United States District Court, D. Hawaii
ORDER (1) DISMISSING COMPLAINT; (2) DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS; AND (3) DENYING
EMERGENCY INJUNCTIVE RELIEF
A. Otake, United States District Judge
the Court is Plaintiff Jack Stone's
(“Plaintiff”) Application to Proceed In Forma
Pauperis (“IFP Application”), filed February 6,
2019. The operative pleading in this case, also filed on
February 6, 2019, is titled “PETITIONER SEEKS EMERGENCY
ORDER TO COMPEL THE U.S. DEPARTMENT OF STATE, AND THE U.S.
EMBASSY IN TOKYO IN JAPAN TO ISSUE REPLACEMENT PASSPORT FOR
PETITIONER'S MINOR CHILD WHO WAS BROUGHT TO JAPAN IN
VIOLATION OF 18 U.S.C. § 1204”
(“Complaint”). Although Plaintiff has not
separately filed a motion for temporary restraining order
and/or injunctive relief, the Court hereby construes the
Complaint as requesting emergency injunctive relief.
reasons set forth below, the Court DISMISSES the Complaint,
DENIES the IFP Application, and DENIES emergency injunctive
Complaint seeks an emergency order compelling the U.S.
Department of State and the U.S. Embassy in Tokyo issue a
replacement passport to Plaintiff's minor child, to allow
Plaintiff to return with his child to the United States. The
sole authority cited for the request is 18 U.S.C. §
1204-a criminal statute-under which only the United States
may bring an action.
Dismissal of the Complaint Under the In Forma Pauperis
Statute - 28 U.S.C. § 1915(e)(2)
requests leave to proceed in forma pauperis. A court may deny
leave to proceed in forma pauperis at the outset and dismiss
the complaint if it appears from the face of the proposed
complaint that the action: (1) frivolous or malicious; (2)
fails to state a claim on which relief may be granted; or (3)
seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2); see Tripati v.
First Nat'l Bank & Trust, 821 F.2d 1368, 1370
(9th Cir. 1987); Minetti v. Port of Seattle, 152
F.3d 1113, 1115 (9th Cir. 1998).
present case, even construing Plaintiff's Complaint
liberally, Bernhardt v. Los Angeles Cty., 339 F.3d
920, 925 (9th Cir. 2003); Jackson v. Carey, 353 F.3d
750, 757 (9th Cir. 2003), the Court finds that dismissal is
appropriate because the existence of jurisdiction is
questionable and the Complaint fails to state a claim upon
which relief can be granted. Federal Rule of Civil Procedure
(“FRCP”) 8(a) requires “a short and plain
statement of the grounds for the court's
jurisdiction” and “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1)-(2).
plaintiff properly invokes § 1331 jurisdiction when [he
or] she pleads a colorable claim arising under the
Constitution or laws of the United States.” Arbaugh
v. Y&H Corp., 546 U.S. 500, 513 (2006) (quotation
marks and citation omitted). Here, Plaintiff relies
exclusively upon 18 U.S.C. § 1204-a criminal statute-for
the relief sought. Enforcement of criminal statutes rests
with the executive branch, not a plaintiff in a civil action.
In the absence of a properly asserted or identifiable
jurisdictional basis, this case must be dismissed.
Plaintiff has not presented his claims in conformance with
FRCP 8 or 10. Although the Federal Rules adopt a flexible
pleading policy, a complaint must give fair notice and state
the elements of the claim plainly and succinctly. Jones
v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir.
1984). “The Federal Rules require that averments
‘be simple, concise and direct.'” McHenry
v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). FRCP 8
does not demand detailed factual allegations. However,
“it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, 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.”
10(b) requires a party to “state its claims or defenses
in numbered paragraphs, each limited as far as practicable to
a single set of circumstances.” Fed.R.Civ.P. 10(b). The
Complaint is a narrative of Plaintiff's domestic/family
situation. It does not consist of numbered paragraphs, nor
does it plainly and succinctly state the elements of
Plaintiff's claims. Indeed, it fails to identify the
elements of any civil claims.
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 deficiencies of the
complaint could not be cured by amendment.'”
Tripati, 821 F.2d 1370 (quoting Franklin v.
Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984)).
the Complaint is deficient as currently pled, the Court
acknowledges that Plaintiff is proceeding pro se and it is
possible that the aforementioned deficiencies could be cured
by amendment. Accordingly, the Court dismisses the Complaint
without prejudice and grants Plaintiff leave to amend his
Complaint. Any amended complaint-which should be titled
“First Amended Complaint”-must be filed by
March 8, 2019 and must cure the deficiencies
identified above; that is, Plaintiff must identify a
jurisdictional basis and ...