Shavelson v. Kauai Police Department et al
ORDER DISMISSING SECOND AMENDED COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 30 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/13/2015. "Failure to file a Third Amended Complaint by June 8, 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 electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Eileen Shavelson shall be served by first class mail at the address of record on May 14, 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
KAUAI POLICE DEPARTMENT, et
CIVIL NO. 15-00076 SOM/BMK
ORDER DISMISSING SECOND
AMENDED COMPLAINT; ORDER
DENYING AS MOOT APPLICATION
TO PROCEED IN FORMA PAUPERIS
ORDER DISMISSING SECOND AMENDED COMPLAINT; ORDER DENYING AS MOOT
APPLICATION TO PROCEED IN FORMA PAUPERIS
On April 22, 2015, this court screened Plaintiff Eileen
Shavelson’s Amended 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. 27.
dismissed with leave to amend.
The Complaint was
On May 1, 2015, Shavelson filed a Second Amended
Complaint, along with an Application to Proceed in District Court
Without Prepaying Fees or Costs (the “IFP Application”).
Nos. 29, 30.
The court has screened Shavelson’s Second Amended
Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1) and
determined that Shavelson fails to state a claim on which relief
may be granted.
Accordingly, the court dismisses the Second
Amended Complaint, rendering the IFP Application moot.
grants Shavelson leave to file a Third Amended Complaint.
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.
Shavelson’s Second Amended Complaint appears to cure
the jurisdictional problem noted by this court in dismissing her
Shavelson says that she is a resident of
Washington state and intends to remain there, see ECF No. 29,
PageID # 63, rendering Washington her state of citizenship.
Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986) (a person is
domiciled “where he or she has established a fixed habitation or
abode in a particular place, and intends to remain there
permanently or indefinitely.”).
Shavelson’s citizenship is
therefore diverse from that of Defendants, who are citizens of
Because Shavelson alleges that over $75,000 is in
controversy between citizens of diverse citizenship, this court
has diversity jurisdiction over Shavelson’s claims against
See 28 U.S.C. § 1332 (diversity jurisdiction exists
when “the matter in controversy exceeds the sum or value of
$75,000” and is between “citizens of different States.”).
However, even though Shavelson’s Second Amended
Complaint overcomes this jurisdictional hurdle, it must be
dismissed because it fails to state a claim on which relief may
The Second Amended Complaint contains only a few
allegations, none of which is sufficient to state a plausible
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
makes passing reference to negligence and discrimination, but
does not set forth factual circumstances sufficient to permit her
claims to move forward.
Shavelson may be assuming that this
court will take into account allegations contained in her prior
complaints, but those complaints have been dismissed.
no effect and may no longer be considered by this court.
Shavelson must submit a complaint that operates as a
freestanding, independent document, containing the allegations
she believes support her claims.
She may not refer to previously
dismissed complaints or rely on the information in those
complaints to fill in gaps in her new complaint.
Shavelson’s Second Amended Complaint is dismissed, and
the IFP Application is denied as moot.
The court grants
Shavelson leave to file a Third Amended Complaint that cures the
deficiencies noted in this order no later than June 8, 2015.
Shavelson may submit another IFP Application at that time.
Any other pending motions in this action are
Shavelson may resurrect such motions after filing a
complaint that cures the deficiencies noted in this order.
Failure to file a Third Amended Complaint by June 8,
2015, as well as to pay the applicable filing fee or submit an
IFP Application, will result in the automatic dismissal of this
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 13, 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 SECOND AMENDED COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO
PROCEED IN FORMA PAUPERIS
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