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Wiley v. Vea

United States District Court, D. Hawaii

July 17, 2019

SHERRY A. WILEY, Plaintiff,
KYNA VEA, ET AL., Defendants.


          J. Michael Seabright Chief United States District Judge.


         On April 17, 2019, pro se Plaintiff Sherry A. Wiley filed a Complaint alleging federal and state civil and criminal claims against numerous Defendants, [1]and an Application to proceed in forma pauperis (“IFP Application”). ECF Nos. 1-2. As set forth below, the court GRANTS Plaintiff's IFP Application and DISMISSES the Complaint, with leave to amend, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff may file an amended complaint alleging those claims the she elects to proceed with in this action, on or before August 16, 2019. She may also file other separate actions at her discretion, alleging those claims that would be improperly joined in any amended pleading, as explained below. This action will be dismissed if Plaintiff fails to timely file an amended complaint that attempts to cure the deficiencies noted in this Order.


         Plaintiff's IFP Application indicates that she (1) is unemployed, (2) receives $1, 350 per month for “Section 8” housing and an unspecified amount in SNAP food stamps, and (3) has assets of $122 in a bank account and $103 in stocks. IFP Application ¶¶ 2-5. The IFP Application further indicates that Plaintiff owes an unspecified sum for student loans that are in deferment and has significant unspecified debt. Id. at ¶¶ 6, 8. Plaintiff has made the required showing under 28 U.S.C. § 1915(a) to proceed in forma pauperis (i.e., without prepayment of fees); therefore, the court GRANTS Plaintiff's IFP Application.

         III. BACKGROUND[2]

         Plaintiff alleges that she is an African American honorably-discharged veteran, who had an emotional support dog (until his death on January 4, 2019) pursuant to a “VA Certified Letter of Disability” for “Extreme Stress.” Compl. at 2, 24. After moving from California to Hawaii in October 2018, Plaintiff sought to transfer her VASH voucher for housing from California to Hawaii, started volunteering at TAMC and then a VA Clinical Laboratory, and enrolled in an 8-week phlebotomy program at KCC. Id. at 2, 5-6, 25. Plaintiff's Complaint is a confusing and rambling account of alleged wrongdoing against Plaintiff both before and after she moved to Hawaii.[3]

         The Complaint contains largely conclusory allegations of law and fact. As best as the court can discern, however, Plaintiff alleges that Dahlberg discriminated against her when he refused to “port[] in” from California, a VASH voucher for a one-bedroom apartment, but instead, issued Plaintiff a voucher for a studio apartment. Id. at 5-6.[4]

         In early December 2018, Plaintiff and her dog moved into transitional housing provided by U.S. Vets at a HCAP facility on Barber's Point. Id. at 8-9. While there, Plaintiff alleges that the staff and residents of the facility broke into her room, went through her clothes, stole her dog's medicine, and “stalked” her, creating a “hostile and predatory” environment. Id. at 9, 19-20. The Complaint alleges that Plaintiff got sick and her dog died from worms and drugs put in their food provided by U.S. Vets. Id. at 19-20. When Plaintiff complained about these matters both U.S. Vets and HCAP staff threatened to evict her. Id. at 19-21.

         On February 1, 2019, Plaintiff moved into CloudBreak. Id. As alleged in the Complaint, over the next few months, Plaintiff had an on and off relationship with a man named Saalim that she met at CloudBreak, both her room and mailbox were broken into, clothing was moved, mail was stolen, and Malabey told residents and staff that Plaintiff was pregnant, even though Plaintiff never gave Malabey that information. Id. at 9-14, 22-23.[5] In addition, Plaintiff alleges that on March 11, 2019, Hawaii Five-O film crews were at CloudBreak and some personnel were pretending to fix air conditioners in some units. Id. at 16. Plaintiff further alleges that because of this, Vea knows that someone had entered Plaintiff's apartment and gone through her belongings, but that Vea denied this and would not let Plaintiff see footage from security cameras outside her unit. Id.

         Plaintiff alleges that during a March 30, 2019 phlebotomy class at KCC, a blood specimen was drawn from Plaintiff. Id. at 14, 22. The Complaint alleges that Plaintiff did not give Cummings, her instructor, authorization to “have [her] blood sampled.” Id. at 14. Sometime after the blood draw, Cummings “inferred to the class that [Plaintiff] was pregnant, ” even though Plaintiff did not give her such information. Id. Plaintiff alleges that because “this information made it back to [Malabey] and Saalim[, that fact] . . . confirms [her] stalking allegations against them both and from or by . . . Cumming[s].” Id. Plaintiff further alleges that she is “the only black in the class room.” Id. at 24. During one class, Cummings urgently yelled for another student to get bleach when Plaintiff's blood spilled down her arm and onto a chair, but “[w]hen this happens to the other student [Cummings] makes no fuss at all.” Id.

         On April 13, 2019, Pestana went to the class and “gave the story of the student who tried to set up her own Internship and it back fired in her face.” Id. Plaintiff alleges that Pestana and Cummings “like to talk ‘over/about' me indirectly while hinting to the class by direct eye contact and body language stare directly at me implying by actions and body language that I'm the person they're talking about. Inferences.” Id. In April 17, 2019, the VA Lab director “ended [Plaintiff's] observation.” Id. at 25. The VA Lab director had spoken to Pestana the day before “and inferred that [Pestana] told her that [Plaintiff] would not be completing the Phlebotomy course so that disqualified [Plaintiff] from being in the lab. Id.

         As a result of these actions, the Complaint alleges that Plaintiff lost employment opportunities, suffered emotional distress, and was nearly murdered. Id. at 25-26.

         Based on the foregoing, the Complaint asserts claims titled: (1) “HIPAA Rights Violations, ” (2) “Personal Health Information Violation, ” (3) “Breaking in and Entering my apartment without my knowledge or consent, ” (4) “Slander, ” (5) “Libel, ” (6) “Collaborative Stalking, ” (7) Intimidation, ” (8) “Endangerment and Negligence, ” (9) “Civil Rights Violations, ” (10) “Hate Crime, ” (11) “Medical Malpractice, ” (12) “Invasion of Privacy, ” (13) “Fostering a Predatory and Hostile Community, ” (14) “Practicing Medicine without a license, ” and (15) infliction of “Emotional Distress.” Id. at 2, 25. Plaintiff seeks $36 million from each Defendant, plus court costs and fees.[6] Id. at 25. The Complaint does not allege which claims are asserted against which Defendants.


         The court must screen the Complaint for each civil action commenced pursuant to 28 U.S.C. § 1915(a), governing IFP proceedings. The court must sua sponte dismiss a complaint or claim that 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)(B); see 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).

         Screening under § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (recognizing that a complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). However, although the court must accept as true allegations of material fact, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014) (citing Iqbal, 556 U.S. at 678). That is, conclusory statements, “unadorned, the-defendant-unlawfully-harmed-me accusation[s], ” and factual allegations that only permit the court to infer “the mere possibility of misconduct” fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79; see also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         In addition, Federal Rule of Civil Procedure 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and that “[e]ach allegation . . . be simple, concise, and direct.” Fed R. Civ. P. 8(a)(2), (d)(1). That is, to state a plausible claim, a plaintiff must allege a factual and legal basis for each claim, such that each defendant is provided fair notice of what each claim is and the grounds upon which each claim rests. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Twombly, 550 U.S. at 556-57, 562-563. The court may dismiss a complaint for violation of Rule 8 if a defendant would have difficulty responding to its claims, see Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011), even if the complaint is not “wholly without merit, ” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).

         Plaintiff appears pro se; consequently, the court liberally construes the Complaint. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted); see also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court must grant leave to amend if it appears that the plaintiff can correct the defects in the complaint, Lopez, 203 F.3d at1130, but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate, Sylvia v. Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         V. DISCUSSION

         A. Subject-Matter Jurisdiction

         In general, Plaintiff may establish the court's subject matter jurisdiction in one of two ways. First, Plaintiff may assert that Defendant violated the Constitution, a federal law, or treaty of the United States. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). Alternatively, Plaintiff may invoke the court's “diversity jurisdiction, ” which applies “where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).

         The Complaint references the violation of Plaintiff's “HIPAA Rights.”[7] Compl. at 1-2, 22. In addition, the Complaint states that the “Constitution of the United States . . . states that ALL men have the unalienable rights to be free, to have life, liberty and the pursuit of happiness as I choose.” Id. at 26. The Complaint further states that Plaintiff's “Civil Rights affords me the opportunity to live MY LIFE free from harm, the way I CHOOSE, on my own terms without interference from anyone else. All of these Rights and others have been taken away or altered by the defendants.” Id. (formatting altered). Construing the Complaint liberally, Plaintiff may be attempting to assert a claim under 28 U.S.C. § 1983 for a general violation of a constitutional right, and a claim for violation of HIPAA. So construed, there is federal question jurisdiction and therefore, the court has subject matter jurisdiction over this action.[8] However, Plaintiff's Complaint is deficient in multiple ways.

         B. Failure to Comply with Rule 8

         First, Plaintiff's Complaint fails to comply with Rule 8. The Complaint is neither short, nor a plain statement of Plaintiff's claims. Rather, the Complaint is replete with allegations that are confusing, irrelevant, conclusory, and often based on conjecture and opinion. These largely conclusory factual and legal assertions fail to provide any justification for relief. The Complaint lists numerous causes of action, but fails to link those claims to the narrative portion of the Complaint. For example, the Complaint fails to connect each legal claim to specific conduct by a particular Defendant. That is, the Complaint fails to set forth each claim along with factual allegations to support each claim as to each Defendant.

         Even construed liberally, the court and Defendants must guess which claims are asserted against which Defendants and what factual allegations support each claim. Thus, the Complaint is DISMISSED for failure to comply with Rule 8. See Cafasso, 637 F.3d at 1059; see also McHenry, 84 F.3d at 1180 (“Something labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.”).

         C. Failure to State a Claim

         Moreover, Plaintiff fails to state plausible claims. As discussed below, some Defendants are immune from suit and/or from the claims asserted, some claims lack a private cause of action, and some claims fail for lack of ...

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