United States District Court, D. Hawaii
PETER R. TIA, Plaintiff,
HONOLULU POLICE DEPARTMENT HPD; OFFICER DE CAIRES; WALMART; TENNESSEE DEPARTMENT OF CORRECTIONS TDOC; FEDERAL BUREAU OF INVESTIGATION FBI; FBI AGENT RACHEL BIRD; CHRISTINA G. FUTI; BUD BOWLES OF UNITED SELF-HELP; HALAWA CORRECTIONAL FACILITY HCF; CAPTAIN CAL MOCK OF HCF, Defendants.
ORDER (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS, (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND, AND
(3) DENYING MOTIONS FOR APPOINTMENT OF COUNSEL
Michael Seabright, Chief United States District Judge.
October 13, 2017, pro se Plaintiff Peter R. Tia
(“Plaintiff”) filed a Complaint against the
Honolulu Police Department (“HPD” or the
“City”),  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. 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,  DISMISSES the
Complaint with leave to amend, and DENIES the Motions for
Appointment of Counsel.
Plaintiff's IFP Motion Is Granted
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.
Plaintiff's Complaint Is Dismissed With Leave to
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.
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.
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. 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);
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).
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”).
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
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 ...