Albert v. Edwards et al
Filing
6
ORDER DENYING IN FORMA PAUPERIS APPLICATION 5 AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/27/2015.Excerpt of conclusion:"[Plaintiff] SHALL file a complete pris oner in forma pauperis application or submit the civil filing fee of $400.00 on or before August 21, 2015, or this action SHALL be AUTOMATICALLY DISMISSED." "Plaintiff SHALL file an amended complaint curing the deficiencies...on or before August 21, 2015. Failure to timely amend the Complaint and cure its pleading deficiencies will result in DISMISSAL of this action for failure to state a claim, and will be counted as a strike pursuant to 28 U.S.C. § 1915 (g)." (afc) 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). A copy o f the instant Order, the "Prisoner Civil Rights Complaint" form with its instructions, and the "Application to Proceed In Forma Pauperis by a Prisoner" form with its instructions will be served this date by first class mail addressed to Mr. Anthony Mark Albert at his address of record.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANTHONY MARK ALBERT,
#A0150197,
Plaintiff,
vs.
DONNA CAROL EDWARDS, JOHN
DOES 1-10, JANE DOES 1-10,
DOE AGENCIES 1-10, DOE CORP.
1-10, DOE GOV’T ENTITIES,
AGENCIES, AND DEP’TS 1-10,
Defendants.
____________________________
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CIV. NO. 15-00255 SOM/KSC
ORDER DENYING IN FORMA PAUPERIS
APPLICATION AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND
DISMISSING COMPLAINT WITH LEAVE TO AMEND
Before the court is pro se Plaintiff Anthony Mark
Albert’s civil rights complaint and in forma pauperis (“IFP”)
application.
Doc. Nos. 1 & 5.
Plaintiff is a pretrial detainee
awaiting entry of judgment of conviction and sentence at the Oahu
Community Correctional Center (“OCCC”), in Hawaii v. Albert, Cr.
No. 1PC08-1-000118, Doc. No. 222 (Haw. Cir. Ct. July 6, 2015).1
See Hawai`i State Judiciary Public Access to Court Information,
Ho`ohiki, http://hoohiki1.courts.state.hi.us/jud/Hoohiki/.2
1
On Oct. 17, 2014, a circuit court jury found Plaintiff
guilty of Criminal Solicitation to Commit Murder. See Cr. No.
1PC08-1-000118, Doc. No. 206.
2
The court may take notice of readily determined facts
whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b); U.S. ex rel. Robinson Rancheria Citizens Council v.
Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (allowing notice
of other state or federal judicial proceedings that have a direct
(continued...)
Plaintiff alleges that his ex-wife, Donna Carol
Edwards, conspired with unidentified others to have him “arrested
and falsely charged” with Burglary in the First Degree, Unlawful
Entry, and Abuse of a Household Member.
Compl., Doc. No. 1,
PageID #2-3; see Hawaii v. Albert, Cr. No. PC07-1-000288, Doc.
No. 1 (1st Cir. Ct., Haw., Feb. 13, 2007).
Plaintiff’s IFP application is DENIED without prejudice
as incomplete.
relief.
Plaintiff fails to state a cognizable claim for
The Complaint is DISMISSED with leave to amend pursuant
to 28 U.S.C. §§ 1915(e)(2) & 1915A, for.
Plaintiff is DIRECTED
to submit a completed prisoner IFP application and amended
complaint on or before August 21, 2015.
Failure to do either
will result in automatic dismissal of this action.
I.
IN FORMA PAUPERIS APPLICATION
Parties filing actions in the United States District
Court are required to pay filing fees.
28 U.S.C. § 1914(a).3
An
action may not proceed without concurrent payment of the filing
fee or an order granting IFP status.
See 28 U.S.C. § 1915(a)(1).
2
(...continued)
relation to matters at issue); cf. Lee v. City of L.A., 250 F.3d
668, 689-690 (9th Cir. 2001) (allowing notice of public orders,
but not the truth of their facts); Anderson v. Holder, 673 F.3d
1089, 1094 n.1 (9th Cir. 2012).
3
Plaintiff is NOTIFIED that, as a prisoner, he is obligated
to pay the entire filing fee for commencing this suit, regardless
of whether it is later dismissed by the court without a motion or
by motion. See 28 U.S.C. § 1915(b)(1).
2
Plaintiff’s IFP application is not on a District of Hawaii
prisoner IFP form.
It lacks (1) a prison official’s signed
certification attesting to the amount in Plaintiff’s prison
account; (2) a certified account statement showing the
withdrawals and deposits to Plaintiff’s account over the previous
six months; and (3) Plaintiff’s signed release for withdrawal of
funds from his account.
LR99.7.10.
See 28 U.S.C. § 1915(a)(2); Local Rule
Plaintiff’s IFP request is DENIED without prejudice
as incomplete.
Plaintiff must pay the entire filing fee of $400.00, or
submit a complete IFP application on the court’s prisoner IFP
application form4 that includes a prison official’s signed
certification of the amount in Plaintiff’s account, a six-month
account statement showing that he is a pauper within the meaning
of the statute, and his signed permission to withdraw funds from
his account on or before August 21, 2015.
Failure to do so SHALL
result in dismissal of this action for failure to prosecute and
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); Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992).
4
The Clerk sent Plaintiff the correct IFP application form
on July 7, 2015. Forms are also available at OCCC.
3
II.
LEGAL STANDARD
The court must screen all civil actions brought by
prisoners proceeding pro se and in any action relating to prison
conditions or seeking redress from a government entity, officer,
or employee.
28 U.S.C. §§ 1915(e)(2) & 1915A(a).
Complaints or
claims that are frivolous, malicious, fail to state a claim, or
seek relief from a defendant who is immune from such relief must
be dismissed.
28 U.S.C. §§ 1915(e)(2) & 1915A(b); 42 U.S.C.
§ 1997e (c)(1).
A complaint that lacks a cognizable legal theory or
alleges insufficient facts under a cognizable legal theory fails
to state a claim.
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-harmedme accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“[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 Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 (stating the
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court is “not bound to accept as true a legal conclusion couched
as a factual allegation”).
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.”
Iqbal, 556 U.S. at 678.
The court must set conclusory factual allegations
aside, accept all nonconclusory factual allegations as true, and
determine whether those nonconclusory factual allegations
accepted as true state a claim for relief that is plausible on
its face.
Iqbal, 556 U.S. at 676–684; Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (noting that the
court need not accept legal conclusions, unwarranted deductions
of fact, or unreasonable inferences as true).
While “[t]he
plausibility standard is not akin to a probability requirement,”
it “asks for more than a sheer possibility that a defendant has
acted unlawfully.”
Iqbal, 556 U.S. at 678.
To make this
plausibility determination, the court is permitted “to draw on
its judicial experience and common sense.”
Id. at 679.
Leave to amend should be granted if it appears the
plaintiff can correct the defects in the complaint.
Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); but cf. Sylvia
Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.
2013) (holding that the district court has discretion to dismiss
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pro se complaint without leave to amend when “it is clear that
the complaint could not be saved by any amendment”).
III.
BACKGROUND
On December 28, 2006, Plaintiff and Edwards argued on
the telephone about his taking their children to Costco.
Plaintiff then drove to where Edwards’ and her boyfriend, Michael
R. Chu,5 lived to pick up the children.
When Plaintiff arrived,
he called out to Edwards from the porch, then opened the front
door to allow his children to leave with him.
Edwards appeared
and demanded that he leave the premises without their children.
Plaintiff says he raised his arm to prevent Edwards from blocking
his children’s exit, and “she fell back wards [sic].”
PageID #2.
Chu observed this incident.
recorded the incident on her telephone.
Id.,
Edwards apparently
Someone called 911.
Plaintiff states that he was arrested that day at Costco and
charged with Burglary in the First Degree, Unlawful Entry, and
Abuse of a Household Member.
Plaintiff states that two Honolulu Police Department
(“HPD”) detectives interviewed Edwards and Chu at their home the
next day, December 29, 2006, and recorded the interviews.
Plaintiff alleges that Edwards and Chu gave the officers false
information, including that he was “violent, angry, and abusive
5
Chu is not a named defendant.
6
toward his children,” and that their children feared him.
Compl., Doc. No. 1, PageID #3.
Plaintiff alleges that Edwards filed a temporary
restraining order against him in January 2007, because he showed
their children a photograph of her with a male stripper.6
Id.
On February 13, 2008, Plaintiff was indicted in Hawaii
v. Albert, Cr. No. PC07-1-000288, for Burglary in the First
Degree, Unlawful Entry, and Abuse of a Household Member.
id., Doc. No. 1.
See
On July 3, 2012, while Plaintiff was awaiting
prosecution in Hawaii v. Albert, Cr. No. 1PC08-1-000118, the
State moved to nolle prosequi Cr. No. PC07-1-000288, and the
matter was terminated.
Cr. No. PC07-1-000288, Doc. No. 51.
Plaintiff alleges Edwards conspired to “deprive
[Plaintiff] of his parental rights and . . . have him arrested
and falsely charged, depriving him of his civil and
constitutional rights.”
Compl., Doc. No. 1, PageID #3.
He names
Edwards, John and Jane Does 1-20, Non-governmental Doe Agencies
and Corporations 1-20, and Government Doe Entities, Agencies, and
Departments 1-10 as Defendants.
Plaintiff asserts no request for
relief.
6
On January 17, 2007, Edwards was granted a temporary
restraining order against Plaintiff, which remains in effect
until December 13, 2027. See Edwards v. Albert, Dist. Ct. No.
1DA07-000092 (Haw. Dist. Ct. Jan. 17, 2007) (Doc. Nos. 1 &21).
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IV.
DISCUSSION
To state a civil rights claim under 42 U.S.C. § 1983, a
plaintiff “must allege a violation of a right secured by the
Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under
color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988).
For the following reasons, the court DISMISSES the Complaint with
leave to amend.
Plaintiff alleges that Edwards conspired to deprive him
of his parental and constitutional rights by falsely accusing
him, leading to his allegedly false arrest.
expressly assert with whom she conspired.
He does not
He alleges simply that
Edwards (and Chu) lied (1) during the 911 call precipitating his
alleged arrest at Costco, (2) to the HPD detectives who
investigated the 911 call the next day, and (3) to obtain a
temporary restraining order.
A.
Conspiracy
Conspiracy is not itself a constitutional tort under
§ 1983.
2012).
Lacey v. Maricopa Cty., 693 F.3d 896, 935 (9th Cir.
Rather, conspiracy claims enable a plaintiff to “enlarge
the pool of responsible defendants by demonstrating their causal
connections to the violation; the fact of the conspiracy may make
a party liable for the unconstitutional actions of the party with
whom he has conspired.”
Id.
Plaintiffs therefore often allege a
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conspiracy to “draw in private parties who would otherwise not be
susceptible to a § 1983 action because of the state action
doctrine.”
Id. (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970); Crowe v. Cty. of San Diego, 608 F.3d 406, 440
(9th Cir. 2010)).
To allege a cognizable conspiracy claim under § 1983
between a private actor and government officials acting under
color of state law, a plaintiff must allege that they “reached a
unity of purpose or a common design and understanding, or a
meeting of the minds in an unlawful arrangement.”
Gilbert v.
City of Westlake, 177 F.3d 839, 856-57 (9th Cir. 1999).
The
conspirators need not know all of the exact details of the plan,
but each “must at least share the common objective of the
conspiracy.”
Id.
A conspiracy claim “must allege facts to
support the allegation that defendants conspired together.
A
mere allegation of conspiracy without factual specificity is
insufficient.”
Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621,
626 (9th Cir. 1988) (dismissing a complaint that had “legal
conclusions but no specification of any facts to support the
claim of conspiracy”).
Pleading a conspiracy requires more than a conclusory
allegation that defendants conspired to deprive plaintiff of his
civil rights.
Within the Ninth Circuit, a heightened pleading
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standard applies to conspiracy claims under § 1983.7
See Harris
v. Roderick, 126 F.3d 1189, 1195 (9th Cir.1997); Buckey v. Cty.
of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992).
Plaintiff’s conspiracy claim amounts to no more than
“vague and conclusory allegations of official participation in
civil rights violations,” and therefore fails to state a claim.
See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982);
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (conclusory
allegations of conspiracy are insufficient to support a claim
under § 1983 or § 1985).
B.
Analysis
First, the only alleged point of contact between
Edwards and any state actor before Plaintiff’s arrest at Costco
was by telephone with an HPD dispatcher during the 911 call on
December 28, 2006.
The only alleged points of contact between
Edwards and state actors after that arrest and before the
February 13, 2007, indictment were the HPD investigation on
December 29, 2006, and possibly a hearing on January 17, 2007, on
7
The Ninth Circuit has specifically held that conspiracy
claims are subject to this heightened pleading standard because
they require the plaintiff to show that the defendant agreed to
join the conspiracy. See Harris, 126 F.3d at 1195; Margolis, 140
F.3d at 853. Although the Ninth Circuit eliminated the
application of a heightened pleading standard to all cases when
an improper motive is an element, it has not modified the
requirement in regard to allegations of conspiracy. See Galbraith
v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
10
the request for temporary restraining order.8
Accepting as true
Plaintiff’s allegations that Edwards lied to the HPD 911
dispatcher on December 28, 2006, to the HPD investigating
officers on December 29, 2006, and regarding her request for a
temporary restraining order in January 2007, Plaintiff fails to
show that Edwards and unnamed government officials had a common
objective, purpose, or design to falsely charge and arrest
Plaintiff.
If these government officials were operating under
the belief that Edwards’s allegedly false representations of what
happened were true, they could not have had the necessary meeting
of minds with Edwards to satisfy the heightened pleading
requirements for a conspiracy claim.
Second, “private parties are not generally acting under
color of state law, and . . . ‘[c]onclusionary allegations,
unsupported by facts, [will be] rejected as insufficient to state
a claim under the Civil Rights Act.’”
702, 707–08 (9th Cir. 1991).
Price v. Hawaii, 939 F.2d
“Careful adherence to the ‘state
action’ requirement preserves an area of individual freedom by
limiting the reach of federal law and federal judicial power.
It
also avoids imposing on the State, its agencies or officials,
responsibility for conduct for which they cannot fairly be
8
There may have been more contacts between Edwards and
state actors, but Plaintiff alleges no facts to support this and
specifically alleges false arrest as to only the Costco incident
on December 28, 2006.
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blamed.”
(1982).
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936-37
While Plaintiff alleges facts suggesting that Edwards
and Chu conspired to have him arrested, he alleges nothing
supporting any conspiracy between them and state actors.
The
possibility of their private conspiracy does not make either of
them a state actor subject to liability under § 1983.
Third, “merely complaining to the police does not
convert a private party into a state actor.”
Collins v.
Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989) (citing Rivera v.
Green, 775 F.2d 1381, 1382–84 (9th Cir. 1985)).
Regardless of
who called 911, Edwards or Chu, that call did not convert either
into a state actor.
Similarly, Edwards’s January 17, 2007,
request for a temporary restraining order did not turn her into a
state actor.
Price, 939 F.2d at 708 (stating that “resorting to
the courts” does not convert a private party into a state actor).
Moreover, that request could not have affected the arrest on
December 28, 2006.
Fourth, to the extent Plaintiff challenges the
indictment filed on February 13, 2007, rather than the arrest on
December 28, 2006, and suggests that Edwards gave false testimony
to the grand jury, such claim is unavailing because a grand jury
witness, “whether a lay person or a law enforcement officer, has
absolute immunity from any § 1983 claim . . . based on the
witness’ testimony.”
Rehberg v. Paulk, 132 S. Ct. 1497, 1506
12
(2012).
“[T]his rule may not be circumvented by claiming that a
grand jury witness conspired to present false testimony or by
using evidence of the witness’ testimony to support any other
§ 1983 claim concerning the initiation or maintenance of a
prosecution.”
Id., 132 S .Ct. at 1506.
Accepting Plaintiff’s statement of facts as true, the
court cannot reasonably infer that there was a meeting of the
minds between Edwards and any state actor to have Plaintiff
falsely charged or arrested.
Plaintiff’s allegation that Edwards
and Chu lied to the police negates any inference that there was a
common design, understanding, meeting of the minds, or objective
between Edwards and state actors to falsely arrest or charge
Plaintiff.
Gilbert, 177 F.3d 856-57.
Plaintiff’s conclusory
statement that a conspiracy existed is insufficient to state a
conspiracy claim.
Price, 939 F.2d at 708 (“a defendant is
entitled to more than the bald legal conclusion that there was
action under color of state law”).
Because Plaintiff fails to
provide sufficient facts of a conspiracy, or to establish that
Edwards can be considered a state actor, he fails to state a
claim for relief.
The Complaint is DISMISSED with leave to amend
to correct this pleading deficiency if possible.
C.
Leave to Amend
Plaintiff may file an amended complaint on or before
August 21, 2015.
The amended complaint must cure the
deficiencies noted above.
An amended complaint generally
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supersedes the original complaint.
55, 57 (9th Cir. 1967).
See Loux v. Rhay, 375 F.2d
Therefore, although this court will not
ignore Plaintiff’s original statement of facts when reviewing an
amended complaint, any amended complaint should stand on its own
as a complete document without incorporating or referring to an
original complaint.
Defendants not named in the caption and
claims dismissed without prejudice that are not realleged in an
amended complaint may be deemed voluntarily dismissed.
See
Lacey, 693 F.3d at 928 (“[C]laims dismissed with prejudice [need
not] be repled in a[n] amended complaint to preserve them for
appeal. . . . [but] claims [that are] voluntarily dismissed
[are] . . . waived if not repled.”).
In an amended complaint,
each claim and the involvement of each Defendant must be
sufficiently alleged.
Plaintiff is NOTIFIED that he must comply with the
Federal Rules of Civil Procedure and the Local Rules for the
District of Hawaii if he chooses to amend his pleading.
V.
28 U.S.C. § 1915(g)
If Plaintiff fails to correct the deficiencies
identified in this Order on or before August 21, 2015, this
dismissal shall count as a “strike” under the “3-strikes”
provision of 28 U.S.C. § 1915(g).
A prisoner may not bring a
civil action or appeal a civil judgment in forma pauperis under
28 U.S.C. § 1915 if he has “on 3 or more prior occasions, while
incarcerated or detained . . . brought an action or appeal” in
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the federal courts that was dismissed as frivolous, malicious, or
fails to state a claim, unless he is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
VI.
(1)
CONCLUSION
Plaintiff’s in forma pauperis application is DENIED.
He SHALL file a complete prisoner in forma pauperis application
or submit the civil filing fee of $400.00 on or before August 21,
2015, or this action SHALL be AUTOMATICALLY DISMISSED.
(2)
The Complaint is DISMISSED for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), with leave
granted to amend.
Plaintiff SHALL file an amended complaint
curing the deficiencies noted above on or before August 21, 2015.
Failure to timely amend the Complaint and cure its pleading
deficiencies will result in DISMISSAL of this action for failure
to state a claim, and will be counted as a strike pursuant to 28
U.S.C. § 1915(g).
(3)
The Clerk SHALL mail Plaintiff a
prisoner civil rights complaint form so he can comply with this
Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii; July 27, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Albert v. Edwards, 1:15-00255 SOM/KSC; Scrng 2015/Albert 15-255 som (dny IFP, dsm); J:\PSA Draft
Ords\SOM\Albert 15-255 SOM (dny IFP, dsm no consp.).wpd
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