Andrade v. Cho
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE JULY 12, 2017 ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS COMPLAINT re 42 - Signed by JUDGE DERRICK K. WATSON on 8/29/2017. (emt, )CERTI FICATE 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
DARREN CHO, COUNTY OF
HAWAI‘I, BOBBY L. MACOMBER,
THELMA MACOMBER, DARRYL
GRACESR., LEONA GRACE, TRAVIS
LEINONAN, DOE DEFENDANTS 120,
ORDER DENYING PLAINTIFF’S
RECONSIDERATION OF THE
JULY 12, 2017 ORDER GRANTING
IN PART DEFENDANTS’
MOTIONS TO DISMISS
On July 26, 2017, Plaintiff Naleen N. Andrade, M.D., filed a Motion for
Reconsideration (ECF No. 42) of this Court’s July 12, 2017 Order Granting in Part
Defendants’ Motions to Dismiss Andrade’s Original Complaint (“Order Granting
MTD”; ECF No. 41). The Motion for Reconsideration relies on Heck v.
Humphrey, 512 U.S. 477 (1994) and Harvey v. Waldron, 210 F.3d 1008 (9th Cir.
2000), overruled in part by Wallace v. Kato, 549 U.S. 384, 393–94 (2007), and
argues that the Court’s application of Wallace, supra, was a “manifest error of
law.” Mot. for Recons. 4. This contention is meritless for the reasons that follow,
and the Motion for Reconsideration is DENIED.
The Heck Rule Of Deferred Accrual Is Inapplicable.
Heck alone does not help Andrade. Indeed, “[t]he Heck rule for deferred
accrual is called into play only when there exists ‘a conviction or sentence that has
not been invalidated.’” Wallace, 549 U.S. at 393 (ellipses and emphasis removed).
As this Court clearly stated in the Order Granting MTD, there was no conviction or
sentence involved in this case, rendering Heck’s rule for deferred accrual
inapplicable. Order Granting MTD at 19–20 (record citations omitted); see also
Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015).
In Wallace, The Supreme Court Declined To Extend The Heck Rule Of
Deferred Accrual As The Ninth Circuit Advocated For In Harvey.
Harvey might have helped Andrade because it advocated extending the Heck
deferral rule even to Section 1983 claims that would necessarily imply the
invalidity of a conviction in a pending criminal prosecution. Harvey, 210 F.3d at
1014. In other words, no conviction or sentence would have been necessary. But,
as this Court also explained in the Order Granting MTD, the principled extension
advocated by Harvey and the cases it relied on was rejected by the United States
Supreme Court in Wallace. Order Granting MTD at 20 (citing Rivas v. Cal.
Franchise Tax Bd., 619 F. Supp. 2d 994, 1000 (E.D. Cal. 2008)). In that case, the
Supreme Court rejected the Section 1983 petitioner’s argument that the Court
should adopt “a principle that goes well beyond Heck—that an action which would
impugn an anticipated future conviction cannot be brought until that conviction
occurs and is set aside”—and stated unequivocally that the Court was “not
disposed to embrace this bizarre extension of Heck.” Wallace, 549 U.S. at 393.
Under The Current Pleadings, Wallace Is Not Distinguishable, And
Heck’s Rule For Malicious Prosecution Cases Does Not Apply.
Finally, Andrade attempts to distinguish Wallace, a false arrest/false
imprisonment-based Section 1983 case, from Heck and Harvey, both of which
involved Section 1983 claims based on a theory of malicious prosecution. See
Mot. for Recons. 4–6, ECF No. 42. To find a local governmental entity liable
under Section 1983, the plaintiff must prove that “action[s] pursuant to official
municipal [custom or] policy of some nature cause[d] a constitutional tort.” Oviatt
By & Through Waugh v. Pearce, 954 F.2d 1470, 1473–74 (9th Cir. 1992) (footnote
omitted) (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);
City of Canton v. Harris, 489 U.S. 378, 389 (1989)). To state a Section 1983 claim
against private individuals, a plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United States was violated, and (2)
that the alleged violation “was committed by a person acting under the color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). In both
instances, the existence of a constitutionally protected right is essential, and that
right must be violated in some way. Cf. Romero v. Kitsap Cty., 931 F.2d 624, 627
(9th Cir. 1991) (“The plaintiff bears the burden of proof that the right allegedly
violated was clearly established at the time of the alleged misconduct.” (citations
omitted)). Andrade’s attempt to characterize the current pleadings as describing a
constitutionally protected right that was violated under a malicious prosecution
theory cannot stand for the reasons that follow.
With respect to the County of Hawai‘i and Kona Police Officer Darren Cho
(“County Defendants”), the Complaint seeks damages as a result of Officer Cho
“acting under color of law” and “[c]harging Dr. Andrade with Criminal Trespass.”
That is the basis of what Andrade claims “was a Malicious Prosecution.” Compl.
¶¶ 99, 101, ECF No. 1. As a police officer and not a prosecutor, however, Officer
Cho did not charge Andrade with anything and could not have. Further, insofar as
her malicious prosecution theory rests on “Officer Cho’s deliberate failure to
include evidence in his report that completely exonerated Dr. Andrade [and that]
was a substantial factor in Dr. Andrade being criminally charged” (Opp’n to Cty.
Defs. 11, ECF No. 25), it assumes that police officers are constitutionally obliged
to include all information communicated to them in any related police report,
regardless of who communicated the information and to what end. See Compl.
¶¶ 99(c)–(d), 100. Andrade has cited no relevant authority to support this
proposition (see Opp’n to Cty. Defs. 10–11),1 and the authority the Court has found
suggests the opposite is true.2
Andrade also argues 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., ECF No. 25.
If this argument is to be construed as a Section 1983 claim for malicious
prosecution, however, Andrade must provide facts sufficient to establish three
essential elements: “(1) that the prior proceedings were terminated in the plaintiffs’
favor, (2) that the prior proceedings were initiated without probable cause, and (3)
that the prior proceedings were initiated with malice.” Annan-Yartey v. Honolulu
As support, Andrade only points to Akau v. Estate of Diffie, which involved military employer
liability with respect to a service member who caused a fatal car accident while intoxicated. No.
90-15933, 1992 WL 8216, at *4 (9th Cir. Jan. 16, 1992) (rejecting plaintiff’s allegation that the
United States negligently failed to supervise the soldier “because it did not provide a written
employment manual”). That case is not instructive here.
Compare Burt v. Aleman, No. 05-CV-4493 (NGG), 2008 WL 1927371, at *6 (E.D.N.Y. Apr.
30, 2008) (finding for the officer on plaintiff’s claim of malicious prosecution where officer had
probable cause to initiate the prosecution yet failed to disseminate “completely exculpat[ory]”
information learned later), and Safar v. Tingle, 178 F.Supp.3d 338 (E.D. Va. 2016) (finding
police officer not liable for malicious prosecution under the Fourth Amendment where, after the
officer had issued the warrant, he learned that the charges were erroneous but failed to take any
further action—to withdraw the facially valid arrest warrants or terminate the criminal
proceedings); with Winslow v. Romer, 759 F. Supp. 670, 675 (D. Colo. 1991) (holding that it was
a violation of plaintiff’s civil rights when “officials ‘conspire[d] to procure groundless state
indictments and charges based upon fabricated evidence’” (emphasis added)) (quoting Anthony
v. Baker, 767 F.2d 657, 662 (10th Cir. 1985)).
Police Dep’t, 475 F. Supp. 2d 1041, 1048 (D. Haw. 2007) (quoting Myers v.
Cohen, 688 P.2d 1145, 1148 (Hawai‘i 1984)); see also Arquette v. State, 290 P.3d
493, 501, 509 (Hawai‘i 2012) (noting that the party bringing the action has the
burden of establishing all three elements, which are construed strictly against her);
accord Vancouver Book & Stationery Co. v. L.C. Smith & Corona Typewriters,
138 F.2d 635, 637 (9th Cir. 1943) (citations omitted), cert. denied, 321 U.S. 786
Assuming, arguendo, that Andrade has satisfied the first element,3 her
implicit allegation—that Officer Cho lacked probable cause to initiate a charge of
Criminal Trespass and acted with malice—is insufficient to state a malicious
prosecution claim. Id.; see also Crescent City Live-Stock Landing & SlaughterHouse Co. v. Butchers’ Union Slaughter-House & Live-Stock Landing Co., 120
U.S. 141, 148–49 (1887) (“[M]alice alone, however great, if there be a probable
cause upon which the suit or prosecution is based, is insufficient to maintain an
Andrade’s Criminal Trespass charge was dismissed with prejudice on January 5, 2015 on
speedy trial grounds. Cty. Defs.’ Reply, Ex. C, Notice of Entry of J. and/or Order, ECF No. 274. The court did not issue a ruling on the merits. See Cty. Defs.’ Reply, Ex. A, Mot. to Dismiss
With Prejudice, ECF No. 27-2 (“[T]he trial of the charges filed herein was not commenced
within six (6) months from the filing of the charges as required by [Hawai‘i Rules of Penal
Procedure 48(b)(1) & (c)(6)].”). For purposes of the Motion for Reconsideration, the Court
assumes that Andrade can therefore satisfy the first element. Cf., e.g., Jaress & Leong v. Burt,
150 F. Supp. 2d 1058, 1062 (D. Haw. 2001) (holding that dismissal with prejudice resulting from
a settlement is not a favorable termination for purposes of malicious prosecution).
action in damages for a malicious prosecution.”) (quoting Senecal v. Smith, 9 Rob.
(LA) 418 (La. 1845)).
The circumstances known to Officer Cho at the time of the alleged incidents,
as described in the Complaint, demonstrate that he reasonably believed he had
probable cause to refer the Incident Report to the prosecutors for a criminal
trespass charge. Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981) (explaining
that probable cause exists when a police officer “reasonably believe[s] in good
faith that probable cause did exist,” regardless of the ultimate probable cause
determination in hindsight) (citing, inter alia, Allen v. McCurry, 449 U.S. 90, 102
(1980)), overruled on different grounds by Beck v. City of Upland, 527 F.3d 853,
865 (9th Cir. 2008); Arquette, 290 P.3d at 504 (“Probable cause in a malicious
prosecution action depends ‘not on the actual state of the facts but upon the honest
and reasonable belief of the party commencing the action.’”) (quoting Brodie v.
Haw. Auto. Retail Gasoline Dealers Ass’n, 631 P.2d 600, 602 (Hawai‘i App.
1981), rev’d on other grounds, 655 P.2d 863 (Hawai‘i 1982)); see also, e.g.,
Williams v. Town of Greenburgh, 535 F.3d 71, 78–79 (2d Cir. 2008) (finding no
civil rights claim under the Fourth Amendment for malicious prosecution of a
former town employee who was subsequently acquitted of trespass due to
inadequate verbal warning by police officer because “there was probable cause to
arrest” him (citations omitted)).
That is, although the Complaint alleges that Dolly Andrade specifically
provided Officer Cho with documentation that, she believed, demonstrated hers
and others’ right to be present at Kahikolu Church (Compl. ¶ 73), it admits that the
Principal Officers’ had been intentionally locked out of the Church on the evening
of November 15, 2013 (Compl. ¶ 76), which led them and others to sneak onto
Church property by climbing over a rock wall (Compl. ¶ 77). It is undisputed that
Officer Cho believed that Andrade and others’ presence on Church Property on the
evening of November 15, 2013 constituted criminal trespass, and that he warned
Dolly Andrade as much during their conversation the previous day. Compl. ¶ 71–
74. Thus without more, the bald assertion—that, following his meeting with
Dolly, Officer Cho had sufficient information to support a reasonable belief that
Andrade and others were, in fact, permitted to be on the premises that evening (see
Reply in Supp. of Mot. for Recons. 6; ECF No. 46)—is insufficient because it only
permits the Court to infer “the mere possibility” of a violation, which does not
satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662,
678–79 (2009) (explaining that “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice” as a pleading)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); cf., e.g.,
Geissler v. Atlantic City, 198 F. Supp. 3d 389, 397–99 (D.N.J. 2016) (holding that
hotel guest had no § 1983, malicious prosecution claim against police officer
regardless of fact that she was a guest of the establishment at the time of the
incident, where “hotel employees had reported that [guest] was trespassing,” and
[the arresting] officer could have reasonably believed that the employees were
acting within their authority to eject guest”).
Andrade’s subjective beliefs regarding the authority of the State and her
right to be present at Kahikolu Church are not pertinent to the probable cause
inquiry. Cf., e.g., Griego v. Cty. of Maui, CIVIL NO. 15-00122, 2017 WL
1173912, at *15 (D. Haw. Mar. 29, 2017) (noting that the seventh, sixth, and
second circuits have all concluded that an officer’s sole reliance on a victim’s
statement may be “sufficient to establish probable cause even when the suspect and
victim provide different version[s] of events, ‘unless the circumstances raise doubt
as to the person’s veracity’” (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d
Cir. 2001)) (additional citations omitted)), reconsideration denied, 2017 WL
2882695 (D. Haw. July 6, 2017). Thus, the Complaint does not sufficiently plead
the required elements of malicious prosecution.4
Andrade’s malicious prosecution theory is also deficient under the Fourth Amendment because
the Complaint fails to allege a search or seizure, or any deprivation of liberty, as its basis. See
Pleasants v. Town of Louisa, 847 F. Supp. 2d 864 (W.D. Va. 2012) (holding that arrestee failed
to state a § 1983 claim because she did not allege a Fourth Amendment seizure as the basis for
the claim, alleging instead that the officer caused the initiation of criminal prosecution against
her), aff’d in part, rev’d in part, 524 Fed. App’x 891 (4th Cir. 2013); e.g., Mantz v. Chain, 239 F.
Supp. 2d 486, 501 (D.N.J. 2002) (explaining that “to maintain a malicious prosecution claim
under § 1983 . . . , a plaintiff must allege facts sufficient to establish a violation of the Fourth
Amendment’s prohibition against ‘unreasonable seizures’ or some other explicit text of the
Constitution” (citing Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d Cir. 2000)).
Because Andrade “has failed to present any evidence that demonstrates [her]
constitutional rights were violated by” police officers such as Officer Cho in a
manner akin to malicious prosecution, she also “cannot sustain a Section 1983
claim against [the County]” itself under that theory. Bartels v. Inc. Vill. of Lloyd
Harbor, 97 F. Supp. 3d 198, 221 (E.D.N.Y. 2015) (collecting cases in support),
aff’d 643 Fed. App’x. 54 (2d Cir. 2016); cf., e.g., Segal v. City of N.Y., 459 F.3d
207, 219 (2d Cir. 2006) (“Because the district court properly found no underlying
constitutional violation, its decision not to address the municipal defendants’
Andrade’s assertion—that Officer Cho’s acts “directly caused false criminal trespass charges to
be filed against Dr. Andrade, which made her subject to a deprivation of her liberty until January
2015” (Reply in Supp. of Recons. 8, ECF No. 46)—does not cure this deficiency. Cf., e.g.,
Manbeck v. Micka, 640 F.Supp.2d 351 (S.D.N.Y. 2009) (holding that the ticket that required
plaintiff to appear in court to answer misdemeanor charges was not a “seizure” under the Fourth
Amendment without evidence of some physical detention; constitutional element of malicious
prosecution under § 1983 not met); Sunkist Drinks v. Cal. Fruit Growers Exch., 25 F. Supp. 400
(S.D.N.Y. 1938) (explaining that in New York, “where the acts complained of as a tort were
committed, is that the institution of an ordinary civil suit, without arrest, attachment, injunction
or other interference with person or property, will not support an action for malicious
prosecution” (citations omitted)).
Moreover, once control of a prosecution has passed to a prosecuting attorney, a police
officer who later learns of evidence—even when that evidence would completely exonerate the
accused—will only be liable for maliciously continuing the prosecution if the officer is “shown
to have taken an active part in the proceedings,” for example, by “insisting upon or urging
further prosecution.” Dirienzo v. United States, 690 F. Supp. 1149, 1158 (D. Conn. 1988)
(citing, inter alia, Restatement (2d) of Torts, § 655, comment c (1977)) (“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.” (brackets omitted)). But Andrade makes no such assertions in the Complaint.
And although Andrade now contends that “Officer Cho’s submission of a False Report to the
prosecutor” is a “‘discernible discrete’ continuing act” (Reply in Supp. of Recons. 7
(emphasis in original)), she has pled no facts demonstrating that Officer Cho is liable for
maliciously continuing the prosecution for criminal trespass once the incident report had been
liability under Monell was entirely correct.”). The Court has, however, dismissed
the Complaint without prejudice (Order Granting MTD 23–24), as additional facts
may be available to overcome the aforementioned defects.
With respect to Bobby L. Macomber, Thelma Macomber, Darryl Grace Sr.,
Leona Grace, and Travis Leinonan (the “Private Defendants”), the Complaint
alleges that they “willfully participat[ed] in joint action with state officials” and
violated Section 1983 “by trying to prevent Dr. Andrade, the Principal Officers and
Congregation Members from attending a duly called Meeting at Kahikolu, 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. As such, all constitutional violations alleged on the part of the
Private Defendants hinge on whether the government actors with whom the Private
Defendants allegedly conspired violated Andrade’s constitutional rights. Cf., e.g.,
Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 384 (1979) (citing
Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) (“Since the Fourteenth
Amendment, unlike the Thirteenth, affords the plaintiff no protection against
discrimination in which there is no state involvement of any kind, a private
conspiracy which arbitrarily denies him access to private property does not abridge
his Fourteenth Amendment rights [for purposes of a Section 1985 claim].”)).
Additionally, because the Court has determined that the pleadings do not
sufficiently allege any malicious prosecution violation that could potentially trigger
the Heck rule of deferred accrual in order to render the action timely, such a theory
necessarily fails with respect to the Private Defendants as well.
Amendment Of The Pleadings.
The Order Granting MTD previously directed Andrade to file her First
Amended Complaint (“FAC”), if any, by August 11, 2017. Rather than doing so,
Andrade filed the instant motion and requested a filing extension deadline until ten
days after the Court rules on the Motion for Reconsideration. Mot. for Recons. 9–
10. Because any amendment would be Andrade’s first, the Court hereby grants the
Andrade’s Motion for Reconsideration is DENIED. The August 11, 2017
deadline to file an FAC is VACATED. Any FAC must now be filed on or before
September 11, 2017.
IT IS SO ORDERED.
DATED: August 29, 2017 at Honolulu, Hawai‘i.
Andrade v. Cho; CV 16-00684 DKW-KJM; ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION OF THE JULY 12, 2017 ORDER
GRANTING IN PART DEFENDANTS’ MOTIONS TO DISMISS
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