United States District Court, D. Hawaii
WILLIE L. BURRUS, Plaintiff,
ROSE AGUNDA, Defendant.
FINDINGS AND RECOMMENDATION TO DISMISS THE COMPLAINT
AND DENY THE APPLICATION TO PROCEED IN FORMA
S.C. Chang United States Magistrate Judge.
August 3, 2017, Plaintiff Willie Burrus
(“Plaintiff”), proceeding pro se, commenced the
instant action. Plaintiff also filed an Application to
Proceed In Forma Pauperis (“IFP Application” or
requests that the Court permit him to proceed in forma
pauperis. A court may authorize the commencement or
prosecution of any suit without prepayment of fees by a
person who submits an affidavit that the person is unable to
pay such fees. 28 U.S.C. § 1915(a)(1). “[A]n
affidavit is sufficient which states that one cannot because
of his poverty pay or give security for the costs and still
be able to provide himself and dependents with the
necessities of life.” Adkins v. E.I. Du Pont De
Nemours & Co., Inc., 335 U.S. 331, 339 (1948)
(internal quotations omitted). However, a court may deny
leave to proceed in forma pauperis at the outset and dismiss
the complaint if it appears from the face of the proposed
complaint that the action is frivolous, that the action fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2); see Tripati v. First
Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th
Cir. 1987); Minetti v. Port of Seattle, 152 F.3d
1113, 1115 (9th Cir. 1998). A complaint is frivolous if
“it has no arguable substance of law or fact.”
Tripati, 821 F.2d at 1370 (citations omitted);
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The
term frivolous “embraces not only the inarguable legal
conclusion, but also the fanciful factual allegation.”
Neitzke, 490 U.S. at 325.
court dismisses the complaint, it should grant leave to amend
even if no request to amend the pleading was made, unless the
court determines that the pleading could not possibly be
cured by the allegation of other facts. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also
Tripati, 821 F.2d at 1370. Specifically, “pro
se plaintiffs proceeding in forma pauperis must also be
given an opportunity to amend their complaint unless it is
‘absolutely clear that the deficiencies of the
complaint could not be cured by amendment.'”
Tripati, 821 F.2d 1370 (quoting Franklin v.
Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984)).
present case, even construing Plaintiff's Complaint
liberally, Bernhardt v. Los Angeles County, 339 F.3d
920, 925 (9th Cir. 2003); Jackson v. Carey, 353 F.3d
750, 757 (9th Cir. 2003), the Court finds that dismissal with
leave to amend is appropriate because the Complaint fails to
state a claim upon which relief can be granted. Federal Rule
of Civil Procedure (“FRCP”) 8 requires a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although the Federal Rules adopt a flexible pleading
policy, a complaint must give fair notice and state the
elements of the claim plainly and succinctly. Jones v.
Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
“The Federal Rules require that averments ‘be
simple, concise and direct.'” McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
does not demand detailed factual allegations. However,
“it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. “[A] complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
initial matter, the Court notes that Plaintiff has not
identified a jurisdictional basis for this case. Fed.R.Civ.P.
8(a) (“A pleading that states a claim for relief must
contain: (1) a short and plain statement of the grounds for
the court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support.”). Without a proper jurisdictional basis, this
case must be dismissed. Indeed, the Complaint is in actuality
a letter directed to Defendant Rose Agunda and contains no
identifiable cause(s) of action. Plaintiff has not
articulated a claim, nor has he set forth legal or factual
bases to support a viable claim. The Court therefore
recommends that the Complaint be dismissed pursuant to 28
U.S.C. § 1915. Denton v. Hernandez, 504 U.S.
25, 32 (1992) (quoting Neitzke, 490 U.S. at 327).
Because Plaintiff is proceeding pro se, and it is not clear
that the deficiencies could not be cured by amendment, the
Court recommends that the dismissal be without prejudice and
that Plaintiff be allowed to amend his Complaint.
the Court was not recommending dismissal, it would be unable
to properly assess Plaintiff's IFP Application because
the Application is incomplete. Plaintiff represents that his
gross/take-home pay or wages total $2, 700, but he did not
identify the pay period, as required by the Application. IFP
Application at ¶ 2. In addition, Plaintiff indicated
that in the past 12 months, he has received rent payments,
interest, or dividends, and pension, annuity, or life
insurance payments, but he failed to: describe each source of
money, the amounts received, or disclose whether he expects
to receive future income. Id. at ¶ 3. Without a
complete and accurate picture of Plaintiff's financial
situation, the Court cannot determine whether it is
appropriate to waive payment of the filing fee.For these reasons,
the IFP Application should be DENIED WITHOUT PREJUDICE.
Plaintiff elects to file an amended complaint, he should do
so by September 25, 2017. Any amended complaint must comply
with FRCP 8, must assert a jurisdictional basis, and must set
forth causes of action. Plaintiff is advised that Local Rule
10.3 requires that “any party filing . . . an amended
complaint . . . shall reproduce the entire pleading as
amended and may not incorporate any part of a prior pleading
by reference, except with leave of court.” Local Rule
10.3. As a general rule, an amended complaint supersedes the
original complaint. See Loux v. Rhay, 375 F.2d 55,
57 (9th Cir. 1967). Thus, if Plaintiff files an amended
complaint, the Complaint no longer serves any function in the
accordance with the foregoing, the Court makes the following
recommendations: 1) the Complaint be DISMISSED with leave to
amend; 2) Plaintiff be GRANTED until September 25, 2017, to
file an amended complaint curing the deficiencies identified
above; 3) Plaintiff be instructed to title his amended
pleading “First Amended Complaint”; 4) the IFP
Application be DENIED; 5) Plaintiff be directed to file an
IFP Application or pay the requisite filing fee by
September 25, 2017; and 6) Plaintiff be cautioned that
failure to timely file an amended complaint that cures the
deficiencies identified above, along with the requisite
filing fee or another IFP Application, will result in the
dismissal of the action.
SO FOUND ...