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Carter v. Zamber

United States District Court, D. Hawaii

May 24, 2018

JERRY DEAN CARTER, Plaintiff,
v.
GARY CHARLES ZAMBER, Defendant.

          ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS, AND (2) DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         On May 15, 2018, pro se Plaintiff Jerry Dean Carter (“Plaintiff”) filed a Complaint against Defendant Gary Charles Zamber (“Defendant”) asserting federal criminal and civil rights claims. ECF No. 1. Plaintiff also filed an Application to Proceed in forma pauperis (“IFP Application”). ECF No. 2. Based on the following, the court GRANTS the IFP Application and DISMISSES the Complaint without leave to amend.

         II. DISCUSSION

         A. Plaintiff's IFP Application is Granted

         Plaintiff has made the required showing under 28 U.S.C. § 1915 to proceed without prepayment of fees. Therefore, the court GRANTS Plaintiff's IFP Application.

         B. Plaintiff's Complaint is Dismissed Without Leave to Amend

         1. The Complaint

         The Complaint alleges that Defendant was appointed by the Hawaii District Court of the Third Circuit, Hilo Division, as Plaintiff's defense counsel in connection with a state criminal misdemeanor action - No. 3DCW-18-0000061. Compl. at PageID #4, ECF No. 1. After being appointed, Defendant allegedly entered court while it was in session, sat next to Plaintiff, and announced that he is Plaintiff's counsel. Id. at PageID #6. Defendant and Plaintiff moved to a conference room to discuss Plaintiff's case. Id. Defendant allegedly suggested that Plaintiff plead guilty, but Plaintiff said “no.” Id. at PageID #6-7. Plaintiff moved to the door and said “go tell the judge your decision.” Id. at PageID #7. Defendant moved to withdraw as counsel, telling the court that Plaintiff “did not want him.” Id. at PageID #4. Plaintiff alleges that because he never told Defendant to resign, Defendant reported false information to the court. Id. at PageID #4-5, 8. The next 28 pages of the Complaint include a rambling, confusing narrative of Plaintiff's life history, various assaults and wrongs committed against him over the years, and conclusory allegations concerning numerous individuals not named in this action. Id. at PageID # 9-36.

         Plaintiff filed the instant Complaint asserting claims for violations of Plaintiff's civil rights guaranteed by the First, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments to the Constitution, state-law claims for slander and defamation, and criminal claims pursuant to 18 U.S.C. §§ 1001(a)(1) and (2) for providing false information and promoting a hoax. Id. at PageID #3, 5, 8-9. The Complaint seeks a determination that Defendant is guilty of all charges and allegations, and damages of $5 million. Id. at PageID #4, 8-9.[1]

         2. Standards of Review

         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); see, e.g., 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”); Lopez v. Smith, 203 F.3d 1122, 1127 (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 IFP complaint that fails to state a claim).

         Plaintiff is appearing pro se; consequently, the court liberally construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (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 Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).

         3. Application of ...


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