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Tia v. Honolulu Police Department

United States District Court, D. Hawaii

January 4, 2018

PETER R. TIA, Plaintiff,


          J. Michael Seabright, Chief United States District Judge.


         On October 13, 2017, pro se Plaintiff Peter R. Tia (“Plaintiff”) filed a Complaint against the Honolulu Police Department (“HPD” or the “City”), [1] HPD Officer DeCaires, Walmart, Tennessee Department of Corrections (“TDOC”), Federal Bureau of Investigation (“FBI”), FBI Agent Rachel Bird, Christina F. Futi, Bud Bowles of United Self-Help, Halawa Correctional Facility (“HCF”), and HCF Captain Cal Mock.[2] ECF No. 1. On November 16, 2017, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). ECF No. 7. And on November 30 and December 4, 2017, Plaintiff filed virtually identical Motions for Appointment of Counsel. ECF Nos. 8, 9. Based on the following, the court GRANTS the IFP Motion, [3] DISMISSES the Complaint with leave to amend, and DENIES the Motions for Appointment of Counsel.


         A. Plaintiff's IFP Motion Is Granted

         Plaintiff's IFP Motion indicates that beginning November 3, 2017, he receives monthly Social Security Disability (“SSD”) payments of $664, and on October 20, 2017, he received a one-time SSD payment of $3, 951.80. IFP Motion ¶ 3; ECF No. 7-3. The IFP Motion also indicates that after paying Plaintiff's monthly expenses of $1, 020 ($255 per week) for a room at the YMCA, $73.08 for storage, and unspecified clothing, food, and other living expenses, he had only $1, 129 remaining in a bank account and no other assets. IFP Motion ¶¶ 1, 3, 6; ECF Nos. 7-4, 7-6. Because Plaintiff has made the required showing under 28 U.S.C. § 1915 to proceed in forma pauperis (i.e., without prepayment of fees), the court GRANTS Plaintiff's IFP Motion.

         B. Plaintiff's Complaint Is Dismissed With Leave to Amend

         1. The Complaint

         As alleged in the Complaint, on September 23 and 24, 2017, Plaintiff purchased from Walmart a smart phone and a 30-day phone card with unlimited talk, text, and data. Compl. at 1. Plaintiff did not receive his unlimited data. Id. at 2. The rest of the Complaint is a confused, somewhat incoherent, rambling narrative. Plaintiff alleges that “Rachel Bird of the TDOC FBI” cut off his data because she is connected to “Plaintiff's ex-girlfriend Christina G. Futi who does not wish . . . to be contacted by Plaintiff.” Id. Plaintiff further alleges that on October 9, 2017, Officer DeCaires refused to correct Walmart's alleged breach of contract and instead, “threatened to harm and arrest Plaintiff for complaining” about Walmart's alleged “illegality.” Id. at 1, 2. The Complaint alleges that DeCaires and two unnamed HPD officers are “homosexual tomboy females” who are part of a “homosexual mafia tied to . . . Mock.” Id. at 3. Plaintiff sued Mock in a separate lawsuit in 2010 for allegedly harming his “brother John Tia with homosexual mafia injuries” that are somehow “tied [to] Plaintiff's ex-girlfriend Futi also a lesbian!” Id. The Complaint further alleges that Bird is a homosexual who “abuses her law enforcement ties in behalf of all citied homosexual defendants to break the laws and intentionally pervert the law and Plaintiff's safety!” Id. And Plaintiff alleges that all defendants “wish to kill [him] for exposing . . . Mock's perverse misconduct at HCF . . . in [a separate] lawsuit!” Id. Finally, the Complaint alleges that Bowles “failed to provide Plaintiff gate monies [of] $200 upon release from HCF after Plaintiff served a 10 year prison term . . . due to [Futi] falsely arresting Plaintiff for corrupt HPD.” Id. at 2.

         Plaintiff asserts claims for “breach of duty, ” breach of contract, and “government corruption.” Id. at 1-3. Plaintiff seeks a “court investigation, ” an injunction to protect him “from all Defendants and their illegalities, ” compensatory damages of $4 million, and $1.5 million in punitive damages. Id. at 4.

         2. Standards of Review

         The 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. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Johnson v. Columbia Props. Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006); Fed.R.Civ.P. 8(a)(1).

         Plaintiff is appearing pro se; consequently, the court liberally construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The court also recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).

         In 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); 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 dismiss sua sponte an in forma pauperis complaint that fails to state a claim); 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”).

         A complaint “is ‘frivolous' where it lacks an arguable basis either in law or in fact.” 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.”). When determining whether to dismiss a complaint as “frivolous, ” the court need not “accept without question the truth of the plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.”).

         And to avoid dismissal for failure to state a claim, “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't ofVeterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet - that the court must accept as true all of the allegations contained in the complaint - “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct ...

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