United States District Court, D. Hawaii
ORDER DISMISSING PLAINTIFF'S COMPLAINT AND
REQUEST FOR INJUNCTION AND DENYING PLAINTIFF'S
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING
FEES OR COSTS
E. Kobayashi, United States District Judge
1, 2018, pro se Plaintiff Jewel del Mar Moore
(“Plaintiff”) filed her Complaint and Request for
Injunction (“Complaint”) and an Application to
Proceed in District Court Without Prepaying Fees or Costs
(“Application”). [Dkt. nos. 1, 2.] The Court has
considered the Application as a non-hearing matter pursuant
to Rule LR7.2(e) of the Local Rules of Practice of the United
States District Court for the District of Hawai`i
(“Local Rules”). For the reasons set forth below,
the Complaint is hereby dismissed without prejudice. In other
words, Plaintiff has the Court's permission to file an
amended complaint to try to cure the defects in the
Complaint. In addition, Plaintiff's Application is
denied. If Plaintiff chooses to file an amended complaint,
she must pay the required filing fee.
courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an
affidavit that demonstrates he is unable to pay.”
Smallwood v. Fed. Bureau of Investigation, CV. NO.
16-00505 DKW-KJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept.
16, 2016) (citing 28 U.S.C. § 1915(a)(1)).
The Court subjects each civil action commenced pursuant to
Section 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); 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 sua sponte
dismiss 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
Id. at *3.
addition, this Court has recognized that the following
standards apply in the screening analysis:
Plaintiff is appearing pro se; consequently, the court
liberally construes her pleadings. 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 also
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 Lopez v. Smith, 203 F.3d 1122,
1126 (9th. [sic] Cir. 2000).
Despite the liberal pro se pleading standard, the court may
dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) on its own motion. See Omar v.
Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987)
(“A trial court may dismiss a claim sua sponte
under [Rule] 12(b)(6). Such a dismissal may be made without
notice where the claimant cannot possibly win
relief.”); Ricotta v. California, 4 F.Supp.2d
961, 968 n.7 (S.D. Cal. 1998) (“The Court can dismiss a
claim sua sponte for a Defendant who has not filed a
motion to dismiss under Fed.R.Civ.P. 12(b)(6).”);
see also Baker v. Dir., U.S. Parole Comm'n, 916
F.2d 725, 727 (D.C. Cir. 1990) (holding that district court
may dismiss cases sua sponte pursuant to Rule
12(b)(6) without notice where plaintiff could not prevail on
complaint as alleged). . . . “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)). The assumption is that the
district court lacks jurisdiction. See Kokkonen, 511
U.S. at 377. Accordingly, a “party invoking the federal
court's jurisdiction has the burden of proving the actual
existence of subject matter jurisdiction.” Thompson
v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
Flores v. Trump, CIVIL 16-00652 LEK-RLP, 2017 WL
125698, at *1 (D. Hawai`i Jan. 12, 2017) (some alterations in
Flores) (citation omitted), reconsideration
denied, 2017 WL 830966 (Mar. 2, 2017).
appears to be challenging a judicial foreclosure and
ejectment from her property. She alleges Defendant U.S. Bank
produced and used fraudulent documents, which resulted the
transfer of Plaintiff's property to Defendant Kailua Kona
Properties, LLC. [Complaint at pg. 7. She alleges she and her
family have suffered mental anguish, stress, and anxiety,
which diminished their quality of life and resulted in
Plaintiff's divorce and disability. Plaintiff seek
monetary damages and a court order quieting title to the
property. [Id. at pg. 10.]
states the events giving rise to her claim occurred in July
2007. [Id.] Plaintiff's quiet title claim is
likely subject to a six-year statute of limitations, pursuant
to Haw. Rev. Stat. § 657-1(4).See, e.g.,
Lynch v. Bank of New York Mellon, CIVIL 17-00195
LEK-RLP, 2017 WL 3568667, at *2 (D. Hawai`i Aug. 15, 2017)
(noting the defendants' argument that the quiet title
claim should be dismissed as time barred, but declining to
address the argument because of other deficiencies in the
claim's factual allegations). Although it is not clear
exactly what specific claims Plaintiff is pursuing in this
case, she appears to be asserting fraud claims, which would
also be subject to the § 657-1(4) six-year statute of
limitations. See Galima v. Ass'n of Apartment Owners
of Palm Court ex rel. Bd. of Dirs., CIVIL 16-00023
LEK-KSC, 2017 WL 1240181, at *17 (D. Hawai`i Mar. 30, 2017).
Plaintiff may also be asserting a wrongful foreclosure claim,
which would be subject to a six-year statute of limitations
period pursuant to Haw. ...