United States District Court, D. Hawaii
ORDER (1) DISMISSING COMPLAINT; (2) GRANTING
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS;
AND (3) DENYING ALL OTHER PENDING MOTIONS
Derrick K. Watson United States District Judge
October 27, 2016, Plaintiff Xavier Flores, proceeding pro se,
filed a Complaint, Application to proceed in forma
pauperis (“IFP Application”), Motion For A
Lawyer, and Motion For Service. The Complaint attempts to
assert claims against the United States of America; Aerotek;
Allegis Group Company; and Casey Thigpen, a recruiter for
Aerotek. Flores appears to challenge the employment and/or
hiring practices of Aerotek and Allegis under Title VII, the
Americans with Disabilities Act (“ADA”), the Age
Discrimination in Employment Act (“ADEA”) and the
Rehabilitation Act. Because the Complaint fails to state a
claim for relief against any Defendant, the Court DISMISSES
the Complaint and GRANTS Flores limited leave to file an
amended complaint in accordance with the terms of this order
by no later than November 30, 2016. The Court GRANTS the IFP
Application and DENIES his remaining motions, as discussed
more fully below.
Flores is appearing pro se, the Court liberally construes his
filings. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); 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, Flores is
more than familiar with his federal court filing and pleading
responsibilities, given his numerous prior
Plaintiff'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 an inability 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 Flores is employed,
earning $392.49 in take-home pay per two-week pay period. He
also receives assistance in the form of $170 in food stamps
per month. Based on the IFP Application, Flores' 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 Flores has made the
required showing under Section 1915 to proceed without
prepayment of fees, and GRANTS his IFP Application.
Plaintiff's Complaint Is Dismissed With Limited Leave
review of the Complaint, the Court finds that Flores fails to
state a claim upon which relief may be granted. As discussed
below, even liberally construed, the Complaint fails to state
any discernible basis for judicial relief.
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”). Because
Flores is appearing pro se, the Court liberally construes 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 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