United States District Court, D. Hawaii
AMENDED ORDER DISMISSING COMPLAINT AND DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS WITH LEAVE TO
A. OTAKE UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Eric Lum's Application to Proceed
In Forma Pauperis (“IFP Application”), filed
April 26, 2019. Plaintiff seeks to proceed In Forma Pauperis
on his Complaint filed on March 20, 2019. For the reasons set
forth below, the Court DISMISSES the Complaint and DENIES the
IFP Application with leave to amend.
Complaint alleges the following facts. While driving,
Plaintiff was pulled over by Hawaii Police Department
(“HPD”) officers for an illegal turn. Upon
request of his driver's license, Plaintiff gave the HPD
officers a driver's license issued by the
“Polynesian Kingdom of Atooi.” The officers
responded by attacking Plaintiff's beliefs by telling him
the “kingdom is fake, ” and laughing at him when
he told them he is the Polynesian Kingdom of Atooi's
United Nations Representative. HPD then told him he would
have to “blow or go to jail, ” which appears to
be an allegation that HPD demanded he take a breathalyzer
alcohol test or go to jail. The Complaint states that
Plaintiff refused to comply with the officers, and that he
was arrested. The Complaint further alleges that HPD has
refused to return Plaintiff's Polynesian Kingdom of Atooi
Dismissal of the Complaint Under the In Forma Pauperis
Statute - 28 U.S.C. § 1915(e)(2)
may deny leave to proceed in forma pauperis and dismiss the
complaint if it appears from the face of the 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
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 Complaint fails to state a claim upon
which relief can be granted.
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). Federal Rule
of Civil Procedure (“FRCP”) 8 does not demand
detailed factual allegations, but “it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 56 U.S. 662');">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.”
Id. Additionally, FRCP 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 Rules also
require a complaint to name all the parties. FRCP 10(a).
threshold matter, Plaintiff's assertion of direct
constitutional claims fails because he must seek redress of
constitutional violations under 42 U.S.C. § 1983.
See Azul-Pacifico, Inc. v. City of Los Angeles, 973
F.2d 704 (9th Cir. 1992) (“Plaintiff has no cause of
action directly under the United States Constitution. We have
previously held that a litigant complaining of a violation of
a constitutional right must utilize 42 U.S.C. §
1983.”). Further, a complaint must specify all parties,
see FRCP 10(a), and Plaintiff has not adequately
identified the defendants. Although the Complaint states that
officers Chang and Ernest Hok Sum violated his rights, it is
not clear who Plaintiff seeks to file suit against. Indeed,
in Plaintiff's IFP Application, he lists the “State
of Hawaii H.P.D.” as the only defendant. ECF No. 4. On
these deficiencies alone, the Complaint must be dismissed
with leave to amend.
the Complaint as currently pled contains insufficient factual
allegations to state a claim under the First, Fourth, and
Eighth Amendments; and under the Due Process Clause.
Plaintiff's Free Exercise claim appears to be founded
solely on the allegations that the officers told Plaintiff
the Polynesian Kingdom of Atooi is not real and laughed at
him when he said he was the United Nations representative.
This is insufficient to state a claim for relief. Plaintiff
has not specified any sincerely held religious belief, or how
the officers' conduct substantially burdened
Plaintiff's free exercise thereof. See, e.g.,
Hernandez v. C.I.R., 490 U.S. 680, 699 (1989);
Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.
2008). Plaintiff's Fourth and Eighth Amendment claims are
equally insufficient. It is unclear what specific actions
constitute the alleged violations, as Plaintiff appears to
allege generally that the traffic stop was a Fourth Amendment
violation, and that “being dragged though tons of
hardships” related to his subsequent arrest constitutes
cruel and unusual punishment. ECF No. 1. Plaintiff's
factual allegations are not sufficiently detailed for the
Court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft 556 U.S. 662, 678 (2009).
Due Process claim for the officers' seizure and failure
to return his Polynesian Kingdom of Atooi driver's
license is also inadequately pled. Where a state officer
deprives a plaintiff of property in a “random,
unpredictable, and unauthorized” way, a state can
“cure what would otherwise be an unconstitutional
deprivation . . . by providing adequate postdeprivation
remedies.” Zimmerman v. City of Oakland, 255
F.3d 734, 737-38 (9th Cir. 2001). On the other hand, however,
post-deprivation remedies will not cure a Due Process
violation where “the state officer acted pursuant to
some established procedure.” Id. at 738. Here,
Hawai‘i provides a post-deprivation remedy for the
return of seized property, Haw. R. Penal P. Rule 41(e), and
Plaintiff's Complaint alleges that the officers'
seizure of Plaintiff's property was of an unpredictable
and unauthorized nature, stating that the officers
“illegally confiscated” his license without any
probable cause. ECF No. 1. Indeed, Plaintiff “does not
even allege that the asserted [seizure] of his property
occurred pursuant to a state procedure.” Hudson v.
Palmer, 468 U.S. 517, 534 (1984). Thus, as currently
pled, Plaintiff has failed to state a Due Process claim on
which relief can be granted because Hawai‘i has a
post-deprivation remedy for the return of his property.
should grant leave to amend 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, it is possible
that the 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 June 13,
2019 and must cure the deficiencies ...