United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT
GRANT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT
PREPAYING FEES AND DISMISS THE COMPLAINT WITHOUT
TRADER UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Ronald Satish Emrit's Application
to Proceed in District Court Without Prepaying Fees or Costs
(“IFP Application”), filed on March 8, 2019. 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 U.S. District Court for the District of
Hawaii. The Court FINDS AND RECOMMENDS that the district
court GRANT Plaintiff's IFP Application and DISMISS
WITHOUT PREJUDICE Plaintiff's Complaint for improper
Plaintiff's IFP Application
may authorize a litigant to commence or prosecute any suit
without prepayment of fees if the litigant submits an
affidavit stating that the litigant is unable to pay the
required fees. 28 U.S.C. § 1915(a)(1); see Escobedo
v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015)
(citing Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 339 (1948)) (the affidavit “is sufficient
where it alleges that the affiant cannot pay the court costs
and still afford the necessities of life”). The
litigant “need not be absolutely destitute[, ] . . .
but must allege poverty with some particularity, definiteness
and certainty.” Escobedo, 787 F.3d at 1234
(citations omitted) (internal quotations omitted).
case, Plaintiff states that he receives $829 in monthly
disability payments, has $26.03 in his checking account, and
has $900 in monthly expenses. ECF No. 3 at 3-5. The Court
finds that Plaintiff has sufficiently demonstrated
entitlement to proceed in forma pauperis and RECOMMENDS that
the district court GRANT Plaintiff's Application.
Court must also subject each action to a mandatory screening.
The Court must dismiss the case if the court determines that
“the allegation of poverty is untrue[, ]” or
“the action or appeal . . . is frivolous or malicious[,
] 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, 1126-27 (9th Cir.
2000) (en banc) (stating that 28 U.S.C. § 1915(e)
“not only permits but requires” the court to sua
sponte dismiss an in forma pauperis complaint that fails to
state a claim); Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (per curiam) (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).
asserts various claims against Defendants President Donald
Trump, the U.S. Department of Commerce, the U.S. Department
of Agriculture, the Federal Trade Commission, and the
International Trade Commission (“Defendants”).
ECF No. 1. Plaintiff alleges in his Complaint that he is a
resident of the State of Nevada. Id. ¶ 14. The
factual allegations giving rise to his claims occurred in
either California or Nevada.
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.” 28 U.S.C. § 1391(b)(1), (2).
“[I]f 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 the
court's personal jurisdiction with respect to such
action.” 28 U.S.C. § 1391(3). Plaintiff claims he
is a resident of Nevada, none of the events giving rise to
the claims occurred in Hawaii, and Plaintiff has not asserted
that any of the Defendants may be subject to personal
jurisdiction in Hawaii. Accordingly, without addressing the
merits of the Complaint, the District of Hawaii is not the
proper venue for Plaintiff's Complaint.
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). In this case, there is no evidence that
Plaintiff would be time-barred from refiling this action in
another venue. Under these circumstances, the Court finds
that it is not in the interests of justice to transfer this
action. Accordingly, the Court RECOMMENDS that the district
court DISMISS WITHOUT PREJUDICE the present action for want
of venue. Plaintiff may pursue his claims in the proper
Court FINDS AND RECOMMENDS that the district court:
1) GRANT Plaintiffs Application to Proceed in District Court
Without Prepayment of ...