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Char v. Khon

United States District Court, D. Hawaii

October 24, 2018

MARK ALAN CHAR, #A0234438, Plaintiff,



         Before the court is pro se Plaintiff Mark Alan Char's first amended prisoner civil rights complaint (FAC). ECF No.5. Char is a pretrial detainee incarcerated at the Halawa Correctional Facility.[1] Char alleges that Defendants Honolulu News Stations KHON, KHNL, KITV, and their unidentified employees John and Jane Does 1-50 violated the Fourth, Eighth, and Fourteenth Amendments and state law beginning on or about August 1, 2016, and thereafter, when they broadcast news reports about his arrest and criminal proceedings.[2]

         Char again fails to allege a federal cause of action, despite now labeling his claims as brought under the United States Constitution in addition to state law. Char's FAC is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). It is clear that Char cannot amend these claims to state a federal cause of action and this dismissal is with prejudice.

         I. BACKGROUND

         Char originally alleged that KHON, KITV, KHNL, and their unidentified employees committed “slander/ defamation, reputational injury, [and] libel by broadcasting false information” about him on the nightly news on and after August 1, 2016, when they reported on his arrest and criminal proceedings. Compl., ECF No. 1, PageID #5. Because Char alleged no federal claims, the court notified him that it lacked subject matter jurisdiction over his claims and dismissed the Complaint with leave to amend. The court informed Char that, in light of this holding and the guidance provided regarding his claims, if he elected to voluntarily dismiss this action, the court would vacate the Order Granting In Forma Pauperis and waive any further payment of fees. See Order (1) Granting In Forma Pauperis; and (2) Dismissing Complaint, ECF No. 3, PageID #22-23.

         Instead, Char elected to file the FAC and attempt to allege federal claims. The FAC realleges the same facts and state law claims of libel, slander, defamation, and reputational injury as alleged in the original Complaint. Char now asserts additional state law torts of negligence and intentional and negligent infliction of emotional distress. He also broadly asserts, without any factual support, that Defendants were “deliberate indifferent to Plaintiffs [sic] clearly established constitutional rights acted with a purpose to harm Plaintiff, ” in violation of the “usages of rights, privileges and immunities secured to Plaintiffs [sic] Fourth, Eighth, and Fourteenth Amendments to the Constitution of the United States and the State of Hawaii.” FAC, ECF No. 5, PageID #32.

         Char seeks only damages for mental anguish, emotional distress, embarrassment, and humiliation.


         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).


         To state a claim under 42 U.S.C. § 1983, 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. See West v. Atkins, 487 U.S. 42, 48 (1988).

         A. No. ...

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