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Tia v. American Savings Bank

United States District Court, D. Hawaii

March 1, 2018

PETER R. TIA, Plaintiff,
v.
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

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         On 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, [1] DISMISSES the Complaint with leave to amend, and DENIES the Motion for Appointment of Counsel.

         II. DISCUSSION

         A. Plaintiff's IFP Motion Is Granted

         Plaintiff's 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.

         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.

         B. Plaintiff's Complaint Is Dismissed With Leave to Amend

         1. The Complaint

         As 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.

         The 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 11/24/17!” Id.

         The 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. at 5.

         The 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.

         2. Standards of Review

         The 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); Fed.R.Civ.P. 8(a)(1).

         In 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”).

         A 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 incredible.”).

         And in 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 ...


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