United States District Court, D. Hawaii
NALEEN N. ANDRADE, M.D., Plaintiff,
DARREN CHO, COUNTY OF HAWAI‘I, BOBBY L. MACOMBER, THELMA MACOMBER, DARRYL GRACESR., LEONA GRACE, TRAVIS LEINONAN, DOE DEFENDANTS 1-20, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION OF THE JULY 12, 2017 ORDER GRANTING IN PART
DEFENDANTS' MOTIONS TO DISMISS COMPLAINT
Derrick K. Watson, United States District Judge.
26, 2017, Plaintiff Naleen N. Andrade, M.D., filed a Motion
for Reconsideration (ECF No. 42) of this Court's July 12,
2017 Order Granting in Part Defendants' Motions to
Dismiss Andrade's Original Complaint (“Order
Granting MTD”; ECF No. 41). The Motion for
Reconsideration relies on Heck v. Humphrey, 512 U.S.
477 (1994) and Harvey v. Waldron, 210 F.3d 1008 (9th
Cir. 2000), overruled in part by Wallace v. Kato,
549 U.S. 384, 393-94 (2007), and argues that the Court's
application of Wallace, supra, was a
“manifest error of law.” Mot. for Recons. 4. This
contention is meritless for the reasons that follow, and the
Motion for Reconsideration is DENIED.
The Heck Rule Of Deferred Accrual Is
alone does not help Andrade. Indeed, “[t]he
Heck rule for deferred accrual is called into play
only when there exists ‘a conviction or sentence that
has not been invalidated.'” Wallace, 549
U.S. at 393 (ellipses and emphasis removed). As this Court
clearly stated in the Order Granting MTD, there was no
conviction or sentence involved in this case, rendering
Heck's rule for deferred accrual inapplicable.
Order Granting MTD at 19-20 (record citations omitted);
see also Bradford v. Scherschligt, 803 F.3d 382, 386
(9th Cir. 2015).
In Wallace, The Supreme Court Declined To Extend The
Heck Rule Of Deferred Accrual As The Ninth Circuit
Advocated For In Harvey.
might have helped Andrade because it advocated extending
the Heck deferral rule even to Section 1983 claims
that would necessarily imply the invalidity of a conviction
in a pending criminal prosecution. Harvey,
210 F.3d at 1014. In other words, no conviction or sentence
would have been necessary. But, as this Court also explained
in the Order Granting MTD, the principled extension advocated
by Harvey and the cases it relied on was rejected by
the United States Supreme Court in Wallace. Order
Granting MTD at 20 (citing Rivas v. Cal. Franchise Tax
Bd., 619 F.Supp.2d 994, 1000 (E.D. Cal. 2008)). In that
case, the Supreme Court rejected the Section 1983
petitioner's argument that the Court should adopt
“a principle that goes well beyond Heck-that
an action which would impugn an anticipated future conviction
cannot be brought until that conviction occurs and is set
aside”-and stated unequivocally that the Court was
“not disposed to embrace this bizarre extension of
Heck.” Wallace, 549 U.S. at 393.
Under The Current Pleadings, Wallace Is Not
Distinguishable, And Heck's Rule For Malicious
Prosecution Cases Does Not Apply.
Andrade attempts to distinguish Wallace, a false
arrest/false imprisonment-based Section 1983 case, from
Heck and Harvey, both of which involved
Section 1983 claims based on a theory of malicious
prosecution. See Mot. for Recons. 4-6, ECF No. 42.
To find a local governmental entity liable under Section
1983, the plaintiff must prove that “action[s] pursuant
to official municipal [custom or] policy of some nature
cause[d] a constitutional tort.” Oviatt By
& Through Waugh v. Pearce, 954 F.2d 1470, 1473-74
(9th Cir. 1992) (footnote omitted) (citing Monell v.
N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 691
(1978); City of Canton v. Harris, 489 U.S. 378, 389
(1989)). To state a Section 1983 claim against private
individuals, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged
violation “was committed by a person acting under the
color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988) (citations omitted). In both instances, the
existence of a constitutionally protected right is essential,
and that right must be violated in some way. Cf. Romero
v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991)
(“The plaintiff bears the burden of proof that the
right allegedly violated was clearly established at the time
of the alleged misconduct.” (citations omitted)).
Andrade's attempt to characterize the current pleadings
as describing a constitutionally protected right that was
violated under a malicious prosecution theory cannot stand
for the reasons that follow.
respect to the County of Hawai‘i and Kona Police
Officer Darren Cho (“County Defendants”), the
Complaint seeks damages as a result of Officer Cho
“acting under color of law” and “[c]harging
Dr. Andrade with Criminal Trespass.” That is the basis
of what Andrade claims “was a Malicious
Prosecution.” Compl. ¶¶ 99, 101, ECF No. 1.
As a police officer and not a prosecutor, however, Officer
Cho did not charge Andrade with anything and could not have.
Further, insofar as her malicious prosecution theory rests on
“Officer Cho's deliberate failure to include
evidence in his report that completely exonerated Dr. Andrade
[and that] was a substantial factor in Dr. Andrade being
criminally charged” (Opp'n to Cty. Defs. 11, ECF
No. 25), it assumes that police officers are constitutionally
obliged to include all information communicated to
them in any related police report, regardless of who
communicated the information and to what end. See
Compl. ¶¶ 99(c)-(d), 100. Andrade has cited no
relevant authority to support this proposition (see
Opp'n to Cty. Defs. 10-11),  and the authority the Court
has found suggests the opposite is true.
also argues that Officer Cho's decision to “forward
a knowingly false and misleading report to the
prosecutor's office, resulting in unsubstantiated
criminal charges, was a violation of the Fourth and
Fourteenth Amendments' protections against Dr.
Andrade's rights to be free from unwarranted criminal
prosecution and equal protection of the laws.”
Opp'n to Cty. Defs., ECF No. 25. If this argument is to
be construed as a Section 1983 claim for malicious
prosecution, however, Andrade must provide facts sufficient
to establish three essential elements: “(1) that the
prior proceedings were terminated in the plaintiffs'
favor, (2) that the prior proceedings were initiated without
probable cause, and (3) that the prior proceedings were
initiated with malice.” Annan-Yartey v.
Honolulu Police Dep't, 475 F.Supp.2d 1041,
1048 (D. Haw. 2007) (quoting Myers v. Cohen, 688
P.2d 1145, 1148 (Hawai‘i 1984)); see also Arquette
v. State, 290 P.3d 493, 501, 509 (Hawai‘i 2012)
(noting that the party bringing the action has the burden of
establishing all three elements, which are construed strictly
against her); accord Vancouver Book & Stationery Co.
v. L.C. Smith & Corona Typewriters, 138 F.2d 635,
637 (9th Cir. 1943) (citations omitted), cert.
denied, 321 U.S. 786 (1944).
arguendo, that Andrade has satisfied the first
element,  her implicit allegation-that Officer Cho
lacked probable cause to initiate a charge of Criminal
Trespass and acted with malice-is insufficient to state a
malicious prosecution claim. Id.; see also
Crescent City Live-Stock Landing & SlaughterHouse Co. v.
Butchers' Union Slaughter-House & Live-Stock Landing
Co., 120 U.S. 141, 148-49 (1887) (“[M]alice alone,
however great, if there be a probable cause upon which the
suit or prosecution is based, is insufficient to maintain an
action in damages for a malicious prosecution.”)
(quoting Senecal v. Smith, 9 Rob. (LA) 418 (La.
circumstances known to Officer Cho at the time of the alleged
incidents, as described in the Complaint, demonstrate that he
reasonably believed he had probable cause to refer the
Incident Report to the prosecutors for a criminal trespass
charge. Smiddy v. Varney, 665 F.2d 261, 266 (9th
Cir. 1981) (explaining that probable cause exists when a
police officer “reasonably believe[s] in good faith
that probable cause did exist, ” regardless of the
ultimate probable cause determination in hindsight) (citing,
inter alia, Allen v. McCurry, 449 U.S. 90,
102 (1980)), overruled on different grounds by Beck v.
City of Upland, 527 F.3d 853, 865 (9th Cir. 2008);
Arquette, 290 P.3d at 504 (“Probable cause in
a malicious prosecution action depends ‘not on the
actual state of the facts but upon the honest and reasonable
belief of the party commencing the action.'”)
(quoting Brodie v. Haw. Auto. Retail Gasoline Dealers
Ass'n, 631 P.2d 600, 602 (Hawai‘i App. 1981),
rev'd on other grounds, 655 P.2d 863
(Hawai‘i 1982)); see also, e.g., Williams
v. Town of Greenburgh, 535 F.3d 71, 78-79 (2d ...