United States District Court, D. Hawaii
ORDER (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND;
AND (2) HOLDING IFP APPLICATION IN ABEYANCE PENDING THE
FILING OF AN AMENDED COMPLAINT
J.MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE
August 12, 2019, pro se Plaintiff Orighoye Dennis Iyonsi
(“Plaintiff”) filed a document titled
“Brief for the United States as Amicus Curiae, ”
which the court construes as a complaint
(“Complaint”), and an application to proceed in
forma pauperis (“IFP Application”). ECF Nos. 1-2.
For the reasons set forth below, the court DISMISSES the
Complaint with leave to amend because Plaintiff has not
established standing to assert his claims in federal court.
The court holds in abeyance Plaintiff’s IFP Application
pending the filing of an amended complaint.
Complaint is confusing and contains few discernible facts.
Based on the caption, title, format, and attached documents,
it is not clear whether Plaintiff is attempting to appeal the
July 17, 2019 dismissal by the Hawaii Supreme Court of a
similarly-titled petition, or to assert new claims.
See ECF No. 1 at PageID #1 (caption identifying this
court both as “The United States Federal District Court
of Hawaii” and “The State of Hawai'i of
Appeals for the Federal District Circuit Court”);
id. at PageID #1, 5 (titling his pleading as a
“Brief); id. at PageID #2 (including a section
titled “Questions Presented”); id. at
PageID #13 (attaching a “Notice of Appeal”); and
id. at PageID #15 (attaching a July 17, 2019 order
by the Hawaii Supreme Court denying a petition also titled
“Brief for the United States as Amicus Curiae”).
This court is not an appellate court and lacks jurisdiction
to hear appeals of state court rulings, thus the court
liberally construes Plaintiff’s pleading not as an
appeal, but as a complaint asserting claims on his behalf.
construed, as best as the court can discern, the Complaint
alleges that Defendant Wal-Mart, Inc.
(“Wal-Mart”) places refunds for returned goods
that were purchased by credit card or debit card back on
those cards, or, if the card is not present, on a store gift
card, or, if purchased with a debit card, under certain
circumstances, cash may be provided. ECF No. 1 at PageID
#10-11. The Complaint implies that Wal-Mart restricts
purchases made by Electronic Benefit Transfer
(“EBT”) cards and does not apply the same refund
policies for returned goods purchased by EBT
cards. The Complaint alleges that Wal-Mart
discriminates against EBT card holders in violation of the
card holders’ unspecified constitutional rights and
federal antitrust law set forth in 15 U.S.C. Chapter 1.
Plaintiff does not seek any specific relief.
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
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 . . . “a demand for the relief sought, ” and
that “[e]ach allegation . . . be simple, concise, and
direct.” Fed R. Civ. P. 8(a)(2)-(3), (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).
the court may dismiss sua sponte a complaint for
lack of subject matter jurisdiction. Fiedler v.
Clark, 714 F.2d 77, 78-79 (9th Cir.1983); Belleville
Catering Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d
691, 693 (7th Cir. 2003) (“[I]nquiring whether the
court has jurisdiction is a federal judge’s first duty
in every case.”); Bernhardt v. Cty. of L.A.,
279 F.3d 862, 868 (9th Cir. 2002) (“Federal courts are
required sua sponte to examine jurisdictional issues such as
standing.”) (citations omitted); Fed.R.Civ.P. 12(h)(3).
is appearing 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 a
pro se plaintiff might be able to 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).
Complaint is deficient in several respects. First, and most
fundamentally, Plaintiff has failed to establish that he has
standing to assert his claims. Second, the Complaint fails to
comply with Rule 8. Third, the Complaint fails to state a
plausible claim for relief. The court addresses these points