Andrade v. Cho

• Decision Date: 29 August 2017
• Docket Number: CIV. NO. 16-00684 DKW-KJM
• Parties: NALEEN N. ANDRADE, M.D., Plaintiff, v. DARREN CHO, COUNTY OF HAWAI'I, BOBBY L. MACOMBER, THELMA MACOMBER, DARRYL GRACESR., LEONA GRACE, TRAVIS LEINONAN, DOE DEFENDANTS 1-20, Defendants.
• Court: U.S. District Court — District of Hawaii

NALEEN N. ANDRADE, M.D., Plaintiff, v. DARREN CHO, COUNTY OF HAWAI'I, BOBBY L. MACOMBER,THELMA MACOMBER, DARRYL GRACESR., LEONA GRACE,TRAVIS LEINONAN, DOE DEFENDANTS 1-20, Defendants.

CIV. NO. 16-00684 DKW-KJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI'I

August 29, 2017

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE JULY12, 2017 ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS COMPLAINT

On July 26, 2017, PlaintiffNaleen 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)andHarvey v. Waldron, 210 F.3d 1008(9th Cir.2000), overruled in part byWallace 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.

DISCUSSION

A.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 MTDat 19-20(record citations omitted);see alsoBradford v. Scherschligt, 803 F.3d 382, 386(9th Cir.2015).

B.In Wallace, The Supreme Court Declined To Extend The Heck Rule Of Deferred Accrual As The Ninth Circuit Advocated For In Harvey.

Harveymight 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 MTDat 20(citingRivas v. Cal. Franchise Tax Bd., 619 F. Supp. 2d 994, 1000(E.D. Cal.2008)).In that case, the Supreme Court rejected the Section 1983petitioner's argument that the Court should adopt "a principle that goes well beyond Heck—that an action which wouldimpugn 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.

C.Under The Current Pleadings, Wallace Is Not Distinguishable, And Heck's Rule For Malicious ProsecutionCases 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.SeeMot. 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)(citingMonell 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 allegedlyviolated 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.

1.County Defendants

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 toCty. 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.SeeCompl.¶¶ 99(c)-(d), 100.Andrade has cited no relevant authority to support thisproposition (seeOpp'n toCty. 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 toCty. 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. HonoluluPolice Dep't, 475 F. Supp. 2d 1041, 1048(D. Haw.2007)(quotingMyers v. Cohen, 688 P.2d 1145, 1148(Hawai'i1984));see alsoArquette v. State, 290 P.3d 493, 501, 509(Hawai'i2012)(noting that the party bringing the action has the burden of establishing all three elements, which are construed strictly against her);accordVancouver 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(1944).

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 alsoCrescent City Live-Stock Landing & Slaughter-House 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 anaction in damages for a malicious prosecution.")(quotingSenecal 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 byBeck 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.'")(quotingBrodie 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'i1982));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....