United States District Court, D. Hawaii
ORDER (1) DISMISSING FIRST AMENDED COMPLAINT AND (2)
DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS
A. Otake, United States District Judge.
the Court is Plaintiff Noe Kim Raquinio's
(“Plaintiff”) Application to Proceed In Forma
Pauperis (“IFP Application”), filed March 6,
2019. For the reasons set forth below, the Court DISMISSES
the First Amended Complaint (“FAC”) and DENIES
the IFP Application.
commenced this action on February 6, 2019. On February 14,
2019, the Court issued an Order (1) Dismissing Complaint and
(2) Denying Application to Proceed in Forma Pauperis
(“Order”). Doc. No. 5. The Court dismissed the
Complaint due to multiple deficiencies and because it failed
to state a claim upon which relief could be granted, but
authorized Plaintiff to file an amended complaint.
Id. at 6. The Court directed Plaintiff to cure the
deficiencies identified in the Order and cautioned that his
failure to file an amended pleading that conforms with the
Order would result in the dismissal of the action.
Id. at 10.
Dismissal of the Complaint Under the In Forma Pauperis
Statute - 28 U.S.C. § 1915(e)(2)
again 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) is 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). When
evaluating whether a complaint fails to state a viable claim
for screening purposes, the Court applies Federal Rule of
Civil Procedure (“FRCP”) 8's pleading
standard as it does in the context of an FRCP 12(b)(6) motion
to dismiss. See Wilhelm v. Rotman, 680 F.3d 1113,
1121 (9th Cir. 2012).
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). 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)); Nordstrom v. Ryan, 762 F.3d 903, 908 (9th
Cir. 2014) (citations and quotations omitted). 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.”
Ashcroft, 556 U.S. at 678.
present case, even construing the FAC 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 FAC fails to state a claim upon which
relief can be granted. Section 1983 states:
Every person, who under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law.
42 U.S.C. § 1983. Substantive rights are not created by
this provision; “rather it is the vehicle by whereby
plaintiffs can challenge actions by governmental
officials.” Cholla Ready Mix, Inc. v. Civish,
382 F.3d 969, 978 (9th Cir. 2004) (citation and quotations
omitted). “To state a claim under § 1983, a
plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of State
law.” Long v. Cty. of Los Angeles, 442 F.3d
1178, 1185 (9th Cir. 2006) (citation omitted).
has not alleged any facts to support his generalized legal
claims. He characterizes this case as a 42 U.S.C. § 1983
action based on continuing violations of his Fourth, Fifth
and Fourteen Amendment Constitutional rights by officers of
the Hawai‘i Police Department. However, he presents no
facts in support of this conclusory allegation, much less how
any facts rise to the level of Constitutional violation(s).
Under the “CAUSE OF ACTION” section in his FAC,
Plaintiff asserts that the Defendant officers violated his
common law right to travel, which he cannot be deprived of
without due process of law under the Fifth Amendment. FAC at
2. Based on the cursory and somewhat incoherent allegations
presented in the FAC, the Court is unable to ascertain
whether jurisdiction exists. Moreover, Plaintiff has failed
to state a claim upon which relief can be granted. Indeed,
this iteration of his operative pleading contains less
information and is more deficient than his Complaint. The
Court accordingly DISMISSES the FAC.
to amend should be granted 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)); Cafasso v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citation
omitted) (“If a pro se complaint is dismissed for
failure to state a claim, the court must ‘freely grant
leave to amend' if it is ‘at all possible' that
the plaintiff could correct pleading deficiencies by alleging
different or new facts.”).
the foregoing deficiencies, the Court acknowledges that
Plaintiff is proceeding pro se and that the deficiencies
could potentially be cured by amendment. As such, the Court
dismisses the FAC without prejudice and grants Plaintiff
leave to amend his FAC. This is Plaintiff's
final opportunity to amend his pleadings. ...