United States District Court, D. Hawaii
ROBERT M. LAUBE, Plaintiff,
QUEEN'S MEDICAL CENTER, Defendant.
ORDER (1) DENYING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING ACTION WITH
LEAVE TO AMEND.
Derrick K. Watson United States District Judge.
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.
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), 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
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,
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
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
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
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. 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.
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
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
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).
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
(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) ...