United States District Court, D. Hawaii
NATALIE DeALCANTARA on behalf of minors A.L, S.S., and E.S., Plaintiff,
REID SHIGEMURA, Defendant.
ORDER: (1) GRANTING APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS; (2)
DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (3) DENYING
MOTION FOR TEMPORARY RESTRAINING ORDER
Michael Seabright Chief United States District Judge.
October 31, 2016, pro se Plaintiff Natalie DeAlcantara on
behalf of minors A.L., S.S., and E.S.
(“Plaintiff”) filed a Complaint against Defendant
Reid Shigemura (“Defendant”), ECF No. 1; a
request to proceed in forma pauperis (“IFP
Application”), ECF No. 2; and a Motion for Temporary
Restraining Order (“TRO”), ECF No. 3.
reasons discussed below, the court (1) GRANTS Plaintiff's
IFP Application; (2) DISMISSES the Complaint for lack of
subject matter jurisdiction, with leave to amend; and (3)
DENIES Plaintiff's Motion for TRO.
Plaintiff's IFP Application Is Granted
IFP Application indicates that in the past year she received
$753 in social security benefits per month, and currently has
no other income, savings or assets aside from a vehicle worth
about $2, 000. IFP Appl. at 1-2. It further states that
Plaintiff has a negative balance in a checking or savings
account. Id. at 2. Because Plaintiff has made the
required showing under 28 U.S.C. § 1915 to proceed in
forma pauperis (i.e., without prepayment of fees),
the court GRANTS Plaintiff's IFP Application.
setting forth all of the details alleged in the Complaint,
Plaintiff essentially alleges that Defendant has committed
sexual assaults and/or sexual abuse against the minor
children named in the Complaint, and has violated a
protective order or orders. Although the allegations are not
clear, it appears Defendant has been awarded custody or
periods of custody of the minors by a Hawaii Family Court in
conjunction with Child Protective Services. Compl. at 5- 6;
Mot. for TRO at 2. The Complaint seeks the return of the
minors to Plaintiff, and ceasing of Defendant's custody
of the minors. Compl. at 6. The Motion for TRO requests that
“the minors listed be returned to the safety of
[Plaintiff's] care and home immediately so [Plaintiff]
can [guarantee] safety, physical medical care if necessary
and psychological care by a professional[.]” Motion for
TRO at 3. It further seeks “[n]o contact, physical
abuse, emotional abuse or threats of such by [Defendant] to
the three minor children listed.” Id.
alleges that Defendant has violated the following federal
criminal statutes: 10 U.S.C. § 920 (“Rape and
sexual assault generally” under the Uniform Code of
Military Justice); 18 U.S.C. § 2241 (“Aggravated
sexual abuse”); 18 U.S.C. § 2242 (“Sexual
abuse”); id. § 2243 (“Sexual abuse
of a minor or ward”); id. § 2261
(“Interstate domestic violence”); and
id. § 2262 (“Interstate violation of
protection order”). Compl. at 4; Motion for TRO at 1.
She asserts violations of these statutes as the basis of
federal jurisdiction under 28 U.S.C. § 1331. She does
not allege diversity of citizenship under 28 U.S.C. §
Standards of Review
court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a), governing IFP proceedings, to
mandatory screening. The court must order the dismissal of
any claims it finds “(i) is frivolous or malicious,
(ii) fails to state a claim upon which relief may be granted,
or (iii) seeks monetary relief against a defendant who is
immune from such relief.” Id. §
1915(e)(2)(B); see, e.g., 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”); Lopez v. Smith,
203 F.3d 1122, 1127 (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 IFP
complaint that fails to state a claim). Claims may also be
dismissed sua sponte where the Court does not have federal
subject matter jurisdiction. See, e.g., Franklin
v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984);
see also Fed. R. Civ. P. 12(h)(3).
is appearing pro se; consequently, the court liberally
construes the Complaint. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987). The court also 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).