United States District Court, D. Hawaii
ORDER DISMISSING AMENDED COMPLAINT AND DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS
Oki Mollway, United States District Judge
September 5, 2017, Plaintiff Dianne Hoapili, proceeding
pro se, filed an Amended Complaint in this matter
along with an Application to Proceed in District Court
Without Prepaying Fees and Costs (“IFP
Application”). See ECF Nos. 11 & 12.
Pursuant to 28 U.S.C. § 1915(e)(2), this court has
screened the Amended Complaint and determined that it fails
to state a viable claim over which this court has
jurisdiction. The court therefore dismisses the Amended
Complaint and denies Hoapili's IFP Application.
proceed in forma pauperis, Hoapili must demonstrate
that she is unable to prepay the court fees, and that she
sufficiently pleads claims. See Lopez v. Smith, 203
F.3d 1122, 1129 (9th Cir. 2000). Before granting
Hoapili's IFP Application, this court screens the Amended
Complaint to see whether it is (1) frivolous or malicious;
(2) fails to state a claim on which relief may be granted; or
(3) seeks monetary relief against a defendant who is immune
from such relief. See 28 U.S.C. § 1915(e)(2).
Amended Complaint alleges that, in 1990, she was subject to
an illegal search and seizure by various federal law
enforcement agencies. The Amended Complaint also alleges that
she was the subject of an indictment that was dismissed in
1993. This appears to be a reference to Criminal No.
90-01570. See Crim. No. 90-01570, ECF No. 1-3,
PageID # 24. Hoapili's Amended Complaint does not clearly
identify the legal claims arising out of these allegations.
The court has nevertheless attempted to glean from the
allegations what claims Hoapili might be attempting to
pro se Amended Complaint, when liberally construed,
might be asserting a Bivens claim. Under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court
recognized a Fourth Amendment claim against federal law
enforcement officials acting under color of law based on a
warrantless search of an apartment and arrest of an
individual. But a Bivens claim may only be asserted
against a federal official in his or her individual capacity.
Nurse v. United States, 226 F.3d 996, 1004
(9th Cir. 2000). Because Hoapili lists in the
caption of her Amended Complaint the official position of the
individuals she is suing, it is not at all clear that she is
asserting claims against them in their individual capacities.
Nor is there any indication in the record that any of the
named individuals had anything to do with an illegal search
or seizure relating to her in 1990 or to any prosecution
involving her in 1993. Because Hoapili does not identify
federal officials who performed an illegal search or seizure
or a malicious prosecution, and because Hoapili does not
assert any claim against a Doe Defendant, the Amended
Complaint fails to state a proper Bivens claim.
pro se Amended Complaint, when liberally construed,
might also be asserting a claim under the Federal Torts Claim
Act (“FTCA”). However, such a claim would also be
deficient, as the Amended Complaint fails to allege
exhaustion of administrative remedies. See Gillespie v.
Civiletti, 629 F.2d 637, 640 (9th Cir. 1980)
(“The timely filing of an administrative claim is a
jurisdictional prerequisite to the bringing of a suit under
the FTCA . . . and, as such, should be affirmatively alleged
in the complaint.” (citation omitted)); Moore v.
United States, 1988 WL 57696, at *2 (9th Cir.
Sept. 28, 1988) (indicating that FTCA plaintiffs
“must” allege exhaustion). Accordingly, even in a
pro se case, “[a] district court may dismiss a
complaint for failure to allege this jurisdictional
prerequisite.” Gillespie, 629 F.2d at 640.
this court cannot discern any other claim asserted in the
Amended Complaint over which this court might have subject
matter jurisdiction, the court dismisses the Amended
Complaint, giving Hoapili leave to file a Second Amended
Complaint no later than September 29, 2017. In any such
Second Amended Complaint, Hoapili must allege facts
satisfying subject matter jurisdiction requirements. Any
Second Amended Complaint must be complete in itself. That is,
it may not incorporate by reference the original Complaint or
the Amended Complaint. Any Second Amended Complaint should
include only facts relevant to Hoapili's claims, which
she should clearly identify. Any Second Amended Complaint
should also identify the defendant against whom a claim is
being asserted and describe why a claim is being asserted
against the defendant. Before filing any Second Amended
Complaint, Hoapili should consider whether the claim(s) would
be barred by the applicable statute of limitation. To ensure
the clarity of her Second Amended Complaint, Hoapili should
ask herself, “Would a person unfamiliar with the facts
of this case be able to easily understand the allegations
that I am making and know which claims are asserted against
Amended Complaint is dismissed, and the IFP Application is
denied as moot. The court grants Hoapili leave to file a
Second Amended Complaint that states a viable claim against
identified defendants no later than September 29, 2017.
Hoapili may submit another IFP Application at that time.
Before filing another IFP Application, Hoapili should
consider whether she can establish that she is indeed a
pauper. See 2017 Poverty Guidelines for Hawaii,
visited September 12, 2017) (setting poverty guideline for a
family of 2 in Hawaii at $18, 670).
Hoapili chooses to file a Second Amended Complaint, she must
either pay the filing fee or submit another IFP Application.
If Hoapili fails to timely file a Second Amended Complaint,
or if she fails to submit another IFP Application or fails to
pay the filing ...