2008-10-01_Jack_Thomas_v_COH_-_Order_Granting_Defendants_Motion_for_Summary_Judgment_and_Remanding_State_Law_Claims

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Case 1:07-cv-00251-JMS-LEK Document 52 Filed 10/01/2008 Page 5 of 17 complaint such as this, Malate applies a probable cause standard, see Pl.'s Ex. 4, at 8, as opposed to the County policy requiring sufficient admissible evidence to prove guilt beyond a reasonable doubt. See Defs.' Ex. 5 ("In Hawaii County, no criminal charge will be brought against an individual until such time the Prosecutor through his deputies believes there is sufficient, competent, admissible evidence to prove guilt beyond a reasonable doubt."). Plaintiff was never arrested or taken into custody as a result of the criminal charge. Defs.' Ex. 7, at 19. Plaintiff and his attorney for the Chung TRO matter, Steven Strauss, continued to provide Defendants information from the civil TRO action showing that it was adjudicated in Plaintiff's favor. See Pl.'s Ex. 19(b), Strauss Decl. 11 4-7; Pl.'s Ex. 12, Pl.'s Decl. 11 7-8. Subsequently, the County made an oral motion to dismiss the criminal charge for insufficient evidence, which was granted on April 21, 2005.4 Pl.'s Ex. 4, at 7; Pl.'s Ex. 11. '(...continued) this information to Kimura, not Malate. While some evidence indicates that this information was eventually provided to Malate as well, see Pl.'s Ex. 19(b), Strauss Decl. 13; Pl.'s Ex. 12, Pl.'s Decl. 15, it remains unanswered whether Malate received any materials prior to filing the criminal charge. In any event, even if Malate had this information before he decided to file the criminal charge, as explained below, Malate's decision to file charges is subject to absolute immunity. 4 Plaintiff's counsel explained during the hearing on this matter that the criminal action was transferred from Malate to Shaunda Liu, who decided to dismiss this case after she spoke with Chung. 5