Andrews et al v. Hawaii County et al

Filing 32

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COMPLAINT FOR DAMAGES FILED JANUARY 28, 2013, DOC. NO. 21 . Signed by JUDGE J. MICHAEL SEABRIGHT on 9/17/13. (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
SCOTT L. ANDREWS; and CLAUDIA )
J. ROHR,
)
)
Plaintiffs,
)
)
vs.
)
)
HAWAII COUNTY; et al.,
)
)
Defendants.
)
________________________________ )

CIVIL NO. 13-00046 JMS/KSC
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS COMPLAINT FOR
DAMAGES FILED JANUARY 28,
2013, DOC. NO. 21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS COMPLAINT FOR DAMAGES FILED
JANUARY 28, 2013, DOC. NO. 21
I. INTRODUCTION
On August 23, 2011, Plaintiffs Scott L. Andrews (“Andrews”) and his
wife Claudia J. Rohr (“Rohr”) (collectively, “Plaintiffs”) filed this action asserting
claims pursuant to 42 U.S.C. § 1983 and state law against Hawaii County (the
“County”), Hawaii County Police Department (“HCPD”) former Chief Lawrence
Mahuna (“Mahuna”), current Chief Harry Kubojiri (“Kuboriji”), Major Area-1
Operations Samuel Thomas (“Thomas”), officers Romeo Fuiava (“Fuiava”),
Richard Itliong (“Itliong”), John P. Stewart (“Stewart”), and George Makua
(“Makua”), and corporation counsel Lincoln Ashida (“Ashida”) (collectively
“Defendants”). Plaintiffs assert that Defendants violated Andrews’ constitutional

rights in investigating and prosecuting Andrews for an incident that occurred at a
beach park on April 21, 2008.
Currently before the court is Defendants’ Motion to Dismiss
Plaintiffs’ Complaint, arguing that Plaintiffs have failed to state a plausible claim
upon which relief can be granted. Based on the following, the court GRANTS in
part and DENIES in part Defendants’ Motion to Dismiss.
II. BACKGROUND
A.

Factual Background
The Complaint consists of seventy-five paragraphs and twenty-eight

pages, and often recites conclusory assertions of “deliberate indifference” and
violations of constitutional rights in a non-linear time-line of events. From its
review, however, the court provides the following recitation of events:
1.

General Allegations
Plaintiffs are a Caucasian married couple, originally from the

mainland, who run a bed and breakfast establishment across from Hilo’s beach
parks. Doc. No. 1, Compl. ¶ 16. Plaintiffs assert that the County, Mahuna,
Kobujiri, Thomas, and Ashida are “high-ranking officials” and have long been on
actual notice that (1) the County has a racism problem where Caucasians are
targeted for harassment and/or violence, id. ¶ 18; (2) members of the HCPD and
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the Office of the Prosecuting Attorney repeatedly violated the constitutional rights
of Caucasians by turning a blind eye to the County’s racially-motivated harassment
and discouraging reporting and prosecuting such race-based violence, id. ¶ 19; and
(3) HCPD officers repeatedly violated the constitutional rights of citizens by
subjecting them to discrimination and retaliation, fabricating and/or destroying
evidence, and causing malicious and selective prosecutions without probable
cause. Id. ¶ 20.
The Complaint further asserts these Defendants had an official policy
that allowed citizens such as Plaintiffs to be abused by police officers, and further
promoted and retained HCPD officers who engaged in these practices. Id. ¶ 22.
According to the Complaint, the County’s pre-existing customs, policies, patterns
and/or practices of deliberate indifference to such civil rights abuses led to
(1) violations of Andrews’ equal protection rights; and (2) retaliation and extortion
to prevent Plaintiffs from exercising their First and Fourteenth Amendment rights.
Id. ¶¶ 23, 24.
2.

The April 21, 2008 Incident
The particular event that triggered this lawsuit occurred on April 21,

2008. As a volunteer in the County’s “Friends of the Park” program, Andrews is
authorized to trim the edge of the anchialine tidal pool at the Waiolena Beach Park,
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and he was carrying out this task when Alexander Lewis, who is Hawaiian, began
yelling and throwing small rocks at Andrews. Id. ¶¶ 40-41. Andrews called the
police to handle the situation and attempted to complete his job. Id.
In response, Lewis waded across a shallow outlet towards Andrews
and demanded that Andrews stop what he was doing and leave the park. Id. ¶ 44.
When Andrews explained that he was a volunteer park caretaker, Lewis picked up
two stones twice the size of his fists and hit Andrews with one on Andrews’ knee
cap. Id. ¶ 46. Lewis then advanced towards Andrews with the second stone, and
Andrews held up the plastic guard of his idling weed-wacker to shield himself. Id.
Lewis rushed at Andrews, grabbed the weed-wacker, and inadvertently caused it to
engage and injure Lewis. Id. Lewis then knocked Andrews to the ground, and hit
him over the head and chest with the rock and his fists, causing Andrews to fall
unconscious. Id. ¶ 47. When Andrews regained consciousness, he called police
and requested an ambulance. Id. ¶ 48.
3.

HCPD’s Investigation of the April 21, 2008 Incident
At the Hilo Medical Center Emergency Room, Andrews was treated

for a concussion, multiple contusions and abrasions, tachycardia, and a
hypertensive crisis, while Lewis was given antibiotic ointment for eight or nine
four-to-six inch skin abrasions. Id. ¶¶ 50-51. Before Andrews received any

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treatment, however, Makua “tried to intimidate [Andrews] into not filing an assault
complaint against Lewis,” which Plaintiffs interpreted as Makua threatening
criminal charges against Andrews if Andrews made a complaint against Lewis.
Id. ¶ 54. To allow Andrews to get treatment and given the threats by Makua, Rohr
attempted to get Makua to leave, and in response Makua demanded that Rohr leave
because she was interfering with his investigation. Id. ¶¶ 57-58. Rohr reported
Makua’s conduct to Thomas. Id. ¶ 59.
After Andrews was released from the hospital, Plaintiffs went to the
police station to ask officers to recover the stones Lewis used to hit Andrews. Id.
¶ 60. Makua refused, and Rohr again reported his conduct to Thomas. Id.
Meanwhile, Itliong, who allegedly already held discriminatory animus
against Plaintiffs for a previous complaint they made regarding a separate incident,
responded to the dispatch call and intentionally failed to take fingerprint evidence
from the weed-wacker. Id. ¶¶ 62-63. Itliong also allegedly broke the chain of
custody for the weed-wacker by failing to (1) place it into evidence until two days
after the April 21, 2008 incident, (2) account for its whereabouts until it was placed
into evidence, and (3) photograph it to preserve its condition at the time of the
incident. Id. ¶ 64.
According to the Complaint, Makua, Fuiava, Itliong, and Stewart

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conspired to fabricate evidence to contradict Plaintiffs’ statements to protect Lewis
and frame Andrews. Id. ¶ 66. To that end, they took the weed-wacker back to the
beach park to take photographs with Lewis and his friends and family to support
the false story that there were numerous witnesses as well as people swimming in
the pond near where Andrews was trimming. Id. ¶ 67. Fuiawa, with Stewart’s
approval, also misrepresented Lewis’ injuries as “lacerations” so that Andrews
would wrongfully be charged with felony assault in the second degree. Id. ¶ 69.
Makua, Fuiava, Itliong, and Stewart further allegedly persuaded the intake deputy
prosecutor not to file charges against Lewis and instead file unfounded charges
against Andrews. Id. ¶¶ 68, 70.
4.

Prosecution of Andrews for the April 21, 2008 Incident
Prosecution of Andrews for the April 21, 2008 incident occurred only

after Plaintiffs gave the County notice that they were planning to file a civil action
against the County. Specifically, on November 29, 2010, Plaintiffs filed a “Proof
of Loss” form with the County’s clerk notifying the County of a potential lawsuit
filed by Plaintiffs. Id. ¶ 27. After Ashida, the County’s corporation counsel,
declined to meet with Plaintiffs to discuss the claim, Plaintiffs filed a Complaint
for damages in the United States District Court of the District of Hawaii, Civil No.
10-000749 DAE/KSC. Plaintiffs assert that Defendants “instilled discriminatory,
retaliatory animus against Plaintiffs” in the prosecutor’s office “to selectively
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prosecute” Andrews for the April 21, 2008 assault charge. Id. ¶ 29. According to
Plaintiffs, Defendants knew that this assault charge “was unfounded and
unjustified by standards prosecutors use,” and that Defendants instigated these
criminal charges to get an advantage in Plaintiffs’ civil action and intimidate
Plaintiffs into not pressing forward with their litigation. Id. ¶¶ 29-30.
To that end, deputy prosecutor Anson Lee persuaded detective James
Gusman to reopen the closed investigation of the April 21, 2008 incident, and
presented his case to the grand jury on January 26, 2011. Id. ¶¶ 31-34. According
to Plaintiffs, Lee presented “highly prejudicial, misleading evidence” to the grand
jury with the “intent to deny Defendant [Andrews’] Fourteenth amendment rights
to equal justice, equal application of the law, and with intent to deny [Plaintiffs’]
First and Fourteenth Amendment rights to access the courts for redress of
grievances [in their civil action].” Id. ¶¶ 34-35. The Complaint outlines several
alleged improprieties before the grand jury regarding speculative testimony, lack of
disclosure of exculpatory evidence, bolstering of witness testimony, and suggesting
incorrect facts. Id. ¶ 36.
Andrews was served the indictment on February 2, 2011, and was
found not guilty by a jury on January 24, 2013. Id. ¶¶ 37-38.

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B.

Procedural Background
On January 28, 2013, Plaintiffs filed this action, asserting claims

labeled (1) Monell Claim against Hawaii County (Count I); (2) Selective
Prosecution (Count II); (3) Malicious Prosecution (Count III); and (4) Intentional
Infliction of Emotional Distress and Loss of Spousal Consortium (Count IV).
On June 10, 2013, Defendants filed their Motion to Dismiss. Doc.
No. 21. Plaintiffs filed an Opposition on August 23, 2013,1 Doc. No. 26, and
Defendants filed a Reply on August 28, 2013. Doc. No. 28. A hearing was held
on September 16, 2013.
III. STANDARD OF REVIEW
Plaintiffs are appearing pro se; consequently, this court will liberally
construe their pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)
(“The Supreme Court has instructed the federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam).)). A court’s duty to read a pro se litigant’s complaint
liberally, however, does not relieve the court of its duty to determine whether the
complaint meets the requirements of Rule 12(b)(6).

1

Defendants argue that the court should strike Plaintiffs’ Opposition because it was filed
one day late and after the court had already granted Plaintiffs an extension. See Doc. No. 61,
Defs.’ Reply at 1-3. The court declines this suggestion, but cautions Plaintiffs that they are
expected to follow the Rules of this court, including all deadlines.
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Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]”
“To survive a motion to dismiss, 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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs,
521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as
true all of the allegations contained in the complaint -- “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.”).
Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken

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as true must plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only permit
the court to infer “the mere possibility of misconduct” do not show that the pleader
is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
IV. ANALYSIS
Defendants raise various arguments that the Complaint fails to comply
with Rule 12(b)(6). The court addresses each argument in turn.
A.

Claims Against Individual Defendants
Defendants argue, in largely conclusory fashion, that the Complaint

fails to plead “any facts which would give rise to civil liability on the part of any of
the named defendants.” Doc. No. 21-1, Mot. at 7. The court disagrees -- the
Complaint includes numerous factual allegations directed to the Defendants, and if
Defendants believe that such allegations as to a particular Defendant are
insufficient, they should have raised such argument. The court therefore DENIES
Defendants’ Motion to Dismiss, to the extent it asserts that the Complaint falls to
allege sufficient facts as to each Defendant.
///
///

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B.

County Liability (Count I)
Defendants argue that Plaintiffs have failed to allege a plausible claim

that the County is liable for any constitutional violations. The court agrees.
The basic elements of a claim asserting government entity liability are
well established:
A government entity may not be held liable under 42
U.S.C. § 1983 unless a policy, practice, or custom of the
entity can be shown to be a moving force behind a
violation of constitutional rights. Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658, 694 (1978).
In order to establish liability for governmental entities
under Monell, a plaintiff must prove “(1) that [the
plaintiff] possessed a constitutional right of which [s]he
was deprived; (2) that the municipality had a policy;
(3) that this policy amounts to deliberate indifference to
the plaintiff’s constitutional right; and, (4) that the policy
is the moving force behind the constitutional violation.”
Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d
432, 438 (9th Cir. 1997) (internal quotation marks and
citation omitted; alterations in original).
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); see also Ellins v.
City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (“Under Monell,
municipalities are subject to damages under § 1983 in three situations: when the
plaintiff was injured pursuant to an expressly adopted official policy, a longstanding practice or custom, or the decision of a ‘final policymaker.’” (citing Delia

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v. City of Rialto, 621 F.3d 1069, 1081-82 (9th Cir. 2010)).2
To allege a Monell claim in light of Iqbal, “allegations in a complaint
or counterclaim may not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively.” AE ex rel. Hernandez v. Cnty. of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr, 652 F.3d at 1216).
Further, “the factual allegations that are taken as true must plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued litigation.” Id. (quoting Starr,
652 F.3d at 1216).
The Complaint asserts that the County’s “high-ranking officials” have
long been on actual notice that (1) the County has a racism problem where
Caucasians are targeted for harassment and/or violence, Doc. No. 1, Compl. ¶ 18;
(2) members of the HCPD and the Office of the Prosecuting Attorney repeatedly
violated the constitutional rights of Caucasians by turning a blind eye to the
County’s racially-motivated harassment and discouraging reporting and
prosecuting such race-based violence, id. ¶ 19; and (3) HCPD officers repeatedly
2

Also, where a plaintiff asserts supervisory liability, a “plaintiff must allege that every
government defendant -- supervisor or subordinate -- acted with the state of mind required by the
underlying constitutional provision.” See OSU Student Alliance v. Ray, 699 F.3d 1053, 1070
(9th Cir. 2012) (discussing Iqbal).
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violated the constitutional rights of citizens by subjecting them to discrimination
and retaliation, fabricating and/or destroying evidence, and causing malicious and
selective prosecutions without probable cause. Id. ¶ 20. The Complaint further
alleges that the County had an official policy that allowed citizens such as
Plaintiffs to be abused by police officers, and further promoted and retained HCPD
officers who engaged in these practices. Id. ¶ 22. According to the Complaint, the
County’s pre-existing customs, policies, patterns and/or practices of deliberate
indifference to such civil rights abuses led to violations of Plaintiffs’ constitutional
rights, and that these customs, policies, patterns and/or practices “of being more
concerned with protecting police officers’ jobs and getting an advantage in any
civil suit by any means possible . . . was so closely related to Plaintiffs’ injury that
it was the moving force causing Plaintiffs’ injury.” Id. ¶¶ 23-25.
These conclusory allegations that the County has an impermissible
policy, custom, or practice are insufficient to establish a plausible basis for holding
the County liable. The Complaint does not meet the Iqbal standard -- it includes
no factual allegations that (1) identify the particular policy, custom, or practice at
issue (including its content); (2) explain precisely how this policy, custom, or
practice amounts to deliberate indifference to Plaintiffs’ constitutional rights; or
(3) explain how the particular policy, custom, or practice was the moving force

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behind the constitutional violations alleged in the Complaint. See Starr, 652 F.3d
at 1216 (stating that the pleading “must plausibly suggest an entitlement to relief,
such that it is not unfair to require [Defendants] be subjected to the expense of
discovery and continued litigation”).
In opposition, Plaintiffs set forth numerous facts, which they assert
support that the County has an impermissible policy, custom, or practice. See Doc.
No. 26, Pls.’ Opp’n at 3-21. A motion to dismiss is judged by the allegations in the
complaint, however, and additional facts asserted in an opposition cannot defeat
such motion. Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir.
1998) (“‘[N]ew’ allegations contained in [an] opposition motion, [ ] are irrelevant
for Rule 12(b)(6) purposes. In determining the propriety of a Rule 12(b)(6)
dismissal, a court may not look beyond the complaint to a plaintiff’s moving
papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”
(citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993))). The court
therefore DISMISSES the Complaint’s § 1983 claims against the County, with
leave to amend.
C.

Plaintiffs’ Claim for Selective Prosecution (Count II)
The basis of Plaintiffs’ claim titled “selective prosecution” is that

Defendants prosecuted Andrews for an assault stemming from the April 21, 2008
incident to force Plaintiffs to drop their civil suit against the County. Doc. No. 1,
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Compl. ¶¶ 26-38.
Defendants argue that Plaintiffs have not adequately alleged a
selective prosecution claim. To the extent Plaintiffs are indeed alleging a selective
prosecution claim, the court agrees. “The two elements of a selective prosecution
claim are that others similarly situated have not been prosecuted and that the
allegedly discriminatory prosecution of the defendant was based on an
impermissible motive.” United States v. Culliton, 328 F.3d 1074, 1081 (9th Cir.
2003) (per curiam) (quoting United States v. Balk, 706 F.2d 1056, 1060 (9th Cir.
1983)). Discriminatory enforcement is not limited to prosecution, and “may be
shown through a variety of actual or threatened arrests, searches and temporary
seizures, citations, and other coercive conduct by the police.” Lacey v. Maricopa
Cnty., 693 F.3d 896, 920 (9th Cir. 2012). And in order to state a claim of
discriminatory effect, a plaintiff must “allege some facts, either anecdotal or
statistical, demonstrating “that similarly situated defendants . . . could have been
prosecuted, but were not.” Id. (quoting United States v. Armstrong, 517 U.S. 456,
463 (1996)). Because the Complaint does not allege any facts suggesting that other
similarly situated individuals have not been prosecuted, Plaintiffs have failed to
allege a plausible claim for relief for selective prosecution.
But setting aside the title of this claim, the facts alleged suggest that

15

Plaintiffs are in fact asserting a claim for retaliatory prosecution. To assert such
claim, Plaintiffs must establish “that the officials secured his arrest or prosecution
without probable cause and were motivated by retaliation against the plaintiff’s
protected speech.” See Beck v. City of Upland, 527 F.3d 853, 864 (9th Cir. 2008)
(citing Hartman v. Moore, 547 U.S. 250 (2006)). The Complaint asserts that
Defendants sought Andrews’ prosecution in retaliation for Plaintiffs filing a federal
civil action, see Doc. No. 1, Compl. ¶ 29, and in their Opposition, Plaintiffs
confirm that they are asserting a retaliatory prosecution claim. See Doc. No. 26,
Pls.’ Opp’n at 22-23. In reply, Defendants offer no argument as to why such
allegations are insufficient for a retaliatory prosecution claim.
The court therefore GRANTS Defendants’ Motion to Dismiss as to a
selective prosecution claim with leave to amend, but DENIES the Motion to
Dismiss as to the retaliatory prosecution claim.
D.

Malicious Prosecution (Count III)
Defendants argue that Plaintiffs’ malicious prosecution claim fails

because the grand jury made a determination of probable cause. Doc. No. 21-1,
Defs.’ Mot. at 11-15. Based on the following, the court agrees.
In order to prevail on a § 1983 claim of malicious prosecution, a
plaintiff must show “that the defendants prosecuted [him] with malice and without
probable cause, and that they did so for the purpose of denying [him] equal
16

protection or another specific constitutional right.”3 Lacey v. Maricopa Cnty., 693
F.3d 896, 919 (9th Cir. 2012) (quoting Freeman v. City of Santa Ana, 68 F.3d
1180, 1189 (9th Cir. 1995)). “In general, a claim of malicious prosecution is not
cognizable under § 1983 ‘if process is available within the state judicial systems’
to provide a remedy,” although the Ninth Circuit has “held that an exception exists
. . . when a malicious prosecution is conducted with the intent to . . . subject a
person to a denial of constitutional rights.” Id. (quoting Bretz v. Kelman, 773 F.2d
1026, 1031 (9th Cir. 1985) (en banc)). “Malicious prosecution actions are not
limited to suits against prosecutors but may be brought, as here, against other
persons who have wrongfully caused the charges to be filed.” Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (citing Galbraith v. Cnty. of Santa
Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002)).
The court must look to Hawaii law “to determine the legal effect of
the state court’s action because [the Ninth Circuit has] incorporated the relevant
elements of the common law tort of malicious prosecution into [the] analysis under
§ 1983.” Id. “Under Hawaii law, a grand jury [] functions to determine whether
probable cause exists [and] [t]here is also a presumption that the grand jury acted
3

As held in Albright v. Oliver, 510 U.S. 266 (1994), “no substantive due process right
exists under the Fourteenth Amendment to be free from prosecution without probable cause.”
Awabdy v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir. 2004). A plaintiff may, however,
base a malicious prosecution claim on the assertion that defendants acted with the purpose of
depriving him of some other specific constitutional right. Id.
17

upon sufficient and legal evidence.” McCarthy v. Mayo, 827 F.2d 1310, 1317 (9th
Cir. 1987) (citing Hawaii v. Jenkins, 1 Haw. App. 430, 620 P.2d 263, 267 (1980));
see also Hawaii v. Apao, 59 Haw. 625, 637-38, 586 P.2d 250 (1978) (providing
that the burden is on the plaintiff to present evidence that the grand jury
deliberations were so infected as to invalidate the indictment).
Applying these principles, because a grand jury indicted Andrews,
there is a presumption that the grand jury acted independently in making the
probable cause determination. And although the Complaint includes allegations of
alleged misconduct before the grand jury by the deputy prosecutor (in a separate
count of the Complaint), see Doc. No. 1, Compl. ¶ 36, the Complaint fails to tie
this alleged misconduct to the grand jury’s finding of probable cause. Allegations
of misconduct by the prosecutor, standing alone, are insufficient to demonstrate
that the grand jury failed to act upon sufficient evidence. In other words, there are
no allegations explaining what evidence Defendants falsified that was presented to
the jury, or what particular evidence Defendants withheld from the deputy
prosecutor that would have invalidated probable cause. As a result, the allegations
do not allow the court “to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
556).
The court therefore GRANTS Defendants’ Motion as to Count III,
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with leave to amend.
E.

Rohr as a Plaintiff
Defendants argue that Rohr’s claims fail because they are all based on

constitutional violations of Andrews’ rights, not Rohr’s rights. Doc. No. 21-1,
Mot. at 13-15. To the extent Plaintiffs’ claims are based on violations of Andrews’
rights, the court agrees -- the Ninth Circuit has expressly held that
“§ 1983 damages are available only for violations of a party’s own constitutional
rights.” Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 907 (9th
Cir. 2007) (emphasis added); see also Hunt v. City of Los Angeles, 638 F.3d 703,
710 (9th Cir. 2011). As a result, Rohr cannot assert a claims for selective
prosecution and malicious prosecution, and the court GRANTS Defendants’
Motion to Dismiss as to these claims. Because granting leave to amend these
claims would be futile, this dismissal is without leave to amend.
The court finds, however, that to the extent Count II asserts a claim
for retaliatory prosecution, such claim asserts a violation of Rohr’s constitutional
rights -- the Complaint asserts that Defendants targeted and prosecuted Andrews in
retaliation for both Andrews and Rohr filing a federal civil action. As a result, this
claim survives. Further, because Defendants did not address Plaintiffs’ pendent
state law claims, these claims remain as well.

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V. CONCLUSION
Based on the above, the court GRANTS in part and DENIES in part
Defendants’ Motion to Dismiss. Remaining in this action are Plaintiffs’ claims
against all Defendants except the County for retaliatory prosecution and pendent
state law claims.
By December 2, 2013, Plaintiffs may file a First Amended Complaint
in which Andrews asserts claims for Selective Prosecution (Count II) and
Malicious Prosecution (Count III), and both Plaintiffs assert claims for retaliatory
prosecution and pendent state law claims against the County. Leave is not granted
for Plaintiffs to assert any claims beyond those addressed in this Order (i.e.,
Plaintiffs may not assert new claims or wholly new factual allegations unrelated to
the claims asserted in the Complaint). If Plaintiffs wish to assert additional claims
not raised in the Complaint or this Order, they must comply with Federal Rule of
Civil Procedure 15.
Plaintiffs are notified that a First Amended Complaint will supersede
the Complaint. Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992); Hal Roach
Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After
amendment, the court will treat the FAC as nonexistent. Ferdik, 963 F.2d at 1262.
///
///
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If Plaintiffs fail to file a First Amended Complaint by December 2, 2013, this
action will proceed as to the claims remaining in the Complaint.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 17, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Andrews et al. v. Hawaii Cnty. et al., Civ. No. 13-00046 JMS/KSC, Order Granting in Part and
Denying in Part Defendants’ Motion to Dismiss Complaint for Damages Filed January 28, 2013,
Doc. No. 21

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