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Hawkins v. Fisher

United States District Court, D. Hawaii

March 29, 2019

CLARENCE ELROY HAWKINS, JR., Plaintiff,
v.
PAMELA FISHER, Defendant.

          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 COSTS

          KENNETH J. MANSFIELD, UNITED STATES MAGISTRATE JUDGE

         On 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.

         For the 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.

         I. The Complaint

         A. Standard of Review

         The 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”).

         To 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. at 679.

         A 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”).

         “The 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 “the-defendant-unlawfully-harmed-me 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).

         Because 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).

         B. Plaintiff's Factual Allegations

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...


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