United States District Court, D. Hawaii
WILLIS C. MCALLISTER, Plaintiff,
DISPUTE PREVENTION AND RESOLUTION, INC., et al., Defendants.
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING ACTION WITH
LEAVE TO AMEND.
Derrick K. Watson United States District Judge.
September 11, 2019, Plaintiff Willis McAllister, proceeding
pro se, filed an application to proceed in forma
pauperis (“IFP Application”) and a civil
complaint against Defendants Dispute Prevention and
Resolution, Inc. (DPR); Keith Hunter; Stefan Reinke; and
Kelly Bryant. Dkt. Nos. 1, 6, 13. On November 1, 2019, the
Court issued an Order (Dkt. No. 11), concluding that this
Court was divested of jurisdiction to review the IFP
Application or screen the complaint by virtue of McAllister
having appealed to the Ninth Circuit Court of Appeals,
challenging this Court's decision to deny
McAllister's motion for recusal. Dkt. No. 7. After
further consideration, McAllister's appeal does not
divest this Court of jurisdiction, and the Court's
November 1, 2019 order to the contrary is
the IFP Application reflects that McAllister does not have
the ability to pay the filing fee in this case, the Court
GRANTS the IFP Application. However, because McAllister does
not allege a claim in his Complaint, this action is DISMISSED
with leave to amend.
The IFP Application
courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an
affidavit that demonstrates an inability to pay. See
28 U.S.C. § 1915(a)(1). While Section 1915(a) does not
require a litigant to demonstrate absolute destitution,
Adkins v. E.I. Du Pont de Nemours & Co., 335
U.S. 331, 339 (1948), the applicant must nonetheless show
that he is “unable to pay such fees or give security
therefor, ” 28 U.S.C. § 1915(a).
McAllister has made the required showing under Section
1915(a). In the Amended IFP Application, Dkt. No. 13,
McAllister states that he receives $1, 011 per month in
Social Security benefits. Further, McAllister states that he
receives no other income, has $45 in a checking or savings
account, and owns no automobile, real property, or financial
instruments. In light of these figures, McAllister's
income falls below the poverty threshold identified by the
Department of Health and Human Services'
(“HHS”) 2019 Poverty Guidelines. See HHS
Poverty Guidelines, available at
https://aspe.hhs.gov/poverty-guidelines. In addition,
McAllister has insufficient assets to provide security. As a
result, the Court GRANTS the Amended IFP Application, Dkt.
Court liberally construes the pro se Complaint.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987). However, the Court cannot act as counsel for a pro
se litigant, such as by supplying the essential elements
of a claim. Pliler v. Ford, 542 U.S. 225, 231
(2004); Ivey v. Bd. of Regents of Univ. of Alaska,
673 F.2d 266, 268 (9th Cir. 1982).
Complaint, Dkt. No. 1, McAllister asserts that in an
underlying employment discrimination case,  the court issued
a February 22, 2018 order, enforcing an arbitration agreement
and requiring the parties to arbitrate all claims.
See Dkt. No. 1, ¶ 7.2; Order, McAllister v.
Hertz Global Holdings, Inc., No. 1:17-cv-147 (D. Haw.
Feb. 22, 2018), ECF No. 68 [hereinafter
“Hertz”]. McAllister alleges that a
contract was thereby formed, the parties to which included
himself and the defendants named in the underlying action.
Dkt. No. 1, ¶ 7.2. The Arbitration Administrator and
Arbitrator were, respectively, Defendants DPR and Stefan M.
Reinke. See Dkt. No. 1, ¶ 7.3; Dkt. Nos. 1-1,
1, 2019, Defendant Keith Hunter, President of DPR, sent a
letter to the parties in the underlying case, informing them
that DPR and Reinke had “made the decision to
withdraw” and that they would “refund in full all
deposits received.” Dkt. No. 1-7. By withdrawing,
McAllister alleges Hunter and Reinke “breached their
contract to Arbitrate this matter.” Dkt. No. 1, ¶
7.9. McAllister then filed a motion requesting sanctions in
the underlying proceedings. Dkt. No. 1-8. The motion was
denied because, the court reasoned, it “lack[ed]
jurisdiction” to intervene. Dkt. No. 1-9 at 1.
McAllister's lawsuit in Hertz remains stayed
pending the completion of arbitration.
case, McAllister asserts two claims: (1) breach of contract
and (2) violation of 42 U.S.C. Section 1981(a). Although
arbitral immunity does not apply in this case,  neither claim is
Breach of Contract
sustain a claim for breach of contract, a plaintiff must
allege: (1) the existence of a contract; (2)
plaintiff's performance; (3) defendant's failure to
perform an obligation under the contract; and (4) damages as
a result of failure to perform. See Calipjo v.
Purdy, 439 P.3d 218, 225 (Haw. 2019).
the Complaint does not contain factual allegations to suggest
the existence of a contract. Rather, McAllister alleges in
conclusory fashion that a contract was formed between himself
and the defendants in the underlying action. Dkt.
No. 1, ¶ 7.2. The fact that the Hertz Court
found there was a valid arbitration agreement between
McAllister and certain defendants in Hertz does not
mean that a contract was formed between ...