Evans v. Patrick et al

Filing 18

ORDER DISMISSING FIRST AMENDED COMPLAINT, DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT, AND DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION re 13 , 16 , 17 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/10/13. (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 July 10, 2013. Modified on 7/10/2013 A copy of the court's Application to Proceed in District Court Without Prepaying Fees or Costs shall be included in the mailing to Mr. Evans. (emt, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN EVANS,

)
)
Plaintiff,
)
)
vs.
)
)
THE GOVERNOR OF
)
MASSACHUSETTS, ET AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00268 SOM/BMK
ORDER DISMISSING FIRST
AMENDED COMPLAINT, DENYING
PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT PREPAYING
FEES OR COSTS AS MOOT, AND
DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

ORDER DISMISSING FIRST AMENDED COMPLAINT, DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT,
AND DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On July 1, 2013, Plaintiff Brian Evans filed a Motion
for Reconsideration of this court’s Order Dismissing Complaint
and Denying Plaintiff’s Application to Proceed without Prepaying
Fees or Costs as Moot (“Order”).

ECF No. 13.

On July 3, 2013,

Evans filed his First Amended Complaint along with his
Application to Proceed In Forma Pauperis (“IFP”).1
In his Motion for Reconsideration, Evans complains that
the court has allowed certain of Evans cases to proceed despite
the fact that Evans has consistently failed to follow Rule 10(b)
of the Federal Rules of Civil Procedure, which requires a
1

The court also acknowledges receipt of Evans’s Reply to
this court’s Order Denying Plaintiff’s Motion to Appoint Counsel,
entered on June 25, 2013. ECF No. 12. The court clarifies that
its language regarding the need to determine that this case
warrants effort by the court before appointing counsel was
specific to the need to determine whether the case had legal
merit; the court was not speaking about the magnitude of Evans’s
personal loss.

complaint to state claims in numbered paragraphs.

Evans appears

to argue that his failure to state his claims in numbered
paragraphs was the reason for this court’s Order dismissing his
Complaint.

Mot. for Recon. at 2.

Evans asks that this court

therefore “allow the case to proceed” but indicates that he will
nonetheless file an Amended Complaint. Id.
This court’s Order was not premised on Evans’s failure
to comply with Rule 10(b) of the Federal Rules of Civil
Procedure.

Although this court raised this stylistic issue in

its Order, the court’s purpose in doing so was to have Evans
comply with this rule in any future filings.

Evans’s failure to

properly number the paragraphs in his Complaint was not the
reason animating this court’s Order.

Rather, the court’s Order

was premised on the serious substantive problems with Evans’s
Complaint, such as his failure to properly assert jurisdiction
and his failure to comply with Rule 8 of the Federal Rules of
Civil Procedure.

The court therefore denies Evans’s Motion for

Reconsideration.
With regard to Evans’s First Amended Complaint and his
IFP, Evans’s First Amended Complaint has cured the jurisdictional
defects that were at issue in his Complaint, but Evans still
fails to comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure.

The court therefore dismisses Evans’s First Amended

Complaint and denies his IFP application as moot.

2

The court reminds Evans that, in this court’s Order,
this court clearly told Evans that any First Amended Complaint
must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure.
In addition, as the court stated in its Order, Rule 8
requires “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not require detailed factual allegations, “it
demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“[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.

The court also explained to Evans in its Order that
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.
Evans’s First Amended Complaint asserts public fraud,

conspiracy, failure to prosecute, corruption, and intentional

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infliction of emotional distress.

However, Evans has still has

not included factual allegations going to the claims.
for his claims remain unclear.

The bases

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 on its face.’”) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 547 (2007)).
This court offers Evans one final opportunity to remedy
these deficiencies.

Any Second 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, July 10, 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 FIRST AMENDED COMPLAINT, DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT, AND

DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

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