United States District Court, D. Hawaii
ORDER (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND;
AND (2) DENYING WITHOUT PREJUDICE APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES OR COSTS AND MOTION FOR
APPOINTMENT OF PRO BONO COUNSEL
Derrick K. Watson United States District Judge
January 17, 2018, Plaintiff Jalil Seruge, proceeding pro se,
filed a Complaint alleging age and national origin
discrimination by Hawaiian Properties, Ltd., Hawaii Civic
Service, Inc., and Thomas Dulan. Dkt. No. 1. Seruge also
filed an incomplete application to proceed in forma
pauperis (“IFP Application”) and a Motion
for Appointment of Pro Bono Counsel. Dkt. Nos. 4 and 5. The
Complaint fails to include factual allegations demonstrating
that Seruge's rights have been violated or that he is
plausibly entitled to relief from any Defendant. Because
Seruge fails to state a cognizable claim for relief or
establish this Court's subject matter jurisdiction, the
Complaint is DISMISSED with leave to amend pursuant to 28
U.S.C. § 1915(e), with instructions below. The
incomplete IFP Application and Motion for Appointment of Pro
Bono Counsel are denied without prejudice, pending the filing
of an amended complaint.
Seruge is appearing pro se, the Court liberally construes his
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).
Plaintiff's IFP Application Is Denied Without
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 he is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a).
Court cannot consider Plaintiff's IFP Application because
it is incomplete. Although he indicates that he has $50.00 in
a checking or savings account, no regularly monthly expenses,
no dependents, and no debt, Seruge failed to indicate whether
he is currently employed or has any sources of income, such
as from a pension, annuity, disability payment, or from
“any other sources.” See Dkt. No. 4 at
1. Because he has not provided responses to the sections of
the IFP Application form regarding employment or income, the
Court is unable to determine whether Seruge has made the
required showing under Section 1915 to proceed without
prepayment of fees, and denies his IFP Application without
prejudice. If he elects to file an amended complaint, as
discussed below, Seruge may resubmit a complete, fully
executed IFP Application on the court's form or pay the
civil filing fee in full. The failure to do so will result in
the dismissal of this action without further consideration of
the merits of Seruge's claims.
The Complaint Is Dismissed With Leave To
review of the Complaint, the Court finds that Seruge fails to
state a claim upon which relief may be granted or to
establish a basis for the Court's subject matter
jurisdiction. 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 entitled ...