United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO: (1) DISMISS COMPLAINT
WITH LEAVE TO AMEND; AND (2) DENY PLAINTIFF'S REQUEST TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR
KENNETH J. MANSFIELD, UNITED STATES MAGISTRATE JUDGE
March 1, 2019, Plaintiff Clarence Elroy Hawkins, Jr.
(“Plaintiff”), proceeding pro se, filed
his Complaint against Defendant Pamela Fisher
(“Defendant”). ECF No. 1. That same day,
Plaintiff filed a “Declaration in Support of Request to
Proceed in Forma Pauperis” (“IFP
Application”), which this Court liberally construes as
a request to proceed in district court without prepaying fees
or costs. 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 DISMISS Plaintiff's Complaint WITH
LEAVE TO AMEND. The Court also RECOMMENDS that the district
court DENY WITHOUT PREJUDICE Plaintiff's IFP Application.
Standard of Review
Court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to a mandatory screening and order the
dismissal of any claims it finds “frivolous, malicious,
failing to state a claim upon which relief can 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, 1126-27 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915(e) “not only
permits but requires” the court to dismiss sua sponte
an in forma pauperis complaint that fails to state a claim);
Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per
curiam) (holding that “the provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners”).
avoid dismissal for failure to a state a claim, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. v. Twombly, 550
U.S. 544, 570 (2007)); see also Weber v. Dep't of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).
This tenet--that the court must accept as true all of the
allegations contained in the complaint--“is
inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rather, “[a] claim
has facial plausibility when the plaintiff pleads sufficient
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). Factual allegations that permit the court to
infer only “the mere possibility of misconduct”
do not show that the pleader is entitled to relief as
required by Federal Rule of Civil Procedure 8. Id.
complaint must also meet Rule 8's requirements that a
complaint include a “short and plain statement of the
claim[, ]” and that “each allegation must be
simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2),
(d)(1). A district court may dismiss a complaint for failure
to comply with Rule 8 where the complaint fails to provide
the defendant fair notice of the wrongs allegedly committed.
See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th
Cir. 1996) (affirming dismissal of complaint where “one
cannot determine from the complaint who is being sued, for
what relief, and on what theory, with enough detail to guide
discovery”); cf. Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1105 n.4 (9th Cir. 2008) (finding
dismissal under Rule 8 was in error where “the
complaint provide[d] fair notice of the wrongs allegedly
committed by defendants and [did] not qualify as overly
verbose, confusing, or rambling”).
propriety of dismissal for failure to comply with Rule 8 does
not depend on whether the complaint is wholly without
merit.” McHenry, 84 F.3d at 1179. Rule 8 does,
however, require more than
accusation[s]” and “[a] pleading that offers
labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.”
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). “Nor does a complaint suffice
if it tenders naked assertions devoid of further factual
enhancement.” Id. (quotation marks omitted).
Plaintiff is appearing pro se, the Court liberally
construes the Complaint. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); see also Eldridge v. Block, 832
F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam))
(“The Supreme Court has instructed the federal courts
to liberally construe the ‘inartful pleading' of
pro se litigants.”). The Court also recognizes that
“[u]nless it is absolutely clear that no amendment can
cure the defect . . . a pro se litigant is entitled to notice
of the complaint's deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995);
see also Crowley v. Bannister, 734 F.3d 967, 977-78
(9th Cir. 2013).
Plaintiff's Factual Allegations
alleges that he was exposed to nuclear waste and other toxic
chemicals while serving in the United States Marine Corps in
1978. See ECF No. 1 at 1. Plaintiff alleges that he
suffered brain damage and has recurring suicidal thoughts as
a result of this exposure. Plaintiff alleges that he has
previously sought assistance from the Department of Veterans
Affairs (“VA”) and several doctors, but he has
received none. See Id. at 2.
alleges that he participated in a VA hearing regarding his
medical issues at Tripler Army Medical Hospital in Honolulu,
Hawaii on or around January 18, 2017 (“01/18/2017 VA
Hearing”). See Id. at 1-2. Plaintiff attaches
a copy of the 01/18/2017 VA Hearing transcript to the
Complaint (“Hearing Transcript”). See
ECF No. 1-2. The Hearing Transcript indicates that Defendant
was the Decision Review Officer at the 01/18/2017 VA Hearing
with respect to Plaintiff's claim. See Id. at 3.
alleges that, during the 01/18/2017 VA Hearing, Defendant
asked Plaintiff “to go on an appointment for his foot
and hand.” ECF No. 1 at 2. Plaintiff alleges that
“[Defendant] sent [Plaintiff] on an appointment to see
2 doctors, Dr. Wesley K. Ogata MD (at 9:40 am) and Dr. Donald
M. Kopf PHD (at 12pm), on September 22, 2017 who asked
questions about [Plaintiff's] headaches and they denied