Evans v. Massachusetts Nurses Association et al

Filing 24

ORDER DISMISSING SECOND AMENDED COMPLAINT AND DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT re 20 , 21 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/12/13. (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 shall be served by first class mail at the address of record on July 15, 2013.

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 SECOND
AMENDED COMPLAINT AND DENYING
PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT PREPAYING
FEES OR COSTS AS MOOT

ORDER DISMISSING SECOND AMENDED COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
Before the court is Evans’s Second Amended Complaint
and his Application to Proceed Without Prepaying Fees or Costs
(the “IFP”).

ECF No. 20.

On June 26, 2013, this court’s Order

Dismissing Evans’s First Amended Complaint (“Order”) cautioned
Evans that his failure to cure the deficiencies outlined in the
Order would result in the dismissal of the action.

ECF No. 14.

Specifically, the court gave Evans “one more opportunity to state
his case” before dismissing this action.

Id. at 4.

Because

Evans’s Second Amended Complaint still fails to comply with Rule
8, the court dismisses Evans’s Second Amended Complaint and
denies Evans’s 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.”).
This court’s Order highlighted for Evans the importance
of complying with Rule 8.

Order at 2-3.

Among other things,

Rule 8 requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
8(a)(2).

Fed. R. Civ. P.

While Rule 8 does not require detailed factual

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.
Evans’s Second Amended Complaint asserts conspiracy to

commit fraud, intentional infliction of emotional distress, and
corruption.

However, Evans has not included factual allegations

going to the claims.

The bases for his claims remain unclear.

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For example, in Count One, Evans alleges a conspiracy
to commit fraud but there is no indication the police or the
mayor even communicated with co-Defendants such as the hospital.
No conspiracy, much less a conspiracy to commit fraud, can be
sufficiently asserted without at least some allegation showing
some sort of conscious agreement among alleged conspirators.
Count Three alleges “corruption” without sufficient factual
allegations concerning “corruption.”
Count Three speaks about conspiracy and manipulation,
and it is unclear whether Evans is actually asserting
misrepresentation.
Count Two appears premised on the other counts.
Even construing Evans’s Second Amended Complaint
liberally, see 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)).

For these reasons, Evans’s

Second Amended Complaint is deficient and fails to state a claim
upon which relief may be granted.
The court cannot help noting that all iterations of
Evans’s pleading have raised serious questions about whether

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Defendants have the constitutionally required minimum contacts
with Hawaii to support the exercise of personal jurisdiction over
them.

See Bancraft & Masters, Inc. v. Augusta Nat. Inc., 223

F.3d 1082, 1086 (9th Cir. 2000) (explaining that, while a
defendant can be haled into court if the defendant has
“substantial” or “continuous and systematic” contacts with the
jurisdiction, a court’s personal jurisdiction over a defendant is
limited by a defendant’s right to due process).
Given the aforementioned deficiencies, this case is
dismissed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 12, 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 SECOND AMENDED COMPLAINT AND DENYING
PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS
MOOT

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