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Hackett v. O'Donnell

United States District Court, D. Hawaii

July 6, 2018

CLIFFORD RAY HACKETT, Plaintiff,
v.
MAUREEN O'DONNELL, et al., Defendants.

          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.

         INTRODUCTION

         On June 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”), [1] and to Allow Filing by Fax and for Electronic Process Service.[2] 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.

         DISCUSSION

         Because 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.[3]

         I. Plaintiff's IFP Application Is Denied Without Prejudice

         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 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 3.[4] 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.

         II. The Complaint Is Dismissed With Leave to Amend

         Upon 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 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 from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         Dismissal 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.”).

         “A 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.

         B. The Complaint Is Dismissed With ...


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