United States District Court, D. Hawaii
ORDER: (1) GRANTING IFP APPLICATION; (2) DENYING
EMERGENCY MOTION; (3) GRANTING AMENDED MOTION TO ADD
DEFENDANTS; AND (4) DISMISSING FIRST AMENDED COMPLAINT WITH
LEAVE TO AMEND
Derrick K. Watson United States District Judge.
September 7, 2016, Plaintiff Marie Minichino, proceeding pro
se, filed an Emergency Motion (Dkt. No. 11) and an Amended
Motion to add Defendants (Dkt. No. 13). Thereafter, Plaintiff
filed an Application to Proceed in District Court Without
Prepaying Fees and Costs (“IFP Application”)
(Dkt. No. 19), followed by an Amended Complaint (“First
Amended Complaint” or “FAC”) (Dkt. No. 21).
Plaintiff's IFP Application is GRANTED, she once more
fails to meet the standard required for emergency injunctive
relief. Accordingly, Plaintiff's Emergency Motion is
DENIED. Further, because Plaintiff fails to state a claim
under the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692 et seq., the Court DISMISSES the
First Amended Complaint with leave to amend pursuant to 28
U.S.C. § 1915(e). Any amended complaint must be filed no
later than October 31 2016.
The 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 she 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
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 she is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
the IFP Application indicates that Plaintiff is not employed
and supports one dependent in the amount of $200 per month.
Plaintiff's income consists of social security payments,
which total approximately $896.75 per month. See
Dkt. No. 19. In addition, she owns a “1995 Jeep
Country.” Based on the IFP Application, Plaintiff's
income falls below the poverty threshold identified by the
Department of Health and Human Services (“HHS”)
2016 Poverty Guidelines. See 2016 HHS Poverty
Accordingly, the Court finds that Plaintiff has made the
required showing under Section 1915 to proceed without
prepayment of fees, and GRANTS her IFP Application.
The Emergency Motion is Denied
suit appears to arise from fines imposed on her by the
Piilani Village Homeowners Association
(“Association”) in Kihei, Hawai‘i for
various violations of the Association's rules. In her
First Amended Complaint, Plaintiff disputes the validity of
the fines and alleges that the Association violated the FDCPA
when it attempted to collect them.
Emergency Motion essentially seeks to stay any attempt by the
Association to enforce the collection of its fines, including
through transfer or foreclosure of the real property owned by
Plaintiff within the Association, pending a decision of the
Court on the merits of this lawsuit. Dkt. No. 11 at 2-3.
Although styled as an Emergency Motion, Plaintiff's
filing is a motion for a temporary restraining order, or
alternatively, a motion for a preliminary injunction.
standard for issuing a temporary restraining order is
identical to the standard for issuing a preliminary
injunction. See, e.g., Hawaii v. Gannett Pac. Corp.,
99 F.Supp.2d 1241, 1247 (D. Haw. 1999). The Court articulated
the standard in its August 22, 2016 Order, but to reiterate,
a “plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citation omitted).
“That is, ‘serious questions going to the
merits' and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary
injunction, so long as the plaintiff also shows that there is
a likelihood of irreparable injury and that the injunction is
in the public interest.” Alliance for Wild Rockies
v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Winter emphasized that plaintiffs seeking
preliminary relief must demonstrate that “irreparable
injury is likely in the absence of an injunction.” 555
U.S. at 22; see also Stormans, Inc. v. Selecky, 586
F.3d 1109, 1127 (9th Cir. 2009).
does not come close to meeting this standard. First, the
Court is not persuaded that Plaintiff is likely to prevail on
the merits of her claims. As set forth below, there are a
number of deficiencies contained in Plaintiff's FAC that
cast serious doubt on the merits of this action. Among other
things, it remains unclear how an accounting of the fines at
issue, as requested by Plaintiff, can halt an otherwise valid
foreclosure. Second, it is entirely unclear what enforcement
efforts, if any, are even being made by Defendants and,
therefore, whether the harm surmised by Plaintiff is
imminent, irreparable, real or imagined. See Dkt.
No. 11 at 2; Smallwood v. Federal Bureau of Invest.,
CV. NO. 16-00505 DKW-KJM, 2016 WL 4974948, at *2 (D. Haw.
Sept. 16, 2016). Lastly, the allegations in the Emergency
Motion present no ...