United States District Court, D. Hawaii
ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS; (2) DISMISSING IN PART FIRST AMENDED COMPLAINT WITH
LEAVE TO AMEND; AND (3) GRANTING MOTION FOR SERVICE
Derrick R. Watson, United States District Judge
August 18, 2016, Plaintiff Chris Grindling, proceeding pro
se, filed a First Amended Complaint against defendant
correctional officers at an institution at which Grindling was
formerly incarcerated, alleging violations of federal law
pursuant to 42 U.S.C. § 1983. He also submitted a fully
executed Application to Proceed In Forma Pauperis (“IFP
Application”), as directed by the Court's August 8,
2016 Order dismissing his original Complaint. On August, 29,
2016, Grindling filed a Motion for Service by U.S. Marshal
(“Motion for Service”).
the First Amended Complaint fails to state a claim with
respect to Grindling's conspiracy and grievance-based
allegations, the Court DISMISSES those portions of the First
Amended Complaint with leave to amend pursuant to 28 U.S.C.
§ 1915(e). As discussed more fully below, Grindling is
once again GRANTED leave to file an amended complaint by no
later than October 28, 2016. Further, the Court finds that,
liberally construed, the First Amended Complaint states a
Section 1983 claim for violation of Grindling's Eighth
Amendment rights, and, accordingly, the Motion for Service is
GRANTED, with instructions below. The IFP Application is also
Grindling's IFP Application Is Granted
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 Grindling is not employed
and lists income in the form of $340 in food stamps and $340
in cash per month. Grindling's debts include $4, 700 in
district court traffic fines. Based on the IFP Application,
Grindling's income falls below the poverty threshold
identified by the Department of Health and Human Services
(“HHS”) 2016 Poverty Guidelines. See
2016 HHS Poverty Guidelines, available at
Accordingly, the Court finds that Grindling has made the
required showing under Section 1915 to proceed without
prepayment of fees, and GRANTS his IFP Application.
Grindling's First Amended Complaint Is Dismissed In
Standard of Review
Court subjects each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening and can 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”).
Grindling is appearing pro se, the Court liberally construes
the First Amended Complaint. See Erickson v. Pardus,
551 U.S. 89, 94 (2007); see also 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)). The Court recognizes that “[u]nless it
is absolutely clear that no amendment can cure the defect . .
. a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995);
see also Crowley v. Bannister, 734 F.3d 967, 977-78
(9th Cir. 2013). The Court notes that, although he is
proceeding pro se, Grindling is familiar with the federal
court filing system, and initiated the instant case along
with three other civil actions on the same day.Prior to the
simultaneous filing of those four actions, Grindling has
filed at least fifteen actions in the federal
the Court may dismiss a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) for “failure to state a claim
upon which relief can be granted[.]” A Rule 12(b)(6)
dismissal is proper when there is either a “‘lack
of a cognizable legal theory or the absence of sufficient
facts alleged.'” UMG Recordings, Inc. v.
Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th
Cir. 2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). 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, 678 (2009) (quoting Bell
Atlantic 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). This tenet
that the court must accept as true all of the allegations
contained in the complaint “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Twombly,
550 U.S. at 555); see also Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011) (“[A]llegations in a
complaint or counterclaim may not simply recite the elements
of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.”).
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.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). 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 Rule 8. Id. at 679.
Claims In The First Amended Complaint
First Amended Complaint alleges that defendants were
correctional officers at “MCCC” during the period
of Grindling's incarceration there. He alleges violations
of his Eighth and First Amendment rights as a result of a
conspiracy by defendants to both deny him food and prevent
him from reporting their misconduct through the
institution's grievance process. Although he appears to
allege facts that would support an Eighth Amendment claim
against some of the defendants, he fails to state a claim
under the First Amendment or sufficiently allege a
alleges that he was intentionally denied food and basic
necessities during his incarceration at MCCC:
2. Correctional officers' duty is to report any evidence
of malnutrition. The kitchen does not see the meals served to
3. Shibao, Sam Fong, Shook, Gazman, Faleafine all ACO's
who deliberately denied me food failed to report others who
also were denying me food. They would write me up for
complaining of them starving me  they would give me trays
that did not have all the required items to sustain me. This
denial of food took place whenever I lost access to store
order food my weight would drop to dangerous levels when I
could buy food my mom sent me maximum allowed.
4. All food is provided by ACOs. They serve all meals. They
pass out all commissary. They can take away access to
commissary. The kitchen and medical have no control of the
actual food I am given. The ACOs know how much food I am
FAC at 2. With respect to particular defendants and time
periods, Grindling ...