United States District Court, D. Hawaii
SHERRY A. WILEY, Plaintiff,
KYNA VEA, ET AL., Defendants.
ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO
Michael Seabright Chief United States District Judge.
April 17, 2019, pro se Plaintiff Sherry A. Wiley filed a
Complaint alleging federal and state civil and criminal
claims against numerous Defendants, 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.
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.
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.
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
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
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. 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.
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.
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
result of these actions, the Complaint alleges that Plaintiff
lost employment opportunities, suffered emotional distress,
and was nearly murdered. Id. at 25-26.
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. Id. at 25. The
Complaint does not allege which claims are asserted against
STANDARDS OF REVIEW
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).
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).
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).
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).
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).
Complaint references the violation of Plaintiff's
“HIPAA Rights.” 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. However, Plaintiff's Complaint is
deficient in multiple ways.
Failure to Comply with Rule 8
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.
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.”).
Failure to State a Claim
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 ...