United States District Court, D. Hawaii
ORDER DENYING IN FORMA PAUPERIS APPLICATION;
DISMISSING COMPLAINT; AND ORDER TO SHOW CAUSE
Michael Seabright Chief United States District Judge
the court is Plaintiff Rodney Wells Clark, Jr.'s
application to proceed in forma pauperis and civil rights
complaint brought pursuant to 42 U.S.C. § 1983. ECF Nos.
1 & 2. Clark alleges that the Honorable Rom A. Trader,
Judge of the First Circuit Court, State of Hawaii, and State
of Hawaii Deputy Public Defender (“DPD”) Craig
Nagamine, Esq., violated his constitutional rights because he
remained incarcerated at the Oahu Community Correctional
Center (“OCCC”) for approximately ten months in
2013 and 2014, while awaiting trial in a state criminal
proceeding at which Judge Trader presided and Nagamine
represented Clark. See Compl., ECF No. 1, PageID
#5-7 (Counts I-III). Clark states that while he was
incarcerated he lost his apartment and property valued at
$35, 000. He apparently seeks damages in that amount.
Complaint, Clark provides OCCC as his address and his Hawaii
Department of Public Safety (“DPS”) prisoner
identification number. The return address on Clark's
envelope, however, indicates that Clark is at the Hawaii
State Hospital, and the DPS website indicates that Clark is
not incarcerated at OCCC, but is released from DPS
jurisdiction. See DPS, Hawaii SAVIN, available at:
visited Oct. 6, 2017). Clark has no open criminal cases or
unserved terms of sentence. See Hawaii State
Judiciary, “eCourt Kokua, ” Judiciary Info. Mgmt.
Sys.: http://www.courts.state.hi.us/ (last visited
Oct. 6, 2017).
following reasons, Clark's request to proceed in forma
pauperis is DENIED, the Complaint is DISMISSED with leave
granted to amend as limited below, and Clark is ORDERED TO
SHOW CAUSE why this action should not be dismissed as
submitted an Application to Proceed in Forma Pauperis by a
Prisoner. If Clark is a prisoner as his Complaint suggests,
the application is DENIED as incomplete because it lacks a
prison certification of the amounts in his prison trust
account and a copy of the balances in that account for the
previous six months. See 28 U.S.C. §
Clark is not a prisoner, as other public documents
suggest, although he may be indigent, the application is
nonetheless DENIED. It is incomplete because it is on a
prisoner application form and does not provide a full
discussion of Clark's assets and liabilities. Moreover,
“‘if it appears from the face of the proposed
complaint that the action is frivolous or without merit,
'” the court may deny in forma pauperis status at
the outset. Minetti v. Port of Seattle, 152 F.3d
1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat.
Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987));
see also McGee v. Dep't of Child Support Servs.,
584 F. App'x 638 (9th Cir. 2014) (affirming denial of IFP
request “because it appears from the face of the
amended complaint that McGee's action is frivolous or
without merit”); Smart v. Heinze, 347 F.2d
114, 116 (9th Cir. 1965) (holding it is district court's
duty to deny IFP application “if it appears that the
proceeding is without merit”).
Clark seeks to proceed without prepayment of fees, regardless
of whether he is a prisoner, the court must screen his
Complaint pursuant to 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or claim that is frivolous,
malicious, fails to state a claim for relief, or seeks
damages from defendants who are immune from suit. See
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (discussing 28 U.S.C. § 1915(e)(2)).
under § 1915(e)(2) involves the same standard of review
as that used under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). Under Rule 12(b)(6), a complaint must “contain
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) (internal quotation
marks omitted); Wilhelm v. Rotman, 680 F.3d 1113,
1121 (9th Cir. 2012). “Determining whether a complaint
states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
of the Federal Rules of Civil Procedure requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Detailed factual
allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. The “mere possibility
of misconduct” or an “unadorned, the defendant-
unlawfully-harmed me accusation” falls short of meeting
this plausibility standard. Id. at 678-79; see
also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
litigants' pleadings must be liberally construed and all
doubts should be resolved in their favor. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations
omitted). Leave to amend must be granted if it appears the
plaintiff can correct the defects in the complaint.
Lopez, 203 F.3d at 1130. If the complaint cannot be
saved by amendment, dismissal without leave to amend is
appropriate. Sylvia Landfield Trust v. City of L.A.,
729 F.3d 1189, 1196 (9th Cir. 2013).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person