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Gillman v. United States

United States District Court, D. Hawaii

January 7, 2016

ZACHARY RYAN GILLMAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER (1) GRANTING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES; AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE

J. Michael Seabright Chief United States District Judge

I. INTRODUCTION

On January 4, 2016, Plaintiff Zachary Ryan Gillman (“Plaintiff”), proceeding pro se, filed (1) an Application to Proceed without Prepayment of Fees (“Motion for IFP”); and (2) a Complaint against Defendant United States of America. Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing. Based on the following, the court GRANTS Plaintiff’s Motion for IFP, but DISMISSES the Complaint without prejudice. Plaintiff is granted leave to file an Amended Complaint that complies with the Federal Rules of Civil Procedure and satisfies deficiencies identified in this Order. If he does not do so by January 28, 2016, the action will be terminated without further notice.

II. ANALYSIS

A. Motion for IFP

Federal courts may authorize the commencement of any suit, without prepayment of fees or security, by a person who submits an affidavit that includes a statement of all assets the person possesses and demonstrates that he or she is unable to pay such costs or give such security. See 28 U.S.C. § 1915(a)(1). “[A]n affidavit is sufficient which states that one cannot because of [ ] poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted); see also United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (stating that the affidavit must “state the facts as to affiant’s poverty with some particularity, definiteness and certainty” (internal quotation omitted)).

When reviewing a motion filed pursuant to § 1915(a), “[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). While § 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must nonetheless show that he or she is “unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a).

Plaintiff’s Motion for IFP asserts that Plaintiff is self-employed with take-home pay or wages of $1, 000 per month. He attests to receiving income of $500 per month during the past six months, and $407 per month of disability benefits. He further attests to having $2, 000 in a bank account. He lists monthly expenses of over $450. Doc. No. 4, Mot. at 1-2. The court finds that Plaintiff has made the required showing under 28 U.S.C. § 1915 to proceed without prepayment of fees, and thus the court GRANTS Plaintiff’s Motion for IFP.

B. The Complaint

1. Standards for Screening the Complaint

The court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it finds frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).

Plaintiff is appearing pro se; consequently, the court liberally construes his pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam))).

Moreover, the court may dismiss a complaint for lack of subject matter jurisdiction on its own motion. Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); Belleville Catering Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003) (“[I]nquiring whether the court has jurisdiction is a federal judge’s first duty in every case.”); Fed.R.Civ.P. 12(h)(3). Further, “[a] trial court may dismiss a claim sua sponte under [Rule] 12(b)(6).” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). “Such a dismissal may be made without notice where the claimant cannot possibly win relief.” Id. The court may dismiss a complaint pursuant to Rule 12(b)(6) if it fails to “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).

A complaint must also meet the requirements of Federal Rule of Civil Procedure 8, which mandates that a complaint include a “short and plain statement of the claim, ” Fed.R.Civ.P. 8(a)(2), and that “each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief as required by this Rule. Iqbal, 556 U.S. at 679. Further, a complaint that is so confusing that its “‘true substance, if any, is well disguised’” may be dismissed for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (‚ÄúSomething ...


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