Shavelson v. Kauai Police Department et al
Filing
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ORDER DISMISSING COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 2 , 13 , 19 , 20 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/9/2015. "Shavelson's Complaint is dismissed and the IFP Application is denied as moot. The court grants Shavelson leave to file an Amended Complaint that cures the deficiencies noted in this order no later than April 29, 2015. Shavelson may submit another IFP Application at that time. < BR> Any other pending motions in this action are terminated. Shavelson may resurrect such motions after filing an Amended Complaint that cures the deficiencies noted in this order. Failure to file an Amended Complaint by April 29, 2015, as well as to pay the applicable filing fee or submit an IFP Application, will result in the automatic dismissal of this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electr onic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Eileen Shavelson served by first class mail at the address of record on April 9, 2015. A copy of the court's Application to Proceed in District Court Without Prepaying Fees or Costs form shall be included in the mailing to Ms. Shavelson.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EILEEN SHAVELSON,
)
)
Plaintiff,
)
)
vs.
)
)
KAUAI POLICE DEPARTMENT, et
)
al.,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 15-00076 SOM/BMK
ORDER DISMISSING COMPLAINT;
ORDER DENYING AS MOOT
APPLICATION TO PROCEED IN
FORMA PAUPERIS
ORDER DISMISSING COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO
PROCEED IN FORMA PAUPERIS
I.
INTRODUCTION.
On March 16, 2015, Plaintiff Eileen Shavelson filed an
Application to Proceed in District Court Without Prepaying Fees
or Costs (the “IFP Application”).
See ECF No. 2.
The court has
screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b)(1) and determined that it fails to demonstrate that this
court has jurisdiction over Shavelson’s claims.
Accordingly, the
court dismisses the Complaint, rendering the IFP Application
moot.
II.
The court grants Shavelson leave to amend the Complaint.
STANDARD.
To proceed in forma pauperis, Shavelson must
demonstrate that she is unable to prepay the court fees, and that
her Complaint sufficiently pleads claims.
See Lopez v. Smith,
203 F.3d 1122, 1129 (9th Cir. 2000).
The court therefore screens a complaint to see whether
it is (1) frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against
a defendant who is immune from such relief.
See 28 U.S.C.
§ 1915(e)(2).
III.
ANALYSIS.
This court’s screening of Shavelson’s Complaint
indicates that it must be dismissed.
Shavelson’s allegations
fail to provide a basis for this court to exercise jurisdiction.
The Complaint does not evidence the existence of
diversity jurisdiction.
Shavelson provided a Hawaii address at
the time the Complaint was filed, and, even though she has
subsequently provided this court with a Washington State P.O.
box, it appears from her filings that she continues to be a
citizen of Hawaii, like Defendants.
As a result, for this court
to have jurisdiction, Shavelson must be asserting at least one
claim based on a violation of federal law.
This court cannot discern what, if any, federal law may
be implicated by Shavelson’s Complaint.
It appears that
Shavelson may be trying to plead a claim of race or sex
discrimination against the Kauai Police Department (“KPD”), but
the allegations in the Complaint do not provide enough facts to
allow this court to make out a federal discrimination claim.
See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”).
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Shavelson says that she is a “white non local resident”
and that there is “documented extreme prejudice exhibited by the
KPD and other judicial bodies, towards white, non local
citizens.”
ECF No. 11, PageID #s 19, 22.
In connection with
that “documented” prejudice, she refers to a book “written by
former detective and Kauai stringer for the Honolulu Advertiser ,
and from the Non profit Southern Law Poverty Center.”
PageID # 22.
Id. at
She refers to the same book in accusing the police
of thinking “getting hurt and pushed around is something women
should just put up with here in Hawaii, or on this island.”
at PageID # 20.
Id.
But identifying oneself as white and female and
pointing to a book about prejudice by the KPD in the past does
not give this court federal question jurisdiction.
See Iqbal,
556 U.S. at 678 (“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.”).
Without more facts going to
discrimination, this court cannot conclude that Shavelson is
asserting a federal discrimination claim against the KPD.
Thus, for example, if Shavelson is seeking to bring a
claim under 42 U.S.C. § 1983, she will need to assert that the
police deprived her of a federal constitutional or statutory
right.
See 42 U.S.C. § 1983.
This court is not saying that
Shavelson must cite a constitutional or statutory provision, but
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she must allege facts at least allowing this court to discern a
federal claim.
The remaining allegations in Shavelson’s Complaint
appear to pertain only to state law claims (including negligence)
that do not themselves support federal jurisdiction, although, if
the court did have federal jurisdiction, the state law claims
could be considered by this court pursuant to its supplemental
jurisdiction under 28 U.S.C. § 1367.
IV.
CONCLUSION.
Shavelson’s Complaint is dismissed and the IFP
Application is denied as moot.
The court grants Shavelson leave
to file an Amended Complaint that cures the deficiencies noted in
this order no later than April 29, 2015.
Shavelson may submit
another IFP Application at that time.
Any other pending motions in this action are
terminated.
Shavelson may resurrect such motions after filing an
Amended Complaint that cures the deficiencies noted in this
order.
Failure to file an Amended Complaint by April 29, 2015,
as well as to pay the applicable filing fee or submit an IFP
Application, will result in the automatic dismissal of this
action.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 9, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Shavelson v. Kauai Police Department, et al., Civ. No. 15-00076 SOM/BMK; ORDER
DISMISSING COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA
PAUPERIS
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