United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND DISMISS THE
COMPLAINT WITHOUT PREJUDICE
S.C. Chang United States Magistrate Judge.
the Court is Plaintiff Ronald Satish Emrit's
(“Plaintiff”) Application to Proceed in District
Court Without Prepaying Fees or Costs, filed November 9,
2018. (“IFP Application”). ECF No. 3. After
careful consideration of the Application and the supporting
documentation, the Court FINDS AND RECOMMENDS that the
district court GRANT Plaintiff's Application and DISMISS
this action without prejudice.
may authorize the commencement or prosecution of any suit
without prepayment of fees by a person who submits an
affidavit that the person is unable to pay such fees. 28
U.S.C. § 1915(a)(1). “[A]n affidavit is sufficient
which states that one cannot because of his poverty pay or
give security for the costs and still be able to provide
himself and dependent with the necessities of life.”
Adkins v. E.I. Du Pont De Nemours & Co., Inc.,
335 U.S. 331, 339 (1948)(internal quotations omitted).
the Plaintiff's Application states that he receives $805
in monthly disability payments and has $730 in monthly
expenses. ECF No. 3 at 1-5. The Court finds that at this
time, Plaintiff has sufficiently demonstrated entitlement to
proceed in forma pauperis and RECOMMENDS that the district
court GRANT his application. See 28 U.S.C. §
Court must subject each civil action commenced pursuant to
Section 1915(a) to mandatory screening and order the
dismissal of any action that is frivolous, fails to state a
claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C §1915(e)(2); Lopez v. Smith, 203 F.3d
1122, 1127 (9thCir. 2000)(stating that 28 U.S.C.
§ 1915(e) “not only permits but requires”
the court to dismiss a § 1915(a) complaint that fails to
state a claim); Tripati v. First Nat'l Bank &
Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)(a
complaint is frivolous if “it has no arguable substance
of law or fact.”)(citations omitted).
alleges various claims against Defendant Regional Transit
Center for events occurring in 2017. ECF No. 1. Plaintiff
states that he is a resident of the State of Nevada and that
Defendant's principal place of business is Nevada.
Id. ¶¶ 4-5. The factual allegations for
Plaintiff's claims also occurred in Nevada. Id.
U.S.C. § 1391(b) allows a civil action to be bought in:
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located; (2) a judicial district in which a
substantial part of the events or missions giving rise to the
claim occurred, or a substantial part of the property that is
the subject of the action is situated; or (3) if there is no
district in which an action amy otherwise be brought as
provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction
with respect to such action.
on Plaintiff's Complaint, it appears that the Defendant
resides in Nevada and all of the events giving rise to the
claims occurred in Nevada. The Complaint does not appear to
allege that any events occurred in Hawaii or that any
defendant may be subject to personal jurisdiction in Hawaii.
See ECF No. 1.
28 U.S.C. § 1406(a), if a case is filed in the wrong
venue, the court “shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” 28
U.S.C. § 1406(a). A court should examine a
plaintiff's claim to determine whether the interests of
justice require transfer instead of dismissal. See,
e.g., King v. Russell, 963 F.2d 1301, 1305
(9th Cir. 1992). The Court finds, in this case, it
is not in the interests of justice to transfer this action.
It does not appear that Plaintiff is time barred from
re-filing the action in another venue. ...