United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING
FEES OR COSTS AND DISMISS THE COMPLAINT WITHOUT
Kenneth J. Mansfield United States Magistrate Judge
November 9, 2018, Plaintiff Ronald Satish Emrit
(“Plaintiff”), proceeding pro se, filed a
Complaint against Defendant Montevista Mental Hospital
(“Defendant”). ECF No. 1. That same day,
Plaintiff filed an Application to Proceed in District Court
Without Prepaying Fees or Costs (“IFP
Application”). ECF No. 3. The Court elects to decide
this matter without a hearing pursuant to Rule 7.2(d) of the
Local Rules of Practice for the United States District Court
for the District of Hawaii.
reasons set forth below, the Court FINDS AND RECOMMENDS that
the district court GRANT Plaintiff's IFP Application. The
Court also FINDS AND RECOMMENDS that the district court
DISMISS WITHOUT PREJUDICE Plaintiff's Complaint for the
reasons set forth below.
Plaintiff's IFP Application
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 dependents with the necessities of life.”
Adkins v. E.I. DuPont De Nemours & Co., 335 U.S.
331, 339 (1948) (internal quotation marks omitted).
IFP Application indicates that Plaintiff receives $805 in
monthly disability payments and has $730 in monthly expenses.
See ECF No. 3 at 2, 5. The Court finds that, based
on the information provided in the IFP Application, Plaintiff
has made the required showing under 28 U.S.C. § 1915 to
proceed in forma pauperis (i.e., without
prepayment of fees). Accordingly, the Court recommends that
the district court grant Plaintiff's IFP Application.
Court must subject each civil action commenced pursuant to
§ 1915(a) to a mandatory screening and order the
dismissal of any claim that 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);
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 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); Calhoun
v. Stahl, 254 F.3d 845 (9th Cir. 2001) (holding that the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited
to prisoners). Because Plaintiff is appearing pro se, the
Court liberally construes his Complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Complaint asserts various tort and contract-based claims
based on events that began in or around November 2016 and
continued thereafter. See ECF No. 1 at ¶ 14.
The Complaint alleges that Plaintiff is a resident of the
State of Nevada. Id. at ¶ 4. The Complaint
alleges that Nevada is Defendant's principal place of
business. Id. at ¶ 5. The factual allegations
for Plaintiff's claims against Defendant also occurred in
Nevada. Id. at ¶¶ 14-25.
to 28 U.S.C. § 1391, a civil action may be filed in a
judicial district in which any defendant resides or in a
judicial district in which a substantial part of the events
giving rise to the claim occurred. See 28 U.S.C.
§ 1391(b)(1)-(2). If there is no district in which an
action may otherwise be brought, an action can be filed in
any judicial district in which any defendant is subject to
personal jurisdiction. See Id. § 1391(b)(3).
Based on Plaintiff's Complaint, it appears that Defendant
resides in Nevada and all the events giving rise to
Plaintiff's claims occurred in Nevada. See ECF
No. 1. There is no indication in the Complaint that any
events occurred in Hawaii or that Defendant may be subject to
personal jurisdiction in Hawaii. Id. In addition,
the Court notes that Plaintiff alleges that the U.S. District
Court for the Central District of California has jurisdiction
over this case on the grounds of diversity. See Id.
at ¶ 10. This allegation indicates that Plaintiff may
not have intended to file his action in this district.
Accordingly, the Court finds that the United States District
Court for the District of Hawaii is not the proper venue for
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). Based on the information in Plaintiff's
Complaint, it does not appear that Plaintiff would be
time-barred from refiling this action in another venue. Thus,
in these circumstances, the Court finds that it is not in the
interest of justice to transfer this action. Accordingly, the
Court recommends that the district court dismiss the
Complaint without prejudice for want of venue. Plaintiff may
pursue his claims in the proper court.
upon the foregoing, the Court FINDS AND RECOMMENDS ...