United States District Court, D. Hawaii
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYING FEES AND COSTS; AND (2) DISMISSING COMPLAINT WITH
LEAVE TO AMEND
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
November 30, 2017, pro se Plaintiff Robert Frederick Gilbert
(“Plaintiff”) filed a Complaint asserting claims
pursuant to 42 U.S.C. § 1983, and an Application to
proceed in forma pauperis (“IFP”). ECF Nos. 1, 2.
Plaintiff alleges that Defendants Federal National Mortgage
Association (“Fannie Mae”); “The
Commissioner Alan Konishi”; Timothy Mayopoulos; David
C. Benson; Ocwen Financial Corporation (“Ocwen”);
Ronald M. Faris; Michael R. Bourqe; Steven T. Iwamura; Robert
M. Ehrhorn; Ken Ohara; and M. Kenyon Wong (collectively,
“Defendants”) violated his constitutional rights in
connection with the servicing and impending foreclosure of a
Court has screened the Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2). Based on the following, the IFP
Application is GRANTED, and the Complaint is DISMISSED with
leave to amend.
IFP Application shows that he is a pauper within the meaning
of the statute, and it is GRANTED. The court will not order
the Complaint served at this time.
alleged in the Complaint, Plaintiff obtained a mortgage loan
from IndyMac Bank in 2005. Compl. at 9. On February 6, 2010,
“the Bank forced the take over of the payment of MY
taxes.” Id. On January 29, 2013, the
“attorneys brought forward an action of
Foreclosure” in the State of Hawaii district court.
Id. Plaintiff sought to modify his loan, but the
“attorneys and the Bank were only prolonging the
foreclosure process and not negotiating a true loan
modification.” Id. Meanwhile, “IndyMac
Bank contracted the sell (sic) of my . . . loan, ”
without Plaintiff's knowledge or signature, therefore
making the new loan contract “not valid.”
Id. at 9-10.
Complaint also conclusorily alleges that the “Kingdom
of Hawaii . . . continues to be recognized as a subject of
international law[.]” Id. at 4-6. It further
alleges that “under the doctrine of Ultra Vires, the
attorneys are . . . acting as third-party debt
collectors.” Id. at 4. Finally, the Complaint
alleges that “[t]he attorneys . . . created the
assumption that they have the authority to foreclose when,
their bonds and certificates to practice law in a foreign
country are not lawful nor legal and have not been endorsed
with the signatures of the United States to do so.”
Id. at 10.
Complaint asserts § 1983 claims for violation of
Plaintiff's right to due process under the Fourteenth
Amendment and of federal law proscribing the failure to
prevent the commission of wrongs against Plaintiff's
constitutional rights, and possibly state-law claims based on
the alleged invalid transfer of Plaintiff's loan to a new
loan servicer and wrongful foreclosure. Id. at 4,
6-8. Plaintiff alleges that Defendants' actions have not
caused “physical injuries . . . [but] the mental and
physical tole (sic) of these past years has been very hard on
me . . . and my family.” Id. Plaintiff seeks
relief in the form of an order enjoining Defendants from
further “litigation or judicial actions . . . against
myself . . . and my house and property.” Id.
Standards of Review
court may dismiss sua sponte a complaint for lack of
subject-matter jurisdiction. Fiedler v. Clark, 714
F.2d 77, 78-79 (9th Cir. 1983); Belleville Catering Co.
v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th
Cir. 2003) (“[I]nquiring whether the court has
jurisdiction is a federal judge's first duty in every
case.”); Fed.R.Civ.P. 12(h)(3). “Federal courts
are courts of limited jurisdiction, ” possessing
“only that power authorized by Constitution and
statute.” United States v. Marks, 530 F.3d
799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377 (1994)). Plaintiff
bears the burden of establishing subject-matter jurisdiction.
Kokkonen, 511 U.S. at 377. At the pleading stage,
Plaintiff must allege sufficient facts to show a proper basis
for the court to assert subject-matter jurisdiction over the
action. Johnson v. Columbia Props. Anchorage, L.P.,
437 F.3d 894, 899 (9th Cir. 2006); Fed.R.Civ.P. 8(a)(1).
addition, the court must subject each civil action commenced
pursuant to 28 U.S.C. § 1915(a) to mandatory screening, and
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);
see, e.g., 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”); 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).
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 ...