Evans v. Massachusetts Nurses Association et al

Filing 14

ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT re 11 , 12 - - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/26/13. "The court does, howe ver, give Evans one more opportunity to state his case. He may file a Second 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 civi l 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." (emt, )CERTIFICATE OF SERVICEParticipan ts 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.
)
)
MASSACHUSETTS NURSES’
)
ASSOCIATION, ET AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00272 SOM/KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT AND DENYING
PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT PREPAYING
FEES OR COSTS AS MOOT

ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
On May 29, 2013, Plaintiff Brian Evans filed the
Complaint in this matter.

ECF No. 1.

That same day, Evans filed

an Application to Proceed Without Prepaying Fees or Costs (the
“IFP”).

ECF No. 8.

On June 6, 2013, Magistrate Judge Chang

issued his Findings and Recommendation (the “F&R”), recommending
dismissal of Evans’s Complaint and denial of the IFP.
10.

ECF No.

In his F&R, Magistrate Judge Chang provided an enumerated

list of recommended issues for Evans to address in any amended
complaint.

F&R at 9-10.

Magistrate Judge Chang cautioned Evans

“that his failure to cure the deficiencies identified [in the
F&R] will result in the dismissal of the action.”

Id. at 10.

On June 18, 2013, even before the district judge had
adopted the F&R, Evans filed both a First Amended Complaint and a
second IFP.

ECF Nos. 11 and 12.

adopted the F&R.

ECF No. 13.

On June 25, 2013, the court

Evans’s First Amended Complaint fails to cure all of
the deficiencies outlined in the F&R and does not comply with
Rule 8 of the Federal Rules of Civil Procedure.1

For this

reason, the court dismisses Evans’ First Amended Complaint and
denies his second IFP as moot.
Pursuant to 28 U.S.C. § 1915, this court “shall dismiss
the case at any time” upon determining that the action “fails to
state a claim on which relief may be granted.”

See also Denton

v. Hernandez, 504 U.S. 25, 32 (1992) (stating that the IFP
statute “accords judges not only the authority to dismiss a claim
based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions
are clearly baseless”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th
Cir.2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not
limited to prisoners.”).
In his F&R, Magistrate Judge Chang highlighted for
Evans the importance of complying with Rule 8.

F&R at 6-8.

Among other things, Rule 8 requires “a short and plain statement

1

The First Amended Complaint also largely fails to comply
with Rule 10(b) of the Federal Rules of Civil Procedure, which
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). Only the first four
paragraphs of the First Amended Complaint are numbered. Although
the court is not dismissing this case for failure to comply with
Rule 10(b), the court notes this additional deficiency for
Evans’s future reference.
2

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, thedefendant-unlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“[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.

Evans’s First Amended Complaint asserts conspiracy to
commit fraud/corruption and intentional infliction of emotional
distress.

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 either
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)).

For these reasons, Evans’s First

Amended Complaint is deficient and fails to state a claim upon
which relief may be granted.

3

Magistrate Judge Chang clearly outlined for Evans the
necessity of curing these deficiencies in any amended complaint.
Magistrate Judge Change also warned Evans that failure to do so
would “result in the dismissal of the action.”

F&R at 10.

Given

Evans’s failure to comply with Magistrate Judge Chang’s
instructions, the court dismisses Evans’s First Amended Complaint
and denies Evans’s second IFP application as moot.

The court

does, however, give Evans one more opportunity to state his case.
He may file a Second 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.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 26, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Evans v. Massachusetts Nurses’ Association et al.; Civil No. 13-00272
SOM/KSC; ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING
PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS
MOOT

4