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Carter v. Curtis

United States District Court, D. Hawaii

May 24, 2018

JERRY DEAN CARTER, Plaintiff,
v.
ROBERT ISSAC CURTIS, 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 16, 2018, pro se Plaintiff Jerry Dean Carter (“Plaintiff”) filed a Complaint against Defendant Robert Issac Curtis (“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 misdemeanor charge. Compl. at PageID #6, ECF No. 1. During their initial meeting in a Burger King restaurant, Defendant allegedly pointed his finger at Plaintiff and loudly stated that Plaintiff should “do as he says.” Id. at PageID #6-8. Plaintiff then told Defendant “don't you point your finger at me.” Id. at PageID #8. Defendant determined that he would not represent Plaintiff and abruptly left the restaurant. Id. at PageID #8-9. Once in court, Defendant stated that he could not represent Plaintiff because they have a “conflict of interest.” Id. at PageID #9. When Plaintiff objected, Defendant “blurt[ed] out . . . ‘he said I am the 3rd lawyer.'” Id. The Complaint alleges that the “exact legal” reason Defendant refused to represent Plaintiff is that Plaintiff told Defendant not to point his finger at Plaintiff, and therefore, Defendant “reported false information” to the court. Id. at PageID #9. The Complaint further alleges that by stating he was Plaintiff's third lawyer, Defendant improperly divulged privileged information. Id.

         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, and asserting criminal claims pursuant to 18 U.S.C. §§ 1001(a)(1) and (2) for providing false information and promoting a hoax. Id. at PageID #2, 10-12. The Complaint seeks a determination that Defendant is guilty of all charges and allegations, and damages of $5 million. Id. at PageID #3, 12.[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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