United States District Court, D. Hawaii
PETER R. TIA, Plaintiff,
HONOLULU POLICE DEPARTMENT, et al., Defendants.
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; (2) DISMISSING COMPLAINT WITH
LEAVE TO AMEND; AND (3) DENYING WITHOUT PREJUDICE MOTION FOR
APPOINTMENT OF COUNSEL
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
December 26, 2017, Plaintiff Peter R. Tia, proceeding pro se,
filed a Complaint against several federal, state, and
municipal entities and private individuals alleging
violations of his federal civil rights. Dkt. No. 1. On
December 27, 2017, the district court issued a deficiency
order directing Tia to either pay the applicable filing fee
or to submit a completed in forma pauperis
application within twenty-eight days. Dkt. No. 4. On January
24, 2018, Tia filed an Application to proceed in forma
pauperis (“IFP Application”), and on
February 2, 2018, he filed a Motion for Appointment of
Counsel. Dkt. Nos. 5 and 6. The Court GRANTS the
IFP Application. Tia’s Complaint, however, fails to
include factual allegations demonstrating that his rights
have been violated or that he is plausibly entitled to relief
from any Defendant. Because Tia fails to state a claim for
relief, the Complaint is DISMISSED with limited leave to
amend pursuant to 28 U.S.C. § 1915(e), with instructions
below. The Motion for Appointment Counsel is denied without
prejudice, pending the filing of an amended complaint.
Tia 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).
Although he is proceeding pro se, Tia is more than familiar
with his federal court filing and pleading responsibilities,
given his numerous prior actions.
Plaintiff’s IFP Application Is
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).
the IFP Application indicates that following his release from
prison, Tia has been sporadically employed in an hourly
capacity, but does not work regularly due to disability. He
currently receives $677.00 in disability insurance benefits
and $93.00 in supplemental security income per month. Based
upon the IFP Application, Tia’s income falls below the
poverty threshold identified by the Department of Health and
Human Services (“HHS”) 2018 Poverty Guidelines.
See Annual Update of the HHS Poverty Guidelines,
-of-the-hhs-poverty-guidelines. Accordingly, the Court finds
that Tia has made the required showing under Section 1915 to
proceed without prepayment of fees, and GRANTS his IFP
The Complaint Fails To State A Claim And Is
review of the Complaint, the Court finds that Tia 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
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 ...