Char v. Khon

Full title: MARK ALAN CHAR, #A0234438, Plaintiff, v. KHON, KITV, KHNL, JOHN AND JANE…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Date published: Oct 24, 2018

CIV. NO. 18-00304 LEK-KJM (D. Haw. Oct. 24, 2018)

Opinion

CIV. NO. 18-00304 LEK-KJM

10-24-2018

MARK ALAN CHAR, #A0234438, Plaintiff, v. KHON, KITV, KHNL, JOHN AND JANE DOES 1-50, Defendants.

Leslie E. Kobayashi United States District Judge

DISMISSAL ORDER

Before the court is pro se Plaintiff Mark Alan Char's first amended prisoner civil rights complaint (FAC). ECF No.5. Char is a pretrial detainee incarcerated at the Halawa Correctional Facility.¹ Char alleges that Defendants Honolulu News Stations KHON, KHNL, KITV, and their unidentified employees John and Jane Does 1-50 violated the Fourth, Eighth, and Fourteenth Amendments and state law beginning on or about August 1, 2016, and thereafter, when they broadcast news reports about his arrest and criminal proceedings.²

1 Char is awaiting trial in four criminal cases in the Hawaii Circuit Court of the First Circuit. See State v. Char, 1PC161001291; 1PC161000903; 1PC131000810; 1PC031002555. http://www.courts.state.hi.us. (visited Oct. 22, 2018).

2 Char apparently refers to news reports aired regarding his arrest on or about August 1, 2016, leading to his charges in State v. Char, 1PC161001291. --------

Char again fails to allege a federal cause of action, despite now labeling his claims as brought under the United States Constitution in addition to state law. Char's FAC is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). It is clear that Char cannot amend these claims to state a federal cause of action and this dismissal is with prejudice.

I. BACKGROUND

Char originally alleged that KHON, KITV, KHNL, and their unidentified employees committed "slander/defamation, reputational injury, [and] libel by broadcasting false information" about him on the nightly news on and after August 1, 2016, when they reported on his arrest and criminal proceedings. Compl., ECF No. 1, PageID #5. Because Char alleged no federal claims, the court notified him that it lacked subject matter jurisdiction over his claims and dismissed the Complaint with leave to amend. The court informed Char that, in light of this holding and the guidance provided regarding his claims, if he elected to voluntarily dismiss this action, the court would vacate the Order Granting In Forma Pauperis and waive any further payment of fees. See Order (1) Granting In Forma Pauperis; and (2) Dismissing Complaint, ECF No. 3, PageID #22-23.

Instead, Char elected to file the FAC and attempt to allege federal claims. The FAC realleges the same facts and state law claims of libel, slander, defamation, and reputational injury as alleged in the original Complaint. Char now asserts additional state law torts of negligence and intentional and negligent infliction of emotional distress. He also broadly asserts, without any factual support, that Defendants were "deliberate indifferent to Plaintiffs [sic] clearly established constitutional rights + acted with a purpose to harm Plaintiff," in violation of the "usages of rights, privileges and immunities secured to Plaintiffs [sic] Fourth, Eighth, and Fourteenth Amendments to the Constitution of the United States and the State of Hawaii." FAC, ECF No. 5, PageID #32.

Char seeks only damages for mental anguish, emotional distress, embarrassment, and humiliation.

II. STATUTORY SCREENING

The court must screen all prisoners' pleadings pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a), and dismiss a claim or complaint 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); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

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 under § 1915A). 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).

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, 203 F.3d at 1130. If the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

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. See West v. Atkins, 487 U.S. 42, 48 (1988).

A. No Color of State Law

The Constitution protects individual rights from government action only, not from private action. Generally, private parties are not considered to be acting under color of state law. See Price v. Hawaii, 939 F.2d 702, 702-08 (9th Cir. 1991). It is only when the government is responsible for the specific conduct about which the plaintiff complains that individual constitutional rights are implicated. See Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). A § 1983 plaintiff must show that a defendant's actions are fairly attributable to the government, which involves significant state involvement in the action in question. Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002).

To attribute a private individual's conduct to state action requires two elements: a state policy and a state actor. The state policy element can be satisfied if there is the exercise of state-created rights, privileges, or rules of conduct. Char neither alleges nor suggests any state policy under which Defendants were allegedly acting when they aired news reports about his arrest and criminal proceedings.

The state actor element may be established where there is conduct on the part of a state official, or an individual who acts in concert with a state official, or has obtained significant aid therefrom, or whose conduct is otherwise chargeable to the state. Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). That is, "to show that a private action is in fact state action, the plaintiff must show that there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Grijalva v. Shalala, 152 F.3d 1115, 1119 (9th Cir. 1998) vacated on other grounds by 526 U.S. 1096 (1999).

Char alleges no facts suggesting that KHON, KITV, KHNL, and their unidentified employees acted under color of state law or in concert with the state or any state officials when they broadcast news reports regarding his arrest and later proceedings.

B. No Constitutional Violation

"Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. amend. I. "The right of the press to gather news and information is protected by the First Amendment because 'without some protection for seeking out the news, freedom of the press could be eviscerated.'" California First Amendment Coal. v. Calderon, 150 F.3d 976, 981 (9th Cir. 1998) (quoting Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). Gathering and disseminating news from public sources is fully protected by the First Amendment. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975).

Thus, the press enjoys a nearly unfettered constitutional right, founded in the First Amendment, to report matters of public interest. Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) ("[N]o cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it."); see also Pierce v. Capital Communications, Inc., 576 F.2d 495, 504-08 (3rd Cir. 1978). And, the commission of a crime and resulting criminal proceedings are "without question events of legitimate concern to the public," entitled to First Amendment protection. Cox, 420 U.S. at 492. KHON, KITV, KHNL, and their employees are protected under the First Amendment for their reporting Char's arrest and public criminal proceedings.

Additionally, simply labeling his claims as arising under the Fourth, Eighth, and Fourteenth Amendments, without any indication how Defendants violated Char's constitutional rights under these provisions is wholly insufficient to state a federal claim against them. While Rule 8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").

And, as the court previously warned Char, he cannot state a colorable constitutional cause of action based on his claims of defamation, slander, and libel. See Paul v. Davis, 424 U.S. 693, 699-701 (1976) (holding defamation is not actionable under § 1983); Hernandez v. Johnson, 833 F.2d 1316, 1319 (9th Cir. 1987) (holding that libel and slander claims are precluded by Paul); Whatley v. Gray, 2018 WL 828200, at *2 (S.D. Cal. Feb. 8, 2018); Sadler v. Dutton, 2017 WL 3217119, at *6 (D. Mont. June 1, 2017), report and recommendation adopted, 2017 WL 3219479 (D. Mont. July 28, 2017).

Char cannot link KHON, KITV, KHNL, and their employees to any state action. Even if he could, they are entitled to constitutional protection under the First Amendment for broadcasting news reports about Char's arrest and criminal proceedings, which are matters of public interest. Char fails to explain how Defendants, even if their action was not protected by the First Amendment, violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. Char fails to state a claim against Defendants under § 1983 and his claims against them are DISMISSED.

C. Damages Are Unavailable Under 42 U.S.C. § 1997e(e)

The Prison Litigation Reform Act of 1996 (PLRA), placed a limitation on recovery of damages in prisoner actions. 42 U.S.C. § 1997e states in relevant part:

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).

42 U.S.C. § 1997e(e). Char's claims for damages are based on his mental and emotional distress and are barred under § 1997e(e), because he fails to allege any physical injury due to Defendants' reporting about his arrest and prosecution on television news broadcasts. See Oliver v. Keller, 289 F.3d 623, 625-28 (9th Cir. 2002) (the physical injury requirement applies to pre-trial detention claims and requires more than de minimis physical injury); Jackson v. Monterey Cty. Jail, 407 F. App'x 119, 119-20 (9th Cir. 2010) (affirming dismissal of pretrial detainee conditions of confinement suit for failure to allege physical injury).

IV. 28 U.S.C. § 1915(g)

This dismissal may count as a "strike" under 28 U.S.C. § 1915(g). Under the "3-strikes" provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915,

if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

V. CONCLUSION

(1) Char's First Amended Complaint is DISMISSED for failure to state a claim. Because amendment appears futile, this dismissal is with prejudice.

(2) The Clerk of Court is DIRECTED to enter judgment and terminate this case.

(3) This dismissal has no effect on the Order directing the Hawaii Department of Public Safety to withdraw funds from Char's account, which remains in effect.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, October 24, 2018.

/s/ Leslie E. Kobayashi

Leslie E. Kobayashi

United States District Judge