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Char v. Simeona

United States District Court, D. Hawaii

November 6, 2018

MARK ALAN CHAR, #A0234438, Plaintiff,
v.
LUGENE SIMEONA, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          Derrick K. Watson, United States District Judge.

         Before 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, 2016.[1]

         The FAC 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.

         I. BACKGROUND

         On 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.

         On 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 home.

         Char 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.

         II. SCREENING

         The 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).

         Screening 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.

         U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         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).

         III. DISCUSSION

         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). 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).

         A. Fourth or Fourteenth Amendment

         The “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 (1978)).

         Char 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.” Id.

         Char's federal claims regarding his allegedly false arrest and imprisonment arise under the Fourth, not the Fourteenth Amendment.[2]

         B. False Arrest and Imprisonment: Counts I and V

         The 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 within ...


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