In re: Angel L. Alvarado

Filing 8

ORDER DISMISSING AMENDED COMPLAINT AND DENYING IN FORMA PAUPERIS REQUEST 7 . Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/16/2014. (afc) Excerpt of Conclusion: "The amended Complaint is DISMISSED as frivolous and for f ailure to state a claim." "Plaintiff is GRANTED leave to file an amended complaint curing the deficiencies noted above on or before October 31, 2014. Failure to timely amend the Complaint and cure its pleading deficiencies will resul t in dismissal of this action for failure to state a claim."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). A copy of the instant Order and a copy of those forms delineated in the order, will be served on October 17, 2014 by first class mail addressed to Angel L. Alvarado.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE: ANGEL L. ALVARADO,
N.Y. I.D. #93A8360,
Plaintiff/Petitioner,
____________________________

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CIV. NO. 14-00394 SOM/RLP
ORDER DISMISSING AMENDED
COMPLAINT AND DENYING IN FORMA
PAUPERIS REQUEST

ORDER DISMISSING AMENDED COMPLAINT AND
DENYING IN FORMA PAUPERIS REQUEST
Before the court is pro se Plaintiff Angel L.
Alvarado’s amended pleading and in forma pauperis request.
Nos. 6, 7.

Doc.

Plaintiff is a New York state prisoner incarcerated

at the Green Haven Correctional Facility, located in Stormville,
New York.

For the following reasons, Plaintiff’s amended

Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1) and his in forma pauperis request is DENIED.
I.

BACKGROUND

Plaintiff commenced this action on September 3, 2014,
by submitting a nearly incomprehensible pleading that was
liberally construed as a prisoner civil rights complaint.

See

Doc. No. 1.

He did not submit an in forma pauperis application

or payment.

Upon receipt of Plaintiff’s pleading, the court

automatically issued two documents.

See Doc. Nos. 2, 3.

The

first was a notice informing Plaintiff that (1) the court does
not hold scheduling conferences in pro se prisoner cases, (2)

scheduling dates are set after the complaint is served, and (3)
the court would assess the status of his case on December 8,
2014.

See Doc. No. 2.
The second document was a Deficiency Order, explaining

that Plaintiff must pay the civil filing fee or submit an in
forma pauperis application within thirty days of the date of the
Order, on or about October 3, 2014.

Doc. No. 3.

A court-

approved in forma pauperis application for prisoners was included
with this Order.
On September 29, 2014, the court screened and dismissed
Plaintiff’s Complaint for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).

See Doc. No. 5.

Plaintiff was granted leave to amend on or before October 29,
2014, to cure the Complaint’s deficiencies.

Id.

The court sent

Plaintiff a court-approved prisoner civil rights complaint and
form petition for writ of habeas corpus to enable him to amend
his pleading.
On October 10, 2014, Plaintiff submitted a request to
proceed in forma pauperis, Doc. No. 7, and an amended pleading,
Doc. No. 6.

Neither document was submitted on the District of

Hawaii’s forms.

Although Plaintiff dated both documents as

signed on October 15, 2014, they were mailed from New York on
October 7, and received on October 10, 2014.

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II. STATUTORY SCREENING
Federal courts must screen all cases in which prisoners
seek redress from a governmental entity, officer, or employee or
seek to proceed without prepayment of the civil filing fees.
28 U.S.C. §§ 1915(b)(2) and 1915(A)(a).

See

The court must identify

cognizable claims, and dismiss claims that are frivolous,
malicious, fail to state a claim for relief, or seek monetary
relief from a defendant who is immune from such relief.
§§ 1915(b)(2) and 1915A(b).
no basis in law or fact.
(9th Cir. 2013).

Id. at

A complaint is “frivolous” if it has

Knapp v. Hogan, 738 F.3d 1106, 1109

A complaint fails to state a claim on which

relief may be granted if it is not “plausible” or does not “plead
a short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2); Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it is possible the plaintiff can
correct the complaint’s defects.

Lopez v. Smith, 203 F.3d 1122,

1130 (9th Cir. 2000).

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III.
A.

DISCUSSION

Plaintiff’s Response to the Deficiency and Dismissal Orders
Plaintiff argues that he is excused from the deadlines

set forth in the September 3, 2014, Deficiency Order (requiring
payment or a completed in forma pauperis application on or before
October 3, 2014), and the September 29, 2014, Dismissal Order
(requiring a cognizable amended pleading on or before October 29,
2014), because the automatic case notice stated the court will
assess the status of his case on December 8, 2014.
6, PageID #20.

Plaintiff is mistaken.

See Doc. No.

The case status notice is

simply a reminder for the court to monitor Bankruptcy and Social
Security Appeals, and prisoner pro se cases.

It is not an order

of the court, has no bearing on orders issued in a case, and
provides no basis for litigants to seek relief or claim they are
not subject to the court’s deadlines.
B.

Plaintiff’s Amended Complaint is Dismissed
To state a claim under Rule 8 of the Federal Rules of

Civil Procedure, a pleading must “simply give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
(2002).

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512

Detailed factual allegations are not required, but

“[t]hreadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.

Iqbal,

A complaint “must set forth sufficient factual
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matter accepted as true, to ‘state a claim that is plausible on
its face.’”

Id.

At a minimum, a plaintiff must detail what his

claims are, when they occurred, and who is allegedly responsible.
Although Plaintiff’s amended Complaint now asserts
jurisdiction under 42 U.S.C. § 1983, it still names no
defendants, alleges no discernible claims, asserts no basis for
venue in the District of Hawaii, and sets forth no demand for
relief.

As with his original Complaint, Plaintiff’s amended

pleading is just a string of words and conclusory sentences with
no connection or rational meaning.
For example, Plaintiff claims “[t]hat Certain Public
Authority is a college initiative title - before the State of
Hawaii.”

Doc. No. 6, PageID #19.

This is the first reference to

Hawaii in Plaintiff’s original or amended pleadings.

Plaintiff

then states, “that in keeping a firearm under a vested equal
authority wherein a file #2014-PL-6469 is for wherein He/She
maybe prosecuted in a Court of the United States for permitting
and/or licensing while in a commission across States that the
records being archived for academic discipline, retrieval(s) and
the defense of the country are constitutional grounds for
proceedings for keeping an arm in the state of Hawaii.”

Doc. No.

6-1, PageID #21.
These incoherent statements fail to state any cause of
action and are again insufficient for the court to infer that

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Plaintiff has suffered a constitutional wrong that is redressable
in Hawaii.

Moreover, publicly available records reveal that

Plaintiff has been incarcerated at the Green Haven Correctional
Facility since on or about November 5, 1993.1

“Determining

whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.

“The plausibility standard is not akin

to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Id.

Common sense does not support a finding that a prisoner
who has been incarcerated in New York for more than thirty years
can state a cognizable claim for the violation of his civil
rights against unnamed defendants in Hawaii.

As such, Plaintiff

again fails to state a claim under Rule 8 of the Federal Rules of
Civil Procedure.
Additionally, a claim is frivolous if it is premised on
an indisputably meritless legal theory or is clearly lacking any
factual basis.
(1989).

See Neitzke v. Williams, 490 U.S. 319, 327

Sections 1915A and 1915(e)(2) allow judges the power to

1

The New York Department of Corrections and Community
Supervision’s public records show that Angel L. Alvarado, N.Y.
I.D. #93-A-8360, was committed at Green Haven on November 5,
1993, for a maximum term of thirty years. See
http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ1/WINQ000 (last
visited Oct. 14, 2014).
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“pierce the veil” of a complaint’s factual allegations and
dismiss as frivolous those claims whose factual contentions are
clearly baseless.
(1992).

See Denton v. Hernandez, 504 U.S. 25, 32

When doing so, a court is not bound, as it usually is

when making a determination based solely on the pleadings, to
accept without question the truth of a plaintiff’s allegations.
See id.

A finding of factual frivolousness is appropriate when

the facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially noticeable
facts available to contradict them.

See id. at 32–33.

Plaintiff’s allegations, when viewed in the light of his
incarceration in New York for the past three decades, appear
wholly incredible.

Plaintiff’s amended complaint is also

DISMISSED as frivolous.
D.

Plaintiff’s In Forma Pauperis Application is DENIED
Plaintiff’s in forma pauperis request is insufficient.

First, it is not on court-approved forms, although Plaintiff was
sent an application with the September 3, 2014, Deficiency Order.
Second, it lacks a certified prison trust account statement
showing the withdrawals and deposits to his account over the
previous six months.

Third, Plaintiff’s request lacks a signed

release for withdrawal of funds from his account.
LR99.7.10; 28 U.S.C. § 1915(a)(1) and (2).
pauperis application is DENIED.
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See Local Rule

Plaintiff’s in forma

III. LEAVE TO AMEND
The amended Complaint is DISMISSED.

Plaintiff may file

an amended complaint on or before October 31, 2014.

The amended

complaint must cure the deficiencies noted above and demonstrate
how the conditions complained of resulted in a deprivation of
Plaintiff’s federal constitutional or statutory rights.
Defendants must be identified in some manner, and each claim and
the involvement of each defendant must be sufficiently alleged.
If Plaintiff amends his Complaint, he must explain who
is allegedly liable to him, what these individuals did that
violated his rights, what those rights are, when and where the
actions he sues over occurred, why venue is proper in the
District of Hawaii, what basis for federal jurisdiction exists,
and what relief he seeks.

Plaintiff must advise the court

whether he is complaining about the conditions of his confinement
(that is, bringing a claim under 42 U.S.C. § 1983 that some
defendant violated his constitutional rights while in prison), or
whether he is challenging his conviction or sentence under 28
U.S.C. § 2254.

These types of claims are subject to different

standards of review and must be asserted in separate actions.
IV. 28 U.S.C. § 1915(g)
If Plaintiff fails to file an amended complaint
correcting the deficiencies identified in this Order, this
dismissal may later count as a “strike” under the “3–strikes”
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provision of 28 U.S.C. § 1915(g).

See Knapp v. Hogan, 738 F.3d

1106, 1110 (9th Cir. 2013) (holding “dismissals following the
repeated violation of Rule 8(a)’s ‘short and plain statement’
requirement, following leave to amend, are dismissals for failure
to state a claim under § 1915(g)” (emphasis in original)); see
also Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011) (finding
that, after an incomprehensible complaint is dismissed under Rule
8 and the plaintiff is given, but fails to take advantage of,
leave to amend, “the judge [is] left with [ ] a complaint that,
being irremediably unintelligible, [gives] rise to an inference
that the plaintiff could not state a claim”(cited with approval
in Knapp, 738 F.3d at 1110)).
If Plaintiff fails to comply with this Order, the court
may, without further notice, dismiss this action for his failure
to state a claim.

See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

(9th Cir. 1992) (a district court may dismiss an action for
failure to comply with any order of the court).
V.
(1)

CONCLUSION

The amended Complaint is DISMISSED as frivolous and

for failure to state a claim.

See 28 U.S.C. § 1915(e)(2)(b) &

1915A(b)(1).
(2)

Plaintiff is GRANTED leave to file an amended complaint

curing the deficiencies noted above on or before October 31,
2014.

Failure to timely amend the Complaint and cure its
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pleading deficiencies will result in dismissal of this action for
failure to state a claim.
(3)

Plaintiff’s in forma pauperis request is DENIED.

(4)

The Clerk is directed to mail Plaintiff court forms for

a prisoner civil rights complaint, a habeas petition, and an in
forma pauperis application so that he can comply with the
directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 16, 2014.

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

In RE: Alvarado, 1:14-cv-00394 SOM/RLP; scrg 2014; Alvarado 14-394 som (still ftsc
friv dsm no amd dny IFP)

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