Austin v. Papa John's Pizza et al

Filing 5

ORDER DENYING 2 IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT WITHLEAVE TO AMEND AND SHOW CAUSE: "Plaintiff's in forma pauperis application is DENIED. Plaintiff is ORDERED to submit the filing fee or a properly completed appli cation to proceed in forma pauperis by a prisoner, on or before December 12, 2011. Failure to do so may result in dismissal of this action for failure to prosecute or otherwise obey a court order". Signed by District JUDGE DAVID ALAN EZRA on November 10, 2011. (bbb, )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. Prisoner Complaint and IFP forms and instructions mailed to Pltf Austin on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GERALD LEWIS AUSTIN,
#A1076082,
Plaintiff,
vs.
PAPA JOHN’S PIZZA, DANIEL
PHELT, JOSEPH KEVIN
AUSTIN, HONOLULU POLICE
DEPARTMENT OFFICERS,
Defendants.
____________________________

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CIV. NO. 11-00683 DAE-RLP

ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING COMPLAINT WITH
LEAVE TO AMEND AND SHOW
CAUSE

ORDER DENYING IN FORMA PAUPERIS APPLICATION
AND DISMISSING COMPLAINT
WITH LEAVE TO AMEND AND SHOW CAUSE
Before the court is pro se Plaintiff Gerald Lewis Austin’s prisoner
civil rights complaint and in forma pauperis application. Plaintiff is incarcerated at
the Halawa Correctional Facility (“HCF”). Plaintiff names Papa John’s Pizza,
Daniel Phelt (“Phelt”), Joseph Kevin Austin (“Joseph” or “Plaintiff’s Brother”),
and unnamed Honolulu Police Department (“HPD”) Officers (collectively,
“Defendants”) in their individual and official capacities. Plaintiff claims
Defendants violated his constitutional rights during his arrest.

Plaintiff’s in forma pauperis application is DENIED and his
Complaint is DISMISSED for failure to state a claim, pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1). Plaintiff is granted leave to amend the
Complaint, if possible, to cure the deficiencies detailed below and is ordered to
show cause why this action should not be dismissed as time-barred.
I. IN FORMA PAUPERIS APPLICATION
Plaintiff’s in forma pauperis application is DENIED without prejudice
because it is not on this court’s approved application form for prisoners and
therefore lacks Plaintiff’s signed consent to collect the filing fees from his prison
trust account. See 28 U.S.C. § 1915(a)(2).
On or before, December 12, 2011, Plaintiff must either pay the
$350.00 filing fee or submit a fully completed in forma pauperis application on the
proper form, showing that he is a pauper within the meaning of the statute, and
consenting to the withdrawal of fees from his account. Failure to do so may result
in AUTOMATIC DISMISSAL of the Complaint and action without prejudice for
failure to prosecute this action or to follow a court order. See Fed. R. Civ. P. 41(b);
see also Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); In re Perroton,
958 F.2d 889, 890 (9th Cir. 1992). The Clerk is DIRECTED to send Plaintiff the

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court’s application to proceed in forma pauperis by a prisoner and instructions so
that he may comply with this Order.
II. STATUTORY SCREENING
The court must screen all civil actions brought by prisoners that relate
to prison conditions and/or seek redress from a governmental entity, officer, or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must
dismiss a complaint or portion thereof if its claims are legally frivolous or
malicious, fail to state a claim on which relief may be granted, or seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2);
28 U.S.C. § 1915A(b); 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
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
While Rule 8 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

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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.
The court must construe a pro se complaint liberally, 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 or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000).
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III. DISCUSSION
“To sustain an action under section 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); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.
A.

Plaintiff’s Allegations
Plaintiff claims that, on August 25, 2007, his twin brother, Joseph,

robbed Phelt, who was a Papa John’s Pizza delivery person. Phelt called the HPD
and reported the robbery, and Plaintiff alleges, mistakenly identified Plaintiff and
his brother Joseph as the perpetrators. Plaintiff further alleges that the HPD
Officers beat him and falsely arrested him. Plaintiff claims that Defendants’
allegedly improper actions resulted in his current conviction and ten-year sentence.
Plaintiff seeks $1 billion in damages from each defendant.
B.

Defendants Phelt and Plaintiff’s Brother Joseph Are Dismissed
“One of the requisite elements for stating a claim under § 1983 is that

the violation was committed by a ‘person’ acting under color of state law.” Cortez
v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002) (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989)). A private individual is acting under
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color of state law when “there is such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as that of
the State itself.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n., 531
U.S. 288, 295 (2001). A court may consider various factors in determining
whether the nexus requirement is satisfied, including whether the government
delegated a “public function” to a private actor. See Single Moms, Inc. v. Montana
Power Co., 331 F.3d 743, 747 (9th Cir. 2003); West v. Atkins, 487 U.S. 42, 56
(1988); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 627-28 (1991).
Plaintiff fails to allege how Phelt, a pizza delivery person, and
Plaintiff’s twin brother, Joseph, acted under color of state law when they allegedly
violated his rights. Nor is this court able to imagine any conceivable scenario
wherein these two individuals acted under color of state law under the
circumstances alleged here, i.e., that Plaintiff’s twin brother, Joseph, was a state
actor when he allegedly robbed Phelt, and Phelt was a state actor when he reported
that robbery to the police.
Moreover, insofar as Plaintiff is attempting to hold Phelt liable under
§ 1983 for Phelt’s testimony at Plaintiff’s trial, which apparently resulted in
Plaintiff’s conviction, Plaintiff fails to state a claim. Witnesses are immune from
suit under § 1983 for testimony given during judicial proceedings. Briscoe v.
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LaHue, 460 U.S. 325, 345-46 (1983). This immunity extends to sworn statements
made to the court, Burns v. County of King, 883 F.2d 819, 822 (9th Cir. 1989), and
for alleged conspiracies to commit perjury. Cunningham v. Gates, 229 F.3d 1271,
1291 (9th Cir. 2000).1
Plaintiff’s claims against Defendants Daniel Phelt and Joseph Kevin
Austin are frivolous, fail to state a claim, and are DISMISSED.
C.

Heck v. Humphrey
Plaintiff claims that unnamed HPD officers used excessive force when

they falsely arrested him on August 25, 2007. A civil rights claim brought
pursuant to § 1983 that, if successful, would necessarily undermine the validity of
a conviction or the duration of a sentence may not be brought before the prisoner
has obtained a “favorable termination” of the underlying conviction; a prisoner’s
sole federal remedy to challenge the validity or duration of his confinement is a
petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500
(1973); Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004). That is, a civil

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Witness immunity does not apply to a “complaining witness,” and this
analysis is limited to Phelt’s alleged testimony at trial, not his initial accusation
against Plaintiff. Paine v. City of Lompoc, 265 F.3d 975, 981 n.2 (9th Cir. 2001)
(“Absolute witness immunity does not extend to ‘complaining witnesses,’ those
individuals whose allegations serve to bring about a prosecution.”).

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rights claim under § 1983 does not accrue until the prisoner has obtained a
“favorable termination” of the underlying conviction. See Heck v. Humphrey, 512
U.S. 477, 489 (1994); Docken, 393 F.3d at 1031. Thus, to recover damages for an
allegedly unconstitutional conviction or imprisonment, or other harm whose
unlawfulness would render a conviction or sentence invalid, such as Plaintiff’s
claim for false arrest, Plaintiff must prove that his conviction has been “reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal . . .
or called into question by a federal court’s issuance of a writ of habeas corpus[.]”
Heck, 512 U.S. at 486-87. Without such a showing, Plaintiff’s action has not yet
accrued. Id. at 489.
Plaintiff alleges he is serving a ten-year sentence for robbing
Defendant Phelt. It is therefore clear that neither Plaintiff’s conviction nor
sentence has been invalidated. Success on Plaintiff’s false arrest claims would
necessarily imply the invalidity of Plaintiff’s underlying conviction. Plaintiff’s
claim will not accrue until his underlying convictions are reversed. Plaintiff’s false
arrest claims against the unnamed HPD Officers have not yet accrued and are
DISMISSED without prejudice.
//

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D.

Statute of Limitation
The only claims remaining are Plaintiff’s claims against the unnamed

HPD Officers for their alleged use of excessive force during his arrest. Plaintiff
states that this occurred on August 25, 2007, more than four years ago. A
complaint fails to state a claim where a defense is complete and obvious from the
face of the pleadings. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)
(applying former § 1915(d) now codified at 28 U.S.C. § 1915(e)(2)(B)). In the
absence of waiver, a court may raise the defense of statute of limitations sua
sponte. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993);
see also Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (appropriate to
dismiss prisoner's complaint sua sponte as time-barred under § 1915(e)(2)(B));
Nasim v. Warden, Maryland House of Corr., 64 F.3d 951, 956 (4th Cir. 1995) (en
banc) (same); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (same); Moore v.
McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (same); Johnson v. Rodriguez, 943
F.2d 104, 107-08 (1st Cir. 1991) (same).
The statute of limitation applicable to § 1983 actions in Hawaii is
Haw. Rev. Stat. § 657-7, the two-year “general personal injury” provision. See
Pele Defense Fund v. William Paty, 73 Haw 578, 597-98, 837 P.2d 1247, 1260
(1992). Section 657-13 tolls the statute of limitation for those who are
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incarcerated, but it does not toll suits against the sheriff or police. See Haw. Rev.
Stat. § 657-13. Unless Plaintiff can provide some other basis for tolling the statute
of limitation for his claims, they are time-barred. Plaintiff is ORDERED to show
cause, on or before December 12, 2011, why this action should not be dismissed
as time-barred.
E.

Leave to Amend
The Complaint is DISMISSED for failure to state a claim. Although

unlikely, it is possible that Plaintiff can amend his claims or show cause why this
action should not be dismissed as time-barred. Plaintiff may file a proposed
amended complaint, and is ORDERED TO SHOW CAUSE regarding the statute
of limitation. on or before December 12, 2011. The proposed amended complaint
must cure the deficiencies noted above and Plaintiff must demonstrate how the
conditions complained of resulted in a deprivation of his federal constitutional or
statutory rights and that his claims are not time-barred.
The court will not refer to the original pleading to make any amended
complaint complete. Local Rule 10.3 requires that an amended complaint be
complete in itself without reference to any prior pleading. Defendants not named
and claims not realleged in an amended complaint are deemed waived. See King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Furthermore, as a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d
55, 57 (9th Cir. 1967). In an amended complaint, each claim and the involvement
of each Defendant must be sufficiently alleged.
IV. CONCLUSION
IT IS HEREBY ORDERED that:
(1)

Plaintiff’s in forma pauperis application is DENIED. Plaintiff is

ORDERED to submit the filing fee or a properly completed application to proceed
in forma pauperis by a prisoner, on or before December 12, 2011. Failure to do so
may result in dismissal of this action for failure to prosecute or otherwise obey a
court order.
(2) The Complaint is DISMISSED for failure to state a claim. See 28
U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).
(3)

Plaintiff is GRANTED leave to file a proposed amended complaint

curing the deficiencies noted above by December 12, 2011. Plaintiff is further
ORDERED TO SHOW CAUSE why this action should not be dismissed in its
entirety as time-barred. Failure to timely or properly amend the Complaint and to
show cause will result in dismissal of this action for frivolousness and for failure to
state a claim, and may be counted as strike pursuant to 28 U.S.C. § 1915(g).

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(3)

The Clerk of Court is directed to mail a form prisoner civil rights

complaint, an application to proceed in forma pauperis by a prisoner, and
instructions to Plaintiff so that he may comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 10, 2011.

_____________________________
David Alan Ezra
United States District Judge

Austin v. Papa John’s Pizza, et al., Civ. No. 11-00683 DAE-RLP; Order Denying In Forma Pauperis Application and
Dismissing Complaint With Leave to Amend and Show Cause; psa/Screening/dmp/ 2011/Austin 11-683 dae (dny IFP, dsm ftsc
lv amd)

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