United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO DISMISS THE COMPLAINT
AND DENY THE APPLICATION TO PROCEED IN FORMA
S.C. Chang United States Magistrate Judge
the Court is Plaintiff Dariel Beaudet's
(“Plaintiff”) Application to Proceed In Forma
Pauperis, filed September 21, 2017. 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. Rede v. 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.”
the existence of subject matter jurisdiction is questionable.
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 highly incomprehensible Complaint appears to challenge
Wisconsin State Court proceedings, and assert a number of
to the Rooker-Feldman doctrine, “federal
district courts are without jurisdiction to hear direct
appeals from the judgments of state courts.” Cooper
v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). The United
States Supreme Court, not the lower federal courts, are
vested “with appellate jurisdiction over state court
judgments.” Id. (citing Lance v.
Dennis, 546 U.S. 459, 463 (2006) (per curiam)).
“The doctrine bars a district court from exercising
jurisdiction not only over an action explicitly styled as a
direct appeal, but also over the ‘de facto
equivalent' of such an appeal.” Id.
(citing Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir.
Court is unable to discern whether subject matter
jurisdiction exists based on the allegations in the
Complaint. 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 her Complaint.
the Court was not recommending dismissal, it would be unable
to properly assess Plaintiff's IFP Application because
the Application is incomplete. For example, Plaintiff
represents that in the past 12 months, she received income
from 1) rent payments, interest, or dividends and 2) other
sources. However, rather than describing the sources of money
or the amounts received, and providing information about
whether she expects to receive in the future, Plaintiff
simply states: “(1) Social Security Exhibit (B) (2)
Alaska Permanent Fund Dividend $1000 - Dec. 2016.”
Plaintiff did not attach any exhibits, but it appears that
she is referring to Exhibit B to the Complaint, which
contains information about Social Security Benefits. There is
no information about the frequency with which she receives
the fund dividend, and whether she will continue to receive
amounts from the same.
incompleteness of the Application precludes the Court from
evaluating Plaintiff's present financial situation. In
the absence of complete and accurate information, the Court
cannot ascertain whether it is appropriate to permit
Plaintiff to proceed in forma pauperis. For these reasons,
the Application should be DENIED WITHOUT PREJUDICE.
Plaintiff elects to file an amended complaint, she should do
so by October 30, 2017. 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 case.
accordance with the foregoing, the Court makes the ...