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
5, 2017, Plaintiff Ronald Fountain, a resident of
Philadelphia, Pennsylvania, proceeding pro se, filed a
Complaint against the United States, the Attorney General of
the United States, and the United States Attorney for the
District of Hawaii, alleging violations of federal law. On
June 6, 2017, the district court issued a deficiency order,
directing Fountain to either pay the applicable filing fee or
to submit a completed in forma pauperis application
within twenty eight days. Dkt. No. 5. On June 19, 2017,
Fountain filed an Application to proceed in forma
pauperis (“IFP Application”). Dkt. No. 6.
The Court GRANTS the IFP Application. However, because
Fountain fails to include any factual allegations
demonstrating that his rights have been violated or that he
is entitled to relief from any Defendant, the Court DISMISSES
the Complaint and GRANTS Fountain limited leave to file an
amended complaint in accordance with the terms of this order
by July 21, 2017.
Fountain is proceeding 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 § 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 Fountain is unemployed and
receives SSI benefits in the amount of $735 per month. Based
upon the IFP Application, Fountain'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 Fountain 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 Fountain 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
Fountain is appearing pro se, the Court liberally construes
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); 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