United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT
DENY PLAINTIFF'S SECOND APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND DISMISS THE AMENDED COMPLAINT WITH
LEAVE TO AMEND,
RICHARD L. PUGLISI, Magistrate Judge.
February 23, 2016, Plaintiff Clifford Ray Hackett filed a
document entitled "Motion for Leave to Proceed In Forma
Pauperis" ("Motion"). ECF No. 5. The Court
construes Plaintiff's Motion as a second application to
proceed without prepayment of fees. Plaintiff also filed an
Amended Complaint on February 29, 2016. ECF No. 7. The Court
deferred decision on the Motion until the district court
acted on the Court's prior Findings and Recommendation
that the district court deny Plaintiff's first
application to proceed without prepayment of fees. ECF No. 6.
The district court adopted the Findings and Recommendation on
March 9, 2016. ECF No. 9. The Court now finds this matter
suitable for disposition without a hearing pursuant to Local
Rule 7.2(d). For the reasons discussed below, the Court FINDS
and RECOMMENDS that the district court DENY Plaintiff's
second application to proceed without prepayment of fees and
DISMISS his Amended Complaint with leave to amend.
alleges that Defendant Red Guahan Bus violated the Americans
with Disabilities Act ("ADA"), 42 U.S.C. Â§ 12101
et seq., by "failing to add wheelchair
lifts" and preventing access to disabled persons. ECF
No. 1, Complaint; ECF No. 7, Amended Complaint. Plaintiff
indicates that he is a United States citizen and his mailing
address is in Hawaii. ECF Nos. 1, 7. Plaintiff alleges that
Defendant "owns a commercial business worldwide."
ECF Nos. 1, 7. Plaintiff lists Defendant's mailing
address as 117 Guerrero St. Tamuning, Guam. ECF Nos. 1, 7.
previously filed a request seeking "free process, "
which the Court construed as an application to proceed
without prepayment of fees. ECF No. 2; see also ECF No. 4.
This Court recommended that the district court deny
Plaintiff's first application to proceed without
prepayment of fees because Plaintiff's Complaint failed
to allege sufficient facts to support personal jurisdiction
over defendant or to support his ADA claim. ECF No. 4 at 5-7.
The Court also found that Plaintiff's initial Complaint
should be dismissed pursuant to the first-to-file rule
because Plaintiff had previously filed a nearly identical
complaint in the District of Guam. Id. at 7-9.
filed the instant Motion on the same day this Court issued
its Findings and Recommendation. See ECF Nos. 4, 5. The Court
deferred decision on the Motion until the district court
acted on the Findings and Recommendation. ECF No. 6. The
district court adopted the Findings and Recommendation on
March 9, 2016. ECF No. 9. However, prior to the district
court's adoption, Plaintiff filed an Amended Complaint.
ECF No. 7. The Amended Complaint is identical to
Plaintiff's initial Complaint except that it is titled
"AMENDED COMPLAINT, " the words "See Exhibit
A'" have been removed from line 10, and the words
"CLAIM OF RELIEF" appear on line 18 instead of
below it. Compare ECF No. 1 with ECF No. 7. Plaintiff did not
add any new allegations or claims. For the reasons discussed
below, the Court FINDS and RECOMMENDS that the district court
DENY Plaintiff's Motion and DISMISS Plaintiff's
Amended Complaint with leave to amend.
may authorize the commencement of any suit without prepayment
of fees by a person who submits an affidavit that the person
is unable to pay such fees. 28 U.S.C. Â§ 1915(a)(1). The Court
must subject each civil action commenced pursuant to Section
1915(a) to mandatory screening and order the dismissal of any
claim that it finds frivolous, malicious, or failing to state
a claim upon which relief may be granted. 28 U.S.C. Â§
1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000) (stating that 28 U.S.C. Â§ 1915(e) "not
only permits but requires" the court to dismiss a Â§
1915(a) complaint that fails to state a claim); Calhoun
v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (holding
that the provisions of 28 U.S.C. Â§ 1915(e)(2)(B) are not
limited to prisoners).
the court may dismiss a complaint for failure to comply with
Rule 8 of the Federal Rules of Civil Procedure. See
Hearns v. San Bernardino Police Dep't, 530 F.3d
1124, 1131 (9th Cir. 2008). Rule 8 requires that a complaint
contain "a short and plain statement of the grounds for
the court's jurisdiction." Fed.R.Civ.P. 8(a)(1).
Rule 8 also requires that a complaint include "a short
and plain statement of the claim" and that each
allegation "be simple, concise, and direct."
Fed.R.Civ.P. 8(a)(2), (d)(1). A plaintiff must allege
"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 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Because Plaintiff is appearing pro se in this
action, the Court liberally construes the pleadings. See
Bernhardt v. L.A. Cnty., 339 F.3d 920, 925 (9th Cir.
initial matter, the Court notes that because Plaintiff's
Amended Complaint is nearly identical to his initial
Complaint, the Court's analysis is the same as in its
prior Findings and Recommendation. See ECF No. 4.
Nonetheless, the Court proceeds through the analysis again as
it applies to Plaintiff's Amended Complaint.
Plaintiff's Amended Complaint Fails to Allege Sufficient
Facts to Support the Court's Jurisdiction.
has failed to allege sufficient facts to support this
Court's exercise of personal jurisdiction over Defendant.
Personal jurisdiction is proper if it is consistent with
Hawaii's long-arm statute and it comports with due
process of law. Boschetto v. Hansing, 539 F.3d 1011,
1021-22 (9th Cir. 2008). Because Hawaii's long-arm
statute reaches to the full extent permitted by the United
States Constitution, the Court need only determine whether
due process permits the exercise of personal jurisdiction.
Television Events & Mktg., Inc. v. Amcon Distrib.
Co., 416 F.Supp.2d 948, 958 (D. Haw. 2006) (citing
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800-01 (9th Cir. 2004)); Haw. Rev. Stat. Â§ 634-35. For
due process to be satisfied, a defendant must have
"minimum contacts" with the forum state.
Int'l Shoe Co. v. Wash., 326 U.S. 310, 315
(1945). A defendant has minimum contacts with the forum state
if (1) the defendant has performed some act or consummated
some transaction within the forum or otherwise purposefully
availed himself of the privileges of conducting activities in
the forum; (2) the claim arises out of or results from the
defendant's forum related activities; and (3) the
exercise of jurisdiction is reasonable. Boschetto,
539 F.3d at 1021.
does not plead sufficient facts in his Amended Complaint to
satisfy the standard for minimum contacts. Plaintiff states
only that Defendant "owns a commercial business
worldwide." ECF No. 7. Plaintiff does not allege that
Defendant operates or otherwise has any presence in Hawaii or
that Plaintiff was discriminated against by Defendant in
Hawaii. Even liberally construing the Amended Complaint, the
Court cannot determine that Defendant has sufficient minimum
contacts with Hawaii to establish personal jurisdiction.
Because Plaintiff has failed to state the grounds for ...