United States District Court, D. Hawaii
DAVID G. BYLSMA, Plaintiff,
STATE OF HAWAII, et al., Defendants.
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING ACTION IN
PART WITH LEAVE TO AMEND. 
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
November 7, 2019, Plaintiff David G. Bylsma, proceeding
pro se, filed an application to proceed in forma
pauperis (“IFP Application”), as well as a
civil complaint against the State of Hawaii, the Hawaii
Department of Human Services Pohulani Processing Center and
the Administrative Appeals Office (DHS), Governor David Ige,
and several DHS employees. Dkt. No. 1. Bylsma subsequently
filed an “updated” IFP Application. Dkt. No. 6.
Because the IFP Application reflects that Bylsma does not
have the ability to pay the filing fee in this case, the
Court GRANTS the IFP Application. However, because Bylsma has
sufficiently alleged only one cognizable claim in the
complaint, his other asserted claims are DISMISSED, albeit
with leave to amend to the extent permitted
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).
Bylsma has made the required showing under Section 1915(a).
In the IFP Application, Dkt. No. 6, Bylsma states that he is
self-employed and earns around $350 per month. Further,
Bylsma states that he receives no other income and has $350
in a checking or savings account. In light of these figures,
Bylsma'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:
addition, Bylsma has insufficient assets to provide security.
As a result, the Court GRANTS the IFP Application, Dkt. No.
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).
Although the Court liberally construes a pro se
Complaint, Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 1987), 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).
thrust of Bylsma's Complaint, Dkt. No. 1, is that
Defendants wrongfully withheld his SNAP benefits,
id. at ¶¶ 7, 22-23, 32, and have yet to
reimburse his SNAP account for the $1, 200 in medical
expenses that he paid out of pocket.Bylsma asserts claims for
compensatory and injunctive relief under 42 U.S.C. Section
1983; Title II of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12131 et seq.; and Section 504 of
the Rehabilitation Act (RA), 29 U.S.C. § 794. The
individual “defendants are all being sued in their
official capacit[ies] only.” Dkt. No. 6, ¶¶
2-3. For the reasons that follow, Bylsma has only alleged one
plausible claim: A claim under 42 U.S.C. Section 1983 for
prospective injunctive relief against the DHS employee
Section 1983 Claims
“a State is not a person” for purposes of 42
U.S.C. Section 1983. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 64 (1989); cf. Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (listing
elements for Section 1983 claim). Second, the majority of
Bylsma's Section 1983 claims are barred by the Eleventh
Amendment. Absent a valid federal statute unequivocally
waiving a State's Eleventh Amendment immunity from suit,
“a suit in which the State or one of its agencies or
departments is named as the defendant is proscribed by the
Eleventh Amendment . . . regardless of the nature of the
relief sought.” See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Sossamon v. Texas, 563 U.S. 277, 284-85 (2011)
(“A State's consent to suit must be unequivocally
expressed in the text of the relevant statute . . .”);
Sato v. Orange Cty. Dep't of Educ., 861 F.3d
923, 928 (9th Cir. 2017) (reiterating that “agencies of
the state are immune under the Eleventh Amendment from
private damages or suits for injunctive relief brought in
federal court.”), cert. denied, 138 S.Ct. 459
(2017). Hawaii's DHS is clearly an arm of the State.
See Sato, 861 F.3d at 928-34 (listing five factors
considered in determining whether a government entity is an
arm of the State, “the most important” of which
is whether a judgment will be satisfied out of State funds).
And Section 1983 does not override a State's sovereign
immunity. Will, 491 U.S. at 67-68; Stilwell v.
City of Williams, 831 F.3d 1234, 1245 (9th Cir. 2016).
Therefore, Bylsma's Section 1983 claims against Hawaii
and DHS are barred by the Eleventh Amendment. Because this
defect cannot “possibly be cured by the allegation of
other facts, ” Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000); Lucas v. Dep't of Corr.,
66 F.3d 245, 248 (9th Cir.1995), Bylsma's Section 1983
claim against DHS and Hawaii is DISMISSED WITHOUT LEAVE TO
“[a] suit [for damages] against a state official in his
or her official capacity . . . is no different from a suit
against the State itself, ” Will, 491 U.S. at
71 & n.10; cf. Hafer v. Melo, 502 U.S. 21, 30-31
(1991), except that when a state official is sued in their
official capacity, claims for prospective injunctive
relief are not barred by the Eleventh Amendment.
Will, 491 U.S. at 66; Arizonans for Official
English v. Arizona, 520 U.S. 43, 69 n.24 (1997);
Pennhurst, 465 U.S. at 102-03; N.E. Med. Servs.,
Inc. v. Cal. Dep't of Health Care Servs., Health &
Human Servs. Agency, Cal. 712 F.3d 461, 466 (9th Cir.
2013). As such, Bylsma's claims for
prospective injunctive relief against the individual DHS
employee Defendants may go forward, Dkt. No. 1, ¶
51(d)-(e),  but Bylsma's claims for monetary
relief under Section 1983 are barred by the State's
Eleventh Amendment immunity. Will, 491 U.S. at
66-67; Stilwell v. City of Williams, 831 F.3d 1234,
1245 (9th Cir. 2016); Dkt. No. 1, ¶ 51(b), (g)-(i).
Because this defect also cannot “possibly be cured by
the allegation of other facts, ” Lopez, 203
F.3d at 1130, Bylsma's Section 1983 damages claims
against the individual Defendants in their official capacity
are DISMISSED WITHOUT LEAVE TO AMEND.
Bylsma has failed to state a claim against Governor Ige.
Governor Ige does not oversee the administration of SNAP
benefits and Bylsma has not alleged that Governor Ige engaged
in any unlawful conduct. Indeed, Bylsma candidly admits that
the Governor “committed no wrong doing and is being
added as a defendant in an effort to grant immediate relief .
. .” Dkt. No. 1, ¶ 3. Therefore, Bylsma's
Section 1983 claim against Governor Ige is DISMISSED WITHOUT
LEAVE TO AMEND.
Rehabilitation Act and ...