United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO DISMISS THE COMPLAINT
AND DENY THE APPLICATION TO PROCEED IN FORMA PAUPERIS; ORDER
DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF
S.C. CHANG UNITED STATES MAGISTRATE JUDGE
Nanette Stone (“Plaintiff”) commenced the instant
action on March 12, 2018. Plaintiff additionally filed an
Application to Proceed In Forma Pauperis (“IFP
Application”) and a Request for Appointment of Counsel.
The Court addresses each in turn.
IFP Application/Screening of the Complaint
may authorize the commencement or prosecution of any suit
without prepayment of fees by a person who submits an
affidavit that the person is unable to pay such fees. 28
U.S.C. § 1915(a)(1). “[A]n affidavit is sufficient
which states that one cannot because of his poverty pay or
give security for the costs and still be able to provide
himself and dependents with the necessities of life.”
Adkins v. E.I. Du Pont De Nemours & Co., Inc.,
335 U.S. 331, 339 (1948) (internal quotations omitted).
However, a court may deny leave to proceed in forma pauperis
at the outset and dismiss the complaint if it appears from
the face of the proposed complaint that the action is
frivolous, that the action fails to state a claim on which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2); see Tripati v. First Nat'l Bank &
Trust, 821 F.2d 1368, 1370 (9th Cir. 1987); Minetti
v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998).
A complaint is frivolous if “it has no arguable
substance of law or fact.” Tripati, 821 F.2d
at 1370 (citations omitted); 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.” Neitzke, 490
U.S. at 325.
court dismisses the complaint, it should grant leave to amend
even if no request to amend the pleading was made, unless the
court determines that the pleading could not possibly be
cured by the allegation of other facts. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also
Tripati, 821 F.2d at 1370. Specifically, “pro
se plaintiffs proceeding in forma pauperis must also be
given an opportunity to amend their complaint unless it is
‘absolutely clear that the deficiencies of the
complaint could not be cured by amendment.'”
Tripati, 821 F.2d 1370 (quoting Franklin v.
Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984)).
present case, even construing Plaintiff's Complaint
liberally, Bernhardt v. Los Angeles County, 339 F.3d
920, 925 (9th Cir. 2003); Jackson v. Carey, 353 F.3d
750, 757 (9th Cir. 2003), the Court finds that dismissal with
leave to amend is appropriate because the Complaint fails to
state a claim upon which relief can be granted. Federal Rule
of Civil Procedure (“FRCP”) 8 requires a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although the Federal Rules adopt a flexible pleading
policy, a complaint must give fair notice and state the
elements of the claim plainly and succinctly. Jones v.
Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
“The Federal Rules require that averments ‘be
simple, concise and direct.'” McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
does not demand detailed factual allegations. However,
“it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. “[A] complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
although Plaintiff has selected as jurisdictional bases Title
VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act of 1990, and the Fourth Amendment of the
U.S. Constitution, her allegations are conclusory and she has
failed to articulate the elements for any causes of action.
In addition, she has not set forth legal or factual bases to
support a viable claim.
Court further notes that the Complaint fails to allege any
possible basis for venue in this district - Plaintiff does
not allege that Defendants live in Hawaii or that a
substantial part of the events giving rise to her claims
occurred in Hawaii. 28 U.S.C. § 1391(b). Indeed, the
claims suggest the opposite; that the events giving rise to
her claims occurred almost exclusively in Pennsylvania. This
action therefore appears to have been improperly filed in the
District of Hawaii.
on the foregoing, the Court recommends that the Complaint be
dismissed pursuant to 28 U.S.C. § 1915. Denton v.
Hernandez, 504 U.S. 25, 32 (1992) (quoting
Neitzke, 490 U.S. at 327). Because Plaintiff is
proceeding pro se, and it is not clear that the deficiencies
could not be cured by amendment, the Court recommends that
the dismissal be without prejudice and that Plaintiff be
allowed to amend her Complaint. Given the dismissal of the
Complaint, the Court recommends that the IFP Application be
denied without prejudice.
Plaintiff elects to file an amended complaint, she should do
so within 30 days of the date the district judge
enters an order regarding this Findings and Recommendation,
unless otherwise ordered. Plaintiff is advised that Local
Rule 10.3 requires that “any party filing . . . an
amended complaint . . . shall reproduce the entire pleading
as amended and may not incorporate any part of a prior
pleading by reference, except with leave of court.”
Local Rule 10.3. As a general rule, an amended complaint
supersedes the original complaint. See Loux v. Rhay,
375 F.2d 55, 57 (9th Cir. 1967). Thus, if Plaintiff files an
amended complaint, the Complaint no longer serves any
function in the case.
Appointment of Counsel
also requests appointment of counsel. Title VII authorizes
the appointment of counsel “[u]pon application by the
complainant and in such circumstances as the court may deem
just. . . .” 42 U.S.C. § 2000e-5(f)(1). There is
no constitutional right to the appointment of counsel in
employment discrimination cases. Ivey v. Bd. of Regents
of Univ. of Ala., 673 F.2d 266, 269 (9th Cir. 1982).
“The decision to appoint counsel is left to the sound
discretion of the district court. . . . ‘Three factors
are relevant to [a] trial court's determination of
whether to appoint counsel: (1) the plaintiff's financial
resources; (2) the efforts made by the plaintiff to secure
counsel on his or her own; and (3) the merit of the