United States District Court, D. Hawaii
ORDER GRANTING APPLICATION TO PROCEED IN FORMA
Oki Mollway United States District Judge.
a nonprisoner civil rights action brought by a pro
se plaintiff arising out of an arrest. On September 4,
2018, Plaintiff Noe Kim Raquinio filed a Complaint and an
Application to Proceed in District Court Without Prepaying
Fees or Costs (“Application”). See ECF
Nos. 17 and 18. Because the Complaint of September 4, 2018,
is nearly identical to the Second Amended Complaint of August
20, 2018, for administrative purposes, the court has labeled
the Complaint a Third Amended Complaint. That is, the Second
Amended Complaint is a nullity, and the Third Amended
Complaint is the operative complaint in this matter.
12, 2018, this court issued an order dismissing
Raquinio's original Complaint and Application.
See ECF No. 5. Pursuant to 28 U.S.C. §
1915(e)(2), the court screened the Complaint and determined
that Raquinio failed to allege sufficient facts to allow the
court to understand his allegations or the circumstances
surrounding his claims. See Id. at PageID #s 37-40.
The court granted Raquinio leave to file an amended complaint
and instructed that the amended complaint cure the
deficiencies described in the order. See Id. at 41.
submitted a second Application and an Amended Complaint,
which this court determined to lack a viable claim.
See ECF No. 10. Raquinio's Amended Complaint did
not cure the deficiencies described in the prior order, as it
provided no factual background from which the court could
discern a viable claim. See ECF No. 7, PageID # 58.
On August 8, 2018, the court dismissed the Amended Complaint
with further leave to amend and denied the Application as
moot. Id., PageID # 68. Raquinio's second
amended complaint was due no later than September 7, 2018;
this court informed Raquinio that this would be the final
time that the court would grant such leave to amend.
timely filed his Second Amended Complaint on August 20, 2018.
See ECF No. 15. However, he failed to pay the
applicable filing fee or submit another Application. This
court ordered that he do so no later than September 11, 2018.
See ECF No. 16.
September 4, 2018, Raquinio responded by submitting the Third
Amended Complaint and another Application. See ECF
Nos. 17 and 18. As discussed above, the court deems this
Third Amended Complaint to be the operative complaint in this
asserting claims of illegal search and seizure and false
arrest, the Third Amended Complaint provides very little
factual detail. It simply alleges that, on January 11, 2017,
Raquinio was driving a car when he was stopped by police.
Raquinio alleges that his car was surrounded by plainclothes
officers and that he was told to get out of the car. Raquinio
says he was then arrested without having broken any traffic
or criminal law. See ECF No. 18, PageID #s 315-16.
While sparse, these factual allegations are sufficient to
allow this action to proceed. These allegations sufficiently
allege that the police lacked probable cause to conduct a
traffic and/or custodial stop and that they lacked probable
cause to arrest him. While Raquinio appears to have pled
guilty in state court to knowingly possessing
methamphetamine,  the court cannot tell whether law
enforcement had reason to pull over Raquinio's car before
discovering that. It may well be that law enforcement had a
warrant or some other justification for stopping and
arresting Raquinio. But in this screening order, this court
only reviews the Third Amended Complaint for whether the
action is frivolous, fails to state a claim on which relief
may be granted, or seeks monetary relief from a defendant
immune to such relief. See 28 U.S.C. §
determined that the Third Amended Complaint asserts a
possible claim, the court now turns to Raquinio's
Application. To proceed in forma pauperis, Raquinio must
submit an affidavit or declaration that includes a statement
of the assets he possesses and a statement that he is unable
to pay the cost of this proceeding or give security therefor.
See 28 U.S.C. § 1915(a)(1). The court
determines that Raquinio has satisfied this requirement.
Raquinio states that he has no savings, has only a
10-year-old car, and receives only $380 per month in
disability or worker's compensation benefits.
See ECF No. 17. Raquinio therefore demonstrates that
he falls below the federal poverty guidelines. See
January 2018 Poverty Guidelines for Hawaii,
visited September 6, 2018) (setting poverty guideline for one
person in Hawaii at $13, 960). Accordingly, the court GRANTS
may proceed in forma pauperis, and the court orders
the following regarding service of the Third Amended
(1) The Clerk of Court shall send Raquinio six copies of this
order, five copies of USM-285, five copies of the Third
Amended Complaint, five completed summons, five Notice of a
Lawsuit and Request to Waive Service of a Summons forms (AO
398), ten Waiver of the Service of Summons forms (AO 399)
(two for each Defendant), and an instruction sheet. The Clerk
shall also send a copy of this order to the U.S. Marshals
(2) Raquinio shall fully complete the forms and return them
to the U.S. Marshals Service, 300 Ala Moana Boulevard, Room
C-109, Honolulu, Hawaii 96850. Raquinio must also send to the
U.S. Marshals Service five copies of the Third Amended
Complaint, five copies of this order, and the summons.
(3) The U.S. Marshals Service shall mail to each Defendant a
copy of the Third Amended Complaint, a copy of this order, a
completed Notice of Lawsuit and Request for Waiver of Service
of Summons form, and two completed Waiver of Service of
Summons form. The U.S. Marshals Service shall retain the
summons and a copy of the Third Amended Complaint.
(4) Each Defendant shall return the Waiver of Service of
Summons form to the U.S. Marshals Service within thirty days
from the date the request is mailed. If a Defendant fails to
return the form within thirty days, the U.S. Marshals Service
shall personally serve that Defendant. Within ten days after
personal service is effected, the U.S. Marshals Service shall
file the return of service for the Defendant with evidence of
any attempts to secure a waiver of service of summons and the
costs incurred in effecting service. These costs will be
taxed against the personally served Defendant. See
(5) Each Defendant shall file an answer or other responsive
pleading within the time provided in the Federal Rules of
Civil Procedure. See Fed.R.Civ.P. 4(d)(3); Fed.R.Civ.P.
12(a)(1). Failure ...