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 FIRST AMENDED COMPLAINT WITH
LEAVE TO AMEND; AND (2) GRANTING APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES OR COSTS
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
6, 2018, Plaintiff Curtis P. Chun, proceeding pro se, filed a
First Amended Complaint alleging violations of his federal
civil rights (Dkt. No 9), together with an application to
proceed in forma pauperis (“IFP Application,
” Dkt. No. 7), attempting to cure the deficiencies in
his prior submissions that are described in the Court's
May 17, 2018 Order. Dkt. No. 5 (5/17/18 Order). The Court
GRANTS the IFP Application. The First Amended Complaint
(“FAC”), however, like its predecessor,
challenges previous and ongoing proceedings involving Chun
and his family members in state court, and once more fails to
allege facts demonstrating that Chun's rights have been
violated or that he is plausibly entitled to relief from any
defendant. Accordingly, the FAC is DISMISSED with limited
leave to amend pursuant to 28 U.S.C. § 1915(e), with
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 IFP Application Is Granted
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).
IFP Application indicates that he is unemployed and does not
earn any wages. Because he is currently homeless, Chun states
that he occasionally receives “cash in varying in
amounts” from his father (e.g., “8, 157,
37, 64, etc.”), but those amounts have been recently
reduced. IFP Application at 1, Dkt. No. 7. Chun also has $100
or less in cash or in a checking or savings account and avers
that he owes over “ten thousand” in debts,
including monies that he borrowed to pay for an attorney.
Id. at 2. Based upon the IFP Application, Chun's
income falls below the poverty threshold identified by the
Department of Health and Human Services (“HHS”)
2018 Poverty Guidelines. See Annual Update of the
HHS Poverty Guidelines,
Accordingly, the Court finds that Chun has made the required
showing under Section 1915 to proceed without prepayment of
fees, and GRANTS his IFP Application.
The FAC Is Dismissed With Leave to Amend
review of the FAC, the Court finds that Chun again fails to
state a claim upon which relief may be granted. As discussed
below, even liberally construed, the FAC fails to allege any
discernable basis for judicial relief against any party.
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 from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
is proper when there is either a “‘lack of a
cognizable legal theory or the absence of sufficient facts
alleged.'” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A
plaintiff must allege “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Weber v. Dep't of Veterans Affairs, 521
F.3d 1061, 1065 (9th Cir. 2008). This tenet-that the court
must accept as true all of the allegations contained in the
complaint-“is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678. Accordingly,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555); see also Starr v. Baca, 652 F.3d 1202,