Char v. Smith et al

Filing 7

ORDER DISMISSING COMPLAINT IN PART AND STAYING ACTION - Signed by JUDGE HELEN GILLMOR on 8/1/2018. (1) The Complaint is DISMISSED IN PART pursuant to 28 U.S.C. § 1915A(b)(1). Specifically, Char' ;s claims for damages against Defendants named in their official capacities fail to state a claim and are dismissed. (2) The remaining claims in this action are STAYED. Char SHALL report to the court within thirty 30 days< /B> after the conclusion of his criminal proceedings in State v. Char, Cr. No. 1PC161001291 (Haw. 1st Cir. Ct., June 2, 2016), including direct review. At that time, Char SHALL NOTIFY the Court of the outcome of his criminal proceeding and declare his intent to proceed with this action. If there is no longer a need to abstain, the Court will reopen this action. (3) IN THE ALTERNATIVE, Char may notify the court in writing within thirty 30 days of the date of this Orde r that he elects to voluntarily dismiss this action without prejudice. In that event, the Court will refund the filing fee that he has paid, lift the stay, and terminate this action. (4) The Clerk of Court is DIRECTED to note that this suit is STAYED and to administratively close this action. (emt, )COURT'S CERTIFICATE of Service - Mark Alan Char served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on August 1, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARK ALAN CHAR, #A0234438, ) CIV. NO. 18 - 00202 HG -RLP
)
Plaintiff,
) ORDER DISMISSING COMPLAINT
) IN PART AND STAYING ACTION
vs.
)
)
ANTHONY SMITH, ASHLEY
)
STIBBARD, ALAN LU, VICTOR )
LAU,
)
)
Defendants,
)
________________________________ )
Pro se Plaintiff Mark Alan Char is incarcerated at
the Oahu Community Correctional Center (“OCCC”).

Char

alleges that Defendants Honolulu Police Department
(“HPD”) Officers Anthony Smith, Ashley Stibbard, Alan
Lu, and Victor Lau violated his federal civil rights
and state law during his arrest on June 2, 2016.1

See

Comp., ECF. No. 1, PageID #6 -#9.

1

Char was arrested for assault in the second degree and
criminal property damage IV, in violation of Haw. Rev. Stats.
§§ 707-711(1)(a) and 708-823 (respectively) and is currently
awaiting trial in this case. See State v. Char, 1PC161001291
(Haw. 1st Cir. Ct., June 2, 2016), avail. at:
www.courts.state.hi.us. (last visited July 25, 2018).

On June 19, 2018, the Court issued an ORDER DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS BY A PRISONER
AND DISMISSING MOTION FOR APPOINTMENT OF COUNSEL.
No. 5.

ECF

Plaintiff was ordered to either (1) pay the

filing fee or (2) submit a complete in forma pauperis
application containing the prison's certification of
the amount in his prison account, a copy of his past
six month prison account statement, and his best
estimation of his personal assets.
2018, Plaintiff paid the filing fee.

Id.

On July 23,

ECF No. 6.

Char’s Complaint is DISMISSED IN PART pursuant to
28 U.S.C. § 1915A(a -b) for failure to state a colorable
claim for damages against Defendants named in their
official capacities.
Char’s claims regarding his arrest on June 2, 2016,
for which he is awaiting prosecution, are STAYED
pursuant to the doctrine set forth in Younger v.
Harris, 401 U.S. 37 (1971).

The Clerk is DIRECTED to

administratively close this case.

2

I.

STATUTORY SCREENING

Because Char is a prisoner alleging claims against
government officers, the court screens his pleadings
pursuant to 28 U.S.C. § 1915A(a).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

Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)).
Screening under § 1915A(b) involves the same
standard of review as that used under Federal Rule of
Civil Procedure 12(b)(6).

Wilhelm v. Rotman, 680 F.3d

1113, 1121 (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, 680 F.3d at 1121.

“Threadbare recitals of the

elements of a cause of action, supported by mere

2

Char has paid the filing fee.
3

conclusory statements, do not suffice.”

Iqbal, 556

U.S. at 678.
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).

II.

BACKGROUND3

On June 2, 2016, Officer Smith confronted Char in
Char’s doctor’s office parking lot, where Char went for
help after allegedly being the victim of road rage.
Smith ordered Char to put his hands on his car.

Char

raised his hands, but did not put his hands on the car
because it had been pepper sprayed.

Smith then pulled

Char’s right arm behind him, allegedly dislocating
3

Char’s facts are accepted as true and construed in the
light most favorable to him. See Nordstrom v. Ryan, 762 F.3d 903,
908 (9th Cir. 2014) (“Nordstrom I”).
4

Char’s shoulder, although Char says he was not
resisting arrest.

Char alleges Smith intentionally,

recklessly and negligently injured him during this
encounter.

See Compl., ECF No. 1 (Count I (excessive

force) and Count IV (negligence)).
Char next claims that Defendants arrested him to
cover up Smith’s alleged use of excessive force during
the arrest.

Id. (Count II (abuse of process) and Count

III (intentional infliction of emotional distress
“IIED”)).

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.
48 (1988).

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

Additionally, a plaintiff must allege that

he suffered a specific injury as a result of a
particular defendant’s conduct and an affirmative link
5

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.

Official Capacity Claims
Char names Defendants in their individual and

official capacities; he does not name either HPD or the
City and County of Honolulu (“Honolulu C&C”).

An

“official- capacity suit is, in all respects other than
name, to be treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also
Brandon v. Holt, 469 U.S. 464, 471 -72 (1985); Larez v.
City of L.A., 946 F.2d 630, 646 (9th Cir. 1991).

Such

a suit “is not a suit against the official personally,
for the real party in interest is the entity.”

Graham,

473 U.S. at 166.
A local government entity such as the HPD or the
C&C “may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.

Instead,

it is only “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose
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edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an
entity is responsible under § 1983.”
at 694.

Monell, 436 U.S.

Neither HPD nor the Honolulu C&C may be held

liable for the actions of the individual Defendants
whose conduct gave rise to Char’s claims unless “the
action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted or
promulgated by that body’s officers,” or if the alleged
constitutional deprivation was “visited pursuant to a
governmental ‘custom’ even though such a custom has not
received formal approval through the body’s official
decisionmaking channels.”

Id. at 690 -91.

Char alleges no unconstitutional policy or custom
that Defendants were following.

Rather, he alleges a

series of acts that Defendants allegedly took in their
personal capacities that allegedly violated his rights.
Char’s damages claims against Defendants named in their
official capacities fail to state a claim and are
DISMISSED.
7

B.

Younger Abstention Doctrine
In Younger v. Harris, the Supreme Court held that a

federal court is prohibited from enjoining a state
criminal proceeding without a valid showing of
“extraordinary circumstances” warranting federal
intervention.

401 U.S. at 43 -54; see also Gilbertson

v. Albright, 381 F.3d 965, 984 (9th Cir. 2004) (holding
Younger abstention applies to damages actions).

Under

the Younger Abstention Doctrine, federal courts may not
stay or enjoin pending state criminal court
proceedings, nor grant monetary damages for
constitutional violations arising from them.

Mann v.

Jett, 781 F.2d 1448, 1449 (9th Cir. 1986).
Younger abstention is appropriate when: (1) the
state court proceedings are ongoing; (2) the
proceedings implicate important state interests; and
(3) the state proceedings provide an adequate
opportunity to raise the constitutional claims.
Middlesex County Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 432 (1982); Baffert v. Cal. Horse
Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003).
8

When

the Younger elements are present, the federal court may
exercise jurisdiction only when state proceedings are
conducted in bad faith or extraordinary circumstances
exist.

Baffert, 332 F.3d at 617.

Younger’s criteria are all present here.

First,

Char is a pretrial detainee awaiting prosecution on the
charges that he challenges herein, his alleged false
arrest by use of excessive force and abuse of process.
No final judgment has been issued and state court
criminal proceedings are ongoing.
Stewart, 549 U.S. 147, 156

See Burton v.

(2007) (“‘Final judgment in

a criminal case means sentence.

The sentence is the

judgment.’”) (citation omitted).
Second, Hawaii has an important interest in
enforcing its criminal laws and maintaining the
integrity of its criminal proceedings.

See Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987) (explaining
that the enforcement of state court judgments and
orders implicates important state interests); People of
State of Cal. v. Mesa, 813 F.2d 960, 966 (9th Cir.
1987) (stating, “[A state’s] ability to protect its
9

citizens from violence and other breaches of the peace
through enforcement of criminal laws is the centermost
pillar of sovereignty.”); Nichols v. Brown, 945 F.
Supp. 2d 1079, 1096 (C.D. Cal. 2013).
Third, Char is represented by counsel in his
pending state criminal proceeding and he has ample
opportunity to raise the constitutional claim he raises
here in that proceeding.

That is, Char can argue, as

he suggests in the Complaint, that the criminal case
against him is a sham to coverup and excuse Defendant
Smith’s allegedly unlawful use of force.

“The

‘adequate opportunity’ prong of Younger . . . requires
only the absence of ‘procedural bars’ to raising a
federal claim in the state proceedings.”

Commc’ns

Telesystems Int’l v. Cal. Pub. Util. Comm’n, 196 F.3d
1011, 1020 (9th Cir. 1999).
To maintain a parallel case in this federal court
on Char’s civil excessive force claim, while the
related state criminal case is pending and the claim
may be used as a defense to his charges, would amount
to interference in the state criminal case.
10

This is

precisely what the Younger Abstention Doctrine
prohibits.
All of the elements required to invoke the Younger
Abstention Doctrine are present here.

Nothing

indicates that Char’s state proceedings are being
conducted in bad faith or that any extraordinary
circumstances exist.

The Court therefore abstains from

interfering in Char’s ongoing state criminal
proceedings until they are concluded.
Char seeks damages only and “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 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.”).
11

Staying a damages action is also consistent with
Wallace v. Kato, 549 U.S. 384 (2007), which held that
to preserve a plaintiff’s civil claim “related to
rulings that will likely be made in a pending or
anticipated criminal trial,” the district court has the
power, “in accord with common practice, to stay the
civil action until the criminal case . . . is ended.”
Id. at 393 -94.

“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; otherwise, the civil
action will proceed, absent some other bar to suit.”
Wallace, 549 U.S. at 394.
IV.
(1)

CONCLUSION

The Complaint is DISMISSED IN PART pursuant to

28 U.S.C. § 1915A(b)(1).

Specifically, Char’s claims

for damages against Defendants named in their official
capacities fail to state a claim and are dismissed.
(2) The remaining claims in this action are STAYED.
Char SHALL report to the court within thirty [30] days
after the conclusion of his criminal proceedings in
12

State v. Char, Cr. No. 1PC161001291 (Haw. 1st Cir. Ct.,
June 2, 2016), including direct review.

At that time,

Char SHALL NOTIFY the Court of the outcome of his
criminal proceeding and declare his intent to proceed
with this action.

If there is no longer a need to

abstain, the Court will reopen this action.
(3) IN THE ALTERNATIVE, Char 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

refund the filing fee that he has paid, lift the stay,
and terminate this action.
(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, August 1, 2018.

Char v. Smith, et al., No. 1:18 - cv 00202 HG RLP; scrng ‘18 Char 18 202 (#2
Younger Abs)

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