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Char v. Khon

United States District Court, D. Hawaii

August 21, 2018

MARK ALAN CHAR, #A0234438, Plaintiff,



         Before the court is pro se Plaintiff Mark Alan Char's (1) prisoner civil rights Complaint and (2) Application to Proceed In Forma Pauperis by a Prisoner (“IFP Application”). ECF Nos. 1, 2. Char is a pretrial detainee incarcerated at the Oahu Community Correctional Center (“OCCC”). Char alleges that Defendants Honolulu News Stations KHON, KHNL, KITV and their unidentified employees John and Jane Does 1-50 committed “slander/defamation, reputational injury, [and] libel by broadcasting false information” about him on August 1, 2016.[1] Compl., ECF No. 1, PageID #5.

         Char's IFP Application is granted. Because Char fails to allege a federal cause of action, this court lacks subject matter jurisdiction over his claims and his Complaint is DISMISSED. Char is granted leave to amend his Complaint, if possible.


         Char qualifies as a pauper and his IFP Application is GRANTED. See 28 U.S.C. § 1914. Char shall make an initial partial payment of 20% of the current balance of his account, if that balance exceeds $10.00. Thereafter, Char shall make monthly payments of 20% of the preceding month's income credited to his account, when his account exceeds $10.00. Id.

         IT IS HEREBY ORDERED that:

         (1) The Hawaii Department of Public Safety (“DPS”), Warden of the Oahu Community Correctional Center, or designees, shall calculate, collect, and remit to the Clerk of Court an initial partial payment equaling 20% of the amount in Char's account (if that amount exceeds $10.00), and thereafter, monthly payments equaling 20% of Char's preceding month's income or balance when the account exceeds $10.00, until the $350.00 civil filing fee is paid in full. See 28 U.S.C. § 1915(b)(2). These payments must be identified by the name and number assigned to this action.

         (2) The Clerk is directed to serve a copy of this order on Char, the OCCC Warden and Financial Office, Shelley Nobriga Harrington, Esq., and Laurie Nadamoto, Esq., DPS Litigation Coordinators, and submit a copy of this order to the District of Hawaii's Financial Department.


         The court must screen all prisoners' pleadings pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a), and dismiss a claim or complaint that is frivolous, malicious, fails to state a claim for relief, or seeks damages from defendants who are immune from suit. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

         Screening under §§ 1915(e)(2) and 1915A(b) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (screening under § 1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (screening under § 1915A). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

         Pro se litigants' pleadings must be liberally construed and all doubts should be resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Leave to amend must be granted if it appears the plaintiff can correct the defects in the complaint. Lopez, 203 F.3d at 1130. If the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).


         Char asserts federal jurisdiction for this suit arises under 28 U.S.C. § 1331 and 42 U.S.C. § 1983, [2] but pleads state law claims only, for defamation, libel and slander. Federal district courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”[3]28 U.S.C. § 1331. Under § 1331, whether federal question jurisdiction exists is governed by the “well-pleaded complaint rule, ” which provides that federal question jurisdiction may only be invoked when a federal question is presented on the face of a plaintiff's properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Generally, an action is deemed to “arise under” federal law when a “federal law creates the cause of action” that the plaintiff has asserted. Gunn v. Minton, 568 U.S. 251, 257 (2013). Actions asserting state-law claims may also “arise under” federal law for purposes of federal question jurisdiction if the asserted state law: (1) “necessarily raise[s] a stated federal issue, ” (2) that is “actually disputed” and (3) “substantial, ” and (4) “which a federal ...

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