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Hackett v. Bus

United States District Court, D. Hawaii

March 22, 2016

CLIFFORD RAY HACKETT, Plaintiff,
v.
RED GUAHAN BUS, Defendant.

          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[1],

          RICHARD L. PUGLISI, Magistrate Judge.

         On 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.

         BACKGROUND

         Plaintiff alleges that Defendant Red Guahan Bus violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 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.

         Plaintiff 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.

         Plaintiff 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.

         DISCUSSION

         Courts 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. § 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. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to dismiss a § 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. § 1915(e)(2)(B) are not limited to prisoners).

         Additionally, 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. 2003).

         As an 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.

         I. Plaintiff's Amended Complaint Fails to Allege Sufficient Facts to Support the Court's Jurisdiction.

         Plaintiff 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. § 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.

         Plaintiff 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 ...


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