United States District Court, D. Hawaii
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING COMPLAINT
WITH LEAVE TO AMEND
Derrick K. Watson United States District Judge
17, 2017, Plaintiff Jack Stone, proceeding pro se, filed a
Complaint against the State of Hawaii Department of Education
(“DOE”) and its Superintendent, Kathryn
Matayoshi, and an Application to proceed in forma
pauperis (“IFP Application”). Stone alleges
that the DOE denied him employment as a teacher in violation
of 42 U.S.C. § 1981(a) and the Fourteenth
Amendment's Equal Protection Clause, and seeks $250, 000
in compensatory and punitive damages. Because the Complaint
fails to plausibly state a claim for discrimination or
retaliation against any defendant, however, the Court
DISMISSES the Complaint and GRANTS Stone leave to file an
amended complaint in accordance with the terms of this order
by no later than June 26, 2017. The Court GRANTS the IFP
Application, as discussed more fully below.
Stone 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).
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 Section 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).
IFP Application indicates that he is not currently employed,
earns no income from wages, and has two dependents. He
receives $1, 248 per month in unemployment benefits, which
expire within six months. Based upon the IFP Application,
Stone's income falls below the poverty threshold
identified by the Department of Health and Human Services
(“HHS”) 2017 Poverty Guidelines. See
2017 HHS Poverty Guidelines,
Accordingly, the Court finds that Stone 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 Stone fails to
state a claim for violation of 42 U.S.C. § 1981(a) or
the Equal Protection Clause of the Fourteenth Amendment.
Liberally construing his allegations to also include possible
claims for employment discrimination and retaliation under
federal law, the Court further finds that Stone fails to
demonstrate that he exhausted his administrative remedies.
The Court grants Stone leave to file an amended complaint,
with instructions below.
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
Stone 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 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); se ...