Aquino v. State of Hawaii et al

Filing 6

ORDER Dismissing Complaint In Part and Staying Action. (1) "The Complaint is DISMISSED IN PART for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). Aquino's claims raised on behalf of his gir lfriend, and against the State of Hawaii, the Hawaiian Monarch Hotel, and Defendants named in their official capacities are DISMISSED with prejudice. Aquino's claims as alleged against Doe Defendants 1-20 are DISMISSED without prejudice. Aquin o may amend these claims after this action has been reopened. (2) This action is STAYED. Aquino SHALL report to the court within thirty days after the conclusion of his criminal proceedings, including direct review, in State v. Aquino, Cr. N o. 1CPC-17-0001576 (1st Cir. Ct. 2017). At that time, Aquino SHALL NOTIFY the court of the outcome of his criminal proceeding and declare whether he intends to proceed with this action. If satisfied that there is no longer a need to abstain, the cour t shall reopen this action. (3) IN THE ALTERNATIVE, Aquino may notify the court in writing within thirty 30 days of the date of this Order that he elects to voluntarily dismiss this action without prejudice. In that event, the court will w aive any further filing fees that may be owed. (4) The Clerk of Court is DIRECTED to note that this suit is STAYED and to administratively close this action." Signed by JUDGE SUSAN OKI MOLLWAY on 2/12/18. (cib, )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 HAWAII
BRIAN AQUINO, #A5018716,
Plaintiff,
vs.
STATE OF HAWAII, HAWAIIAN
MONARCH HOTEL, JOHN DOES
1-20,
Defendants,

) CIV. NO. 18-00037 SOM-RLP
)
) ORDER DISMISSING COMPLAINT
) IN PART AND STAYING ACTION
)
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ORDER DISMISSING COMPLAINT IN PART AND STAYING ACTION
Pro se Plaintiff Brian Aquino is incarcerated at
the Halawa Correctional Facility (“HCF”), and brings
this action pursuant to 42 U.S.C. § 1983.
No. 1.

Comp., ECF.

Aquino alleges Defendants the State of Hawaii,

and State of Hawaii Doe Defendants 1-10; the Hawaiian
Monarch Hotel and Hawaiian Monarch Hotel Doe Defendants
1-10 violated the Fourth Amendment when they entered a
private apartment without a warrant and arrested him
and his girlfriend.
Aquino’s Complaint is DISMISSED in part pursuant to
28 U.S.C. §§ 1915(e)(2) & 1915A(a-b) for failure to
state a colorable claim for relief.

Aquino’s claims

alleging that his personal rights were violated under
the Fourth Amendment are STAYED.

The Clerk is DIRECTED

to administratively close this action.
I.

STATUTORY SCREENING

Because Aquino is a prisoner proceeding in forma
pauperis the court is required to screen his Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).

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)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
Screening under §§ 1915(e)(2) and 1915A(b) 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) (screening under
§ 1915(e)(2)); see also Wilhelm v. Rotman, 680 F.3d
1113, 1121 (9th Cir. 2012) (screening pursuant to
§ 1915A).

Under Rule 12(b)(6), a complaint must
2

“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, 680 F.3d
at 1121.

“Threadbare 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.; 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 v. Smith, 203 F.3d

1122, 1130 (9th Cir. 2000) (en banc).

If the complaint

cannot be saved by amendment, dismissal without leave

3

to amend is appropriate.

Sylvia Landfield Trust v.

City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).
II.

BACKGROUND

Aquino’s complaint, in its entirety, states:
Both Defendants violated my Fourth Amendment
rights, by teaming up at around 5:45 a.m. May 3
2017 to raid a privately owned apt[.] in a
private an[d] exclusive part of the Hawaiian
Monarch Hotel in Waikiki, without any kind of
arrest warrant or search warrant and
unannounced rammed the door down, with the aid
of the Hotel security & management getting
through a private lobby & elevator then on to
the 22nd floor, to illeagaly [sic] arrest my
girlfriend & I!
Comp., ECF No. 1, PageID #5.

Aquino names the “State

of Hawaii + 10 John Does,” and the “Hawaiian Monarch
Hotel + 10 John Does,” in their individual and official
capacities as Defendants and seeks $150,000 from each
Defendant.

Id., PageID #1-2, 8.
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
4

color of state law.

See West v. Atkins, 487 U.S. 42,

48 (1988).
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.

Aquino May Not Represent His Girlfriend
Pursuant to 28 U.S.C. § 1654, “parties may plead

and conduct their own cases personally.”

In an action

brought by a pro se litigant, the real party in
interest must be the person who “has the right to be
enforced.”

Simon v. Hartford Life, Inc., 546 F.3d 661,

664 (9th Cir. 2008).

Aquino may not pursue relief on

behalf of his girlfriend.

As she does not list herself

as a party, her claims are DISMISSED with prejudice.
B.

Eleventh Amendment Immunity
“The Eleventh Amendment bars suits for money

damages in federal court against a state, its agencies,
and state officials acting in their official
5

capacities.”

Aholelei v. Dep’t of Pub. Safety, 488

F.3d 1144, 1147 (9th Cir. 2007).

Defendants named in

their official capacities are subject to suit under
§ 1983 only “for prospective declaratory and injunctive
relief . . . to enjoin an alleged ongoing violation of
federal law.”

Oyama v. Univ. of Haw., 2013 WL 1767710,

at *7 (D. Haw. Apr. 23, 2013) (quoting Wilbur v. Locke,
423 F.3d 1101, 1111 (9th Cir. 2005), abrogated on other
grounds by Levin v. Commerce Energy Inc., 560 U.S. 413
(2010)); see also Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70-71 (1989).
The State of Hawaii and damages claims against all
Defendants named in their official capacities are
DISMISSED with prejudice.
C.

The Hawaiian Monarch Hotel
The Hawaiian Monarch Hotel is not a person and

cannot act under the color of state law.

It is not

amenable to suit under § 1983; claims against the
Hawaiian Monarch Hotel are DISMISSED with prejudice.

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D.

Doe Defendants 1-20
Rule 10(a) of the Federal Rules of Civil Procedure

requires the plaintiff to include the names of the
parties in the action.

The use of doe defendants is

generally disfavored in the federal court because it is
usually impossible for court officers to serve a
summons and complaint on an anonymous defendant.

See

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980).
If the names of individual defendants are unknown
when a complaint is filed, however, a plaintiff may
refer to the unknown defendants as Defendant John Doe
1, John Doe 2, John Doe 3, and so on, but he must
allege facts to support how each particular doe
defendant violated his constitutional rights.

The

plaintiff may thereafter use the discovery process to
obtain the names of doe defendants whom he believes
violated his constitutional rights and seek leave to
amend to name those defendants, unless it is clear that
discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.
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See

Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (citing Gillespie, 629 F.2d at 642 (9th Cir.
1980)).
Aquino indiscriminately sues twenty Doe Defendants
without alleging how each Doe Defendant individually
violated his constitutional rights.

Moreover, Aquino

fails to identify specific facts showing how the
Hawaiian Monarch Hotel Doe Defendants 1-10 acted under
color of state law.

This court recognizes that private

individuals may be sued under § 1983 if they act in
concert with, for example, law enforcement officers.
See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)
(stating a private party may be liable under § 1983 if
it “conspired or entered joint action with a state
actor”).

However, Aquino’s allegations do not suffice

to state a claim against Doe Defendants 1-20, and
claims against them are DISMISSED without prejudice.1

1

After the stay is lifted and this case is reopened, Aquino
may reallege claims against doe defendants, subject to the
limitations set forth in this order, but he must allege specific
facts showing what each particular doe defendant did to violate
his rights.
8

E.

Fourth Amendment
The Fourth Amendment secures “the right of the

people to be secure in their persons, houses, papers,
and effects against unreasonable searches and
seizures.”

U.S. Const. amend. IV.

Thus, the Fourth

Amendment protects individuals from unlawful arrest and
gives rise to reasonable and legitimate expectations of
privacy.
(1967).

Katz v. United States, 389 U.S. 347, 350-51
It is well established that “an arrest without

probable cause violates the Fourth Amendment and gives
rise to a claim for damages under § 1983.”

Borunda v.

Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988).
There are several problems with Aquino’s Fourth
Amendment claim.

First, accepting that all Doe

Defendants were acting in concert with state officials
under color of state law, and that they entered the
Waikiki apartment without a warrant, Aquino sets forth
insufficient facts for the court to reasonably infer
that they did so without probable cause to arrest him.
Aquino’s bare statement of facts is simply “a formulaic
recitation of the elements of a [Fourth Amendment]
9

cause of action” Twombly, 550 U.S. at 555-557,
“supported by mere conclusory statements,” Iqbal, 556
U.S. at 678.

Aquino’s claim lacks sufficient factual

content to “allow[] the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678.

Second, Aquino is currently facing charges in the
Circuit Court of the First Circuit, State of Hawaii,
for Escape in the Second Degree, in violation of Haw.
Rev. Stats. § 710-1021.

See State v. Aquino, Cr. No.

1CPC-17-0001576 (1st Cir. Ct. 2017), available at:
www.courts.state.hi.us. (last visited Feb. 6, 2018).2
Aquino is charged with escape from the Waiawa
Correctional Facility between April 18 and May 3, 2017,
the date that he alleges Defendants entered the
apartment without a warrant and arrested him.

See id.,

Docket Entry “Felony Information Complaint” (dated Nov.

2

The court “may take notice of proceedings in other courts,
both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.” United
States ex rel. Robinson Rancheria Citizens Council v. Borneo,
Inc., 971 F.2d 244, 248 (9th Cir. 1992); see also Fed. R. Evid.
201(b).
10

7, 2017).

Trial call is set for the week of March 20,

2018.
Based on this, it appears that this court must
abstain from adjudicating Aquino’s Fourth Amendment
claims under the doctrine set forth in Younger v.
Harris, 401 U.S. 37 (1971), which bars challenges to
ongoing state criminal proceedings in federal court.
Younger abstention applies regardless of whether the
applicant seeks damages or declaratory or injunctive
relief.

See Mann v. Jett, 781 F.2d 1448, 1449 (9th

Cir. 1986) (per curiam) (holding § 1983 action for
declaratory relief and damages barred “where such an
action would have . . . a substantially disruptive
effect upon ongoing state criminal proceedings”);
Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir.
2004) (holding Younger abstention applies equally to
actions seeking damages and/or declaratory and
injunctive relief).
Younger abstention is required when: (1) state
judicial proceedings are pending; (2) the state
proceedings involve important state interests; and (3)
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the state proceedings afford an adequate opportunity to
raise the constitutional claims at issue.

Middlesex

Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423, 432 (1982); Dubinka v. Judges of the Super. Ct.,
23 F.3d 218, 223 (9th Cir. 1994).
Aquino is awaiting prosecution in a state criminal
proceeding.

There is a direct connection between the

Fourth Amendment claims he raises here and that
criminal proceeding.

Hawaii has a significant state

interest in enforcing and prosecuting criminal offenses
under its laws.

See Younger, 401 U.S. at 43-44.

Aquino’s criminal defense attorney may file motions or
seek relief from the state court to address the Fourth
Amendment violations he alleges here.

All elements of

the Younger test are satisfied, and the court must
abstain from adjudicating Aquino’s claims.
When Younger abstention applies, “federal courts
should not dismiss actions where damages are at issue;
rather, damages actions should be stayed until the
state proceedings are completed.”

Gilbertson, 381 F.3d

at 968; accord Los Altos El Granada Investors v. City
12

of Capitola, 583 F.3d 674, 689–90 (9th Cir. 2009)
(“[B]ecause in damages cases there may yet be something
for the federal courts to decide after completion of
the state proceedings . . . [t]he district court–quite
appropriately-did not dismiss under Younger but stayed
the proceedings pending the final decision of the
California courts.”).
This policy is consistent with Wallace v. Kato, 549
U.S. 384 (2007), which holds that when a plaintiff
files a civil claim “related to rulings that will
likely be made in a pending or anticipated criminal
trial[], it is within the power of the district court,
and in accord with common practice, to stay the civil
action until the criminal case . . . is ended.”
393–94.

Id. at

“If the plaintiff is ultimately convicted, and

if the stayed civil suit would impugn that conviction,
Heck [v. Humphrey, 512 U.S. 477 (1994),] will require
dismissal;3 otherwise, the civil action will proceed,

3

Under Heck, “to recover damages for an allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
(continued...)
13

absent some other bar to suit.”

Wallace, 549 U.S. at

394.
The proper course here is to stay Aquino’s damages
claims (his only remaining claims), until his criminal
proceedings have been adjudicated (through appeal).
See Rhoden v. Mayberg, 361 Fed. App’x 895, 896 (9th
Cir. 2010) (“district court properly dismissed . . .
claims for declaratory and injunctive relief,” but
“claims for money damages should have been stayed until
the state court proceedings are completed”); Tomel v.
Ross, 2009 WL 3824742, at *3 (D. Haw. 2009) (“Claims
for injunctive or declaratory relief are normally
dismissed; claims for monetary damages may be
stayed.”); Escobar v. LASD Male Doe, 2017 WL 7050642,
at *3 (C.D. Cal. Nov. 30, 2017), report and
recommendation adopted 2018 WL 565696 (C.D. Cal. Jan.
24, 2018).

3

(...continued)
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by
a federal court’s issuance of a writ of habeas corpus.” 512 U.S.
at 486–87.
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IV.
(1)

CONCLUSION

The Complaint is DISMISSED IN PART for failure

to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(b)(1).

Aquino’s claims raised on behalf of

his girlfriend, and against the State of Hawaii, the
Hawaiian Monarch Hotel, and Defendants named in their
official capacities are DISMISSED with prejudice.
Aquino’s claims as alleged against Doe Defendants 1-20
are DISMISSED without prejudice.

Aquino may amend

these claims after this action has been reopened.
(2) This action is STAYED.

Aquino SHALL report to

the court within thirty days after the conclusion of
his criminal proceedings, including direct review, in
State v. Aquino, Cr. No. 1CPC-17-0001576 (1st Cir. Ct.
2017).

At that time, Aquino SHALL NOTIFY the court of

the outcome of his criminal proceeding and declare
whether he intends to proceed with this action.

If

satisfied that there is no longer a need to abstain,
the court shall reopen this action.
(3) IN THE ALTERNATIVE, Aquino may notify the court
in writing within thirty [30] days of the date of this
15

Order that he elects to voluntarily dismiss this action
without prejudice.

In that event, the court will waive

any further filing fees that may be owed.
(4) The Clerk of Court is DIRECTED to note that
this suit is STAYED and to administratively close this
action.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, February 12, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Aquino v. State, 1:18-cv-00037 SOM-RLP; scrn 2017 Aquino 17-300 lek (dsm C lv amd)

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