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Chun v. Nakashima

United States District Court, D. Hawaii

May 17, 2018

CURTIS P. CHUN, Plaintiff,




         On May 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”).[1] 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.


         Because 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).

         I. Plaintiff's Incomplete IFP Application Is Denied

         Federal 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 omitted).

         When 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).

         The 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 others.

         Under 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.

         II. The Complaint Is Dismissed With Leave To Amend

         Upon 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 party.

         A. Standard of Review

         The 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 ...

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