United States District Court, D. Hawaii
ORDER DISMISSING PLAINTIFF’S COMPLAINT WITHOUT
PREJUDICE AND RESERVING RULING ON PLAINTIFF’S
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING
FEES OR COSTS
E. Kobayashi, United States District Judge
11, 2019, pro se Plaintiff Eric Pollet
(“Plaintiff”) filed a Prisoner Civil Rights
Complaint (“Complaint”). [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.
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.]
also alleges another incident occurred during the afternoon
of October 19, 2018, in the Costco parking lot (“2018
Incident”). [Id. at pg. 8. 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.
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.]
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”).
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
Id. at *3.
addition, the following standards apply in the screening
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.
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