United States District Court, D. Hawaii
PETER R. TIA, Plaintiff,
AMERICAN SAVINGS BANK, ET AL., Defendants.
ORDER (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS, (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND, AND
(3) DENYING MOTION FOR APPOINTMENT OF COUNSEL
Michael Seabright Chief United States District Judge
December 28, 2017, pro se Plaintiff Peter R. Tia
(“Plaintiff”) filed a Complaint against
Defendants American Savings Bank (“ASB”);
ASB's president; ASB employees Juliet Deyro
(“Deyro”) and Kirsi Scotte
(“Scotte”); an unnamed judge of the State of
Hawaii District Court of the First Circuit, Honolulu
Division; Federal Bureau of Investigation (“FBI”)
Agent Rachel Bird; and numerous unnamed ASB employees, all
sued in their individual and official capacities. Compl. at
1, ECF No. 1. On January 24, 2018, Plaintiff filed a Motion
to Proceed In Forma Pauperis (“IFP”). ECF No. 4.
And on February 2, 2018, Plaintiff filed a Motion for
Appointment of Counsel. ECF No. 6. Based on the following,
the court GRANTS the IFP Motion,  DISMISSES the Complaint with
leave to amend, and DENIES the Motion for Appointment of
Plaintiff's IFP Motion Is Granted
IFP Motion indicates that he receives monthly Social Security
Disability payments of $677 and monthly Supplemental Security
Income payments of $93. IFP Motion ¶ 3; Pl.'s Exs.,
ECF Nos. 3-4. Plaintiff works “2 or 3 times” a
week and earned $20.15 on January 8, 2018, and $53.65 on
January 17, 2018. IFP Motion ¶ 2; Pl.'s Exs., ECF
Nos. 1-2. Plaintiff has $30 in a bank savings account and no
other assets. IFP Motion ¶¶ 4-5. Plaintiff pays
rent at $255 per week, and monthly fees of $73.08 to
A-American Self Storage. Id. ¶¶6, 8;
Pl.'s Exs., ECF Nos. 6-7, 10.
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
Plaintiff's Complaint Is Dismissed With Leave to
alleged in the Complaint, on December 23, 2017, Plaintiff
sought a cash advance or loan of “4 to 5 hundred
dollars” from ASB based on evidence of his monthly
Social Security income. Compl. at 2. ASB Liliha Branch
employee Deyro denied the cash advance/loan, and also told
Plaintiff that ASB does not invest money for clients and
therefore would not invest Plaintiff's $50. Id.
That same month, Plaintiff again sought a cash advance/loan,
this time for “3 thousand dollars, ” which was
denied by ASB McCully Branch employee Scotte. Id. at
4. The Complaint alleges that Scotte's and Deyro's
denial of a cash advance/loan and refusal to invest his $50
violated both common banking practices and a duty to properly
advise Plaintiff on investments or saving options to build
his $50. Id. at 3-4.
Complaint further alleges that Plaintiff “won a small
claims case no. 1SC17-1-3138” and was awarded $50.
Id. at 4-5. But Bird “unduly influenced the
Judge . . . and kept Plaintiff from rightful damage awards
over 1 thousand dollars.” Id. at 5. Further,
“to conceal these illegalities the court . . . denied
Plaintiffs request for court transcripts/minutes on
remainder of the Complaint is a rambling, incoherent
narrative alleging, in part, that (1) “government
hackers” obstructed Plaintiff's wages, id.
at 2; (2) Deyro and Bird prevented Plaintiff from withdrawing
$200 from an automatic teller machine (“ATM”)
located at the Nuuanu Pali YMCA, id. at 3; (3) Bird
and other Defendants are conspiring to “make Plaintiff
homeless and to seize his property from storage, ”
id. at 6; and (4) Plaintiff filed reports with
Honolulu Police Department concerning people taking his
property from his room at the Nuuanu Pali YMCA, id.
Complaint asserts claims for retaliation and conspiracy and
seeks a declaration that Defendants are conspiring to violate
Plaintiff's Eighth and Fourteenth Amendment rights;
compensatory and punitive damages of $15 million; an
injunction (1) preventing further unfair banking services,
(2) stopping retaliation, and (3) directing the state court
to provide transcripts; and Bird's arrest.
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);
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
considering dismissal for failure to state a claim, the court
must set conclusory factual allegations aside, accept
non-conclusory factual allegations as true, and determine
whether these allegations state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009)
(citing Bell Atl. 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). To state a
claim, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). A complaint that
lacks a cognizable ...