United States District Court, D. Hawaii
ORDER GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.
January 2, 2018, Plaintiff Patricia Hunt, proceeding pro se,
filed a Complaint against several Florida state government
employees and private individuals alleging violations of her
federal civil rights. Dkt. No. 1. That same day, the district
court issued a deficiency order directing Hunt to either pay
the applicable filing fee or to submit a completed in
forma pauperis application within twenty-eight days.
Dkt. No. 3. On January 4, 2018, Hunt filed a First Amended
Complaint (Dkt. No. 5) and an Application to proceed in
forma pauperis ("IFP
Application"). Dkt. No. 6. The Court GRANTS the IFP
Application. The First Amended Complaint, however, fails to
include factual allegations demonstrating that Hunt's
rights have been violated or that she is plausibly entitled
to relief from any Defendant. Because Hunt fails to state a
claim for relief, the First Amended Complaint is DISMISSED
with limited leave to amend pursuant to 28 U.S.C. §
1915(e), with instructions below.
Hunt is appearing pro se, the Court liberally construes her
filings. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); 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 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).
Although she is proceeding pro se, Hunt is more than familiar
with her federal court filing and pleading responsibilities,
given her numerous prior actions.
Plaintiff's IFP Application Is Granted
courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an
affidavit that demonstrates an inability to pay. See
28 U.S.C. § 1915(a)(1). “An affidavit in support
of an IFP application is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the
necessities of life.” Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v.
E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339
(1948)); see also United States v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (The affidavit must “state the
facts as to affiant's poverty with some particularity,
definiteness and certainty.”) (internal quotation
reviewing an application filed pursuant to § 1915(a),
“[t]he only determination to be made by the court . . .
is whether the statements in the affidavit satisfy the
requirement of poverty.” Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S.
at 339, the applicant must nonetheless show that she is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
the IFP Application indicates that Hunt is unemployed, with
no income or other funds available, such as in cash or in a
checking or savings account. Based upon the IFP Application,
Hunt's income falls below the poverty threshold
identified by the Department of Health and Human Services
(“HHS”) 2017 Poverty Guidelines. See
2017 HHS Poverty Guidelines, available at
-of-the-hhs-poverty-guidelines. Accordingly, the Court finds
that Hunt has made the required showing under Section 1915 to
proceed without prepayment of fees, and GRANTS her IFP
The First Amended Complaint Fails To State A Claim And Is
review of the First Amended Complaint (“FAC”),
the Court finds that Hunt fails to state a claim upon which
relief may be granted. As discussed below, even liberally
construed, the Complaint fails to allege any discernable
basis for judicial relief against any party.
Standard of Review
Court subjects each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening and can 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).
is proper when there is either a “‘lack of a
cognizable legal theory or the absence of sufficient facts
alleged.'” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A
plaintiff must allege “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 of Veterans 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); see also Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011) (“[A]llegations in a complaint or
counterclaim may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.”).
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
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). Factual allegations that
only permit the Court to infer “the mere possibility of
misconduct” do not show that the pleader is ...