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Pollet v. Costco Whole Salers, Staff and Affiliates

United States District Court, D. Hawaii

September 30, 2019

ERIC POLLET, Plaintiff,
v.
COSTCO WHOLE SALERS, STAFF AND AFFILIATES, Defendant.

          ORDER DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE AND RESERVING RULING ON PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

          Leslie E. Kobayashi, United States District Judge

         On July 11, 2019, pro se Plaintiff Eric Pollet (“Plaintiff”) filed a Prisoner Civil Rights Complaint (“Complaint”).[1] [Dkt. no. 1.] On August 1, 2019, Plaintiff filed his Application to Proceed in District Court Without Prepaying Fees or Costs (“Application”). [Dkt. no. 2.] The Court has considered the Application as a non-hearing matter pursuant to Rule LR7.1(d) 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.

         BACKGROUND

         Plaintiff brings this action pursuant to 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983. [Complaint at pg. 1.] Plaintiff alleges that, on October 19, 2017, his life was threatened when he was “aggressively[ and] violently attack[ed]” by an employee of Defendant Costco Whole Salers (“Costco” or “Defendant”), at the Costco location in Kahului, Hawai`i (“2017 Incident”). [Id. pgs. 1, 5.] Plaintiff alleges the 2017 Incident occurred because of Costco’s failure to enforce a policy. [Id. at pg. 1.]

         Plaintiff also alleges another incident occurred during the afternoon of October 19, 2018, in the Costco parking lot (“2018 Incident”). [Id. at pg. 8.[2] Plaintiff alleges that, while he was walking to his car, “John Doe 1” attempted, twice, to hold Plaintiff against his will. [Id.] John Doe 1 allegedly punched Plaintiff on the back and on the back of his head. [Id.] According to Plaintiff, John Doe 1 is a Costco manager.

         [Id. at pg. 10.] After John Doe 1 attacked Plaintiff, “John Doe 2” pulled Plaintiff from behind, slammed him down on the ground, then punched and kicked Plaintiff in the head and face. [Id. at pg. 9.] Plaintiff states John Doe 2 is an employee of the tire department at the Kahalui Costco location. [Id. at pg. 10.] According to Plaintiff, “John Doe 3” joined the other two. [Id. at pg. 9.] Plaintiff states John Doe 3 is an employee of the security department at the Kahalui Costco location. [Id. at pg. 10.] John Doe 3 handcuffed Plaintiff and hit Plaintiff’s “face and forehead with a heavy instrument.” [Id. at pg. 9.] Plaintiff states John Does 1, 2, and 3 (collectively “John Does”) are each being sued in his individual and official capacities, but none of them is named as a defendant. [Id. pgs. at 1, 10.]

         The Complaint alleges the following claims arising from the 2017 Incident: Defendant violated Plaintiff’s rights under the Fourth Amendment to the United States Constitution by failing to protect him from its employees (“Count I”); Defendant violated Plaintiff’s Fourth Amendment rights by failing to ensure that its policy was followed (“Count II”); [id. at pgs. 5-6;] and Defendant violated Plaintiff’s constitutional rights “by punishing or prosecuting” him without due process, [id. at pg. 7]. Further, the Complaint alleges the following claims arising from the 2018 Incident: John Doe 1’s actions violated Plaintiff’s Fourth Amendment rights (“Count IV”); John Doe 1’s actions violated Plaintiff’s constitutional right not to be subjected to cruel and unusual punishment (“Count V”); a cruel and unusual punishment claim, based on John Doe 2’s actions (“Count VI”); and a cruel and unusual punishment claim, based on John Doe 3’s actions (“Count VII”).

         STANDARD

         “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 ...


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