United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO (1) DISMISS THE
COMPLAINT WITH LEAVE TO AMEND AND (2) DENY THE APPLICATION TO
PROCEED IN FORMA PAUPERIS, REQUEST TO FILE BY FAX AND REQUEST
TO FILE ELECTRONICALLY
S.C. Chang United States Magistrate Judge
December 4, 2018, Plaintiff Pro Se Clifford “Ray”
Hackett (“Plaintiff”) filed a Complaint in this
matter as well as a document seeking (1) Free Process
(“IFP Application); (2) Filing by Fax and (3) Electronic
to Local Rule 7.2(d) of the Local Rules of Practice for the
United States District Court for the District of Hawaii
(“Local Rules”), the Court finds this matter
suitable for disposition without a hearing. After careful
consideration of the Plaintiff's IFP Application and
requests for filing by fax and electronic process service,
the Court HEREBY FINDS AND RECOMMENDS (1) DISMISSING the
Complaint with leave to amend; (2) DENYING without prejudice
Plaintiff's IFP Application, request to file by fax and
request for electronic process service for the reasons set
commenced the instant action against Defendant CNMI Election
Commission Saipan MP 96950 (“Defendant”) on
December 4, 2018. The facts underlying the instant Complaint
are not clear. Plaintiff appears to be alleging that
Defendant violated the Americans with Disabilities Act
because of barriers which “block[s] disabled
persons”. ECF No. 1.
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). “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 (9thCir. 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). However,
a court may deny leave to proceed in forma pauperis at the
outset and dismiss the complaint if it appears from the fact
of the proposed complaint that the action is frivolous, that
the action 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); see
Tripati, 821 F.2d at 1370 (citations omitted);
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
court dismisses the complaint, it should grant leave to amend
even if no request to amend the pleading was made, unless the
court determines that the pleading could not possibly be
cured by the allegation of other facts. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000);
see also Tripati, 821 F.2d at 1370. Specifically,
“pro se plaintiffs proceeding in forma
pauperis must also be given an opportunity to amend their
complaint unless it is ‘absolutely clear that the
deficienceise of the complaint could not be cured by
amendment.'” Id. (quoting Franklin v.
Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir.
case, the Court finds that dismissal with leave to amend is
appropriate. 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). After review of the
Complaint, the Court finds that Plaintiff fails to include
sufficient factual allegations demonstrating a viable claim
that his rights under the Americans with Disabilities Act
were violated or that he is entitled to relief. “[A]
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Igbal, 556 U.S.
662, 129 S.Ct. 1937, 1949 (2009). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statement, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Determining
whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 1950.
as the Court can ascertain, Plaintiff believes that Defendant
discriminated against him by failing to remove barriers.
Plaintiff fails to articulate facts which show how the
Defendant's barriers or Defendant's failure to remove
such barriers discriminate against Plaintiff in violation of
the Americans with Disabilities Act. Therefore, pursuant to
28 U.S.C. § 1915, the Court recommends the dismissal of
the Complaint with leave to file an amended complaint,
addressing the deficiencies identified above, by
January 11, 2019. Any amended complaint
should be titled “First Amended Complaint” and
must clearly state the relief sought and the factual and
legal basis demonstrating that Plaintiff is entitled to
is advised that Rule 10.3 of the Local Rules requires that
“any party filing . . . an amended complaint . . .
shall reproduce the entire pleading as amended and may not
incorporate any part of a prior pleading by reference, except
with leave of court.” As a general rule, an amended
complaint supersedes the original complaint. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus,
if Plaintiff files an amended complaint, the original
pleading no longer serves any function in the case.
as the court is recommending dismissal of the Complaint, with
leave to amend, Plaintiff's IFP Application, request to
file by fax and request for electronic process service is
DENIED WITHOUT PREJUDICE. Even if the court was not
recommending dismissal, it would be unable to properly assess
Plaintiff's IFP Application because the Application is
incomplete. Plaintiff states that his “only income is
$600 social security” and “pay[s] $500
rent”. ECF No. 2. There is no information about the
frequency of the payments nor does Plaintiff indicate whether
he has any additional assets or liabilities. Therefore, the
Court cannot determine whether Plaintiff qualifies for in
forma pauperis status.
accordance with the foregoing, the Court makes the ...