United States District Court, D. Hawaii
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, Judge.
28, 2018, Plaintiff Clifford Ray Hackett, proceeding pro se,
filed a Complaint against Maureen O'Donnell, Gina Reyes,
and Jacqueline Hackett, whom he contends violated his federal
civil rights. He seeks damages for violations of his right to
due process, stemming from his divorce proceedings with
Jacqueline, which he alleges resulted in the loss of his
property and assets. Dkt. No. 1. Hackett also filed a Motion
for Free Process seeking to proceed in forma
pauperis (“IFP Application”),  and to Allow
Filing by Fax and for Electronic Process
Service. Dkt. No. 2. The Complaint fails to include
factual allegations demonstrating that Hackett's rights
have been violated or that he is plausibly entitled to relief
from any Defendant. Because Hackett fails to state a
cognizable claim for relief, 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, and the Court defers ruling on
Hackett's requests to allow filing by fax and electronic
process service, pending the filing of an amended complaint.
Hackett 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).
Although he is proceeding pro se, Hackett is familiar with
his federal court filing and pleading responsibilities, given
his prior actions in this district.
Plaintiff's IFP Application Is Denied Without
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 deficient. Although Hackett
indicates that his “only income is $600 social security
and [he] pay[s] $500 rent, ” presumably on a monthly
basis, Hackett failed to provide any additional information
in support of his request. See Dkt. No. 2 at
For example, Hackett failed to indicate whether he has income
beyond Social Security, additional assets, dependents, debts
or liabilities. Under these circumstances, the Court is
unable to determine whether Hackett has made the required
showing under Section 1915 to proceed without prepayment of
fees, and therefore denies his IFP Application without
prejudice. If Hackett elects to file an amended complaint, as
discussed below, he may submit 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 Hackett's claims.
The Complaint Is Dismissed With Leave to
review of the Complaint, the Court finds that Hackett fails
to state a claim upon which relief may be granted. As
discussed below, even liberally construed, the Complaint
fails to allege any 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 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,
1216 (9th Cir. 2011) (“[A]llegations in a complaint or
counterclaim may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.”).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). Factual allegations that
only permit the Court to infer “the mere possibility of
misconduct” do not show that the pleader is entitled to
relief as required by Rule 8. Id. at 679. For the
reasons that follow, Hackett fails to meet this standard.
The Complaint Is Dismissed With ...