United States District Court, D. Hawaii
CRAIG S. SMALLWOOD, Plaintiff,
FEDERAL BUREAU OF INVESTIGATION; CITY & COUNTY OF HONOLULU; and HAWAII DISABILITY RIGHTS CENTER, Defendants.
ORDER (1) DENYING APPLICATION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS; (2) DENYING MOTION FOR TEMPORARY RESTRAINING
ORDER; AND (3) DISMISSING COMPLAINT WITH LEAVE TO
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
September 14, 2016, Plaintiff Craig S. Smallwood, proceeding
pro se, filed a Complaint against the Federal Bureau of
Investigation (“FBI”), City and County of
Honolulu (“City”), and the Hawaii Disability
Rights Center, alleging violations of his civil rights on the
basis of race and disability. Smallwood also filed a request
for TRO and Ex Parte Emergency Federal Protection Order
(“Motion for TRO”), seeking a court order
directing: (1) that an unnamed Honolulu Police Department
(“HPD”) officer be reassigned; and (2) that the
FBI investigate unspecified agencies within the State of
Hawaii for purported system-wide civil rights violations.
Motion for TRO fails to establish that he is entitled to the
relief he seeks, and is accordingly DENIED. Moreover, because
the Complaint fails to state a claim for relief, the Court
DISMISSES it pursuant to 28 U.S.C. § 1915(e) and GRANTS
Smallwood leave to file an amended complaint by no later than
October 10, 2016. Smallwood's concurrently filed
Application For Leave To Proceed Without Prepayment of Fees,
requesting to proceed in forma pauperis (“IFP
Application”), is also DENIED for the reasons detailed
The IFP Application Is Denied
courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an
affidavit that demonstrates he is unable to pay. See
28 U.S.C. § 1915(a)(1). “An affidavit in support
of an IFP application is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the
necessities of life.” Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v.
E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339
(1948)); see also United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (The affidavit must “state the
facts as to affiant's poverty with some particularity,
definiteness and certainty.”) (internal quotation
reviewing an application 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 Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that he is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
the IFP Application indicates that Smallwood is not employed
and supports two dependents, his wife and daughter. His wife
is employed and earns $350 per month. Smallwood's other
income consists of SSI disability, and VA pension and/or
disability payments, which total $4, 190 per month. He lists
$50 in a bank account. Based on the IFP Application,
Smallwood's income falls significantly above the poverty
threshold identified by the Department of Health and Human
Services (“HHS”) 2016 Poverty Guidelines.
See HHS Poverty Guidelines,
the-hhs-poverty-guidelines (annual income of $23, 190 for
family of three living in Hawaii). The Court acknowledges
that Plaintiff's enumerated monthly expenses and his
stated debts consume much of his monthly income.
Nevertheless, Plaintiff's IFP Application does not
establish that he cannot both pay the costs of litigating
this case “and still be able to provide himself . . .
with the necessities of life.” See Adkins, 335
U.S. at 339 (internal quotation marks omitted). Accordingly,
the Court finds that Plaintiff has not made the required
showing under Section 1915 to proceed without prepayment of
fees, and his IFP Application is DENIED. If Smallwood wishes
to proceed with this action, he must remit the appropriate
Motion for TRO
may issue a TRO without written or oral notice to the adverse
party only if the party requesting the relief provides an
affidavit or verified complaint providing specific facts that
“clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse
party can be heard in opposition.” Fed.R.Civ.P.
seeks, on an expedited basis,
[an] order of protection to have police officer assigned
different beat as he has harassed and threatened to deprive
me of life or liberty which has caused extreme mental and
emotional distress. Actually causes me great harm and damage
every time I see him at the moment and for the welfare of my
person is medically reasonable I should not have to endure
fear and mental duress of the presence o[f] officer who has
seriously violated my most fundamental civil and human rights
to the point I am in fear for my life. Told by city and [HPD]
that there is process that must be [fo]llowed even though it
is slow and keeps me remaining in [imminent] danger of loss
of freedom or life. A process that would not be necessary as
immediate had my civil right of equal justice and due process
not been violated by [HPD]. Had I been allowed to file police
report and file charges which is 5[th] amendment right
officer would not be on beat to create unimaginable mental
duress. . . . .
Again, I ask that the court intervene in this matter because
of the serious nature of violations and as emergency as
timing is that I face immense distress and danger. Plaintiff
will file within days federal complaint of civil rights
violations of federal and criminal nature but I need to
survive and be free long enough to do that.
at unnumbered page 4.
the allegedly harassing HPD officer is not named anywhere on
the face of the Complaint, appended to the Complaint are
several exhibits, two of which clarify to a certain degree
the otherwise vague allegations: (1) a Petition for Ex Parte
Temporary Restraining Order, filed by Smallwood on September
9, 2016 against Corporal L. Juarez in the District Court of
the First Circuit, State of Hawaii; and ...