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DeAlcantara v. Shigemura

United States District Court, D. Hawaii

November 1, 2016

NATALIE DeALCANTARA on behalf of minors A.L, S.S., and E.S., Plaintiff,


          J. Michael Seabright Chief United States District Judge.


         On 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.

         For the 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.


         A. Plaintiff's IFP Application Is Granted

         Plaintiff's 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.

         B. Plaintiff's Complaint

         Without 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.

         Plaintiff 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. § 1332.

         C. Standards of Review

         The 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).

         Plaintiff 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).

         III. ...

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