HomeMy WebLinkAbout2008-10-01_Jack_Thomas_v_COH_-_Order_Granting_Defendants_Motion_for_Summary_Judgment_and_Remanding_State_Law_Claims Case 1:07-cv-00251-JMS-LEK Document 52 Filed 10/01/2008 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JACK THOMAS, ) CIVIL NO. 07-00251 JMS/LEK
Plaintiff, ) ORDER GRANTING
DEFENDANTS' MOTION FOR
VS. ) SUMMARY JUDGMENT AND
REMANDING STATE LAW
COUNTY OF HAWAII; JAY ) CLAIMS
KIMURA; JEFFERSON R. )
MALATE; and DOES 1-100, )
Defendants. )
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND REMANDING STATE LAW CLAIMS
Plaintiff Jack Thomas ("Plaintiff") alleges that Defendants County of
Hawaii ("County"), Jay Kimura ("Kimura"), and Jefferson R. Malate ("Malate")
(collectively, "Defendants") improperly filed a criminal charge against him for
violating a Temporary Restraining Order ("TRO") that a judge in a civil action had
previously dismissed. Plaintiff currently asserts claims pursuant to 42 U.S.C.
§ 1983 for violation of Plaintiff's Fifth and Fourteenth Amendment rights, and
state law claims of malicious prosecution and abuse of process.
Currently before the court is Defendants' Motion for Summary
Judgment on Plaintiff's § 1983 claim, in which they argue that Malate and Kimura
Case 1:07-cv-00251-JMS-LEK Document 52 Filed 10/01/2008 Page 2 of 17
have absolute immunity for their actions. Based on the following, the court
GRANTS Defendants' Motion for Summary Judgment on Plaintiff's
§ 1983 claim and REMANDS Plaintiff's state law claims.
I. BACKGROUND
A. Factual Background
This action stems from Defendants' handling of Plaintiff's disputes
with his neighbor, Malcolm Chung. Both Plaintiff and Chung obtained TROs
against each other, and later, Chung made a civil complaint that Plaintiff violated
the terms of Chung's TRO on March 26, 2004 when Plaintiff walked near Chung's
work place to visit a friend. See Pl.'s Ex. 19(a), at 23-24, 36-37. On May 11,
2004, State of Hawaii District Court of the Third Circuit Judge John P. Moran
found that Chung had not presented "clear and convincing evidence that there had
been recent or past acts of harassment by Mr. Thomas" and dismissed both TROs.
Id. at 47-48.
Unfortunately, the May 11, 2004 dismissal did not end Plaintiff's and
Chung's dispute. Plaintiff asked Hawaii County prosecutors to file charges
against Chung for allegedly violating Plaintiff's rights to privacy, illegally
obtaining his credit card information and Social Security number, and threatening
Plaintiff's family. Pl.'s Ex. 19(c), 114-5. To support his claims, Plaintiff
2
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provided the prosecutors tape recordings and videotapes showing that Chung had
threatened Plaintiff's family. Id. 15. The prosecutors refused to file charges,
explaining that they had no reasonable belief that they could prove the case against
Chung to a standard of beyond a reasonable doubt. Id.; see also Pl.'s Exs. 6-10.
Despite Judge Moran's May 11, 2004 dismissal of the civil action,
Plaintiff learned that the State of Hawaii was considering filing a criminal charge
against him.' On December 20, 2004, Plaintiff met with Kimura at a police station
in Hilo and provided him information showing that the TRO against Plaintiff was
dismissed. Pl.'s Ex. 12, Pl.'s Decl. 11 3-4. Kimura also met with Jack Matsui,
who told Kimura that Judge Moran had cleared Plaintiff of the violation. Pl.'s Ex.
16, Matsui Decl. 14. Matsui gave Kimura documents showing the dismissal of
the civil action, and in response, Kimura told Matsui that they were still
investigating Chung's complaint and would consider this evidence. Id. 16.
' Plaintiff asserts that during a November 26, 2004 hearing, an individual from the
prosecutor's office stated that they were still investigating Plaintiff in conjunction with the
police. Pl.'s Ex. 19(c), Pl.'s Decl. 117(a). While not articulated in either of the parties' Concise
Statements, it appears that Judge Moran held another hearing with Plaintiff and Chung on
November 26, 2004 in which he again stated that Plaintiff had not violated the TRO on March
26, 2004. See Pl.'s Ex. 19(b), Strauss Decl. 16. In general, neither party provided a clear time
line of events or explanation of Plaintiff's and Defendants' interactions prior to the criminal
charge. The court therefore outlines the facts based on what dates and specific information the
parties did provide.
z While not included in his Concise Statement, Plaintiff asserts in his Opposition that the
prosecutors conducted their own investigation by interviewing Chung "on at least one and
(continued...)
3
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Despite Plaintiff providing Kimura information showing that the TRO
against him was dismissed, on January 26, 2005, the State of Hawaii filed a
criminal charge, signed by Malate, alleging that:
On or about the 26th day of March, 2004, in South Hilo,
County and State of Hawaii, JACK THOMAS did knowingly
or intentionally violate a restraining order or injunction issued
pursuant to section 603-10.5, Hawaii Revised Statutes, by
going to MALCOLM CHUNG's place of employment, thereby
committing the offense of Violation of A Restraining Order
Against Harassment, in violation of Section 604-10.5, Hawaii
Revised Statutes, as amended.
Defs.' Ex. 4. The Complaint listed Plaintiff's address, Social Security number,
and date of birth. Id.
In deciding to charge Plaintiff with this offense, Malate reviewed the
TRO and police reports, which included interviews of witnesses and Plaintiff, and
which indicated that witnesses saw Plaintiff go to Chung's place of employment
during a time when Chung's TRO was in effect.3 Malate Decl. 11 4-7. To file a
Z(...continued)
probably two occasions." Pl.'s Opp'n 8. The court does not consider this assertion because the
exhibit cited by Plaintiff's Opposition does not support this proposition or even contain the pages
referenced. Even if the court did consider this fact, however, it would not alter the court's
conclusion below that Kimura and Malate are entitled to absolute immunity.
s Plaintiff suggests that the case file also included information he provided to Defendants
showing that the civil action concerning Chung's TRO was dismissed, and asserts that he
provided Malate "extensive documentation proving that the case had already been adjudicated in
Plaintiff's favor." Pl.'s Ex. 19(c),11 16(a), 19(a). The evidence presented and cited in Plaintiff's
Declaration, Exhibit 19(c), however, shows that prior to the criminal charge, Plaintiff provided
(continued...)
4
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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
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B. Procedural Background
On April 12, 2007, Plaintiff filed his Complaint in the State of Hawaii
Circuit Court of the Third Circuit, alleging claims pursuant to 42 U.S.C. § 1983
for violation of Plaintiff's First, Fourth, Fifth, Eighth, Ninth, and Fourteenth
Amendment rights, and state law claims of malicious prosecution and abuse of
process. On May 15, 2007, Defendants removed the case to this court.
On October 9, 2007, Defendants moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) and to dismiss for
failure to state a claim under Rule 12(b)(6) on the basis that they have no liability
under 42 U.S.C. § 1983 because both Kimura and Malate have absolute immunity
for their actions taken in this case. On December 10, 2007, the court denied
Defendants' Motion without prejudice so that the parties could present a fuller
record to allow the court to rule on Defendants' claims of absolute immunity.
On August 13, 2008, Defendants filed the present Motion for
Summary Judgment. On September 11, 2008, Plaintiff filed his Opposition,s and
Defendants filed their Reply on September 22, 2008. A hearing was held on
September 29, 2008.
5 The court struck Plaintiff's Concise State of Facts filed on September 11, 2008 for
failure to comply with Local Rules. Plaintiff filed an Amended Concise Statement on September
16, 2008.
6
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II. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). Rule 56(c) mandates summary judgment "against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party's case, and on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
"A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). "When the moving party has
carried its burden under Rule 56(c) its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts. . . . [and] come
forward with specific facts showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation
and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc.,
7
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477 U.S. 242, 248 (1986) (A party cannot "rest on mere allegations or denials of
his pleading" in opposing summary judgment).
An issue of fact is genuine "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. An issue is material if
the resolution of the factual dispute affects the outcome of the claim or defense
under substantive law governing the case. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). When considering the
evidence on a motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475
U.S. at 587.
III. ANALYSIS
Defendants argue, among other things, that Plaintiff should be
precluded from raising new allegations for the first time in his Opposition, and
that summary judgment should be granted on Plaintiff's 42 U.S.C. § 1983 claim
because Malate and Kimura are subject to absolute immunity. The court addresses
these arguments in turn.
A. Allegations Not Included in the Complaint
Plaintiff alleges for the first time in his Opposition that Defendants
violated his right to privacy by including his birth date and Social Security number
8
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on the criminal charge. Defendants argue that Plaintiff cannot add new causes of
action at this time because the date for motions to amend pleadings passed over
nine months ago (January 11, 2008), and Plaintiff was aware of these potential
causes of action at the time he filed the Complaint.
The court declines to consider new allegations raised for the first time
in Plaintiff's Opposition. See Pickern v. Pier I Imports (U.S.), Inc., 457 F.3d 963
(9th Cir. 2006) (finding that the district court did not err in holding that the
plaintiff failed to provide adequate notice of new allegations). Specifically,
Federal Rule of Civil Procedure 8(a)(2) requires that allegations in the Complaint
"give the defendant fair notice of what the plaintiff's claim is and the grounds
upon which it rests," Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)
(quotation omitted), but Plaintiff's new allegations go well beyond those in the
Complaint. The Complaint outlines Defendants' alleged notice that the TRO had
been dismissed against Plaintiff and Defendants' decision to go forward. The
Complaint does not, however, provide any notice that Plaintiff believed his rights
to privacy were violated. Further, at the hearing, Plaintiff admitted that his
Complaint did not include this allegation and that he had not sought to amend the
Complaint.
9
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The court therefore finds that Plaintiff failed to provide Defendants
adequate notice of these new allegations, and the court will not consider these
arguments for the first time in Defendants' Motion for Summary Judgment.
B. Absolute Immunity
Defendants argue that Malate and Kimura are absolutely immune
from suit for their alleged violations of Plaintiff's rights. Based on the following,
the court agrees.
1. Framework
"Courts have recognized two types of immunity from suit under 42
U.S.C. § 1983: qualified immunity and absolute immunity." Goldstein v. City of
Long Beach, 481 F.3d 1170, 1172 (9th Cir. 2007) (citing Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993)). Absolute immunity protects a prosecutor from civil
liability "whether or not he or she violated the civil plaintiff's constitutional
rights." Broatn v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003). "A prosecutor is
entitled to absolute immunity under § 1983 for conduct that is `intimately
associated with the judicial phase of the criminal process,' Imbler v. Pachtman,
424 U.S. 409, 430 (1976), and `occur[s] in the course of his role as an advocate for
the State."' Goldstein, 481 F.3d at 1173 (quoting Buckley, 509 U.S. at 273) (some
alteration omitted).
10
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To determine whether a prosecutor is entitled to absolute immunity,
the court applies a functional analysis; that is, the court looks "at the nature of the
function performed, not the identity of the actor who performed it." Buckley, 509
U.S. at 269. "[T]he critical factor" is "the nature of the challenged policy and
whether it falls within a prosecutor's judicial function or, instead, is part of a
prosecutor's exercise of administrative or investigative functions." Goldstein, 481
F.3d at 1175 (citation and quotation signals omitted). "If the action was part of the
judicial process, the prosecutor is entitled to the protection of absolute immunity."
Broam, 320 F.3d at 1029.
For example,
prosecutors are absolutely immune from § 1983 liability for
decisions to initiate a particular prosecution, to present
knowingly false testimony at trial, and to suppress exculpatory
evidence. Prosecutors also enjoy absolute immunity for
decisions not to prosecute particular cases, and for gathering
evidence to present to the trier of fact, as opposed to gathering
evidence to determine whether probable cause exists to arrest.
On the other hand, prosecutors do not have absolute
immunity for advising police officers during the investigative
phase of a criminal case, performing acts which are generally
considered functions of the police, acting prior to having
probable cause to arrest, or making statements to the public
concerning criminal proceedings. Nor do government officials
have absolute immunity for conduct involving termination,
demotion and treatment of employees.
11
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Goldstein, 481 F.3d at 1173-74 (citations and quotation signals omitted).
Defendants bear the burden of demonstrating that absolute immunity is warranted.
Id. at 1173; see also Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001)
("[T]he official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.").
2. Application
Plaintiff alleges that Malate and Kimura violated his Constitutional
rights by (1) applying a probable cause standard as to Plaintiff, but a beyond a
reasonable doubt standard as to Chung, in determining whether to institute
criminal actions against them; and (2) placing Plaintiff in double jeopardy by
charging him with a crime that a previous judge had dismissed against him.6
Both of these acts fall easily within Malate and Kimura's role as
advocates for the County. Specifically, each of Defendants' alleged violations are
based on the decision to initiate a criminal action against Plaintiff. "Initiating a
prosecution has consistently been identified as a function within the prosecutor's
role as advocate." Milstein, 257 F.3d at 1012. A prosecutor is entitled to absolute
6 In addition to these violations, the Complaint recited that Plaintiff's First, Fourth,
Eighth, and Ninth Amendment rights were violated. Compl.135. Plaintiff's Opposition did not
discuss allegations pursuant to these Constitutional amendments, and during the hearing, Plaintiff
clarified that he was alleging the two Constitutional violations listed above only.
12
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immunity for his "determination that the evidence was sufficiently strong to justify
a probable-cause finding," Kalina v. Fletcher, 522 U.S. 118, 130 (1997), as well as
his decision not to prosecute a particular case. Goldstein, 481 F.3d at 1173; see
also Roe v. City & County of S.F., 109 F.3d 578, 584 (9th Cir.1997) (holding that
a "prosecutor's professional evaluation of the evidence assembled by the police is
entitled to absolute immunity"). Absolute immunity attaches even if the decision
to file charges results from an improper motive or is made without probable cause.
See Imbler, 424 U.S. at 410; Buckley, 509 U.S. at 274 n.5 ("The reason that we
grant [absolute immunity] for the latter function (malicious prosecution) is that we
have found a common-law tradition of immunity for a prosecutor's decision to
bring an indictment, whether he has probable cause or not."). Malate's decision to
file the criminal charge goes to the essence of Defendants' prosecutorial duties
and thus, Defendants are plainly afforded absolute immunity from Plaintiff's
allegation.
Plaintiff's arguments for why Defendants' acts should be viewed as
outside Defendants' roles as prosecutors lack merit. Plaintiff first argues that
Defendants' acts were not intimately associated with the judicial phase of the
criminal process because Defendants violated the County screening guidelines and
various other state and federal laws. Pl.'s Opp'n 23-25. Plaintiff's argument
13
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misses the point of absolute immunity -- absolute immunity protects a prosecutor
from civil liability "whether or not he or she violated the civil plaintiff's
constitutional rights." Broam, 320 F.3d at 1029. The proper analysis focuses on
the nature of the function performed, not whether the act itself is unconstitutional.
As the Ninth Circuit has already explained, to accept Plaintiff's "logic would
totally abrogate the immunity doctrine because any allegation that an official,
acting under color of law, has deprived someone of his rights necessarily implies
that the official exceeded his authority." Ybarra v. Reno Thunderbird Mobile
Home Vill., 723 F.2d 675, 678 (9th Cir. 1984) (citation and quotation signals
omitted).
Second, Plaintiff argues that the facts presented are similar to
Milstein, which found that prosecutors do not have absolute immunity where
the plaintiff alleged that district attorneys framed him for suborning perjury by
fabricating evidence, filing a false crime report, and investigating the purported
crime. See Pl.'s Opp'n 16. As an initial matter, that Defendants may have
participated in any police investigation does not strip them of absolute immunity.
The court must evaluate whether each alleged violation of Plaintiff's rights is
subject to absolute immunity; the fact that Defendants took one act outside their
roles as prosecutors does not take away the shield of absolute immunity for all
14
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subsequent acts. See Millstein, 257 F.3d at 1011-1013 (performing absolute
immunity analysis separately for each of plaintiff's allegations). Further, while it
is true that prosecutors "would be protected only by qualified immunity . . . if they
were conducting an investigation to determine whether probable cause existed,"
Broam, 320 F.3d at 1033, Plaintiff does not accuse Defendants of violating any of
his rights by participating in the investigation. Rather, all of Plaintiff's allegations
involve Defendants' decision to bring charges against Plaintiff.
In any event, Millstein is distinguishable from the facts presented
here. Millstein found that defendants were not absolutely immune for acts they
took outside their role as prosecutors and before probable cause was established.
Specifically, the defendants were not absolutely immune for (1) convincing a
witness to testify falsely because probable cause had not yet been established,
(2) filing a false crime report because they acted as advocates by being the
complaining witnesses, or (3) investigating before the grand jury was empaneled
because they acted as detectives. Id. at 1011. In comparison, each of the alleged
violations by Defendants -- applying the wrong standard in filing a criminal
charge, and exposing Plaintiff to double jeopardy -- are all acts that fall
indisputably within Defendants' role as prosecutors. Indeed, the acts Plaintiff
complains of here are precisely the type of activities Milstein expressly found
15
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protected by absolute immunity. See id. at 1011-1012 (finding that prosecutors
were immune for securing grand jury indictment and securing an information and
arrest warrant). The court therefore finds that Malate and Kimura are entitled to
absolute immunity for Plaintiff's alleged violations, and GRANTS summary
judgment on Plaintiff's § 1983 claim against Malate and Kimura.
C. Remand to State Court
During the hearing, the court inquired whether Plaintiff was alleging
a § 1983 claim against the County, and if so, whether Plaintiff wanted to maintain
the claim if Plaintiff's § 1983 claims against Kimura and Malate were dismissed.
In response, Plaintiff informed the court that he did not want to pursue the
§ 1983 claim against the County if his § 1983 claim against Kimura and Malate
was dismissed. Accordingly, the court finds that no federal claims remain in the
action, and only Plaintiff's state law claims for malicious prosecution and abuse of
process remain. Because the court dismisses Plaintiff's federal claims, this action
is REMANDED to the State of Hawaii Circuit Court of the Third Circuit. See 28
U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if . . . the district court has dismissed
all claims over which it has original jurisdiction.").
16
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IV. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary
Judgment on Plaintiff's federal claims is GRANTED. The court REMANDS the
case to state court. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 1, 2008.
9TA.gs oisr�c
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a 6 1W /s/J. Michael Seabright
J. Michael Seabright
United States District Judge
Thomas v. County of Hawaii et al., Civ. No. 07-00251 JMS/LEK; Order Granting Defendants'
Motion for Summary Judgment and Remanding State Law Claims
17