Fountain v. United States et al
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND re 6 - Signed by JUDGE DERRICK K. WATSON on 6/21/2017. "Based upon the foregoing, the IFP Application is GRANTED, and the Complaint is DISMISSED with limited leave to amend. Fountain is granted limited leave to file an amended complaint in accordance with the terms of this order by July 21, 2017. The Court CAUTIONS Fountain that failure to f ile an amended complaint by July 21, 2017 will result in the automatic dismissal of this action without prejudice." (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). Ronald Joel Fountain shall be served by first class mail at the address of record on June 22, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
RONALD JOEL FOUNTAIN,
UNITED STATES, et al.,
CIVIL NO. 17-00262 DKW-KSC
ORDER (1) GRANTING
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES OR COSTS; AND
(2) DISMISSING COMPLAINT
WITH LEAVE TO AMEND
On June 5, 2017, Plaintiff Ronald Fountain, a resident of Philadelphia,
Pennsylvania, proceeding pro se, filed a Complaint against the United States, the
Attorney General of the United States, and the United States Attorney for the
District of Hawaii, alleging violations of federal law. On June 6, 2017, the district
court issued a deficiency order, directing Fountain to either pay the applicable filing
fee or to submit a completed in forma pauperis application within twenty eight days.
Dkt. No. 5. On June 19, 2017, Fountain filed an Application to proceed in forma
pauperis (“IFP Application”). Dkt. No. 6. The Court GRANTS the IFP
Application. However, because Fountain fails to include any factual allegations
demonstrating that his rights have been violated or that he is entitled to relief from
any Defendant, the Court DISMISSES the Complaint and GRANTS Fountain
limited leave to file an amended complaint in accordance with the terms of this order
by July 21, 2017.1
Because Fountain is proceeding pro se, the Court liberally construes his
filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 recognizes that
“[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 Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).
Plaintiff’s IFP Application Is Granted
Federal courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an affidavit that
demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). “An affidavit in
support of an IFP application is sufficient where it alleges that the affiant cannot pay
the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787
Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co.,
335 U.S. 331, 339 (1948)); see also United States v. McQuade, 647 F.2d 938, 940
(9th Cir. 1981) (The affidavit must “state the facts as to affiant’s poverty with some
particularity, definiteness and certainty.”) (internal quotation omitted).
When reviewing an application filed pursuant to § 1915(a), “[t]he only
determination to be made by the court . . . is whether the statements in the affidavit
satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1307 (11th Cir. 2004). While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must
nonetheless show that he is “unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a).
Here, the IFP Application indicates that Fountain is unemployed and receives
SSI benefits in the amount of $735 per month. Based upon the IFP Application,
Fountain’s income falls below the poverty threshold identified by the Department of
Health and Human Services (“HHS”) 2017 Poverty Guidelines. See 2017 HHS
Poverty Guidelines, available at https://www.federalregister.gov/documents/
Accordingly, the Court finds that Fountain has made the required showing under
Section 1915 to proceed without prepayment of fees, and GRANTS his IFP
Plaintiff’s Complaint Is Dismissed With Limited Leave to Amend
Upon review of the Complaint, the Court finds that Fountain fails to state a
claim upon which relief may be granted. As discussed below, even liberally
construed, the Complaint fails to state any discernible basis for judicial relief.
Standard of Review
The Court subjects each civil action commenced pursuant to 28 U.S.C.
§ 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”). Because Fountain is
appearing pro se, the Court liberally construes the Complaint.
The Court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted[.]”
A Rule 12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable
legal theory or the absence of sufficient facts alleged.’” UMG Recordings, Inc. v.
Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff
must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet – that the court
must accept as true all of the allegations contained in the complaint – “is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555); see
also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a
complaint or counterclaim may not simply recite the elements of a cause of action,
but must contain sufficient allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.”).
“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Factual allegations that only permit the Court to infer “the mere possibility of
misconduct” do not show that the pleader is entitled to relief as required by Rule 8.
Id. at 679.
The Complaint Fails To State A Claim For Relief
Based on the Court’s preliminary screening, even given a liberal construction,
the Complaint fails to state any sort of cognizable claim against any Defendant.
There are no allegations in the Complaint—Fountain does nothing more than list a
handful of federal statutes and constitutional amendments. Beyond his claims for
money damages, it is not clear to the Court what relief, if any, the Complaint seeks
because factual details are wholly absent. In short, the Complaint fails to provide
sufficient factual content to enable the Court to draw the reasonable inference that
any defendant is liable for the misconduct alleged.
Fountain lists the following claims, without further explanation: “writ of
execution denied; failure to account; default judgment; settlement proceeds denied;
Fourteenth Amendment XIV.” Complaint at 5. In the portion of the Complaint
devoted to “relief,” Fountain lists the following: “default judgment; FRCP 55;
Federal Debt Collection Act (USC) 3001-3308; Summary Judgment;
$2,000,000,000 2/billion.” Complaint at 6. Attached to the Complaint are several
exhibits, including: (1) a January 19, 1994 letter from the U.S. Attorney for the
District of Hawaii to Fountain, referencing a December 16, 1993 letter from
Fountain requesting execution of documents and settlement procedures (Dkt. No.
1-1); (2) several letters to Fountain, dated from 1991 to 1995, from the United States
General Accounting Office informing him that the GAO will take no action on his
various requests (Dkt. No. 1-1); (3) what appear to be settlement demands sent by
Fountain to the United States and/or the Attorney General at various times with
mailing documentation (Dkt. Nos. 1-2, 1-3, and 1-4); (4) a copy of the district
court’s CMECF docket sheet in Fountain v. United States, 2:16-cv-01268-CNC
(E.D. Wisc.), dated October 11, 2016 (Dkt. No. 1-5); and (5) the text of the
Fourteenth Amendment (Dkt. No 1-6).
The Complaint states that the Court has jurisdiction pursuant to 28 U.S.C
§ 1331 based upon violations of the following federal statues: 42 U.S.C. § 1983,
“Federal Civil Rights Act 1983-85,” and the Fourteenth Amendment. He also
alleges diversity jurisdiction under Section 1332 because the “United States is
incorporated under the laws of the State of Hawaii,” and the amount in controversy
is $200,000,000. Complaint at 4-5. The Complaint does not specify whether the
claims are brought against the Attorney General and the U.S. Attorney in their
official or individual capacities, or both.
The Complaint suffers from several deficiencies. First, the Complaint does
not comply with Rule 8, which mandates that a complaint include a “short and plain
statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be
simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so
confusing that its “‘true substance, if any, is well disguised’” may be dismissed sua
sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530
F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d
426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th
Cir. 1996) (affirming dismissal of complaint where “one cannot determine from the
complaint who is being sued, for what relief, and on what theory, with enough detail
to guide discovery”). Fountain does not clearly identify in any coherent or
organized manner the separate causes of action that he is asserting, nor provide
specific factual allegations to support his legal conclusions. Even applying the
most liberal pleading standard, the Court cannot discern from the Complaint the
conduct on which any claim is based.
Second, to the extent he alleges violations of his federal constitutional rights,
Fountain fails to state a Section 1983 claim. To sustain an action under Section
1983, a plaintiff must show (1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct deprived the plaintiff
of a federal constitutional or statutory right. West v. Atkins, 487 U.S. 42, 48 (1988).
Fountain fails to allege how, or even if, any of the federal defendants he names acted
under color of state law. Accordingly, Fountain’s Section 1983 claims must be
The Court acknowledges that under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), a plaintiff may sue a federal official in his or her individual
capacity for damages for violation of the plaintiff’s federal constitutional rights. See Van Strum v.
Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (Bivens actions are identical to actions brought pursuant
to Section 1983 “save for the replacement of a state actor under § 1983 by a federal actor under
Because Fountain fails to state a plausible claim for relief, the Complaint is
DISMISSED. Because amendment may be possible, dismissal is with leave to
amend, as further described below.
Leave To Amend
The dismissal of the Complaint is without prejudice, and Fountain is granted
leave to amend to attempt to cure the deficiencies identified above. If Fountain
chooses to file an amended complaint, he must write short, plain statements telling
the Court: (1) the specific basis of this Court’s jurisdiction; (2) the constitutional or
statutory right Plaintiff believes was violated; (3) the name of the defendant who
violated that right; (4) exactly what that defendant did or failed to do; (5) how the
action or inaction of that defendant is connected to the violation of Plaintiff’s rights;
and (6) what specific injury Plaintiff suffered because of that defendant’s conduct.
Plaintiff must repeat this process for each person or entity that he names as a
defendant. If Plaintiff fails to affirmatively link the conduct of each named
defendant with the specific injury he suffered, the allegation against that defendant
will be dismissed for failure to state a claim.
Bivens.”). A Bivens action can only be brought against an individual federal official in his or her
individual capacity. Morgan v. United States, 323 F.3d 776, 780 n.3 (9th Cir. 2003) (citing
Vacarro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996)). Bivens claims are not available against the
United States or agencies of the United States. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Cato v.
United States, 70 F.3d 1103, 1110 (9th Cir. 1995). A Bivens claim may be what Fountain
intended to allege here. As a result, Fountain’s constitutional claims are DISMISSED without
prejudice and with leave to amend.
An amended complaint generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded pleading. King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v. Maricopa
Cnty., 693 F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without prejudice
that are not re-alleged in an amended complaint may be deemed voluntarily
dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with prejudice
need not be realleged in an amended complaint to preserve them for appeal, but
claims that are voluntarily dismissed are considered waived if they are not re-pled).
The amended complaint must designate that it is the “First Amended
Complaint” and may not incorporate any part of the original Complaint. Rather,
any specific allegations must be retyped or rewritten in their entirety. Plaintiff may
include only one claim per count. Failure to file an amended complaint by July 21,
2017 will result in the automatic dismissal of this action without prejudice.
Based upon the foregoing, the IFP Application is GRANTED, and the
Complaint is DISMISSED with limited leave to amend.
Fountain is granted limited leave to file an amended complaint in accordance
with the terms of this order by July 21, 2017. The Court CAUTIONS Fountain that
failure to file an amended complaint by July 21, 2017 will result in the automatic
dismissal of this action without prejudice.
IT IS SO ORDERED.
Dated: June 21, 2017 at Honolulu, Hawai‘i.
Fountain v. United States, et al.; Civil No. 17-00262 DKW-KSC; ORDER (1) GRANTING
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; AND
(2) DISMISSING COMPLAINT WITH LEAVE TO AMEND
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