Evans v. Patrick et al
Filing
11
ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT re 1 , 3 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/26/13. "Evans may file a First Amended Complaint that is complete in itself (that is, does not incorporate any prior complaint by reference) no later than July 12, 2013. He must also either pay the civil filing fee or submit a new Application to Proceed In Forma Pauperis. Failure to meet the above deadline shall cause this action to be automatically dismissed. Given the court's dismissal of Evans's Complaint, the court denies Evans's IFP as moot." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Brian Evans served by first class mail at the address of record on June 26, 2013. A copy of the court's Application to Proceed In Forma Pauperis form shall be included in the mailing to Mr. Evans.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN EVANS,
)
)
Plaintiff,
)
)
vs.
)
)
THE GOVERNOR OF
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MASSACHUSETTS, ET AL.,
)
)
Defendants.
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_____________________________ )
CIVIL NO. 13-00268 SOM/BMK
ORDER DISMISSING COMPLAINT
AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR
COSTS AS MOOT
ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
On May 28, 2013, Plaintiff Brian Evans filed the
Complaint in this matter.
That same day, Evans filed an
Application to Proceed In Forma Pauperis (“IFP”).
Evans’s
Complaint fails to properly assert jurisdiction and does not
comply with Rules 8 and 10 of the Federal Rules of Procedure.
The court therefore dismisses Evans’s Complaint and denies his
IFP application as moot.
Evans’s Complaint cites 28 U.S.C. § 1332 as the basis
for this court’s jurisdiction.
A United States district court
has diversity jurisdiction over an action when the amount in
controversy exceeds $75,000, excluding interest and costs, and
the action is between citizens of different states.”
§ 1332(a)(1) (emphasis added).
28 U.S.C.
In a diversity action, the
plaintiff “should be able to allege affirmatively the actual
citizenship of the relevant parties.”
Kanter v. Warner-Lambert
Co., 265 F.3d 853, 857 (9th Cir. 2001).
Evans asserts that he is
a “resident” of Hawaii, but he fails to identify either his
citizenship or Defendants’ respective citizenships.
See id.
(noting that § 1332 “speaks of citizenship, not of residency”).
This deficiency precludes the court from ascertaining whether
diversity jurisdiction exists, and the court must therefore
dismiss Evans’s Complaint.
See Morongo Band of Mission Indians
v. Cal. State Bd. Of Equalization, 858 F.2d 1376 1380 (1988) (“If
jurisdiction is lacking at the outset, the district court has ‘no
power to do anything with the case except dismiss.’”) (citing 15
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure
§ 3844, at 332 (1986)).
Evans may file a First Amended Complaint
that is complete in itself (that is, does not incorporate any
prior complaint by reference) no later than July 12, 2013.
He
must also either pay the civil filing fee or submit a new
Application to Proceed In Forma Pauperis.
Failure to meet the
above deadline shall cause this action to be automatically
dismissed.
Given the court’s dismissal of Evans’s Complaint, the
court denies Evans’s IFP as moot.
The court cautions Evans that any future filing must
comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure.
Rule 8 requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).
Fed. R.
While Rule 8 does not require detailed factual
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allegations, “it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
662, 678 (2009).
Ashcroft v. Iqbal, 556 U.S.
“[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id.
To state a
plausible claim, the complaint must, at a minimum, “plead[]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”
Id.
Rule 10(b) requires a plaintiff to state claims in
“numbered paragraphs, each limited as far as practicable to a
single set of circumstances.”
Fed. R. Civ. P. 10(b).
Moreover,
“[i]f doing so would promote clarity, each claim founded on a
separate transaction or occurrence . . . must be stated in a
separate count.”
Id.
The court notes that Evans’s Complaint asserts public
fraud, conspiracy, failure to prosecute, and corruption.
However, Evans has not included factual allegations going to the
claims.
The bases for his claims remain unclear.
Even
construing Evans’s First Amended Complaint liberally, Bernhardt
v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003), the
court cannot identify any plausible ground for any of Evans’s
claims.
See Iqbal, 556 U.S. at 678 (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
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on its face.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
Any First Amended Complaint must cure these
deficiencies by stating a claim upon which relief may be granted.
Failure to do so will result in the dismissal of the action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 26, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Evans v. The Governor of Massachusetts, et al.; Civil No. 13-00268
SOM/BMK; ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
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