United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
Derrick K. Watson, United States District Judge.
the court is pro se Plaintiff Mark Alan Char's first
amended civil rights complaint (FAC), brought pursuant to 42
U.S.C. § 1983. ECF No. 5. Char alleges that Defendants
Honolulu Police Department (HPD) police officers Lugene
Simeona, Toy Stech, and Does 1-100 (collectively,
“Defendants”) violated his federal civil rights
and state law during his arrest on August 1,
is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(a-b), with leave granted to amend on or before
December 7, 2018.
September 10, 2018, the court dismissed Char's original
Complaint for failure to state a claim, with leave granted to
amend. Order, ECF No. 4.
October 4, 2018, Char filed the FAC. Char says that he was
involved in an altercation with two other individuals on the
shoulder of a Honolulu freeway on August 1, 2016. Char pulled
onto the shoulder after another car tailgated him, cut him
off, and braked sharply. Char left his car to photograph the
other car and its occupants. Char says that the other men
exited their car and menaced him, so he pepper-sprayed them
in self-defense. When Char realized they had a knife, he says
he left the scene to save his life. After he arrived home,
Char's wife called the police to report the incident.
When Defendants arrived at Char's home, he alleges they
“unlawfully seized, detained, restrained and
arrested” him without probable cause, despite his
repeated claims of self-defense. Id., FAC, ECF No.
5, PageID #46. He says Defendants also illegally searched his
alleges: (1) false arrest and imprisonment, based on an
alleged lack of probable cause (Counts I and V); (2)
intentional infliction of emotional distress (IIED) (Count
II); (3) abuse of process (Count III); (4) negligence (Count
IV); (5) negligent infliction of emotional distress (NIED)
(Count VI); (6) fraudulently procuring a search warrant
(Count VII); and (7) conspiracy (to cover up the allegedly
false arrest) (Count VIII). Char seeks general, compensatory,
and punitive damages, costs and fees.
court is required to conduct a pre-Answer screening of all
prisoners' pleadings pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(a). Byrd v. Phoenix Police
Dep't, 885 F.3d 639, 641 (9th Cir. 2018). The court
must 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).
under Sections 1915(e)(2) and 1915A(b) involves the same
standard 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 Section 1915(e)(2)); see
also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012) (screening under Section 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).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. The “mere possibility of
misconduct” or an “unadorned, the
defendant-unlawfully-harmed me accusation” falls short
of meeting this plausibility standard. Id. at
678-79; see also Moss v.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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).
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). Additionally, a
plaintiff must allege that he suffered a specific injury as a
result of a particular defendant's conduct and an
affirmative link between the injury and the violation of his
rights. See Monell v. Dep't of Social Servs.,
436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362,
371-72, 377 (1976).
Fourth or Fourteenth Amendment
“threshold inquiry in a § 1983 suit”
requires courts “to ‘identify the specific
constitutional right' at issue.” Manuel v. City
of Joliet, __ U.S. __, 137 S.Ct. 911, 920 (2017) (citing
Albright v. Oliver, 510 U.S. 266, 271 (1994)).
“After pinpointing that right, courts still must
determine the elements of, and rules associated with, an
action seeking damages for its violation.” Id.
(citing Carey v. Piphus, 435 U.S. 247, 257-58
asserts Defendants violated his rights under the Fourteenth
Amendment. The Fourth Amendment, however, “establishes
the minimum constitutional ‘standards and
procedures'” for arrests and their ensuing
detention. Manuel, 137 S.Ct. at 917 (quoting
Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). When a
plaintiff alleges that his seizure or pretrial detention was
not supported by probable cause, as Char does, “then
the right allegedly infringed lies in the Fourth
Amendment.” Id. at 919. A seizure occurs when
an official restricts a person's “freedom of
movement” such that he or she is “not free to
leave.” Brendlin v. California, 551 U.S. 249,
254 (2007). The general rule is that “seizures are
‘reasonable' only if based on probable cause to
believe that the individual has committed a crime.”
Bailey v. United States, 568 U.S. 186, 192 (2013).
An alleged defect in the legal process does not extinguish a
plaintiff's Fourth Amendment claim or “convert that
claim into one founded on the Due Process Clause.”
federal claims regarding his allegedly false arrest and
imprisonment arise under the Fourth, not the Fourteenth
False Arrest and Imprisonment: Counts I and V
Fourth Amendment “requires a prompt judicial
determination of probable cause following an arrest made
without a warrant and ensuing detention.” Powell v.
Nevada, 511 U.S. 79, 80 (1994); Gerstein, 420
U.S. at 114 (holding “the Fourth Amendment requires a
judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest”);
Anderson v. Calderon, 232 F.3d 1053, 1069 (9th Cir.
2000). A “prompt judicial determination of probable
cause” generally means presentation to a magistrate