Luczon De-Amor et al v. Cabalar
ORDER DISMISSING COMPLAINT AND SUPPLEMENT TO THE COMPLAINT, AND DENYING PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS. Signed by JUDGE LESLIE E. KOBAYASHI on 06/23/2014. -- Plaint iff's Complaint, filed June 10, 2014, and Plaintiff's supplement to the Complaint, filed June 13, 2014, are HEREBY DISMISSED WITHOUT LEAVE TO AMEND. Further, Plaintiff's Application to Proceed in District Court Without Prepaying Fees o r Costs, filed June 10, 2014, is HEREBY DENIED AS MOOT. This Court DIRECTS the Clerk's Office to close this case on July 14, 2014, unless Plaintiff files a motion for reconsideration of the instant Order. (eps)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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELGENE LUCZON DE-AMOR, ET
BUENAVENTURA CLARIN CABALAR, )
CIVIL 14-00272 LEK-BMK
ORDER DISMISSING COMPLAINT AND SUPPLEMENT TO THE COMPLAINT,
AND DENYING PLAINTIFF’S APPLICATION TO PROCEED
IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
On June 10, 2014, pro se Plaintiff Elgene Luczon DeAmor (“Plaintiff”)1 filed a Complaint and an Application to
Proceed in District Court Without Prepaying Fees or Costs
[Dkt. nos. 1, 2.]
Plaintiff also filed a
supplement to her Complaint on June 13, 2014 (“Supplement”).2
Plaintiff’s two sons, Darrell L. De-Amor and Edwin L. DeAmor, are also listed as plaintiffs in the caption of the
Complaint, but only Plaintiff signed the Complaint. [Complaint
at 3.] There is no indication that Plaintiff is an attorney
authorized to practice in this district. Thus, although she may
represent herself pro se, she cannot represent her sons. See
Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008)
(“It is well established that the privilege to represent oneself
pro se provided by [28 U.S.C.] § 1654 is personal to the litigant
and does not extend to other parties or entities.” (citation
This Court notes that Plaintiff’s Supplement appears to be
unsigned. [Supplement at 7.] Fed. R. Civ. P. 11(a) requires
that a party appearing pro se sign “[e]very pleading, written
motion, and other paper.” It also requires that a court strike
[Dkt. no. 4.]
The Court finds these matters suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
consideration of the Complaint, the Supplement, and the relevant
legal authority, this Court HEREBY DISMISSES the Complaint and
the Supplement WITHOUT LEAVE TO AMEND.
Further, the Court HEREBY
DENIES the Application as moot.
This district court has recognized that:
The court must subject each civil action
commenced pursuant to 28 U.S.C. § 1915(a) to
mandatory screening, and order the dismissal of
any claims it finds “frivolous, malicious, failing
to state a claim upon which relief may be granted,
or seeking monetary relief from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B);
Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir.
2000) (en banc) (stating that 28 U.S.C. § 1915(e)
“not only permits but requires” the court to sua
sponte dismiss an in forma pauperis complaint that
fails to state a claim); Calhoun v. Stahl, 254
F.3d 845, 845 (9th Cir. 2001) (per curiam)
(holding that “the provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners”).
Plaintiff is appearing pro se; consequently,
the court liberally construes the Complaint. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
an unsigned filing if the pro se party fails to take prompt
corrective action after the lack of signature is called to the
party’s attention. This Court will not strike the Supplement at
this time because there is no indication in the record that the
lack of signature on the Supplement was called to Plaintiff’s
court also recognizes that “[u]nless it is
absolutely clear that no amendment can cure the
defect . . . a pro se litigant is entitled to
notice of the complaint’s deficiencies and an
opportunity to amend prior to dismissal of the
action.” Lucas v. Dep’t of Corr., 66 F.3d 245,
248 (9th Cir. 1995); see also Crowley v.
Bannister, 734 F.3d 967, 977–78 (9th Cir. 2013).
Nevertheless, the court may dismiss a
complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if it fails to “contain
sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Weber v. Dep’t
of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.
2008). This tenet — that the court must accept as
true all of the allegations contained in the
complaint — “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). Rather, “[a]
claim has facial plausibility when the plaintiff
pleads factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. at
1949 (citing Twombly, 550 U.S. at 556). Factual
allegations that only permit the court to infer
“the mere possibility of misconduct” do not show
that the pleader is entitled to relief as required
by Rule 8. Id. at 679.
A complaint must also meet the requirements
of Federal Rule of Civil Procedure 8, mandating
that a complaint include a “short and plain
statement of the claim,” Fed. R. Civ. P. 8(a)(2),
and that “each allegation must be simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1). A district
court may dismiss a complaint for failure to
comply with Rule 8 where it fails to provide the
defendant fair notice of the wrongs allegedly
committed. See McHenry v. Renne, 84 F.3d 1172,
1178–80 (9th Cir. 1996) (affirming dismissal of
complaint where “one cannot determine from the
complaint who is being sued, for what relief, and
on what theory, with enough detail to guide
discovery”); cf. Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1105 n.4 (9th Cir. 2008)
(finding dismissal under Rule 8 was in error where
“the complaint provide[d] fair notice of the
wrongs allegedly committed by defendants and [did]
not qualify as overly verbose, confusing, or
rambling”). . . .
Carrouthers v. Pepsi Bottling Grp. Inc., Civil No. 14–00262
JMS–KSC, 2014 WL 2738569, at *1-2 (D. Hawai`i June 17, 2014)
(some alterations in Carrouthers) (some citations omitted).
The defendant in this case is Plaintiff’s late-husband,
Buenaventura Clarin Cabalar (“Cabalar”).
The Complaint, read
together with the Supplement,3 does not clearly state how
Defendant allegedly harmed Plaintiff, other than alleging that
there were problems in their marriage.
Construed liberally, the
Complaint appears to allege the following claims: 1) a wrongful
death claim; 2) claims regarding Plaintiff’s and Cabalar’s
marriage; 3) claims seeking recovery of income earned and
Local Rule 10.3 states: “Any party filing or moving to
file an amended complaint, counterclaim, third-party complaint,
or answer or reply thereto shall reproduce the entire pleading as
amended and may not incorporate any part of a prior pleading by
reference, except with leave of court.” Thus, instead of filing
a supplement to the Complaint, Plaintiff should have filed an
amended complaint, which both repeated all parts of the original
Complaint and set forth the new allegations that she wished to
add. In light of Plaintiff’s pro se status, however, this Court
will consider Plaintiff’s Complaint together with the Supplement.
All further references to “the Complaint” in this Order refer to
the Complaint, read together with the Supplement.
government benefits obtained during their marriage; and 4) an
appeal of social security disability benefits decisions.
Wrongful Death Claim
The Complaint refers to a “Death Claim of
[Complaint at 2.4]
If Plaintiff is trying to
allege a wrongful death claim arising from Cabalar’s death,
Cabalar is not the proper defendant in such a claim.
extent that Plaintiff alleges a wrongful death claim against
Cabalar, this Court concludes that Plaintiff has failed “to state
a claim upon which relief can be granted.”
This Court also finds that it is “absolutely clear
that no amendment can cure the defect.”
See Fed. R. Civ. P.
See Lucas, 66 F.3d at
Thus, to the extent that the Complaint alleges a wrongful
death claim against Cabalar, the claim is DISMISSED WITHOUT LEAVE
This Court, however, emphasizes that the dismissal is
without prejudice to the filing of a new wrongful death action
against the proper party.
If Plaintiff chooses to file a new
wrongful death action, the defendant in the new action must be
the person and/or entity that she alleges is liable for Cabalar’s
She must also plead: 1) “a short and plain statement of
Neither the Complaint nor the attachments thereto have
page numbers. Thus, this Court’s citations to the Complaint
refer to the page numbers for the Complaint in the district
court’s cm/ecf system.
the grounds for the court’s jurisdiction[;]” see Fed. R. Civ. P.
8(a)(1); 2) sufficient factual allegations to allow a court to
draw the reasonable inference that the defendant is liable for
Cabalar’s death; see Iqbal, 556 U.S. at 678; 3) “a short and
plain statement” of the legal theory under which she is entitled
to relief; Rule 8(a)(2); and 4) the relief that she seeks; Rule
Family Law and Probate Law Claims
Plaintiff also seeks: an annulment of her marriage; a
divorce; and a finding that the marriage was “damaged” or “bad.”
[Complaint at 2, ¶¶ IV(1)-(3).]
This Court therefore construes
Plaintiff’s Complaint as alleging family law claims.
In the area of family law, the United States
Supreme Court has long held that “[t]he whole
subject of the domestic relations of husband and
wife, parent and child, belongs to the laws of the
States and not to the laws of the United States.”
Ex parte Burrus, 136 U.S. 586, 593–94, 10 S. Ct.
850, 34 L. Ed. 500 (1890); see also Mansell v.
Mansell, 490 U.S. 581, 587, 109 S. Ct. 2023, 104
L. Ed. 2d 675 (1989) (holding that “domestic
relations are preeminently matters of state law”).
“While rare instances arise in which it is
necessary to answer a substantial federal question
that transcends or exists apart from the family
law issue, in general it is appropriate for the
federal courts to leave delicate issues of
domestic relations to the state courts.” Elk
Grove United School District v. Newdow, 542 U.S.
1, 13, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004).
Bobo v. Tulare Cnty. Dist. Attorney, No. C12–1805–RSL, 2012 WL
5947419, at *2 (W.D. Wash. Oct. 23, 2012) (alteration in Bobo).
Thus, to the extent that Plaintiff alleges claims or
seeks relief under Hawai`i family law, this Court concludes that
it lacks subject matter jurisdiction over such claims.
Court also finds that it is “absolutely clear that no amendment
can cure the defect.”
See Lucas, 66 F.3d at 248.
The family law
claims in the Complaint are therefore DISMISSED WITHOUT LEAVE TO
Plaintiff also apparently seeks some form of monetary
relief, and she refers to employment, Medicare Health Insurance,
and Social Security records.
[Complaint at 2-3.]
To the extent
that Plaintiff seeks to recover monies related to earned income
or government benefits, federal court is not the proper place for
her to bring these claims.
The United States Supreme Court has
the probate exception reserves to state probate
courts the probate or annulment of a will and the
administration of a decedent’s estate; it also
precludes federal courts from endeavoring to
dispose of property that is in the custody of a
state probate court. But it does not bar federal
courts from adjudicating matters outside those
confines and otherwise within federal
Marshall v. Marshall, 547 U.S. 293, 311-12 (2006).
Thus, a claim
that “seeks an in personam judgment . . . , not the probate or
annulment of a will,” and does not “seek to reach a res in the
custody of a state court,” may be brought in federal court.
To extent that Plaintiff appears to claim
entitlement to income and benefits earned during her marriage to
Cabalar, these are assets that are subject to any probate
proceeding concerning his estate, and this Court lacks
jurisdiction over Plaintiff’s claims.
This Court also finds that
Plaintiff cannot cure the defect by amendment.
related claims in the Complaint are therefore DISMISSED WITHOUT
LEAVE TO AMEND.
This Court, however, emphasizes that the dismissal of
Plaintiff’s family law and probate law claims is without
prejudice to the filing of such claims in the appropriate state
This Court expresses no opinion as to the merits of
Plaintiff’s family law and probate law claims.
III. Social Security Appeal
Attached to the Complaint are various letters to
Plaintiff from the Social Security Administration regarding
changes to her benefits.
There are: two letters dated October 3,
2008; one letter dated January 16, 2008; an undated letter
stating, inter alia, the amount that Plaintiff will receive
beginning on January 3, 2014; and a letter dated May 19, 2014.
[Complaint at 4-6, 8-12.]
The Supplement discusses Plaintiff’s
disabilities and the disabilities of her family members, and it
appears to contend that Plaintiff and her family members are
entitled to increased Social Security benefits.
First, if Plaintiff wishes to appeal any social
security decision, the proper defendant is the Commissioner of
See 42 U.S.C. § 405(g).
Thus, insofar as
Plaintiff is attempting, in this action against Cabalar, to
challenge Social Security decisions, Plaintiff fails to state a
claim upon which relief can be granted.
This Court also finds
that the claim seeking administrative review against Cabalar
cannot be saved by amendment.
That claim is therefore DISMISSED
WITHOUT LEAVE TO AMEND.
The dismissal is without prejudice to the filing of a
proper appeal pursuant to § 405(g).
This Court, however,
cautions Plaintiff that, if she wishes to appeal a Social
Security benefits decision, she must comply with the requirements
of § 405(g), which states, among other things:
Any individual, after any final decision of the
Commissioner of Social Security made after a
hearing to which he was a party, irrespective of
the amount in controversy, may obtain a review of
such decision by a civil action commenced within
sixty days after the mailing to him of notice of
such decision or within such further time as the
Commissioner of Social Security may allow.
This Court expresses no opinion on the merits
of Plaintiff’s attempted appeal of the letters attached to the
On the basis of the foregoing, Plaintiff’s Complaint,
filed June 10, 2014, and Plaintiff’s supplement to the Complaint,
filed June 13, 2014, are HEREBY DISMISSED WITHOUT LEAVE TO AMEND.
Further, Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs, filed June 10, 2014, is HEREBY
DENIED AS MOOT.
This Court DIRECTS the Clerk’s Office to close
this case on July 14, 2014, unless Plaintiff files a motion for
reconsideration of the instant Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 23, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
ELGENE LUCZON DE-AMOR, ET AL. VS. BUENAVENTURA CLARIN CABALAR;
CIVIL NO. 14-00272 LEK-BMK; ORDER DISMISSING COMPLAINT AND
SUPPLEMENT TO THE COMPLAINT, AND DENYING PLAINTIFF’S APPLICATION
TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
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