Flores v. Trump
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE; RESERVING RULING ON PLAINTIFFS APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS; AND RESERVING RULING ON ALL OTHER PENDING MOTIONS. Signed by JUDGE LESLIE E. KOBAYASHI on 01/12/2017. -- Plaintiff's Complaint, filed December 9, 2016, is HEREBY DISMISSED WITHOUT PREJUDICE. This Court GRANTS Plaintiff leave to file an amended complaint by February 13, 2017. The amended complaint must comply with the terms of this Order.In light of the dismissal of the Complaint without prejudice, this Court RESERVES RULING on the Application to Proceed in District Court Without Prepaying Fees or Costs, and the other Motions that Plaintiff fi led on December 9, 2016, pending Plaintiff's filing of an amended complaint and this Court's screening of the amended complaint. (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 served by first class mail on January 13, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL 16-00652 LEK-RLP
ORDER DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE;
RESERVING RULING ON PLAINTIFF’S APPLICATION TO PROCEED
IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS;
AND RESERVING RULING ON ALL OTHER PENDING MOTIONS
On December 9, 2016, pro se Plaintiff Xavier Flores
(“Plaintiff”) filed, inter alia, his Complaint and an Application
to Proceed in District Court Without Prepaying Fees or Costs
[Dkt. nos. 1, 7.]
The Court has considered
these matters without a hearing pursuant to Rule LR7.2(e) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
consideration of the Complaint and the relevant legal authority,
this Court HEREBY DISMISSES the Complaint WITHOUT PREJUDICE – in
other words, Plaintiff has LEAVE TO FILE an amended complaint.
This Court will reserve ruling on the Application and all of his
other motions until Plaintiff files his amended complaint.1
In addition to the Complaint and the Application,
Plaintiff filed a Motion for Service by the U.S. Marshall
Service, Motion to Seal, and Motion for a Lawyer (collectively
“Federal courts can authorize the commencement of any
suit without prepayment of fees or security by a person who
submits an affidavit that demonstrates he is unable to pay.”
Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKWKJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing
28 U.S.C. § 1915(a)(1)).
The Court subjects each civil action
commenced pursuant to Section 1915(a) to mandatory
screening and can 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”).
Id. at *3.
In addition, this Court has recognized that the
following standards apply in the screening analysis:
Plaintiff is appearing pro se; consequently,
the court liberally construes her pleadings.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the
federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per
curiam))). The court also recognizes that
“Motions”). [Dkt. nos. 4-6.]
“[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 Lopez v. Smith,
203 F.3d 1122, 1126 (9th. [sic] Cir. 2000).
Despite the liberal pro se pleading standard,
the court may dismiss a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) on its
own motion. See Omar v. Sea–Land Serv., Inc., 813
F.2d 986, 991 (9th Cir. 1987) (“A trial court may
dismiss a claim sua sponte under [Rule] 12(b)(6).
Such a dismissal may be made without notice where
the claimant cannot possibly win relief.”);
Ricotta v. California, 4 F. Supp. 2d 961, 968 n.7
(S.D. Cal. 1998) (“The Court can dismiss a claim
sua sponte for a Defendant who has not filed a
motion to dismiss under Fed. R. Civ. P.
12(b)(6).”); see also Baker v. Dir., U.S. Parole
Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990)
(holding that district court may dismiss cases sua
sponte pursuant to Rule 12(b)(6) without notice
where plaintiff could not prevail on complaint as
alleged). Additionally, a paid complaint that is
“obviously frivolous” does not confer federal
subject matter jurisdiction and may be dismissed
sua sponte before service of process. Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984);
see also Fed. R. Civ. P. 12(h)(3); Grupo Dataflux
v. Atlas Global Group, L.P., 541 U.S. 567, 593
(2004) (“[I]t is the obligation of both district
court and counsel to be alert to jurisdictional
requirements.”). “Federal courts are courts of
limited jurisdiction,” possessing “only that power
authorized by Constitution and statute.” United
States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008)
(quoting Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994)). The assumption is that the
district court lacks jurisdiction. See Kokkonen,
511 U.S. at 377. Accordingly, a “party invoking
the federal court’s jurisdiction has the burden of
proving the actual existence of subject matter
jurisdiction.” Thompson v. McCombe, 99 F.3d 352,
353 (9th Cir. 1996).
Mather v. Nakasone, Civil No. 13–00436 LEK–KSC, 2013 WL 4788930,
at *1-2 (D. Hawai`i Sept. 5, 2013) (alterations in Mather)
The Complaint appears to be more like a letter to
Defendant Donald Trump (“Defendant”) expressing Plaintiffs’
disagreement with the positions that Defendant took on economic
issues during the presidential campaign.
Plaintiff asks the
Court to compel Defendant to meet with him to review these
issues, and he argues that the Court should impose daily
sanctions against Defendant until he meets with Plaintiff.
Court cannot determine what claims Plaintiff is attempting to
assert against Defendant.
This Court therefore CONCLUDES that
Plaintiff’s Complaint fails to state a claim upon which relief
can be granted.
Because this Court is unable to discern the
legal basis for the Complaint, this Court cannot provide
Plaintiff with notice of how to cure the deficiencies in the
At the same time, this Court cannot say that it is
“absolutely clear that no amendment can cure the defect[s]” in
See Lucas, 66 F.3d at 248.
This Court therefore
DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND.
This Court GRANTS Plaintiff leave to file an amended
complaint by February 13, 2017.
Plaintiff’s amended complaint
must include all of the claims that he wishes to allege, and all
of the allegations that his claims are based upon, even if he
previously presented them in the original Complaint.
incorporate any part of his original Complaint into the amended
complaint by merely referring to the original Complaint.
This Court CAUTIONS Plaintiff that, if he fails to file
his amended complaint by February 13, 2017, or if the amended
complaint fails to cure the defects that this Court has
identified in this Order, this Court will dismiss his claims with
prejudice – in other words, without leave to amend.
would then have no remaining claims in this case, and this Court
would direct the Clerk’s Office to close the case.
Application and Motions
Insofar as this Court has dismissed the Complaint with
leave to amend, this Court finds that it is not appropriate for
it to rule on either the Application or the Motions at this time.
This Court will therefore RESERVE RULING on the Application and
the Motions until Plaintiff files an amended complaint.
portion of Plaintiff’s amended complaint survives the screening
process, this Court will then rule upon the Application and the
On the basis of the foregoing, Plaintiff’s Complaint,
filed December 9, 2016, is HEREBY DISMISSED WITHOUT PREJUDICE.
This Court GRANTS Plaintiff leave to file an amended complaint by
February 13, 2017.
The amended complaint must comply with the
terms of this Order.
In light of the dismissal of the Complaint without
prejudice, this Court RESERVES RULING on the Application to
Proceed in District Court Without Prepaying Fees or Costs, and
the other Motions that Plaintiff filed on December 9, 2016,
pending Plaintiff’s filing of an amended complaint and this
Court’s screening of the amended complaint.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 12, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
XAVIER FLORES VS. DONALD TRUMP; CIVIL 16-00652 LEK-RLP; ORDER
DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE; RESERVING
RULING ON PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS; AND RESERVING RULING ON ALL
OTHER PENDING MOTIONS
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