRISES, LLC, D.C. No. 1:23-cv-00129-MWJS-WRP Plaintiffs - Appellants,

v. MEMORANDUM*

KEITH M. KANESHIRO, individually and in his capacity as former Prosecuting Attorney of the City and County of Honolulu; HONOLULU POLICE DEPARTMENT; CITY AND COUNTY OF HONOLULU; JOHN AND JANE DOES, 1-10; DOES, Governmental Entities 1-10,

Defendants - Appellees.

Appeal from the United States District Court for the District of Hawaii Micah W. J. Smith, District Judge, Presiding

Argued and Submitted February 10, 2026 Honolulu, Hawaii

Before: BYBEE, R. NELSON, and FORREST, Circuit Judges.

Michael Miller, Jr., Eugene Simeona, Jr., and PJY Enterprises, LLC

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (Appellants) appeal the district court’s grant of summary judgment for the City and

County of Honolulu and the Honolulu Police Department (Appellees). We have

jurisdiction under 28 U.S.C. § 1291. We “review a district court’s order granting

summary judgment de novo.” Scanlon v. County of Los Angeles, 92 F.4th 781, 796

(9th Cir. 2024). We affirm the district court’s order.

1. The district court correctly concluded that the statutes of limitations

began to run, at the latest, on October 27, 2016. Under both state and federal law,

the claims “accrue[] when the plaintiff knows or has reason to know of the injury

which is the basis of the action.” Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)

(citation omitted); see Ass’n of Apartment Owners of Newtown Meadows ex rel. its

Bd. of Dirs. v. Venture 15, Inc., 167 P.3d 225, 270 (Haw. 2007).

Drawing all reasonable inferences for Appellants, the latest possible accrual

date would be when the criminal charges were dismissed. The “injury” or actionable

wrong here was the unreasonable retention of the machines after the City had no

legal interest in them. That began on October 27, 2016. “A seizure is justified under

the Fourth Amendment only to the extent that the government’s justification holds

force. Thereafter, the government must cease the seizure or secure a new

justification.” Brewster v. Beck, 859 F.3d 1194, 1197 (9th Cir. 2017). The

government’s justification here was the criminal case against Appellants; once those

charges were dismissed in October 2016, the justification vanished and the statutes

2 25-1994 began to run. See United States v. Wright, 49 F.4th 1221, 1225 (9th Cir. 2022).

Hawai‘i law also demonstrates that “a defendant has a right to property lawfully

seized where the government no longer has reason for its retention.” Awaya v. State,

705 P.2d 54, 61 (Haw. Ct. App. 1985) (emphasis and citation omitted). Once the

charges were dismissed, the City had no authority to continue holding the machines,

and the deadlines for administrative forfeiture under Chapter 712A had long since

passed.

Appellants argue that the proper accrual date should be either December 20,

2021, or July 15, 2022. Appellants base their first proposed accrual date on when

the Supreme Court of Hawai‘i decided Alm v. Eleven Products Direct Sweepstakes

Machines, 501 P.3d 298 (Haw. 2021). But as the Supreme Court of Hawai‘i has

held, “the discovery rule prevents the running of the statute of limitations until the

plaintiff has knowledge of those facts which are necessary for an actionable claim

before the statute begins to run. It does not delay the start of the limitations period

until the plaintiff learns of the legal duty upon which he or she may base a cause of

action.” Hays v. City & Cnty. of Honolulu, 917 P.2d 718, 725 (Haw. 1996) (cleaned

up). Appellants knew all necessary facts in October 2016: the City had no right to

keep the machines after the criminal charges were dismissed, yet it kept them

without having initiated forfeiture proceedings. That is the fact (which Appellants

knew) that created the causes of action here alleged. Appellants could have filed

3 25-1994 this suit then (or at any point in the next six years), and if they thought Alm was

outcome-determinative, they could have consolidated it with Alm or moved for an

immediate stay pending Alm’s outcome. Instead, they chose to roll the dice and wait

over six years before inquiring again about the machines and suing.

Appellants’ other proposed accrual date fares no better. Appellants argue that

July 2022, when the City informed them of damage to the machines, was the proper

date. Appellants argue that they did not know of the damage to the machines, which

supported their negligence and bailment claims, before then. But the proper

characterization is not that they did not know of the damage to the machines, but the

extent of the damage. The damages to the machines were not “continuing acts of the

same nature” that create a constantly resetting clock, but the “ill effects from an

original violation,” with the original violation here being the 2016 retention. Nesovic

v. United States, 71 F.3d 776, 778 (9th Cir. 1995) (citations omitted).

October 27, 2016, is the date the clock started ticking, because it is when

Appellants knew of the alleged injury. Appellants have not shown more than a

“metaphysical doubt” that they only learned of the unlawful retention in the six years

before this lawsuit was filed. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Thus, the district court’s order was proper.

2. Appellants argue that they are entitled to equitable tolling. “Equitable

tolling is a rare remedy to be applied in unusual circumstances . . . .” Wallace v.

4 25-1994 Kato, 549 U.S. 384, 396 (2007). We look to Hawai‘i state law to determine when

this “rare remedy” applies. Id. at 394–96. To merit equitable tolling in Hawai‘i, “a

plaintiff must demonstrate (1) that he has been pursuing his right diligently, and (2)

that some extraordinary circumstance stood in his way. Extraordinary circumstances

are circumstances that are beyond the control of the complainant and make it

impossible to file a complaint within the statute of limitations.” Off. of Hawaiian

Affs. v. State, 133 P.3d 767, 789 (Haw. 2006) (cleaned up).

Appellants argue that Alm was the extraordinary circumstance making it

impossible to file suit. But if Appellants believed Alm was decisive here, they could

have filed and consolidated the cases, appealed any potential dismissal, or moved to

hold the case in abeyance. Or they could have filed and persuasively distinguished

this case from Alm. Alm addressed only the timeliness of forfeiture proceedings,

while there were no forfeiture proceedings for the 81 machines here. Alm, 501 P.3d

at 303. There is also no tolling for a continuing wrong here. The injury here was

the unjustified retention of the machines; all other damages and claims flowed from

that. As a result, Appellants are not entitled to equitable tolling.

AFFIRMED.

5 25-1994