Clark v. Hawaii State Court et al

Filing 4

ORDER DENYING IN FORMA PAUPERIS APPLICATION 2 ; DISMISSING COMPLAINT; AND ORDER TO SHOW CAUSE. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 10/11/2017. (afc) Excerpt of conclusion: "(1) Clark& #039;s request to proceed in forma pauperis is DENIED. If Clark intends to file an amended pleading, he shall NOTIFY the court whether he is currently 'incarcerated or detained in any facility [because he] is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.' 28 U.S.C. § 1915(h). If Clark is so defined, he must submit a complete, District of Hawaii Application to Proceed In Forma Pauperis By A Prisoner with his amended complaint. If Clark is not a prisoner as defined in § 1915(h), he must submit a complete Application to Proceed In District Court Without Prepaying Fees or Costs (A O 240). In the alternative, Clark may pay the filing fee in full.(2) The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2). Clark may (1) file an amended complaint that cures the deficiencies noted a bove in his claims and SHOW CAUSE why this action should not be dismissed as time-barred, OR (2) voluntarily dismiss this action in writing on or before November 6, 2017. Failure to do either SHALL result in automatic dismissal of this action without further notice." (Show Cause Response due by 11/6/2017.)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). A copy of the instant Order, the "Prisoner Civil Rights Complaint" form (Pro se 14), the "Complaint for Violation of Civil Rights (Non-Prisoner)" form (Pro se 15), and the "Application to Proceed In Forma Pauperis by a Prisoner" form with its instructions will be served on Wednesday, October 11, 2017 by first class mail upon: RODNEY WELLS CLARK, JR. A0075000HAWAII STATE HOSPITAL - UNIT I45-710 KEAAHALA ROADKANEOHE, HI 96744

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

RODNEY WELLS CLARK, JR.,
#A0075000,
Plaintiff,
vs.
HAWAII STATE COURT JUDGE
TRADER, CRAIG NAGAMINE,
Defendants,

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CIV. NO. 17-00490 JMS-RLP
ORDER DENYING IN FORMA
PAUPERIS APPLICATION;
DISMISSING COMPLAINT; AND
ORDER TO SHOW CAUSE

ORDER DENYING IN FORMA PAUPERIS APPLICATION;
DISMISSING COMPLAINT; AND ORDER TO SHOW CAUSE
Before the court is Plaintiff Rodney Wells Clark, Jr.’s application to
proceed in forma pauperis and civil rights complaint brought pursuant to 42
U.S.C. § 1983. ECF Nos. 1 & 2. Clark alleges that the Honorable Rom A. Trader,
Judge of the First Circuit Court, State of Hawaii, and State of Hawaii Deputy
Public Defender (“DPD”) Craig Nagamine, Esq., violated his constitutional rights
because he remained incarcerated at the Oahu Community Correctional Center
(“OCCC”) for approximately ten months in 2013 and 2014, while awaiting trial in
a state criminal proceeding at which Judge Trader presided and Nagamine

represented Clark. See Compl., ECF No. 1, PageID #5-7 (Counts I-III).1 Clark
states that while he was incarcerated he lost his apartment and property valued at
$35,000. He apparently seeks damages in that amount.
In his Complaint, Clark provides OCCC as his address and his Hawaii
Department of Public Safety (“DPS”) prisoner identification number. The return
address on Clark’s envelope, however, indicates that Clark is at the Hawaii State
Hospital, and the DPS website indicates that Clark is not incarcerated at OCCC,
but is released from DPS jurisdiction. See DPS, Hawaii SAVIN, available at:
https://www.vinelink.com/#/home/site/50000 (last visited Oct. 6, 2017). Clark has
no open criminal cases or unserved terms of sentence. See Hawaii State Judiciary,
“eCourt Kokua,” Judiciary Info. Mgmt. Sys.: http://www.courts.state.hi.us/ (last
visited Oct. 6, 2017).
For the following reasons, Clark’s request to proceed in forma pauperis is
DENIED, the Complaint is DISMISSED with leave granted to amend as limited
below, and Clark is ORDERED TO SHOW CAUSE why this action should not be
dismissed as time-barred.

1

Clark refers to State v. Clark, Cr. No. 1PC131001621 (First Cir. Ct. Hawai`i 2014), in
which Clark was indicted for Robbery in the Second Degree on November 5, 2013, and found
not guilty by jury trial on August 14, 2014. See Hawaii State Judiciary, “eCourt Kokua,”
Judiciary Info. Mgmt. Sys.: http://www.courts.state.hi.us/ (last visited Oct. 6, 2017).
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I. IFP APPLICATION
Clark submitted an Application to Proceed in Forma Pauperis by a Prisoner.
If Clark is a prisoner as his Complaint suggests, the application is DENIED as
incomplete because it lacks a prison certification of the amounts in his prison trust
account and a copy of the balances in that account for the previous six months.
See 28 U.S.C. § 1915(a)(2).
If Clark is not a prisoner, as other public documents suggest, although he
may be indigent, the application is nonetheless DENIED. It is incomplete because
it is on a prisoner application form and does not provide a full discussion of
Clark’s assets and liabilities. Moreover, “‘if it appears from the face of the
proposed complaint that the action is frivolous or without merit,’” the court may
deny in forma pauperis status at the outset. Minetti v. Port of Seattle, 152 F.3d
1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d
1368, 1370 (9th Cir. 1987)); see also McGee v. Dep’t of Child Support Servs., 584
F. App’x 638 (9th Cir. 2014) (affirming denial of IFP request “because it appears
from the face of the amended complaint that McGee’s action is frivolous or
without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (holding it is
district court’s duty to deny IFP application “if it appears that the proceeding is
without merit”).
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II.

STATUTORY SCREENING

Because Clark seeks to proceed without prepayment of fees, regardless of
whether he is a prisoner, the court must screen his Complaint pursuant to 28
U.S.C. § 1915(e)(2). The court must dismiss a complaint or claim that is
frivolous, malicious, fails to state a claim for relief, or seeks damages from
defendants who are immune from suit. See Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)).
Screening under § 1915(e)(2) involves the same standard of review as that
used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “Determining
whether a complaint states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
Rule 8 of the Federal Rules of Civil Procedure requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” or an
“unadorned, the defendant- unlawfully-harmed me accusation” falls short of
meeting this plausibility standard. Id. at 678-79; see also Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009).
Pro se litigants’ pleadings must be liberally construed and all doubts should
be resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citations omitted). Leave to amend must be granted if it appears the plaintiff can
correct the defects in the complaint. Lopez, 203 F.3d at 1130. If the complaint
cannot be saved by amendment, dismissal without leave to amend is appropriate.
Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
III. DISCUSSION
To state a claim under 42 U.S.C. § 1983, 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. See West v. Atkins, 487 U.S. 42, 48
(1988).

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Additionally, a plaintiff must allege that he suffered a specific injury as a
result of a particular defendant’s conduct and an affirmative link between the
injury and the violation of his rights. See Monell v. Dep’t of Social Servs., 436
U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). “A person
‘subjects’ another to the deprivation of a constitutional right, within the meaning
of § 1983, if he does an affirmative act, participates in another’s affirmative acts,
or omits to perform an act which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743
(9th Cir. 1978).
A.

Claims Against Nagamine Are Dismissed
Generally, a public defender is not acting under color of state law when

acting as counsel to a criminal defendant. Polk Cty. v. Dodson, 454 U.S. 312, 325
(1981). When acting as counsel for a criminal defendant, a public defender is as
an adversary to state action. Id. at 322 n.13. That is, by definition a public
defender is not acting on behalf of the state–under color of state law–when
defending an individual in a criminal proceeding.
A public defender can be liable for certain administrative actions unrelated
to the representation of a specific client. Miranda v. Clark Cty. of Nev., 319 F.3d
465 (9th Cir. 2003). In Miranda, the administrative head of a public defender’s
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office was held to be acting under color of state law when he instituted a policy of
polygraphing all criminal defendants and devoting less resources to defendants
whose results suggested they were guilty of the charged crime. Id. at 469.
Miranda held that this type of macro-level decision amounted to policymaking
action. Id. at 469-70. There is no indication that Clark names Nagamine for
anything beyond his representation of Clark in Cr. No. 1PC131001621 and alleged
failure to secure Clark’s release while he awaited trial, or that Nagamine
implemented any policy that could be construed as action taken under color of
state law that violated Clark’s (or others’) constitutional rights. Clark fails to state
a claim against Nagamine, and these claims are DISMISSED.
B.

Claims Against Judge Trader Are Dismissed
Clark names Judge Trader, who presided over Clark’s state criminal jury

trial, for alleged decisions Judge Trader made in his judicial capacity that resulted
in Clark’s confinement at OCCC while he awaited his trial. These decisions were
clearly made in Judge Trader’s official, judicial capacity pursuant to Clark’s
criminal proceedings.2

2

Bail was set at $20,000 in Cr. No. 1PC131001621, but apparently Clark was unable to
post this amount. See: eCourt Kokua http://www.courts.state.hi.us/ 1PC131001621.
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“It is well settled that judges are generally immune from civil liability under
section 1983.” Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991)); see also Duvall v. Cty. of
Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). Thus, “a judicial officer, in
exercising the authority vested in him, shall be free to act upon own convictions,
without apprehension of personal consequences to himself.” Bradley v. Fisher, 80
U.S. 335, 347 (1871). Judges are immune from liability for damages for acts
committed within their judicial discretion. Pierson v. Ray, 386 U.S. 547, 553-54
(1967); Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (quoting Bradley, 80
U.S. at 347) (“It has long been established that judges are absolutely immune from
liability for acts ‘done by them in the exercise of their judicial functions.’”). This
absolute immunity applies for judicial acts even when a judge is accused of acting
maliciously and corruptly. Pierson, 386 U.S. at 554.
It is apparent from the face of the complaint that Clark’s claims against
Judge Trader challenge “activities ‘intimately associated with the judicial phase of
the criminal process.’” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)
(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Claims against Judge
Trader are DISMISSED.

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C.

Federal Rule of Civil Procedure Rule 8
A complaint must allege “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
plaintiff must plead sufficient, plausible “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. A plausible claim provides more than “a sheer
possibility that a defendant has acted unlawfully.” Id. A claim that is possible,
but is not supported by enough facts to “nudge [it] across the line from
conceivable to plausible. . . must be dismissed.” Twombly, 550 U.S. at 570.
Clark’s Complaint does not provide sufficient facts for the court to infer that
Judge Trader, DPD Nagamine, or any other individual violated his constitutional
rights. The Complaint is DISMISSED for Clark’s failure to state sufficient facts
from which the court can infer a plausible claim for relief.
D.

Statute of Limitation
It appears from the face of the Complaint that Clark’s claims regarding his

10-month incarceration at OCCC pending his state criminal proceedings are barred
by Hawaii’s two-year personal injury statute of limitation. See Haw. Rev. Stats.
§ 657-7; Pele Defense Fund v. Paty, 73 Haw. 578, 595-96, 837 P.2d 1247, 1259
(1992); see also Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686–87 (9th
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Cir.1993) (holding that a district court may sua sponte raise the statute of
limitation and dismiss the complaint if defendant has not waived the issue).
A § 1983 cause of action accrues “when the wrongful act or omission
results in damages.” Wallace v. Kato, 549 U.S. 384, 388, 391 (2007) (citation
omitted); see also Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004)
(quoting Two Rivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 1999) (“Under federal
law, a claim accrues when the plaintiff knows or has reason to know of the injury
which is the basis of the action.”). A state’s equitable tolling laws apply when
they are consistent with federal law. See Fink v. Shedler, 192 F.3d 911, 914 (9th
Cir. 1999). To establish equitable tolling in Hawaii, “a plaintiff must demonstrate
‘(1) that he . . . has been pursuing his right diligently, and (2) that some
extraordinary circumstance stood in his way.’” Office of Hawaiian Affairs v.
State, 133 P.3d 767, 789 (Haw. 2006) (citation omitted); see also Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (same).
Liberally construing Clark’s claims, this cause of action accrued no later
than August 13, 2014, the date that he was found not guilty, released from OCCC,
and realized he had lost his apartment and property while he awaited trial. See
Abramson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir. 1979). The statute of
limitation on Clark’s claims therefore expired two years later, on or about August
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14, 2016. The earliest date that the court can credit Clark with commencing this
action is the date that he signed the Complaint, September 9, 2017, more than a
year after the limitation period expired. If Clark elects to file an amended
pleading, he is NOTIFIED that this action appears to be time-barred, and he is
ORDERED TO SHOW CAUSE in writing why this action should not be
dismissed as time-barred on its face.
IV. LEAVE TO AMEND
Clark may file an amended complaint that cures the deficiencies noted
above on or before November 6, 2017. An amended complaint generally
supersedes the original complaint. See Ramirez v. Cty. of San Bernadino, 806
F.3d 1002, 1008 (9th Cir. 2015); Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th
Cir. 2012) (en banc). An amended complaint should stand on its own without
incorporation or reference to a previous pleading. Defendants not named and
claims dismissed without prejudice that are not realleged in an amended complaint
may be deemed voluntarily dismissed. See Lacey, 693 F.3d at 928 (stating claims
dismissed with prejudice need not be repled to preserve them for appeal, but
claims that are “voluntarily dismissed” are considered “waived if not repled”).
If Clark elects to file an amended complaint, he must identify whether he is
incarcerated at OCCC, or pending any other criminal action while being housed at
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the Hawaii State Hospital. That is, Clark must demonstrate whether he is a
prisoner, and thus, subject to the additional requirements that the Prison Litigation
Act of 1996 imposes on prisoners filing civil suits in the federal court. Clark must
also provide sufficient facts regarding his claim for relief from which the court can
reasonably infer that he suffered a constitutional violation. Clark must also show
good cause in writing why this action should not be dismissed as time-barred.
V. CONCLUSION
(1) Clark’s request to proceed in forma pauperis is DENIED. If Clark
intends to file an amended pleading, he shall NOTIFY the court whether he is
currently “incarcerated or detained in any facility [because he] is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal
law or the terms and conditions of parole, probation, pretrial release, or
diversionary program.” 28 U.S.C. § 1915(h). If Clark is so defined, he must
submit a complete, District of Hawaii Application to Proceed In Forma Pauperis
By A Prisoner with his amended complaint. If Clark is not a prisoner as defined in
§ 1915(h), he must submit a complete Application to Proceed In District Court
Without Prepaying Fees or Costs (AO 240). In the alternative, Clark may pay the
filing fee in full.

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(2) The Complaint is DISMISSED for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2). Clark may (1) file an amended complaint that cures the
deficiencies noted above in his claims and SHOW CAUSE why this action should
not be dismissed as time-barred, OR (2) voluntarily dismiss this action in writing
on or before November 6, 2017. Failure to do either SHALL result in automatic
dismissal of this action without further notice.
(3) The Clerk of Court is DIRECTED to mail Clark a blank (a) prisoner
civil rights complaint form, (b) non-prisoner civil rights complaint form, (c)
Application to Proceed In Forma Pauperis By A Prisoner, and (d) Application to
Proceed In District Court Without Prepaying Fees or Costs (AO 240), so that he
can comply with the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 11, 2017.

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

Clark v. Nagamine, 1:17-cv-00490-JMS-RLP, ORDER DENYING IN FORMA PAUPERIS
APPLICATION; DISMISSING COMPLAINT; AND ORDER TO SHOW CAUSE; psa scrng ‘17
Clark 17-490 jms (dsm act. jud. imm.; dpd; sol); J:\ChambersJMS\Seabright1\Lorraine Gin\Clark
17-490 jms (dny IFP dsm act. jud. imm., pub. def, sol.).wpd
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