Jones v. Wong et al

Filing 7

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION. Signed by JUDGE J. MICHAEL SEABRIGHT on 5/26/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIE J. JONES, #A0193986,

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Plaintiff,
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vs.
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DARRELL J.K. WONG, CITY AND )
COUNTY OF HONOLULU,
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Defendants.
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_______________________________ )

CIV. NO. 11-00209 JMS/RLP

ORDER DISMISSING FIRST
AMENDED COMPLAINT AND
ACTION

ORDER DISMISSING FIRST AMENDED COMPLAINT AND ACTION
Before the court is pro se plaintiff Willie J. Jones’s (“Plaintiff”) first
amended prisoner civil rights complaint (“FAC”). Plaintiff’s original Complaint
was dismissed for failure to state a claim with leave granted to amend. Doc. No. 5.
The FAC names Deputy Prosecutor Darrell J.K. Wong and the City and County of
Honolulu as Defendants (collectively, “Defendants”). Plaintiff claims that Wong
violated his constitutional rights to due process during his state court criminal
prosecution. The court has screened the FAC pursuant to 28 U.S.C. § 1915A(a)
and DISMISSES it and this action for failure to state a claim. See 28 U.S.C.
§ 1915A(b).
//
//

I. BACKGROUND AND CLAIMS
Although the FAC presents the same facts and argument as the
original Complaint, Plaintiff attaches several documents to the FAC which clarify
his claims. Plaintiff alleges that, in October 1995, while he was awaiting trial for
sexual assault and kidnapping in Cr. No. 95-1384, Deputy Prosecutor Wong falsely
and maliciously initiated charges against him in a second case, Cr. No. 95-2042.
Plaintiff claims that Wong presented “incomplete and misleading information to
the Grand Jury,” for the sole purpose of moving for an extended term sentence in
Cr. No. 95-1384, if Plaintiff was ultimately convicted in that case. Doc. No. 6-1,
Mem. in Support at 2. Plaintiff argues that, because his conviction in Cr. No. 952042 was overturned in 2001, this supports his claim that Wong maliciously
prosecuted him in that case. Plaintiff seeks damages from Wong and the City and
County of Honolulu.
State court criminal records reveal that, on July 20, 1995, Plaintiff
pled not guilty to two charges of sexual assault and one charge of kidnapping in
Cr. No. 95-1384. See Hawai’i State Judiciary’s Public Access to Court
Information, at: http://hoohiki1.courts.state.hi.us/jud/Hoohiki/ (“Hoohiki”).1 Wong

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A court may take judicial notice of the existence of matters of public record, such as a
prior order or decision, but not the truth of the facts cited therein. See Lee v. City of L.A., 250
F.3d 668, 689-690 (9th Cir. 2001)
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obtained a conviction in that case for one count of sexual assault in the first degree
(Count I) and kidnapping (Count III), on November 22, 1995. On December 4,
1995, Wong moved for an extended term of imprisonment. Plaintiff attaches a
transcript of the hearing on the motion for an extended term sentence to the FAC.
See Doc. No. 6-1, Mem. in Support at 3-19. On August 19, 1996, Plaintiff was
sentenced to concurrent terms of life with the possibility of parole for Count I and
twenty years for Count III. On July 19, 1997, the Hawaii Supreme Court affirmed
Plaintiff’s conviction and sentence. On October 29, 2009, Plaintiff filed a state
habeas petition under Rule 40 of the Hawaii Rules of Penal Procedure challenging
his conviction in Cr. No. 95-1384. See Hoohiki, 1PR 09-1-000079. This petition
is currently pending on appeal in the state appellate court.
On October 4, 1995, Plaintiff was indicted in Cr. No. 95-2042, for
four counts of sexual assault and one count of attempted sexual assault. Wong also
prosecuted this case. On September 4, 1996, Plaintiff was convicted of all five
charges. Judgment of conviction and sentence was entered on February 3, 1997.
On July 19, 2001, however, the Hawaii Supreme Court vacated and remanded the
conviction and sentence, affirming the Intermediate Court of Appeals’ (“ICA”)
finding that the trial court incorrectly instructed the jury on “ineffective consent,”
resulting in prejudicial error. See State v. Jones, 96 Haw. 161, 29 P.3d 351,
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(2001), aff’g 97 Haw. 23, 32 P.3d 1097 (Haw. App. 1998).2 The State’s motion for
nolle prosequi without prejudice was granted on November 27, 2001. See Doc.
No. 6-1, Mem. in Support at 22-23.
II. STATUTORY SCREENING
The court is required to screen all complaints brought by prisoners
seeking relief against a governmental entity or an officer or an employee of a
governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint
or portion thereof if a plaintiff raises claims that are legally frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2);
42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed as a matter of law for failure to state a
claim for (1) lack of a cognizable legal theory; or (2) insufficient facts under a
cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
Cir. 1990). To state a claim, a pleading must contain a “short and plain statement

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The ICA reversed Plaintiff’s conviction on Count V, sexual assault in the fourth degree,
when the State conceded that the trial court erroneously denied Plaintiff’s motion for judgment
of acquittal. See State v. Jones, 97 Haw. 23, 24, 32 P.3d 1097, 1098 (Haw. App. 1998). The
ICA vacated Plaintiff’s convictions on the remaining counts, Counts I through IV, holding that
the trial court erred in instructing the jury regarding consent and that jury unanimity as to the
verdicts was required. Id., at 32, 32 P.3d at 1106. As noted above, the Hawaii Supreme Court
subsequently affirmed as to Counts I-IV. 96 Haw. at 183-84, 29 P.3d at 373-74.
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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
While Rule 8 of the Federal Rules of Civil Procedure does not demand detailed
factual allegations, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, --- U.S. ---,
---, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific
factual allegations may be consistent with a constitutional claim, a court must
assess whether there are other “more likely explanations” for a defendant’s
conduct. Id. at 1951.
In screening a pro se complaint, the court must construe it liberally
and must afford the plaintiff the benefit of any doubt. Karim-Panahi v. L. A.
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Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The court must accept all
allegations of material fact as true and construe those facts in the light most
favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
Leave to amend should be granted if it appears at all possible that the plaintiff can
correct the defects of his complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000); see also Karim-Panahi, 839 F.2d at 623 (pro se litigant must be given leave
to amend complaint unless it is absolutely clear that its deficiencies cannot be
cured by amendment); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)
(same).
III. DISCUSSION
“To sustain an action under [42 U.S.C. §] 1983, a plaintiff must show
‘(1) that the conduct complained of was committed by a person acting under color
of state law; and (2) that the conduct deprived the plaintiff of a federal
constitutional or statutory right.’” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir.
2007) (citation omitted), vacated and remanded on other grounds, 129 S. Ct. 2431
(2009); accord West v. Atkins, 487 U.S. 42, 48 (1988).
A.

Claims Against Wong Are Dismissed
The FAC clarifies that Plaintiff is claiming that Wong presented

inaccurate and misleading information to the grand jury, and thereafter maliciously
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prosecuted him in Cr. No. 95-2042, so that Wong could obtain an extended term
sentence in Cr. No. 95-1384. Plaintiff claims that, because his conviction in Cr.
No. 95-2042 was overturned, there was no probable cause for Wong to initiate
prosecution against him.
1.

Prosecutorial Immunity
As Plaintiff was informed in the April 13, 2011, Order Dismissing

Complaint, see Doc. No. 5, prosecutors are immune for acts taken “when
performing the traditional functions of an advocate” in initiating and pursuing a
criminal prosecution. Kalina v. Fletcher, 522 U.S. 118, 123-25, 131 (1997)
(finding prosecutor immune for acts in connection with preparation and filing of
information and motion for arrest warrant, but not for vouching personally for
allegations contained in certification supporting issuance of arrest warrant);
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (finding that immunity extends
to prosecutor’s “professional evaluation of evidence assembled by the police and
appropriate preparation for its presentation at trial or before a grand jury”); Burns
v. Reed, 500 U.S. 478, 491-93 (1991) (finding that prosecutor is immune for acts of
appearing before judge and presenting evidence in support of motion for search
warrant, but not immune for giving legal advice to police). Absolute immunity

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applies even in cases involving allegations of malice, bad faith, or conspiracy. See
Ashelman v. Pope, 793 F.2d 1072, 1077-78 (9th Cir. 1986) (en banc).
The Ninth Circuit has applied absolute prosecutorial immunity even
when a plaintiff alleges that the prosecutor went forward with a prosecution he
believed was not supported by probable cause. See Milstein v. Cooley, 257 F.3d
1004, 1008 n.3 (9th Cir. 2001). Thus, even charges of malicious prosecution,
falsification of evidence, coercion of perjured testimony, and concealment of
exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See
Imbler v. Pachtman, 424 U.S. 409, 431-32 n.34 (1976); Manning v. Bogan, 320
F.3d 1023, 1030 (9th Cir. 2003) (“A prosecutor is also absolutely immune from
liability for the knowing use of false testimony at trial.”). Wong’s actions in
presenting charges to the grand jury and prosecuting Plaintiff in Cr. No. 95-2042
were part of his traditional prosecutorial functions as an advocate initiating a
prosecution and are clearly subject to absolute prosecutorial immunity. Milstein,
257 F.3d at 1012 (finding that efforts to indict before the grand jury, rather than
efforts to investigate a crime, are subject to immunity).
2.

Failure to State a Claim
Exhibits attached to the FAC also reveal that Wong did not move for

an extended term in Cr. No. 95-1384, based on the pending charges in Cr. No. 958

2042, as Plaintiff alleges. While Wong informed the judge that similar charges
were pending in Cr. No. 95-2042, Wong moved for an extended term of
imprisonment based on Plaintiff’s extensive criminal history, as a multiple
offender, and for the protection of the public. See Doc. No. 6-1, Mem. in Support
at 3-34, Tr. Aug. 19, 1996; see also Haw. Rev. Stat. § 706-662.3 Plaintiff was
convicted of two felonies in Cr. No. 95-1384 and conceded to his past criminal
record. See FAC at 3-34, Tr. Aug. 19, 1996, at 7:23-25; 10:14-17; 13:19-20. The
trial judge considered these factors, as well as the fact that Plaintiff was awaiting
trial on similar charges, when he determined that Plaintiff was a danger to the
community, and sentenced him accordingly. Id., Tr. Aug. 19, 1996, at 14:14-17.

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Section 706-662 stated at the relevant time:

A defendant who has been convicted of a felony may be subject to an extended
term of imprisonment under section 706-661 if it is proven beyond a reasonable
doubt that an extended term of imprisonment is necessary for the protection of the
public and that the convicted defendant satisfies one or more of the following
criteria:
(1) The defendant is a persistent offender in that the defendant has
previously been convicted of two or more felonies committed at different
times when the defendant was eighteen years of age or older;
***
(4) The defendant is a multiple offender in that:
(a) The defendant is being sentenced for two or more felonies or is
already under sentence of imprisonment for any felony[.]
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Moreover, Cr. No. 95-2042 was not overturned for lack of probable
cause, or on any basis that might support a claim of malicious prosecution against
Wong. Plaintiff’s conviction and sentence were vacated and remanded for a new
trial to cure prejudicially erroneous jury instructions. See Jones, 96 Haw. at 373,
29 P.3d at 183. The State had discretion to prosecute Plaintiff again, or to dismiss
the charges without prejudice, as it did. See Wayte v. United States, 470 U.S. 598,
607 (1985) (“[T]he Government retains “broad discretion” as to whom to
prosecute. . . . ‘so long as the prosecutor has probable cause[.]’”) (citations
omitted). Plaintiff therefore fails to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
Plaintiff’s claims against Wong are DISMISSED with prejudice
pursuant to 28 U.S.C. § 1915A(b)(1-2), as “seeking monetary relief from a
defendant who is immune from such relief,” and for failure to state a claim.
B.

The City and County of Honolulu
To impose liability on a local government under § 1983, a plaintiff

“must prove that ‘action pursuant to official municipal policy’ caused [his] injury.”
Connick v. Thompson, --- U.S. ---, 131 S. Ct. 1350, 1359 (2011) (quoting Monell v.
N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 691 (1978)). To establish municipal
liability, Plaintiff must show: (1) he was deprived of a constitutional right; (2) the
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city had a policy; (3) the policy amounted to deliberate indifference to plaintiff’s
constitutional right; and (4) the policy was the “moving force behind the
constitutional violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th
Cir. 1996). Thus, to state a § 1983 claim against the City and County of Honolulu,
Plaintiff must allege facts showing that his injury was caused by individual officers
whose conduct conformed to an official city policy, custom or practice. See
Karim-Panahi, 839 F.2d at 624. “[L]ocal governments are responsible only for
‘their own illegal acts. . . .’ They are not vicariously liable under § 1983 for their
employees’ actions.” Connick, 131 S. Ct. at 1359 (internal citations omitted)
(emphasis in original).
Plaintiff cannot show that he was deprived of a constitutional right by
Wong’s conduct. He also fails to allege that “a deliberate policy, custom, or
practice . . . was the ‘moving force’ behind the constitutional violation . . .
suffered.” Galen v. County of L.A., 477 F.3d 652, 667 (9th Cir. 2007); City of
Canton, Ohio, v. Harris, 489 U.S. 378, 385 (1989). Claims against the City and
County of Honolulu are DISMISSED with prejudice.
C.

28 U.S.C. § 1915(g)
Pursuant to 28 U.S.C. § 1915(g), a prisoner may not bring a civil

action or appeal a civil judgment under 28 U.S.C. § 1915 “if the prisoner has, on 3
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or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury.”
This dismissal may constitute a strike under 28 U.S.C. § 1915(g).
IV. CONCLUSION
IT IS HEREBY ORDERED that:
(1)

The First Amended Complaint is DISMISSED. Amendment is futile

and this dismissal is with prejudice. Specifically, Plaintiff’s claims for damages
against Wong are barred by the doctrine of absolute immunity and for failure to
state a claim; Plaintiff’s claims against the City and County of Honolulu fail to
state a claim. See 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b).
(2)

The Clerk of Court is directed to enter judgment and terminate this

action. Plaintiff is notified that this dismissal may be counted as a “strike” under
28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 26, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Jones v. Wong et al., Civ. No. 11-00209 JMS/RLP; Order Dismissing First Amended Complaint and Action; psas\
Screening\dmp\ 2011\ Jones JMS 11-209 (FAC ftsc)

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