Andrade v. Cho

Filing 89

ORDER (1) GRANTING DEFENDANTS DARREN CHO AND COUNTY OF HAWAII'S MOTION TO DISMISS, (2) GRANTING DEFENDANTS BOBBY L. MACOMBER, THELMA MACOMBER, DARRYL GRACE SR., LEONA GRACE, AND TRAVIS LEINONAN'S SUBSTANTIVE JOINDER, AND (3) DISMISSING THI S CASE WITH PREJUDICE re 52 , 54 - Signed by JUDGE DERRICK K. WATSON on 6/14/2021. For the reasons stated herein, the motion to dismiss, Dkt. No. 52, is GRANTED, and all claims are DISMISSED WITH PREJUDICE. The Clerk is instructed to enter Judgment in favor of Defendants, pursuant to this Order, the July 12, 2017 Order (Dkt. No. 41), and the August 29, 2017 Order (Dkt. No. 47). The Clerk may then CLOSE this case. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
NALEEN N. ANDRADE, M.D.,
Plaintiff,
v.
DARREN CHO, COUNTY OF
HAWAI‘I, BOBBY L. MACOMBER,
THELMA MACOMBER, DARRYL
GRACE SR., LEONA GRACE, TRAVIS
LEINONAN, et al.,
Defendants.

Case No. 16-cv-00684-DKW-KJM
ORDER (1) GRANTING
DEFENDANTS DARREN CHO
AND COUNTY OF HAWAI‘I’S
MOTION TO DISMISS, (2)
GRANTING DEFENDANTS
BOBBY L. MACOMBER,
THELMA MACOMBER, DARRYL
GRACE SR., LEONA GRACE,
AND TRAVIS LEINONAN’S
SUBSTANTIVE JOINDER, AND
(3) DISMISSING THIS CASE
WITH PREJUDICE

On May 7, 2021, the stay of this case was lifted by the Court. At the time the
stay was initiated in January 2018, a motion to dismiss by Defendants Darren Cho
(Cho) and the County of Hawai‘i (County, and with Cho, the “County Defendants”)
had been granted by the Court, but without a written order setting forth the Court’s
reasoning. With the stay having been lifted, the Court now provides its reasoning
below.
In their motion to dismiss, the County Defendants argue that the claims
against them in the First Amended Complaint (“FAC”)−Counts 1 and 3−should be
dismissed on various grounds, including the statute of limitations, qualified

immunity, and failure to state a claim. While the Court agrees with Plaintiff Dr.
Naleen Andrade that her Section 1983-based claim of malicious prosecution is not
time-barred, the Court agrees with the County Defendants that Cho has not violated
the constitution with respect to that claim. The Court also agrees that the FAC does
not state a claim of liability against the County itself. Further, because Plaintiff has
failed to allege a constitutional violation, the Court also DISMISSES Count Two
against the remaining defendants (referred to herein, as the “Private Defendants,”
and, with the County Defendants, “Defendants”), following their substantive joinder
in the motion to dismiss, and Count Three against all Defendants. Finally, because
Plaintiff has already been provided an opportunity to amend her allegations, the
Court denies leave to amend them again.
FACTUAL BACKGROUND
The FAC makes the following pertinent factual allegations. As in the first
iteration of the Complaint, this case arises out of a dispute over the governance of
Kahikolu Church (“Church”) on the Big Island of Hawai‘i. Succinctly, the alleged
governance dispute pits three “officers” of the Church (“Church Officers”),
including Andrade’s sister, Dolly Andrade, against a group of individuals led by
Defendant Bobby L. Macomber, who was allegedly elected as the new Pastor (or
Kahu) of the Church in April 2013. The Church Officers dispute the validity of
Macomber’s election. FAC at ¶¶ 36-42, Dkt. No. 49. In October 2013, in one
2

alleged conflict between the sides, one of Macomber’s “followers” assaulted Dolly
Andrade by hitting her with a fist. Id. at ¶¶ 61, 63.
Plaintiff, Dr. Naleen Andrade (Plaintiff or Andrade), is a member of the
Church. Id. at ¶ 27. Her interaction with the governance dispute took place in
November 2013. At that time, the Church Officers invited her and the entire
congregation to attend a meeting at the Church on November 15, 2013. Id. at ¶ 67.
The day before the November 15, 2013 meeting, Dolly Andrade was asked to
drive to the Kailua-Kona Police Station to speak with Defendant Cho about the
October 2013 assault. Id. at ¶ 68. Cho is allegedly related to Donovan Cho and a
“close friend of Defendants Darryl and Leona Grace, “both of whom are Defendant
Macomber’s followers.” Id. at ¶ 69. Before meeting with Cho, Dolly Andrade
met with the Chief of the Kona Police Department (“Police Chief”). Id. at ¶ 70.
The Police Chief indicated that he was aware of the planned November 15, 2013
meeting and that he “wanted to discuss that meeting.” Id. When Dolly Andrade
met Cho under the ruse of speaking about the October 2013 assault, Cho instead
questioned her about the November 15, 2013 meeting. Id. at ¶ 71. Cho initially
tried to get the meeting cancelled or moved from the Church. Id. Cho “indicated
that he believed that none of the [Church] Officers had any right to enter [Church]
property, and that any entry onto [Church] property would be a trespass.” Id. at
¶ 72. In response, Dolly Andrade showed Cho: (1) a copy of the Church’s by-laws,
3

explaining that the Church Officers were officers of the Church; (2) a copy of
records confirming the Church Officers were officers of the Church; and (3) a copy
of the minutes of a March 24, 2013 Annual General Meeting, at which the Church
Officers had been elected officers of the Church. Id. at ¶ 74. Plaintiff describes
the foregoing documents as “Evidence of Authority.” Id. Cho “indicated
surprise” and copied the Evidence of Authority. Id. at ¶ 75.
On November 14, 2013, “[u]nknown” to Plaintiff, Macomber ordered his
followers to change the locks at the Church, lock the Church gate, lock ancillary
buildings on the grounds, and lock the Church itself. Id. at ¶ 84. As a result, when
Plaintiff, the Church Officers, and other members of the congregation arrived at the
Church on November 15, 2013 for their meeting, they found the gate to the Church
locked and their keys unable to open the lock. Id. at ¶ 85. This caused Plaintiff,
the Church Officers, and other Church members to “climb over the rock wall.” Id.
At some point in the evening of November 15, 2013, Defendant Darryl Grace
reported to Cho that “someone had entered into the [Church] grounds without
permission[.]” Id. at ¶ 79 (quotation omitted). Cho and other police officers then
went to the Church, “disrupted” the meeting, and “interrogated” various members of
the congregation about a purported trespass on Church property. Id. Cho and/or
the Police Chief also arranged for a SWAT team to be in the area. Id. at ¶ 80.
Plaintiff was “intimidated” by the presence of the SWAT team, armed police
4

officers, and being interrogated. Id. at ¶ 81. This also made her “fearful” of using
the Church. Id. at ¶ 88.
Subsequently, Cho prepared a police report (“Police Report”) regarding his
investigation of the November 15, 2013 meeting that was submitted to a prosecutor.
Id. at ¶ 82. The Police Report failed to mention the Evidence of Authority and the
presence of the SWAT team. Id. at ¶ 83.1 On January 5, 2015, the Third Circuit
Court for the State of Hawai‘i granted a motion to dismiss the criminal trespass
charge against Andrade with prejudice for violation of her right to a speedy trial.
Id. at ¶ 127; 7/12/17 Order at 6, Dkt. No. 41.
PROCEDURAL BACKGROUND
This case began with the filing of a Complaint on December 30, 2016. Dkt.
No. 1. Therein, Plaintiff asserted a single count under 42 U.S.C. Section 1983
against the County Defendants and a single count against the Private Defendants,
also under Section 1983, claiming that her First, Fourth, and Fourteenth Amendment
rights had been violated.
On July 12, 2017, this Court granted in part and denied in part the County
Defendants and Private Defendants’ respective motions to dismiss. Dkt. No. 41.
More specifically, the Court found that Plaintiff’s Section 1983 claims were
time-barred because they had been brought more than two years after the events
1

Although it is not alleged in the FAC, in the original Complaint, Plaintiff alleged that she was
charged with criminal trespass on June 10, 2014. See Dkt. No. 1 at ¶ 82.
5

alleged in the Complaint. 2 The Court similarly found the claims against the Private
Defendants to be untimely because the events underlying them “necessarily
predate[d]” the alleged conduct of the County Defendants. Id. at 18. The Court
also found that Plaintiff failed to allege a claim against the County for municipal
liability because her allegations did not “come close” to showing that the County
ratified unconstitutional conduct. Id. at 22. However, because it did not appear
beyond doubt that amendment could not cure the deficiencies with the Complaint,
the Court granted leave to amend.
Rather than filing an amended complaint, Plaintiff instead moved to
reconsider the July 12, 2017 Order. Dkt. No. 42. On August 29, 2017, the Court
denied the motion for reconsideration. Dkt. No. 47. Among other things, the
Court explained that, to the extent Plaintiff alleged Cho engaged in malicious
prosecution, any such claim was deficient because the alleged facts showed that Cho
reasonably believed there was probable cause to refer the Police Report to
prosecutors. The Court further found that, because Plaintiff had failed to allege a
constitutional violation on the theory of malicious prosecution against Cho, she
could not pursue any such theory against the County. The Court, however,
extended the time for Plaintiff to file an amended complaint.

2

In that regard, the Court found that a two-year statute of limitations applied to Plaintiff’s Section
1983 claims. Dkt. No. 41 at 11-12.
6

On September 11, 2017, Plaintiff filed the FAC−the operative complaint at
this stage of the proceedings. Dkt. No. 49. Therein, in Counts One and Two,
respectively, Plaintiff asserts claims under Section 1983 against the County
Defendants and the Private Defendants. Plaintiff also adds a new count, Count
Three, against all Defendants under 42 U.S.C. Section 1985(3).
On September 25, 2017, the County Defendants filed a motion to dismiss all
claims asserted against them in the FAC (“motion to dismiss”), pursuant to Federal
Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). Dkt. No. 52. Soon thereafter,
the Private Defendants filed a “[s]ubstantive [j]oinder” to the motion to dismiss,
seeking “the same relief sought therein.” Dkt. No. 54. On November 9, 2017,
Plaintiff filed an opposition to the motion to dismiss. Dkt. No. 59. The County
Defendants then filed a reply in support of their motion. Dkt. No. 61.
On November 29, 2017, this Court issued an Entering Order granting the
motion to dismiss and dismissing Counts One and Three of the FAC. Dkt. No. 62.
The Court stated that a written order setting forth the Court’s reasoning would
follow. Before a written order could follow, however, a stay was imposed on this
case, and the parties were directed to schedule a mandatory settlement conference.
Dkt. No. 66. The parties’ settlement discussions, taking place over the course of
roughly three years, have not resulted in a settlement to this point. Dkt. Nos. 74, 77,
79. As a result, the stay was lifted on May 7, 2021. Dkt. No. 80.
7

This Order, addressing the motion to dismiss, now follows.
STANDARD OF REVIEW
Rule 12(b)(6) authorizes the Court to dismiss a complaint that fails “to state a
claim upon which relief can be granted.” Rule 12(b)(6) is read in conjunction with
Rule 8(a), which requires “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pursuant to Ashcroft v. Iqbal,
“[t]o 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.’” 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In addition, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id. 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).
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.” Id. (citing Twombly, 550 U.S. at 556). 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(a)(2). Id. at
679.

8

When a complaint fails to state a plausible claim, leave to amend should be
given when “justice so requires.” Fed.R.Civ.P. 15(a)(2). Justice does not require
leave to amend when (1) it would prejudice an opposing party, (2) it is sought in bad
faith, (3) it would produce an undue delay in litigation, (4) it would be futile, or (5)
there has been repeated failure to cure a deficiency. Abagninin v. AMVAC Chem.
Corp., 545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysist
West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
DISCUSSION
I.

Motion to Dismiss
1.

Count One

The County Defendants argue that Count One should be dismissed for
numerous reasons. They argue that the claim is untimely, Cho is entitled to
qualified immunity, and Plaintiff has failed to allege causation between Cho’s
conduct and Plaintiff’s harm. Dkt. No. 52-1 at 5-17. The County Defendants also
argue that the County is not liable because Cho has not committed a constitutional
violation, and Plaintiff has failed to allege a claim of municipal liability. Id. at
17-21. 3

3

In the July 12, 2017 Order, the Court, in allowing leave to amend, specifically instructed Plaintiff
to include only “one claim per count.” Dkt. No. 41 at 24-25. Plaintiff violated that instruction in
the FAC by grouping multiple claims against Cho and the County Defendants in Count One.
9

In her response, Plaintiff argues that her claim under Section 1983 is timely
because her claim is “based on malicious prosecution” and the alleged prosecution
was terminated in her favor within the two-year statute of limitations. Dkt. No. 59
at 4-11. 4 Plaintiff further asserts that her claim of malicious prosecution is “viable”
because she has alleged that the prosecution was terminated in her favor, the
prosecution was initiated without probable cause, and Cho acted with malice. Id. at
16-18. Plaintiff also argues that Cho is not entitled to qualified immunity because
any reasonable police officer would have known to include the Evidence of
Authority in the Police Report. Id. at 18-20.
The Court begins with the issue of timeliness. The Court agrees with
Plaintiff that her claim of malicious prosecution is timely. Such a claim “accrues
only once the underlying criminal proceedings have resolved in the plaintiff’s
favor.” McDonough v. Smith, 139 S.Ct. 2156 (2019). Here, the FAC alleges that
the criminal proceedings against Plaintiff for criminal trespass resolved in her favor
in January 2015 when the trespass charge was dismissed with prejudice. FAC at
¶ 127. Because that date is less than two years prior to the initiation of this lawsuit
in December 2016, the claim for malicious prosecution, as alleged, is timely. See

4

Other than her claim of malicious prosecution, Plaintiff does not contend that any other possible
claim against the County Defendants is timely under Section 1983. Therefore, the Court does not
address any other such possible claim.
10

7/12/17 Order at 12 (citing cases for the proposition that, in Hawai‘i, claims under
Section 1983 are subject to a two-year statute of limitations).5
The Court turns next to the merits of Plaintiff’s malicious prosecution claim.
As explained in the August 29, 2017 Order, such a claim has three elements−all of
which are strictly construed against Plaintiff: “(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.” 8/29/17 Order at 5-6 (quotation and citations omitted).
Here, Plaintiff has failed to sufficiently allege, at least, the second and third
elements.6 As for probable cause, Plaintiff argues that there was none in initiating a
criminal trespass proceeding against her. She argues that Cho had knowledge that
she was an invitee of the Church Officers and Cho omitted “significant exculpatory
evidence[,]” which she asserts was the Evidence of Authority and the fact that he

5

Plaintiff also asserts that “Defendants have failed to take curative action.” Dkt. No. 59 at 11-16.
Almost all of Plaintiff’s arguments in this regard, however, concern the Private Defendants, not
the County Defendants. See id. at 16 (“Far from a curative action, the [Private] Defendants’
control of the Church and denial of access, coupled with the ongoing threat of criminal
prosecution, constitutes a longstanding, demonstrable, ongoing denial of [Plaintiff’s]
constitutional rights.”) (emphasis added). Further, other than her own purported fear of
prosecution, Plaintiff identifies not one example where she has been threatened with criminal
prosecution, at least not related to her access to the Church or by the County Defendants. As a
result, the Court rejects any contention that the County Defendants were required or have failed to
provide “curative action.”
6
As in the August 29, 2017 Order, the Court assumes, without deciding, that Plaintiff has alleged
the first element by alleging that the charge against her was dismissed with prejudice on speedy
trial grounds. The Court notes, though, that Plaintiff provides no case law on point indicating that
such a dismissal constitutes a termination of the proceedings in her favor for purposes of a
malicious prosecution claim. See Dkt. No. 59 at 17.
11

scheduled a SWAT team to appear. Dkt. No. 59 at 17. The Court starts with the
Evidence of Authority, as it appears to be the principal basis for the contention that
Cho omitted exculpatory evidence. Put simply, the so-called Evidence of
Authority exculpates Plaintiff from nothing related to her alleged trespass on Church
grounds. At most, the Evidence of Authority−three Church-related documents−
shows only that the Church Officers were elected as officers of the Church in the
first half of 2013. See FAC at ¶ 74. In other words, those documents have nothing
to do with Plaintiff or, in particular, her right to be on Church property in November
2013. As for the presence of the SWAT team, Plaintiff provides no explanation
how that alleged fact has anything to do with whether she was trespassing on Church
grounds−it does not.
In addition, even if the Evidence of Authority did somehow indicate that
Plaintiff had, at some point, authority to be on Church property, Plaintiff ignores the
alleged facts with which Cho was presented on November 15, 2013. More
specifically, the alleged facts show that Cho was presented with a report that
“someone had entered into the [Church] grounds without permission[]” and that
numerous individuals had been locked out of the Church, requiring them to “climb
over the rock wall.” FAC at ¶¶ 79, 85. The fact that three individuals had been
elected officers of the Church months earlier, which is all the Evidence of Authority
showed, did not mean that, in light of the alleged facts, Cho lacked probable cause in
12

preparing the Police Report because Cho could still have reasonably believed that
Plaintiff unlawfully entered the Church. See Arquette v. State, 290 P.3d 493, 504
(Haw. 2012) (explaining that probable cause exists where a person “reasonably
believes that under [the] facts the claim may be valid under the applicable law”);
Haw. Rev. Stat. § 708-815 (providing that “[a] person commits the offense of simple
trespass if the person knowingly enters or remains unlawfully in or upon
premises.”); Id. § 708-800 (defining “[e]nter or remain unlawfully” as entering or
remaining “when the person is not licensed, invited, or otherwise privileged to do
so.”). Indeed, having to climb over a rock wall to enter the premises suggests
exactly that. Put simply, Cho could have quite easily and reasonably believed that
Plaintiff was not licensed, invited, or otherwise privileged to enter the Church
grounds when presented with a report of someone entering the Church grounds
without permission, individuals that had climbed over a wall to access a locked
property, and documents showing only that certain people, other than Plaintiff, had
been elected officers of the Church months earlier.
Further, Plaintiff certainly fails to show that Cho is not entitled to qualified
immunity on this issue. Qualified immunity protects officials who do “not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotation and
internal quotation omitted). “A clearly established right is one that is sufficiently
13

clear that every reasonable official would have understood that what he is doing
violates that right.” Id. (quotation omitted). In her response, Dkt. No. 59 at 18-21,
Plaintiff does not even explain the statutory or constitutional right that has been
clearly established, let alone case law indicating that Cho violated that right. See
Mullenix, 577 U.S. at 12 (explaining that “existing precedent must have placed the
statutory or constitutional question beyond debate.”).
The FAC also fails to sufficiently allege the element of malice. In Hawai‘i,
“in order to establish the element of malice for a malicious prosecution claim, a
plaintiff must show inter alia that the defendant initiated the prior proceeding with
the intent, without justification or excuse, to commit a wrongful act and the
emphasis is on the misuse of criminal or civil actions as a means for causing harm.”
Arquette, 290 P.3d at 507. In her response, Plaintiff argues that malice is alleged
here because, “in spite of his actual knowledge of the true facts,” Cho “became
involved in a private dispute, became personally invested with the [Private]
Defendants, and used his authority as a law enforcement officer to repeatedly harass
and intimidate [Plaintiff]….” Dkt. No. 59 at 18. None of the alleged facts,
however, indicate malice. First, to the extent, “in spite of his actual knowledge of
the true facts,” is meant to reference the Evidence of Authority, as explained above,
those documents do not reveal any “true facts” pertinent to this analysis. Second,
the alleged facts do not indicate that Cho became involved in a “private dispute.”
14

Rather, the alleged facts show that Cho responded to a report that someone had
entered the Church without permission−in other words, he was doing his job as a
police officer. Third, the alleged facts do not show that Cho became “personally
invested” with the Private Defendants. To the extent this is meant to concern Cho’s
alleged familial relationship and/or friendship with followers of Macomber, nothing
more related to these relationships is alleged in the FAC. Put simply, without
significantly more, there is nothing improper about having family members and
friends while being a police officer. Finally, the alleged facts also do not show that
Cho repeatedly harassed and intimidated Plaintiff. Instead, throughout the FAC,
Plaintiff merely uses the words “harass” and “intimidate” as conclusory labels. See
FAC at ¶¶ 106, 113, 119, 122, 133, 140, 143, 155. At most, the allegations in the
FAC indicate that Plaintiff felt intimidated by Cho and law enforcement in general,
not that Cho had the intent to intimidate or harass Plaintiff. See id. at ¶¶ 66, 73, 81,
87-88, 98. In fact, the circumstances alleged by Plaintiff demonstrate precisely the
opposite. By meeting with Plaintiff in advance of the planned November 2013
meeting, Cho appears to have pursued a course of action designed to avoid conflict.
Had he wanted to bring the authority of law enforcement to bear on Plaintiff−in
other words, to intimidate or harass her−he could have done nothing to dissuade her
from participating in the meeting and simply laid in wait, together with his “SWAT

15

team.” That he did not indicates the absence of malice, the converse of which was
Plaintiff’s burden to establish.
The Court turns next to Plaintiff’s claim of municipal liability against the
County. As an initial matter, because the Court found infra that Plaintiff has failed
to allege that Cho committed a constitutional violation, the County cannot be liable
under a theory of municipal liability. Long v. City & Cty. of Honolulu, 511 F.3d
901, 907 (9th Cir. 2007). Nonetheless, as in the July 12, 2017 Order, the Court also
addresses herein the merits of Plaintiff’s claim.
A plaintiff can allege municipal liability under Section 1983 in one of three
ways. First, a municipality can be liable when it or a person with final
policymaking authority within the municipality expressly enacts or authorizes a
policy respecting a challenged action. Monell v. Dep’t of Soc. Services of the City
of New York, 436 U.S. 658, 690 (1978); Pembaur v. City of Cincinnati, 475 U.S.
469, 481-483 (1986) (“The official must also be responsible for establishing final
government policy respecting such activity before the municipality can be held
liable.”). This form of municipal liability also includes when an authorized
policymaker approves or ratifies a subordinate’s decision and the basis for it. City
of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Second, a municipality can be
liable for a custom that, although not expressly enacted, is “so permanent and well
settled” it operates with the force of law. Monell, 436 U.S. at 691 (quotation
16

omitted). Third, a municipality can be liable for a failure to train its employees
when such failure amounts to deliberate indifference towards the rights of its
inhabitants. City of Canton v, Harris, 489 U.S. 378, 388 (1989). In addition, a
plaintiff must allege that a policy, custom, or failure to train actually caused a
municipality’s employee to commit the constitutional deprivation. Id. at 391;
Monell, 436 U.S. at 694.
In the FAC, Plaintiff alleges that the County, through its Police Chief,
“ratified” Cho’s alleged conduct by “approving” the Police Report. FAC at ¶ 123.
For purposes of municipal liability, “ratification requires, among other things,
knowledge of the alleged constitutional violation.” Christie v. Iopa, 176 F.3d 1231,
1239 (9th Cir. 1999). Plaintiff, however, does not allege that the Police Chief was
aware of any constitutional violation or even the basis for Cho’s decisions. Instead,
Plaintiff alleges only that the Police Chief met with Dolly Andrade and made copies
of the Evidence of Authority. FAC at ¶¶ 70, 76. Contrary to Plaintiff’s argument
in her response, Dkt. No. 59 at 25, the foregoing does not constitute the “intentional
withholding of exculpatory evidence.” Rather, it constitutes the Police Chief
meeting with a member of the public and making copies of documents showing that
three individuals were officers of the Church. Plaintiff provides no explanation
how the foregoing equates to knowledge of a constitutional violation or the basis for

17

Cho’s decisions. Therefore, Plaintiff’s claim of municipal liability is dismissed for
this reason as well.7
2.

Count Three

In the motion to dismiss, the County Defendants argue that Plaintiff has failed
to sufficiently allege a conspiracy claim under Section 1985. Dkt. No. 52-1 at
22-23. They also argue that, because Plaintiff has failed to allege a Section 1983
claim, her claim under Section 1985 must fail too. Id. at 23. In response, Plaintiff
asserts, in one paragraph, that a sufficient claim under Section 1985 is alleged in the
FAC. Dkt. No. 59 at 26-27. She argues that a conspiracy is shown by the Private
Defendants “conspir[ing]” to use law enforcement, “a conspiracy resulting in a
criminal prosecution…,” “numerous acts in furtherance of the conspiracy by threats,
intimidation, and violence,” and “the chilling effect this conspiracy has had on
[Plaintiff]….” Id.
At the very least, the Court agrees with the County Defendants unrebutted
argument that, because Plaintiff’s Section 1983 claim fails, her claim under Section
1985 must also fail. See Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th Cir.
1989) (“the absence of a section 1983 deprivation of rights precludes a section 1985
conspiracy claim predicated on the same allegations.”). Here, there is no dispute
that Plaintiff’s Section 1985 claim is predicated on the same alleged facts as her
7

The FAC also fails to allege how the Police Chief’s conduct caused Cho to act the way he did.
See Monell, 436 U.S. at 694.
18

Section 1983 claim and, therefore, Count Three is subject to dismissal with respect
to all Defendants.8
II.

Substantive Joinder – Count Two
In the August 29, 2017 Order, the Court explained that “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.” Dkt. No. 47 at 11. That has not changed with the
allegations of the FAC. FAC at ¶ 140. Therefore, because Plaintiff has failed to
allege a constitutional violation against the County Defendants, her Section 1983
claim against the Private Defendants is also dismissed. See Lacey v. Maricopa
Cty., 693 F.3d 896, 935 (9th Cir. 2012) (stating that “there must always be an
underlying constitutional violation[]” for purposes of a Section 1983 conspiracy
claim); Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010) (concluding that a district
court properly found that, following the rejection of the plaintiff’s claim of a
constitutional violation, his conspiracy claim under Section 1983 was “eviscerated”
as a matter of law).
8

The Court notes that, substantively, other than using the word “conspiracy” in each of her
arguments, Plaintiff provides no valid explanation as to how the FAC alleges a conspiracy between
Cho and/or the County and the Private Defendants. See Caldeira, 866 F.2d at 1181 (explaining
that, to allege a Section 1985 conspiracy claim, “the plaintiff must show an agreement or ‘meeting
of the minds’ by the defendants to violate his constitutional rights.”). Here, there are no such
allegations. Repeating the word “conspiracy” does not properly allege one. In addition, there
are no allegations that any of the Defendants had “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus” behind their actions. See Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 268 (1993).
19

III.

Leave to Amend is Denied
As explained earlier, in the July 12, 2017 and August 29, 2017 Orders, the

Court provided Plaintiff with leave to amend the deficiencies highlighted with her
claims. As discussed herein, Plaintiff has failed to do that. In particular, Plaintiff
has failed to correct the deficiencies with the claims in Count One of malicious
prosecution and municipal liability. Because Plaintiff has been provided with an
opportunity to correct Count One, the Court declines to provide leave once again.
See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (explaining that
a district court’s discretion in deciding whether to allow leave to amend is
“particularly broad” after leave to amend has already been granted).9 Further, the
failure to correct the deficiencies with Count One renders unactionable Counts Two
and Three as a matter of law. See Avalos, 596 F.3d at 592; Caldeira, 866 F.2d at
1182. Thus, although Count Three was newly raised in the FAC, leave to amend it
would be futile in light of the uncorrected deficiencies with Count One. 10
CONCLUSION
For the reasons stated herein, the motion to dismiss, Dkt. No. 52, is
GRANTED, and all claims are DISMISSED WITH PREJUDICE. The Clerk is
instructed to enter Judgment in favor of Defendants, pursuant to this Order, the July
9

The Court notes that Plaintiff does not request leave to amend the FAC in her response to the
motion to dismiss, see generally Dkt. No. 59, despite the County Defendants arguing that any such
leave should be denied, see Dkt. No. 52-1 at 24-25.
10
The Court also notes that leave to add claims, such as Count Three, was not granted in the July
12, 2017 Order, only leave to “cure the deficiencies identified in [that] Order.” Dkt. No. 41 at 23.
20

12, 2017 Order (Dkt. No. 41), and the August 29, 2017 Order (Dkt. No. 47). The
Clerk may then CLOSE this case.
IT IS SO ORDERED.
Dated: June 14, 2021 at Honolulu, Hawai‘i.

De~
United States District Judge

21

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