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Laube v. Queen's Medical Center

United States District Court, D. Hawaii

December 5, 2019

ROBERT M. LAUBE, Plaintiff,


          Derrick K. Watson United States District Judge.

         On August 6, 2019, Plaintiff Robert M. Laube, proceeding pro se, filed a civil complaint against Queen's Medical Center, Inc, Dkt. No. 1, along with an application to proceed in forma pauperis. Dkt. No. 2. In a repeated effort to correct the deficiencies in his IFP Application, Laube's Third IFP Application is now before the Court. Dkt. No. 11. Because the Third IFP Application is incomplete or otherwise does not establish Laube's entitlement to in forma pauperis status, the Court DENIES the Third IFP Application. But even if that was not the case, Laube has not alleged sufficient facts in his Complaint to state a claim on which relief may be granted, and therefore this action is DISMISSED with leave to amend.[2]

         I. The IFP Application

         Federal 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), a showing of something more than mere hardship is required; the applicant must show they “cannot pay the court costs” or “give security therefor” and “still afford the necessities of life.” See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins, 335 U.S. at 339); 28 U.S.C. § 1915(a). The determination whether a party can proceed in forma pauperis is a “matter within the discretion of the trial court and in civil actions for damages should be allowed only in exceptional circumstances.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“court permission to proceed in forma pauperis is itself a matter of privilege and not right”).

         Here, despite the Court's prior efforts to remedy Laube's failures, Laube's Third IFP Application remains incomplete (Dkt. No. 11), and therefore the Court is still unable to meaningfully assess Laube's allegation of poverty. Laube notes in his Third IFP Application that he receives $1, 661 per month in Social Security benefits; he has $490 in a checking or savings account; and he owns a vehicle worth $1, 000. Laube also states that he owns a fifty-percent leasehold in a condominium located in Kaneohe, Hawaii, from which he receives no income, and the value of the condo (according to Laube) is around $50, 000 “due to lease outstanding balance [of] $40, 000 and repairs.” In addition, Laube states he has monthly expenses totaling $1, 510 and debts in the amount of $10, 442.

         The problem, however, is that Laube has again failed to fully answer Question 3 of the IFP Application. Question 3 lists various sources of possible income and asks the applicant whether they have received income from any of these options in the past (12) months. Next to the option for “pension, annuity, or life insurance, ” Laube marked the box labeled “Yes.” Question 3 then instructs the applicant that “If you answered ‘Yes' to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.” But Laube only noted the $1, 661 he receives in Social Security benefits. Laube failed to state the amount of “pension, annuity, or life insurance” he has received in the past (12) months, and the amount he expects to receive in the future. That alone is grounds for the Court to deny Laube's Third IFP Application.

         Notwithstanding the fact that Laube's application is deficient in a material respect, the Court finds that, based on the information Laube has provided, Laube's allegation of poverty is not substantiated. Federal courts are not consigned to accept an applicant's financial representations as true. Rather, it is “‘within the court's discretion to make a factual inquiry' into a claim of poverty, ” Escobedo, 787 F.3d at 1236 (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)), and to deny the application if the applicant is “unable, or unwilling, to verify their poverty.” McQuade, 647 F.2d at 940.[3] A “court shall dismiss the case at any time if the court determines that . . . the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A); Mathis v. New York Life Ins. Co., 133 F.3d 546, 547-48 (7th Cir. 1998); Johnson v. Spellings, 579 F.Supp.2d 188, 191 (D.D.C. 2008).

         Here, it appears Laube has intentionally misrepresented the value of the condo in which he appears to own a fifty-percent interest. Laube claims under penalty of perjury that his condo in Kaneohe, Hawaii is worth $50, 000, but the Court is not oblivious of the cost of real estate in Hawaii.[4] Under these circumstances, there is reason to question the truthfulness of Laube's allegation of poverty. Thus, at this time, Laube has failed to demonstrate he is entitled to proceed in forma pauperis.

         Accordingly, Laube's Third IFP Application is DENIED WITHOUT PREJUDICE. The Court nevertheless grants Laube the opportunity, should he so choose, to provide further information and clarification regarding the value of his condo, see Escobedo, 787 F.3d at 1236; McQuade, 647 F.2d at 940, and state the amount he receives or has received from a “pension, annuity, or life insurance.”

         II. Screening

         Where, as here, a pro se litigant fails to qualify for in forma pauperis status, a court is not required to take any further action on the applicant's lawsuit until the litigant has paid the filing fee. See 28 U.S.C. § 1915(a)(1); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). But even assuming, arguendo, that Laube is entitled to in forma pauperis status, the Court dismisses Laube's Complaint because Laube has failed to allege sufficient facts to state a claim for relief.

         The standard for dismissal under Fed.R.Civ.P. 12(b)(6) and under 28 U.S.C. Section 1915(e)(2)(B) is the same. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Jones v. Schwarzenegger, 723 Fed.Appx. 523, 524 (9th Cir. 2018); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (same standard under Section 1915A). The Court must take the allegations in the complaint as true, excluding those allegations that are merely conclusory, and if the complaint does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” the Court must dismiss the action. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 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).

         In the Complaint, Dkt. No. 1, Laube asserts a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, alleging that his employment was terminated because of his race. To state an employment discrimination claim under Title VII, the plaintiff must allege sufficient facts demonstrating that:

(1) he belongs to a protected class, (2) he was qualified for the position he held (or for the position to which he wished to be promoted), (3) he was terminated or demoted from (or denied a promotion to) that position, and (4) ...

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