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Downey v. US of America

United States District Court, D. Hawaii

August 30, 2019

MARK DOWNEY, Plaintiff,
US OF AMERICA, ET AL., Defendants.



         On July 29, 2019, pro se Plaintiff Mark Downey (“Plaintiff”) filed his Complaint for a Civil Case (“Complaint”) and an Application to Proceed in District Court Without Prepaying Fees or Costs (“Application”). [Dkt. nos. 1, 2.] The Court has considered the Application as a non-hearing matter pursuant to Rule LR7.2(e) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). For the reasons set forth below, the Complaint is hereby dismissed without prejudice. In other words, Plaintiff has permission to file an amended complaint to try to cure the defects in the Complaint. Because Plaintiff is allowed to file an amended complaint, the Application will not be ruled upon until the amended complaint is filed and screened.


         Plaintiff states he “is a former Consulting Federal Forensic Scientist/Technologist/Programmer on a Federal Disability, ” who “has lived and worked in Northern Virginia, Washington DC suburbs for 50 years.” [Complaint at pg. 7.[1] He asserts this action “is mandated by the qui tam, the False Claims Act and the Dodd-Frank Act to generate revenues for the Federal Government to dramatically reduce the mounting $21 Trillion Federal Budget Deficit for our Children's Children.” [Id. at pg. 4.] Plaintiff asserts the amount of the budget deficit should be allocated “70% for the Federal Government and 30% for the Disabled Plaintiff.” [Id.]

         He also states he spent five years working on a whistleblower claim that was unjustly denied. [Id.] Plaintiff asserts “Count A, ” [id. at pgs. 20-27, ] and Counts 1 through 45, [id. at pgs. 28-75]. Plaintiff asserts federal question jurisdiction, bringing his claims pursuant to “18USC1361, 49USC40115, 18USC1519, 118USC2255, USC371, 18USC241, 5USC552, 49USC49115, 18USC1621, qui tam, ADA Personal Injury, Destruction of Government Property, Civil Rights,, [sic] Constitution 8th Amendment.” [Id. at pg. 3.] Plaintiff has named the following defendants: the United States of America (“United States”); the Department of Justice - Attorney General (“Attorney General”); Department of Justice - United States Attorney (“U.S. Attorney”); Kamehameha Schools; and the Financial Industry Regulatory Authority (“FINRA”). [Id. at pgs. 6-7.]


         “Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates he is unable to pay.” Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKW-KJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing 28 U.S.C. § 1915(a)(1)).

The Court subjects each civil action commenced pursuant to Section 1915(a) to mandatory screening and can order the dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon which relief may 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 sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).

Id. at *3.

         In addition, the following standards apply in the screening analysis:

Plaintiff is appearing pro se; consequently, the court liberally construes her pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam))). 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 Lopez v. Smith, 203 F.3d 1122, 1126 (9th. [sic] Cir. 2000).
Despite the liberal pro se pleading standard, the court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on its own motion. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief.”); Ricotta v. California, 4 F.Supp.2d 961, 968 n.7 (S.D. Cal. 1998) (“The Court can dismiss a claim sua sponte for a Defendant who has not filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6).”); see also Baker v. Dir., U.S. Parole Comm'n, 916 F.2d 725, 727 (D.C. Cir. 1990) (holding that district court may dismiss cases sua sponte pursuant to Rule 12(b)(6) without notice where plaintiff could not prevail on complaint as alleged). . . . “Federal courts are courts of limited jurisdiction, ” possessing “only that power authorized by Constitution and statute.” United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). The assumption is that the district court lacks jurisdiction. See Kokkonen, 511 U.S. at 377. Accordingly, a “party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).

Flores v. Trump, CIVIL 16-00652 LEK-RLP, 2017 WL 125698, at *1 (D. Hawai`i Jan. 12, 2017) (some alterations in Flores) (citation omitted), reconsideration denied, 2017 WL 830966 (Mar. 2, 2017).


         I. Kamehameha Schools

         The Court turns first to the one party - Defendant Kamehameha Schools[2] - that is located in Hawai`i. See Complaint at pgs. 7, 84.[3] Plaintiff only refers to Kamehameha Schools twice in the eighty-six-page Complaint, once in the caption and once in the section titled “Federal Criminal Subject Matter Jurisdiction - Follow-On Summary, ” under “Relief Claimed.” [Id. at pgs. 83-84 (emphases omitted).] Plaintiff apparently asserts Kamehameha Schools is “[h]oarding” its assets and that he is entitled to $62.088 billion in compensatory and punitive damages from Kamehameha Schools. [Id. at pg. 85.]

         The screening analysis described above requires a determination of whether Plaintiff's claim against Kamehameha Schools states a claim upon which relief can be granted, in other words, whether it would survive a motion to dismiss brought pursuant to Rule 12(b)(6). See Lopez, 203 F.3d at 1126-27; Rule 12(b)(6) (stating the defense of “failure to state a claim upon which relief can be granted” may be asserted in a motion). Plaintiff's claim against Kamehameha Schools would not survive a motion to dismiss because: 1) it is unclear what claim he is asserting against Kamehameha Schools; and 2) Plaintiff has not plead sufficient factual allegations that, if proven, would entitle Plaintiff to the relief he seeks from Kamehameha Schools. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (citation and internal quotation marks omitted)); id. (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citation omitted)). Among the factual allegations that are lacking in the Complaint are allegations that would support a plausible basis for Plaintiff's standing to bring a claim against Kamehameha Schools. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).[4] Because Plaintiff has failed to allege a plausible claim against Kamehameha Schools, Plaintiff's claim against Kamehameha Schools is dismissed.

         II. ...

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