Andrade v. Cho

Filing 41

ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS COMPLAINT re 8 , 10 - Signed by JUDGE DERRICK K. WATSON on 7/12/2017. "The Court hereby DISMISSES without prejudice the claims in the original Complaint and GRANTS Andra de leave to file a First Amended Complaint by no later than August 11, 2017." (emt, )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 HAWAI‘I
NALEEN N. ANDRADE, M.D.,

CIV. NO. 16-00684 DKW-KJM

Plaintiff,
ORDER GRANTING IN PART
DEFENDANTS’ MOTIONS TO
DISMISS COMPLAINT

vs.
DARREN CHO, COUNTY OF
HAWAI‘I, BOBBY L. MACOMBER,
THELMA MACOMBER, DARRYL
GRACE SR., LEONA GRACE, TRAVIS
LEINONAN, and DOE DEFENDANTS
1-20,
Defendants.

On December 20, 2016, Plaintiff Naleen N. Andrade, M.D., filed a
Complaint (ECF No. 1) initiating the instant lawsuit under 42 U.S.C. § 1983. In
the Complaint, Andrade seeks damages for acts that, she alleges, were committed
“under color of law, with the intent and for the purpose of depriving Dr. Andrade
of rights secured under the Constitution and laws of the United States, including
false and unsubstantiated criminal charges being filed against Dr. Andrade . . . .”
Compl. ¶ 1. Before the Court are separate-but-related motions to dismiss
Andrade’s complaint, which were filed by Defendants Bobby L. Macomber,
Thelma Macomber, Darryl Grace Sr., Leona Grace, and Travis Leinonan (“Private

Defendants”; ECF No. 8); and Defendants County of Hawai‘i and Kona Police
Officer Darren Cho (“County Defendants”; ECF No. 10). For the reasons set forth
below, the Court GRANTS IN PART both Motions to Dismiss, and the Complaint
is hereby DISMISSED WITHOUT PREJUDICE.
BACKGROUND
The instant lawsuit arises out of a 2013 dispute over what Andrade refers to
as “the illegal attempt to remove duly elected officers” from Kahikolu Church.1
Compl. ¶¶ 30, 23–24. Specifically, Charmayne Pule, Dolly Andrade (Plaintiff
Andrade’s sister), and Donna “Maka” Falemalu (collectively, “Principal Officers”)
had been elected as “Moderator,” “Vice-Moderator,” and “Secretary” during an
Annual General Membership Meeting at Kahikolu Church on or about March 24,
2013. Compl. ¶ 31. At a General Membership Meeting on April 21, 2013,
attendees purportedly elected Bobby L. Macomber as the new “Pastor/Kahu” of
Kahikolu Church. Compl. ¶ 35. Andrade disputes the validity of Macomber’s
election and subsequent actions as the purported Kahu.2 Compl. ¶¶ 35–41, 44, 49.

1

Andrade is a “lifelong member” of Kahikolu Congregational Church in Kona, Hawai‘i, as were
“[s]everal generations of [her] family”; “[m]ore than fifty of [Andrade’s] ancestors are buried in
the Kahikolu cemetery, including her mother, father, and grandparents.” Compl. ¶¶ 27–28.
2

For instance, Andrade represents that Macomber “has never been ‘installed’ or ‘licensed’ [by
the Hawaii Conference United Church of Christ, Hawai‘i Island Association] at Kahikolu as the
Kahu or Pastor.” Compl. ¶¶ 35–43.

2

Andrade alleges that following the April 21, 2013 General Membership
Meeting, she “heard from several sources about what had been described to her as
intimidation and bullying by Mr. Macomber,” including “physical confrontations”
with “a number of [Macomber’s] followers.” Compl. ¶ 67. Andrade further
complains that “Mr. Macomber and his followers” have “caused the participation
and active involvement of, and intimidation by the Kona Police, led by [County
Defendant] Officer Cho.” Compl. ¶ 66. The Complaint alleges that “Officer Cho
is related to [Kahikolu Church member] Donovan Cho, and is a close friend of
[Private Defendants] Darryl and Leona Grace, both of whom are Mr. Macomber’s
followers.” Compl. ¶ 70.
Andrade alleges that her only personal involvement with defendants in this
case occurred in November 2013 when she, together with the entire congregation,
was invited to attend a meeting at Kahikolu Church. Compl. ¶ 68. She traveled
from her Honolulu residence to Kona to attend the November 15, 2013 meeting,
only to find that the locks to the church gates had been changed. Compl. ¶¶ 76–77.
Meeting attendees nonetheless gained entry onto church grounds by climbing a
rock wall surrounding the property:
[After discovering that] the entrance gate of the Church grounds was
locked [and] [b]ecause there were no “Walking Paths” through the
Rock Wall for access to Kahikolu Church, the parties, including the
elderly kapuna, were forced to climb over the Hawaiian rock wall.
Once inside Kahikolu grounds, they found that the Sanctuary and all
3

other buildings had also been locked; so they held the Meeting in
Kahikolu’s pavilion.
Compl. ¶ 77.
After the meeting, uniformed police officers, including Officer Cho,
allegedly “interrogated” Dr. Andrade and others regarding their presence on church
grounds. Compl. ¶¶ 78–81. According to Andrade, Private Defendant Darryl
Grace, “with the cooperation of Mr. Macomber and/or his followers,” was the
person who allegedly alerted the police and asked them to investigate.3 Compl.
¶ 78. Andrade was later charged with criminal trespassing under Hawaii Revised
Statutes (“HRS”) Section 708-815(1) in connection with this incident.4 Compl.
¶ 82.
Andrade alleges that while being interrogated by Officer Cho on
November 15, 2013, she “specifically informed [him] that she and other members
had been invited by the Principal Officers to come [to] the Church for a duly called

3

The Complaint also asserts that “the Police made arrangements to have members of the SWAT
team from Kamuela staged nearby for possible intervention in the Kahikolu Church meeting.”
Compl. ¶ 79. Andrade takes issue with Officer Cho’s presence at the church on November 15,
2013, in part because he allegedly told Andrade’s sister that he did not plan to be present for the
meeting on two separate occasions. Compl. ¶¶ 69, 72.

4

Later that same weekend, Private Defendants allegedly interfered with a “General Membership
Meeting” that was scheduled to take place after religious services on Sunday, November 17,
2013. Compl. ¶¶ 85, 93–94. Andrade alleges that the interference caused approximately 20
minutes of delay in the meeting. Compl. ¶¶ 91, 93–94. According to the Complaint, attendees
were again interrogated by Officer Cho and other uniformed police officers upon leaving the
November 17 meeting (Compl. ¶ 94), although it is unclear whether Officer Cho included any
information gathered on this date in his incident report discussing the November 15 events.

4

Meeting.” She further alleges that Officer Cho already knew about the meeting,
having met a day earlier with Dolly Andrade and been provided with
documentation evidencing their legal presence on church grounds.5 Compl. ¶¶ 73,
80.
According to the Complaint, Officer Cho “referred his [trespassing]
investigation to the prosecutor’s office.” In the “formal incident report” regarding
the November 15, 2013 incident, Officer Cho “made no reference”:
(i) to his November 14, 2013 meeting with the Vice Moderator
at the Kailua Police Station, or (ii) Officer Cho’s specific
knowledge of the duly called Church Meeting, or (iii) the fact
he had seen and made copies on November 14, 2013 of critical
documents regarding the identity and authority of the Principal
Officers, or (iv) the fact he attempted to convince Dolly to
cancel the Friday night Meeting.
Compl. ¶ 81. This incomplete report,6 Andrade asserts, resulted in her being
charged with criminal trespass on June 10, 2014. See Ex. B, Compl.; ECF No. 104); Compl. ¶ 82.

5

Andrade contends that Officer Cho met with Dolly on November 14, 2013 under the pretext of
discussing the upcoming trial in her assault-and-battery case against one of Macomber’s
followers. Compl. ¶ 69. The true purpose of the meeting, however, was allegedly “so [Officer
Cho] could intimidate Dolly to cancel the [November 15, 2013] Meeting.” Compl. ¶¶ 71, 74.
Cho’s intimidation allegedly included warning Dolly about trespass, which caused Dolly to
provide Cho with: “(i) a copy of the Kahikolu By-Laws and the provisions about the [P]rincipal
Officers . . . [;] (ii) a copy of the March 24, 2013 Meeting Minutes, at which the Principal
Officers were elected[;] and (iii) the DCCA form showing that Pule was the Moderator and
Dolly was the Vice Moderator.” Compl. ¶ 73.
6

The parties have not provided the Court with the Incident Report itself.

5

On January 5, 2015, the Circuit Court of the Third Circuit, State of Hawaii,
granted Andrade’s unopposed Motion to Dismiss the criminal trespass charges for
violation of Andrade’s right to a speedy trial. See Cty. Defs.’ Reply, Ex. A, Mot.
to Dismiss With Prejudice, ECF No. 27-2; Ex. B, No Opp’n to Defs.’ Mot. to
Dismiss, ECF No. 27-3; Ex. C, Notice of Entry and Judgment and/or Order, ECF
No. 27-4.
Procedural Background
On December 30, 2016, Andrade filed a Complaint (ECF No. 1) alleging
violations of 42 U.S.C. Section 1983 by both the County Defendants (Compl.
¶¶ 97–103) and the Private Defendants (Compl. ¶¶ 104–07).7
As grounds her claims, Andrade alleges that Officer Cho violated her rights
under the First Amendment by preventing her from attending a meeting that was to
take place at the church; that he violated her Fourth Amendment rights by
allegedly omitting information from the incident report that he referred for
prosecution; and that he violated Andrade’s Fourteenth Amendment equal
protection rights by way of these alleged violations, which also constitutes
“malicious prosecution.” See Compl. ¶¶ 98–103. The Complaint also states that
7

Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage of any State . . . subjects or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured.

6

each of the Private Defendants “willfully participat[ed] in joint action with state
officials” to deprive Andrade of these constitutional rights, thereby also violating
Section 1983. Compl. ¶¶ 105–06. Andrade claims that these violations of her
“clearly established constitutional rights” resulted in “severe and substantial
damages . . . , includ[ing] litigation expenses [such as] attorneys’ fees, humiliation,
embarrassment, inconvenience, emotional distress, and other compensatory
damages . . . .” Compl. ¶¶ 107–08.
On February 15, 2017, the Private Defendants moved to dismiss (ECF No.
8), arguing that Andrade’s Section 1983 claim “is time-barred under Hawaii’s twoyear personal injury statute of limitation,” HRS § 657-7, that the Court lacks
subject matter jurisdiction, that Plaintiff lacks standing, and that the Complaint is
precluded by the Pullman Abstention Doctrine because “[t]he present matter arises
from the same transactions and occurrences that are currently being litigated in
state court.” Mem. in Supp. of [Private Defs.’] Mot. to Dismiss 7–9, ECF No. 8-1.
The County Defendants moved to dismiss on February 16, 2017 (ECF No. 10),
similarly alleging untimeliness based on HRS § 657-7. Mem. in Supp. of [Cty.
Defs.’] Mot. to Dismiss 6, ECF No. 10-1. Additionally, the County Defendants
assert that Officer Cho is entitled to qualified immunity, that the Complaint does
not establish causation between Officer Cho’s actions and Andrade’s alleged harm,
and that the Complaint fails to state a claim of municipal liability against the
7

County consistent with the requirements of Monell v. New York City Department of
Social Services, 436 U.S. 658 (1977). Cty. Defs.’ Mem. in Supp. 6, 11, 13–14.
Andrade opposed both motions on March 10, 2017. Opp’n to Private Defs.,
ECF No. 24; Opp’n to Cty. Defs., ECF No. 25. Defendants filed their reply briefs
on March 17, 2017. Private Defs.’ Reply, ECF No. 26; Cty. Defs.’ Reply, ECF
No. 27. The parties appeared before this Court for a hearing on April 12, 2017 (Tr.
of Proceedings, ECF No. 33), after which the Court took matters under
advisement.
Between the Court’s April 12, 2017 hearing and the date of this Order, the
County Defendants removed a separate, state court action brought by the Principal
Officers that arises out of the same events described in Andrade’s Complaint. See
Notice of Removal, Pule v. Macomber, 1:17-cv-00193-DKW-KJM (filed Apr. 27,
2017), ECF No. 1. That action is also pending before this Court.
STANDARD OF REVIEW
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure (“FRCP”) Rule
12(b)(6) challenges a complaint’s compliance with the pleading requirements
provided by the Federal Rules.
The Court may dismiss a complaint pursuant to FRCP 12(b)(6) for “failure
to state a claim upon which relief can be granted” when there is a “lack of a
8

cognizable legal theory or the absence of sufficient facts alleged.” UMG
Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990)). In other words, plaintiffs are required to allege “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). “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). Factual allegations that only permit the Court to infer “the mere
possibility of misconduct” do not constitute a short and plain statement of the
claim showing that the pleader is entitled to relief as required by FRCP Rule
8(a)(2). Id. at 677, 679 (explaining that Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation”).
For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s]
factual allegations in the complaint as true and construe[s] the pleadings in the
light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine

9

Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); see also Iqbal, 556 U.S. at 678
(explaining that the tenet “is inapplicable to legal conclusions”).
Leave to Amend
Under Rule 15(a) of the FRCP, leave to amend a party’s pleading “should
[be] freely give[n] . . . when justice so requires.” FRCP Rule 15(a)(2); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (explaining that “the
underlying purpose of [FRCP] Rule 15 . . . [is] to facilitate decision on the merits,
rather than on the pleadings or technicalities”) (quoting Noll v. Carlson, 809 F.2d
1446, 1448 (9th Cir. 1987)). Nonetheless, leave to amend may be denied for
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Mayes v. Leipziger, 729 F.2d 605, 608 (9th Cir. 1984) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Cook, Perkiss & Liehe, Inc. v.
N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (“[A] district court
should grant leave to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be cured by the allegation
of other facts.”) (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962);
Erlich v. Glasner, 352 F.2d 119, 122 (9th Cir. 1965)).

10

DISCUSSION
Andrade’s Section 1983 claims against Officer Cho and the Private
Defendants are untimely. Andrade also fails to state a claim for municipal liability
against the County of Hawai‘i under Monell. As such, the Motions to Dismiss are
GRANTED. However, because facts may exist that would allow the claims to
proceed, the Court dismisses the action without prejudice and grants Andrade leave
to amend.
I.

ANDRADE’S SECTION 1983 CLAIMS ARE TIME-BARRED.
A.

HAWAII’S TWO-YEAR STATUTE OF LIMITATIONS FOR
PERSONAL INJURY ACTIONS GOVERNS.

Andrade’s Complaint alleges separate Section 1983 claims against the
County Defendants (Compl. ¶¶ 97–103) and the Private Defendants (Compl.
¶¶ 104–08). Section 1983 does not contain a statute of limitations; rather, it
borrows the appropriate limitations period applicable under the law of the state in
which the alleged constitutional injury took place. Belanus v. Clark, 796 F.3d
1021, 1025 (9th Cir. 2015) (citing Wallace v. Kato, 549 U.S. 384, 394 (2007)),
cert. denied, 137 S. Ct. 109, reh’g denied, 137 S. Ct. 489 (2016); Bonneau v.
Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580 (9th Cir. 2012) (“[I]n this § 1983
suit, the district court appropriately borrowed Oregon’s residual two-year statute of
limitations for personal injury actions.”). Where there is more than one possible
statute of limitations under state law, federal courts apply the limitations period
11

applicable to personal injury actions in the forum state. Owens v. Okure, 488 U.S.
235, 240–41 (1989) (citing Wilson v. Garcia, 471 U.S. 261, 272 (1985)); Canatella
v. Van de Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007); cf. Wilson, 471 U.S. at 279
(“The characterization of all § 1983 actions as involving claims for personal
injuries minimizes the risk that the choice of a state statute of limitations would not
fairly serve the federal interests vindicated by § 1983.”). As a result, Andrade’s
Section 1983 claims are subject to the two-year statute of limitations applicable to
personal injuries set forth in HRS § 657–7. See Pele Def. Fund v. Party, 73 Haw.
578, 597–98, 837 P.2d 1247, 1260 (1992) (“The statute of limitation applicable to
§ 1983 actions in Hawaii is the two-year ‘general personal injury’ provision.”);
accord Shaughnessy v. Hawaii, 2010 WL 2573355, at *9 (D. Haw. June 24, 2010);
Rodenhurst v. Hawaii, 2009 WL 2365433, at *4 n.4 (D. Haw. July 30, 2009).
“Although state law determines the length of the limitations period, ‘the
determination of the point at which the limitations period begins to run is governed
solely by federal law.’ ” McCoy v. San Francisco, 14 F.3d 28, 29 (9th Cir. 1994)
(quoting Hoesterey v. City of Cathedral City, 945 F.2d 317, 318–19 (9th Cir.
1991), cert. denied, 504 U.S. 910 (1992)); Wallace 549 U.S. at 388 (“[T]he accrual
date of a § 1983 cause of action is a question of federal law that is not resolved by
reference to state law.”). Under federal law, the statute of limitations begins to run
on a Section 1983 claim “when plaintiff knows or has reason to know of [the]
12

injury which is the basis of [her] action.” Stanley v. Trustees of Cal. State. Univ.,
433 F.3d 1129, 1136 (9th Cir. 2006) (quoting Hoesterey, 945 F.2d at 319). Thus,
to survive the timeliness inquiry under the two-year statute of limitations,
Andrade’s claims must have accrued—i.e., Andrade must have either known of her
alleged constitutional injury or had sufficient facts such that a reasonable inquiry
would have revealed the basis of her Section 1983 claims—not more than two
years prior to the December 30, 2016 filing of the Complaint.
B.

OFFICER CHO’S ALLEGED MISCONDUCT OCCURRED MORE
THAN TWO YEARS BEFORE ANDRADE FILED SUIT.

Officer Cho is the only named County of Hawai‘i employee who is alleged
to have violated Andrade’s constitutional rights. According to the Complaint,
Andrade “suffered severe and substantial damages” as a result of Officer Cho:
(a)

intimidating and trying to prevent Dr. Andrade, Church
Officers, and Congregation members from attending a
[November 15, 2013] meeting at Kahikolu,

(b)

using his status as a law enforcement officer to harass and
intimidate Dr. Andrade and Church Officers and Congregation
Members,

(c)

writing a misleading Incident Report that omitted material
information showing Dr. Andrade’s innocence, and

(d)

referring his incomplete and misleading Incident Report to the
prosecutor’s office, resulting in Dr. Andrade being falsely
charged with Criminal Trespass.

13

Compl. ¶ 99 (formatting altered). None of the facts in the Complaint, however,
identify conduct by Officer Cho that occurred during the limitations period.
Accordingly, claims based on these allegations are barred.
The Complaint alleges that Officer Cho attempted to prevent Andrade and
others from attending a November 15, 2013 meeting at the church in violation of
the First Amendment. Compl. ¶ 95; see generally Roberts v. U.S. Jaycees, 468
U.S. 609, 618 (1984) (explaining that freedom of expressive association
“recognize[s] a right to associate for the purpose of engaging in those activities
protected by the First Amendment—speech, assembly, petition for the redress of
grievances, and the exercise of religion”). Officer Cho’s efforts at dissuasion
allegedly occurred the day before—on November 14, 2013—in a meeting between
Officer Cho and Andrade’s sister, Dolly. Compl. ¶¶ 69–74. Indeed, given the date
of the meeting itself, any effort to prevent it would necessarily have had to occur
prior to November 15, 2013. As a result, Andrade’s First Amendment-based
Section 1983 claim accrued more than two years prior to December 30, 2016 and is
time barred.8
Andrade’s Section 1983 claim based on “harassment and intimidation”
meets the same fate. The Complaint identifies two occasions when Officer Cho
8

The merit of this First Amendment-based claim also appears dubious, given that Officer Cho’s
alleged prevention efforts were directed at persons other than Andrade, and given that the
meeting for which Andrade assembled apparently took place as scheduled on church grounds.

14

allegedly harassed Andrade, both of which occurred in November 2013. On
November 15, 2013, Andrade alleges that uniformed police officers, including
Officer Cho, “interrogated” her regarding her presence at Kahikolu, presumably
including her decision to participate in scaling the exterior church wall to gain
access to the premises. Compl. ¶ 80. Two days later, on November 17, 2013,
Andrade alleges that uniformed officers, including Officer Cho, “further
intimidated Dr. Andrade and the Congregation” (Compl. ¶ 94) and used their
authority as law enforcement officers to “deprive Dr. Andrade of her
Constitutional right to free association” (Compl. ¶ 95). There are no facts alleged
regarding any other intimidating or harassing behavior towards Andrade by Officer
Cho—and, in particular, there are no allegations of harassment that occurred within
the two years before Andrade’s December 30, 2016 complaint. Accordingly,
Andrade’s harassment-and-intimidation-based Section 1983 claim is untimely.9
Andrade also bases her Section 1983 claim on Officer Cho “writing a
misleading Incident Report that omitted material information showing Dr.
Andrade’s innocence” to the criminal trespassing charge that was filed more than

9

Many of the Complaint’s references to harassment and intimidation concern Officer Cho’s
alleged conduct towards others, including Dolly Andrade and “various Long Term Congregation
Members.” See Compl. ¶¶ 66, 67, 71, 72, 74 & 78. Plaintiff lacks standing to assert the rights of
others. See generally Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004) (“We have adhered to
the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties.”) (citing Warth v. Seldin, 422 U.S.
490, 499 (1975)).

15

six months later. Compl. ¶ 99(c). Andrade states that “Officer Cho’s deliberate
failure to include evidence in his report that completely exonerated Dr. Andrade
was a substantial factor in Dr. Andrade being criminally charged.” Opp’n to Cty.
Defs. 11 (citing Compl. ¶¶ 17, 72). While the date of Officer Cho’s incident report
is not alleged, it is evident that the report was completed sometime between
November 15, 2013, the date of Andrade’s alleged trespass, and June 10, 2014, the
date of the criminal trespass complaint filed against Andrade. The precise date
does not matter because even if Officer Cho acted on the latest date within this
eight-month period, it would still be well outside the two-year statutory limitations
period. And Officer Cho is not alleged to have done anything beyond June 10,
2014.10
Finally, Andrade asserts that Officer Cho’s decision to “forward a
knowingly false and misleading report to the prosecutor’s office, resulting in
unsubstantiated criminal charges, was a violation of the Fourth and Fourteenth
Amendments’ protections against Dr. Andrade’s rights to be free from unwarranted
criminal prosecution and equal protection of the laws.” Opp’n to Cty. Defs. 13.

10

The Court additionally notes that the merit of Andrade’s contention—that law enforcement
officers are constitutionally obliged to include all material information communicated to them in
any related police report—is suspect. See, e.g., Safar v. Tingle, 178 F. Supp. 3d 338 (E.D. Va.
2016) (finding officer not liable where, after issuance of an arrest warrant, officer learns that the
charges were erroneous but fails to take any further action). Andrade has offered no such
authority, and the Court is aware of none. At minimum, in the absence of clear authority within
this Circuit establishing Andrade’s premise, qualified immunity would appear to apply.

16

Assuming this assertion actually constitutes a valid Section 1983 claim, it is once
again based on alleged conduct by Officer Cho that predates the two-year window
leading up to Andrade’s December 30, 2016 complaint.11 And once again, that
renders the Section 1983 claim as untimely.
In sum, all of Officer Cho’s allegedly improper acts described in the
Complaint—the last of which occurred no later than June 10, 2014 date—occurred
more than two years before Andrade filed her December 30, 2016 complaint. The
only conduct inside the limitations period that Andrade does identify in the
Complaint is the dismissal of the trespass charges against Andrade on January 5,
2015. See Compl. ¶ 82. But neither the bringing, nor the dismissal, of the
trespassing charges can be fairly attributed to Officer Cho under the facts alleged.
See Ambrose v. Coffey, 696 F. Supp. 2d 1119, 1133 (E.D. Cal. 2010).12
Accordingly, the allegations in the Complaint against Officer Cho are untimely.

11

The Court only assumes the validity for purposes of this motion because, among other things,
Andrade: (i) does not allege a search, seizure or any other deprivation of liberty necessary to
support a Fourth Amendment violation, (ii) does not allege membership in a suspect class or
disparate treatment necessary to support a Fourteenth Amendment equal protection violation;
and (iii) cannot assert that the dismissal of the criminal charges was the product of a decision on
the merits, necessary to a malicious prosecution claim, in the face of the speedy trial violations
cited by the state court.
12

See Rest. (2d) of Torts § 655, cmt. c (“The fact that [the officer] initiated the proceedings does
not make him liable for continuation of the prosecution merely because he intentionally refrains
from informing a public prosecutor, into whose control the prosecution has passed, of
subsequently discovered facts that clearly indicate the innocence of the accused, even though
they have the effect of convincing [the officer] that this is a fact.”).

17

C.

ANY ALLEGED WRONGDOING ON THE PART OF THE
PRIVATE DEFENDANTS NECESSARILY PREDATES THE
ALLEGATIONS AGAINST OFFICER CHO.

Andrade’s theory of liability against the Private Defendants is that they were
complicit in constitutional violation(s) committed by the County Defendants.
Specifically, the Complaint alleges that each of the Private Defendants “willfully
participat[ed] in joint action with state officials” to deprive Andrade of her rights
protected by the First, Fourth, and Fourteenth Amendments to the U.S.
Constitution, thereby violating 42 U.S.C. Section 1983 by “trying to prevent Dr.
Andrade, the Principal Officers and Congregation Members from attending a duly
called Meeting at Kahikolu, [and] using Officer Cho’s status as a law enforcement
officer to harass and intimidate Dr. Andrade, resulting in Dr. Andrade being falsely
charged with Criminal Trespass.” Compl. ¶¶ 105–06. Even assuming, arguendo,
that the Private Defendants’ conduct constituted “joint action” within the meaning
of Section 1983,13 their alleged misconduct necessarily predates that of Officer
Cho. That is because Andrade alleges that Officer Cho became involved in the
aforementioned events at the behest of the Private Defendants. See, e.g., Compl.
¶ 78. As with Officer Cho, then, Andrade also has not alleged that the Private
Defendants’ alleged conduct occurred in the two years leading up to the date of
13

See generally Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999)
(citations omitted) (explaining that the ultimate issue in determining whether a private individual
is subject to suit under Section 1983 is whether the alleged infringement of federal rights is fairly
attributable to the government).

18

filing of her December 30, 2016 complaint. Accordingly, Andrade’s Complaint is
untimely with respect to the Private Defendants.
Andrade’s attempt to invoke the rule set forth in Heck v. Humphrey, 512
U.S. 477 (1994)—to argue that the statute of limitations did not begin to run on her
claims until her trespass charges were dismissed with prejudice in state court on
January 5, 2015—is misguided. Heck “delays what would otherwise be the accrual
date of a tort action until the setting aside of an extant conviction which success in
that tort action would impugn.” Wallace, 549 U.S. at 393. There, petitioner’s
Section 1983 claim alleged that two prosecutors and a police investigator “had
engaged in an ‘unlawful, unreasonable, and arbitrary investigation’ leading to
petitioner’s arrest; ‘knowingly destroyed’ evidence ‘which was exculpatory in
nature and could have proved [petitioner’s] innocence’; and caused ‘an illegal and
unlawful voice identification procedure’ to be used at petitioner’s trial.” Heck, 512
U.S. at 478–79.
In ruling against the petitioner, the Heck Court held that in order for a
Section 1983 plaintiff to recover damages for “harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” he or she “must
prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such a
determination, or called into question by a federal court’s issuance of a writ of
19

habeas corpus. 512 U.S. at 486–87 (footnote omitted) (citing 28 U.S.C. § 2254).
None of these predicates is present here. In fact, Andrade was never convicted of,
nor sentenced for, criminal trespass. Compl. ¶ 84; see Cty. Defs.’ Reply, Exs. A–C
(demonstrating that the charges were dismissed with prejudice on January 5, 2015
for a violation of Andrade’s constitutional right to a speedy trial).
As Andrade notes, the Ninth Circuit did, at one time, suggest that Heck
might apply to even pending criminal proceedings. See Harvey v. Waldron, 210
F.3d 1008, 1014–16 (9th Cir. 2000). However “this application of Heck has been
explicitly overruled by the Supreme Court.” Rivas v. Cal. Franchise Tax Bd., 619
F. Supp. 2d 994, 1000 (E.D. Cal. 2008) (citing Wallace, 549 U.S. at 393
(explaining that the Heck rule only comes into play when there exists an
“outstanding criminal judgment” that the civil cause of action “would impugn”));
see Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015) (recognizing that
the Heck rule is not implicated merely by the pendency of charges (citing Wallace,
549 U.S. at 392–94)). As such, Heck does not apply and cannot serve as the basis
for the deferral of accrual urged by Andrade.
The Court dismisses Andrade’s Section 1983 claims on statute of limitations
grounds.

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II.

ANDRADE HAS NOT SUFFICIENTLY PLED A CLAIM FOR
MUNICIPAL LIABILITY AGAINST THE COUNTY OF HAWAI‘I.
A plaintiff may establish municipal liability under Section 1983, as

recognized in Monell v. New York City Department of Social Services, 436 U.S.
658 (1977), by showing at least one of the following:
(1) conduct pursuant to an official policy inflicted the injury;
(2) the constitutional tort was the result of a “longstanding
practice or custom which constitutes the standard operating
procedure of the local government entity”; (3) the tortfeasor
was an official whose acts fairly represent official policy such
that the challenged action constituted official policy; or (4) an
official with final policy-making authority “delegated that
authority to, or ratified the decision of, a subordinate.”
Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). Here, Andrade alleges that the
County of Hawai‘i is liable for constitutional violations under the fourth theory of
Monell liability because it:
[r]atified Officer Cho’s violation of Dr. Andrade’s
Constitutional rights, by among other things approving Officer
Cho’s Incident Report that failed to contain facts critical to Dr.
Andrade’s right to participate, as a Church Member, in a
meeting at Kahikolu [Church], to which she was invited by the
Principal Officers, and approving referring a purported
Criminal Trespass [incident report by Officer Cho] to the
prosecutor’s office, resulting in false and unsubstantiated
charges being alleged against Dr. Andrade.
Compl. ¶ 100.
To sufficiently plead ratification for purposes of Monell, Andrade “must
show the decision was the product of a conscious, affirmative choice to ratify the
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[unconstitutional] conduct in question.” Edenfield v. Estate of Willets, 2006 WL
1041724, at *16 (D. Haw. Apr. 14, 2006) (explaining further that “[s]uch a
ratification ‘could be tantamount to the announcement or confirmation of a policy
for purposes of Monell’”) (quoting Haugen v. Brosseau, 339 F.3d 857, 875 (9th
Cir. 2003), rev’d on other grounds, 543 U.S. 194 (2004) (per curiam)). In other
words, ratification requires both proof of a policymaker’s knowledge of the alleged
constitutional violation, Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999), and
proof that the policymaker deliberately chose to “endorse” the individual officer’s
conduct and the basis for it, see Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).
Andrade’s allegations, however, do not come close. For instance, she does
not allege who the ratifying official was, what that official knew about Officer
Cho’s conduct, what that official did that constitutes ratification, nor when that
official acted. These are the facts to which the defense, at a minimum, would be
entitled to allow for further inquiry and investigation. See Wallace, 549 U.S. at
393. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action” does not comply with federal pleading standards,
“[n]or does a complaint suffice if it tenders ‘naked assertion[s]” devoid of “further
factual enhancement.” Iqbal, 556 U.S. at 678 (or 1949) (quoting Twombly, 550

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U.S. at 555, 557). Accordingly, the Complaint fails to state a claim of ratification
liability against the County of Hawaii under Monell.14
III.

LIMITED LEAVE TO AMEND IS APPROPRIATE.
“[A] complaint cannot be dismissed unless it appears beyond doubt that the

plaintiff can prove no set of facts that would establish the timeliness of the claim.”
Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th
Cir. 2009) (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206–07 (9th Cir.
1995) (“[A]n appellate court] must reverse if the factual and legal issues are not
sufficiently clear to permit us to determine with certainty whether the doctrine
could be successfully invoked.”)), as amended (Jan. 14, 2010). Pursuant to the
above discussion, the Court dismisses Andrade’s Complaint without prejudice and
grants Andrade leave to amend to attempt to cure the deficiencies identified in this
Order.
14

The Private Defendants additionally assert that “Pullman” abstention warrants dismissal of
Andrade’s claims. Private Defs.’ Mem. in Supp. 9; Private Defs.’ Reply 5–6. See generally R.R.
Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) (plurality decision). “The Pullman
abstention doctrine is a narrow exception to the district court’s duty to decide cases properly
before it which allows postponements of the exercise of federal jurisdiction when ‘a federal
constitutional issue . . . might be mooted or presented in a different posture by a state court
determination of pertinent state law.’” C-Y Dev. Co. v. City of Redlands, 703 F.2d 375, 377 (9th
Cir. 1983) (quoting Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189 (1959)). Here,
Private Defendants argue that constitutional questions raised in this case and the related Pule v.
Macomber case, 1:17-cv-00193-DKW-KJM (filed Apr. 10, 2017), “could be mooted or
narrowed by a definitive ruling [by the state court] on the state law issue of whether or not the
Movants were the rightful church leaders who had a right to choose who could and could not be
on church property at a particular time.” Private Defs.’ Reply 6. Since this argument was
presented, however, the Pule case was removed to this Court, which is not aware of any related
proceeding pending in state court. Accordingly, the Pullman doctrine does not apply.

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If Andrade chooses to file an amended complaint, she must identify in short,
plain statements: (1) the specific basis of this Court’s jurisdiction; (2) the
constitutional or statutory right Andrade believes was violated—including by
separately identifying each theory of liability under Section 1983 on which her
claims rely; (3) the name of the defendant who violated that right; (4) exactly when
and what that defendant did or failed to do; (5) how the action or inaction of that
defendant is connected to the violation of Andrade’s rights; and (6) what specific
injury Andrade suffered because of the defendants’ conduct. Andrade must repeat
this process for each person or entity that she names as a defendant. See Nichols v.
Logan, 355 F. Supp. 2d 1155, 1165 (S.D. Cal. 2004). If Andrade fails to
affirmatively link the conduct of each named defendant with the specific injury she
suffered, the allegation against that defendant will be dismissed for failure to state
a claim.
The amended complaint must also designate that it is the “First Amended
Complaint” and may not incorporate any part of the original Complaint; rather, any
specific allegations must be re-written in their entirety. See King v. Atiyeh, 814
F.2d 565, 567 (9th Cir. 1987), overruled in unrelated part by Lacey v. Maricopa
Cty., 693 F.3d 896, 927–28 (9th Cir. 2012) (en banc). Claims dismissed without
prejudice that are not re-alleged in an amended complaint may be deemed
voluntarily dismissed. See Lacey, 693 F.3d at 928. Andrade may include only one
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claim per count. Failure to file an amended complaint consistent with the guidance
provided by this Order will result in the automatic dismissal of this action with
prejudice.
CONCLUSION
The Court hereby DISMISSES without prejudice the claims in the original
Complaint and GRANTS Andrade leave to file a First Amended Complaint by no
later than August 11, 2017.
IT IS SO ORDERED.
DATED: July 12, 2017 at Honolulu, Hawai‘i.

---------------------------------------------------------------------------------------------------Andrade v. Cho; CV 16-00684 DKW-KJM; ORDER GRANTING IN PART
DEFENDANTS’ MOTIONS TO DISMISS COMPLAINT

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