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Souza v. U.S. Environmental Protection Agency

United States District Court, D. Hawaii

December 9, 2019

COLLEEN ULULANI SOUZA, Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, DEPARTMENT OF AGRICULTURE, STATE OF HAWAII, DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAII, DEPARTMENT OF HEALTH, STATE OF HAWAII, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, STATE OF HAWAII, NEXT STEP, IHS WOMEN'S AND CHILDREN'S SHELTER, CITY AND COUNTY OF HONOLULU, PUNA WAI REST STOP, DEPARTMENT OF TRANSPORTATION SERVICES, CITY AND COUNTY OF HONOLULU, ATTORNEY GENERAL, STATE OF HAWAII, CORPORATION COUNSEL, CITY AND COUNTY OF HONOLULU, Defendants.

          ORDER: DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE; RESERVING RULING ON PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS; AND DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL UNDER THE CIVIL RIGHTS ACT OF 1964; 42 U.S.C. § 2000E-5(F)(1)(B)

          Leslie E. Kobayashi United States District Judge.

         On November 6, 2019, Plaintiff Colleen Ululani Souza, also known as Colleen U.Souza and Colleen U. Purdy (“Plaintiff”), filed her: Complaint; Application to Proceed in District Court Without Prepaying Fees or Costs (“Application”); and Request for Appointment of Counsel Under the Civil Rights Act of 1964; 42 U.S.C. § 2000e-5(f)(1)(B) (“Request”). [Dkt. nos. 1, 2, 3.] The Court has considered the Application and the Request as non-hearing matters pursuant to Rule LR7.1(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). For the reasons set forth below, the Complaint is hereby dismissed without prejudice, and the Request is denied. In other words, Plaintiff is allowed to file an amended complaint to try to cure the defects in the Complaint, but she must do so pro se and by January 27, 2020. 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 alleges that, while she lived in the Aina Hina area in 2016 and 2017, and while she lived in the Makiki area in 2018, she was exposed to poisonous levels of pesticides because of her neighbors' misuse of pesticides. According to Plaintiff, this exposure created on-going health problems that: required numerous forms of treatment; caused her to lose her job on more than one occasion; resulted in the loss of her personal property; and ultimately caused to her to become homeless. [Complaint at ¶¶ III.1.a-c.] Plaintiff also alleges the pesticide exposure resulted in her arrest and caused her neighbors to seek temporary restraining orders against her. Plaintiff asserts the restraining orders have impaired her ability to obtain employment. [Id. at ¶ III.1.f.] She further alleges the disruptions in her employment have adversely impacted her eligibility for Social Security benefits and other government benefit programs. [Id. at ¶ III.1.g.] Plaintiff also states the pesticide poisoning has prevented her from engaging in competitive hula and professional yoga. [Id. at ¶¶ III.1.h-j.]

         Plaintiff reported her neighbors' misuse of pesticides to Defendant Department of Agriculture, State of Hawai`i (“DoA”). [Id. at ¶ III.1.a.] Plaintiff never received the results of DoA's investigation into her Makiki report. Plaintiff alleges that, in retaliation for her reports, she was ostracized in the Aina Hina area and evicted from her apartment in Makiki. [Id. at ¶ III.1.e.]

         Plaintiff also states she applied for financial assistance from Defendant Department of Human Services, State of Hawai`i (“DHS”), and for unemployment benefits from Defendant Department of Labor and Industrial Relations, State of Hawai`i (“DLIR”), but there were delays in both payment processes. [Id. at ¶¶ III.1.b, d.] These delays contributed to Plaintiff's losses described above and to other losses, causing her to suffer “irreparable harm financially, emotionally, physically and professionally.” [Id. at ¶ III.1.d.] According to Plaintiff, DHS's delays were “intentional and malicious.” [Id. at ¶ III.1.g.]

         Plaintiff alleges DoA; Defendant United States Environmental Protection Agency (“EPA”), which she alleges acted through DoA; and Defendant Department of Health, State of Hawai`i (“DoH”) were “lax in implementing and enforcing pesticide rules and regulations, ” resulting in the problems Plaintiff experienced because of pesticide poisoning. [Id. at ¶¶ III.2.a-c.] DHS and DLNR were allegedly “lax in implementing and enforcing [the] rules and regulations for” their respective benefits programs that Plaintiff applied for. [Id. at ¶¶ III.2.d-e.] Plaintiff alleges Defendant Next Step and Defendant Institute for Human Services Women's and Children's Shelter (“IHS”) failed to provide her safe, emergency shelter in February 2019, forcing her to live on the streets. [Id. at ¶¶ III.2.f-g.] She also alleges Defendant City and County of Honolulu, Punawai Rest Stop (“Punawai”) “failed . . . to provide a safe and secure environment” and “was lax in implementing and enforcing its rules and regulations, ” resulting in the theft of Plaintiff's belongings from a secured locker on October 12, 2019. [Id. at ¶ III.2.h.] Plaintiff alleges Defendant Department of Transportation Services, City and County of Honolulu (“DTS”) “was lax in implementing and enforcing its rules and regulations for transportation services” when it “failed . . . to replace [her] stolen Disability Bus pass” in August 2019. [Id. at ¶ III.2.i.] Finally, Plaintiff alleges Defendant Attorney General, State of Hawai`i (“Attorney General”) and Defendant Corporation Counsel, City and County of Honolulu (“Corporation Counsel”) are liable as the representatives of respective state and county agencies identified above. [Id. at ¶¶ III.2.j-k.]

         Plaintiff asserts the defendants' conduct constitutes: 1) discrimination against her because of her race and color; and 2) retaliation. [Id. at ¶¶ III.3, 6.] The Complaint seeks various forms of monetary relief. [Id. at ¶¶ IV.a-1.]

         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 ...

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