United States District Court, D. Hawaii
CURTIS P. CHUN, Plaintiff,
HAWAII STATE FAMILY COURT RULES UNDER THE HONORABLE JUDGE STEVEN M. NAKASHIMA, Defendant.
ORDER (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND;
AND (2) DENYING WITHOUT PREJUDICE APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES OR COSTS
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
15, 2018, Plaintiff Curtis P. Chun, proceeding pro se, filed
a Complaint alleging violations of his federal civil rights,
together with an incomplete application to proceed in
forma pauperis (“IFP
Application”). Dkt. Nos. 1 and 3. The Complaint
challenges unspecified Hawaii State Family Court Rules and
ongoing proceedings involving Chun and his family members in
state court. Because Chun fails to allege facts demonstrating
that his rights have been violated, that he is plausibly
entitled to relief from any defendant, or that establish this
Court's subject matter jurisdiction, the Complaint is
DISMISSED with leave to amend pursuant to 28 U.S.C. §
1915(e), with instructions below. The incomplete IFP
Application is denied without prejudice, pending the filing
of an amended complaint.
Chun 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).
Plaintiff's Incomplete 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).
Court cannot properly evaluate Plaintiff's IFP
Application because it is incomplete. While Chun's IFP
Application indicates, in places, that he is homeless, with
no mailing address, and unemployed, without any wages,
assets, or debts, it also notes that he receives income from
“sources, ” including his father, without clearly
indicating how much or how frequently this income is
provided, or whether the monies he receives must be repaid.
Dkt. No. 3 at 1. In addition, in further contradiction of his
claim to destitution, Chun's submission suggests that he
receives disability payments, but once again, does not
clearly state how much or how frequently these payments are
received. See Compl. Ex. 2, Dkt. No. 1-2 at 2 ¶
5, 5. Further, Chun has failed to provide complete responses
to the sections of the IFP Application form regarding income,
completing some of the requisite boxes indicated, but not
these circumstances, the Court is unable to determine whether
Chun has made the required showing under Section 1915 to
proceed without prepayment of fees, and therefore denies his
IFP Application without prejudice. If Chun elects to file an
amended complaint, as discussed below, he may resubmit a
complete, fully executed IFP Application on the court's
form or pay the civil filing fee in full. The failure to do
so will result in the dismissal of this action without
further consideration of the merits of Chun's claims.
The Complaint Is Dismissed With Leave To
review of the Complaint, the Court finds that Chun 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 ...