Shavelson v. Kauai Police Department et al
Filing
27
ORDER DISMISSING AMENDED COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 24 , 26 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/22/2015. "The court grants Shavelson leave to file a Second Amen ded Complaint that cures the deficiencies noted in this order no later than May 18, 2015. Shavelson may submit another IFP Application at that time." "Failure to file a Second Amended Complaint by May 18, 2015, as well as to pay the ap plicable filing fee or submit an IFP Application, will result in the automatic dismissal of this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications re ceived 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 22, 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 AMENDED
COMPLAINT; ORDER DENYING AS
MOOT APPLICATION TO PROCEED
IN FORMA PAUPERIS
ORDER DISMISSING AMENDED COMPLAINT; ORDER DENYING AS MOOT
APPLICATION TO PROCEED IN FORMA PAUPERIS
I.
INTRODUCTION.
On April 9, 2015, this court screened Plaintiff Eileen
Shavelson’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b)(1) and determined that it failed to demonstrate
jurisdiction in this court.
See ECF No. 23.
dismissed with leave to amend.
The Complaint was
See id.
On April 20, 2015, Shavelson filed an Amended
Complaint, along with an Application to Proceed in District Court
Without Prepaying Fees or Costs (the “IFP Application”).
Nos. 24, 26.
See ECF
The court has screened Shavelson’s Amended
Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1) and
determined that Shavelson again fails to demonstrate that this
court has jurisdiction over her claims.
Accordingly, the court
dismisses the Amended Complaint, rendering the IFP Application
moot.
The court grants Shavelson leave to file a Second Amended
Complaint.
II.
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 Amended Complaint
indicates that it must be dismissed.
Shavelson’s allegations
fail to provide a basis for this court to exercise jurisdiction.
Although Shavelson asserts that this court has
diversity jurisdiction, Shavelson fails to demonstrate that the
parties in this case are diverse.
Diversity jurisdiction exists when “the matter in
controversy exceeds the sum or value of $75,000” and is between
“citizens of different States.”
28 U.S.C. § 1332.
A natural
person’s state citizenship is “determined by her state of
domicile, not her state of residence.”
Co., 265 F.3d 853, 857 (9th Cir. 2001).
Kanter v. Warner-Lambert
A person is domiciled
“where he or she has established a fixed habitation or abode in a
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particular place, and intends to remain there permanently or
indefinitely.”
Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986)
(internal quotation marks and brackets omitted).
Shavelson says that her citizenship is diverse from
that of the Kauai Police Department and Nick Courson, a Deputy
County Attorney, because she “has been residing in [Washington]
state since June of 2013, which makes her officially a resident
of the state of Washington.”
ECF No. 24, PageID # 50.
While
Shavelson may have established a fixed habitation or abode in
Washington State, she has not demonstrated that she intends to
remain there permanently or indefinitely, such that she would be
considered a citizen of Washington State.
Instead, the Amended
Complaint indicates an intent to return to Hawaii.
It states
that “for reasons of personal safety and finances, [Shavelson] is
unable to return (and has not since returned,) to the state of
Hawaii until these issues at hand in court are resolved.”
Id.
Because Shavelson has not demonstrated that this case is between
citizens of different states, she has failed to establish the
existence of diversity jurisdiction.
The court nevertheless has subject matter jurisdiction
if Shavelson asserts a federal question.
She alleges that
“[o]bstruction of Justice [under 18 U.S.C. § 1505] is a federal
offense of which Plaintiff is charging KPD with.”
PageID # 50.
ECF No. 24,
However, Shavelson presents no authority suggesting
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that she has a private right of action under 18 U.S.C. § 1505, a
federal criminal statute.
See Boisjoly v. Morton Thiokol, Inc.,
706 F. Supp. 795, 806 (D. Utah 1988) (no private right of action
under 18 U.S.C. § 1505).
That is, only federal prosecutors
acting on behalf of the United States may file § 1505 charges.
Absent such a private right of action, Shavelson cannot sustain a
claim against Defendants under 18 U.S.C. § 1505 and cannot use
that claim as a basis for federal question jurisdiction.
If she
has a civil claim arising out of an alleged obstruction of
justice, it must raise a claim under some other federal law if
that claim is to confer jurisdiction on this court.
When this court screened Shavelson’s initial
Complaint, it noted that it appeared Shavelson was trying to
plead a claim of race or sex discrimination against the Kauai
Police Department, but that the allegations in the Complaint did
not provide enough facts to allow this court to make out a
federal discrimination claim.
Shavelson’s Amended Complaint
continues to fail to plead a federal discrimination claim.
Instead, Shavelson now appears to be saying that she is not
asserting actual discrimination by the Kauai Police Department at
all.
Shavelson says that “[d]iscrimination is more of an
underlying cause of the negligent actions of the [Kauai Police
Department], than a direct action to which Plaintiff can prove
motivated the officers in this case at this time.”
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ECF No. 24,
PageID # 51.
Of course, this court is not requiring Shavelson to
plead a federal discrimination claim or any claim at all, but
Shavelson must include at least one federal claim to demonstrate
federal question jurisdiction.
The remaining allegations in Shavelson’s Amended
Complaint appear to pertain only to state law claims 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.
In noting this, the court
is not suggesting that Shavelson has or has not properly pled
state law claims.
IV.
CONCLUSION.
Shavelson’s Amended Complaint is dismissed and the IFP
Application is denied as moot.
The court grants Shavelson leave
to file a Second Amended Complaint that cures the deficiencies
noted in this order no later than May 18, 2015.
Shavelson may
submit another IFP Application at that time.
Other pending motions in this action were previously
terminated.
Shavelson may resurrect such motions after filing a
complaint that cures the deficiencies noted in this order.
Failure to file a Second Amended Complaint by May 18,
2015, as well as to pay the applicable filing fee or submit an
IFP Application, will result in the automatic dismissal of this
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action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 22, 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 AMENDED COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN
FORMA PAUPERIS
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