Tia v. Honolulu Police Dept. et al

Filing 7

ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (3) DENYING WITHOUT PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL re 5 , 6 - Signed by JUDGE DERRICK K. WATSON on 2/7/2018. "Based upon the foregoing, Tias IFP Application is GRANTED (Dkt. No. 5), the Motion for Appointment of Counsel is DENIED WITHOUT PREJUDICE (Dkt. No. 6), and the Complaint is DISMISSED with limited leave to amend (Dkt. No. 1) . Tia is granted limited leave to file an amended complaint in accordance with the terms of this Order by March 2, 2018. The Court CAUTIONS Tia that failure to file an amended complaint by March 2, 2018 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). Peter R. Tia served by first class mail to the address of record on February 7, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
PETER R. TIA,
Plaintiff,
vs.
HONOLULU POLICE
DEPARTMENT, et al.,
Defendants.

CIVIL NO. 17-00607 DKW-KJM
ORDER (1) GRANTING
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES OR COSTS; (2) DISMISSING
COMPLAINT WITH LEAVE TO
AMEND; AND (3) DENYING
WITHOUT PREJUDICE MOTION
FOR APPOINTMENTOF COUNSEL

INTRODUCTION
On December 26, 2017, Plaintiff Peter R. Tia, proceeding pro se, filed a
Complaint against several federal, state, and municipal entities and private
individuals alleging violations of his federal civil rights.1 Dkt. No. 1. On
December 27, 2017, the district court issued a deficiency order directing Tia to either
pay the applicable filing fee or to submit a completed in forma pauperis application
within twenty-eight days. Dkt. No. 4. On January 24, 2018, Tia filed an
Application to proceed in forma pauperis (“IFP Application”), and on February 2,

1

Defendants include the Honolulu Police Department (“HPD”), Federal Bureau of Investigation
(“FBI”), “Tennessee FBI,” “Los Angeles, CA FBI,” FBI Agent Rachel Bird, Bishop Hans Ta‘ala
of Halawa Correctional Facility (“HCF”) Clergy, “Unknown Mormons,” “Unknown Whites at
YMCA Nuuanu,” “Hackers,” “Govt. FBI Hackers Does 1-10,” “All Defendants from USDC Hon.
Case # CV 17-00523 RLP,” “Plaintiff’s Family Members Does 1-10,”and “Any Others Per
Investigations Pursuant to Law.”

2018, he filed a Motion for Appointment of Counsel.2 Dkt. Nos. 5 and 6. The
Court GRANTS the IFP Application.3 Tia’s Complaint, however, fails to include
factual allegations demonstrating that his rights have been violated or that he is
plausibly entitled to relief from any Defendant. Because Tia fails to state a claim
for relief, the Complaint is DISMISSED with limited leave to amend pursuant to 28
U.S.C. § 1915(e), with instructions below. The Motion for Appointment Counsel
is denied without prejudice, pending the filing of an amended complaint.
DISCUSSION
Because Tia is appearing 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
2

Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.
3
Tia is a former prisoner who has accrued three strikes under 28 U.S.C. § 1915(g). See, e.g., Tia
v. Head of the United States Court of Appeal for the Ninth Circuit, 2017 WL 2951423, at *1 (D.
Haw. July 10, 2017) (citing Tia v. Fujita, 1:08-cv-00575 HG/BMK (D. Haw. Jan. 27, 2009); Tia v.
Criminal Investigation Demanded, 1:10-cv-00383 SOM/BMK (D. Haw. Aug. 5, 2010); and Tia v.
Criminal Investigation, 1:10-cv-00441 DAE/BMK (D. Haw. July 30, 2010)). Because he is no
longer incarcerated, however, Section 1915(g)’s exception—allowing a new civil action to
proceed IFP only when a prisoner is in imminent danger of serious physical injury—does not
apply.
2

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). Although he
is proceeding pro se, Tia is more than familiar with his federal court filing and
pleading responsibilities, given his numerous prior actions.4
I.

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
4

Tia has filed over 75 civil actions in this district alone. See, e.g., 1:08-cv-00575 HG-BMK;
1:10-cv-00383 SOM-BMK; 1:10-cv-00441 DAE-BMK; 1:11-cv-00098 HG-KSC; 1:11-cv-00352
SOM-RLP; 1:11-cv-00421 JMS-KSC; 1:11-cv-00459 LEK-KSC; 1:12-cv-00158 HG-BMK;
1:12-cv-00246 DAE-BMK; 1:12-cv-00295 LEK-KSC; 1:12-cv-00324 JMS-BMK; 1:12-cv-00351
LEK-KSC; 1:12-cv-00374 SOM-RLP; 1:12-cv-00383 HG-RLP; 1:12-cv-00473 LEK-RLP;
1:12-cv-00488 JMS-RLP; 1:12-cv-00573 JMS-BMK; 1:12-cv-00625 SOM-BMK; 1:13-cv-00075
JMS-BMK; 1:13-cv-00110 JMS-KSC; 1:13-cv-00118 LEK-RLP; 1:13-cv-00157 LEK-KSC;
1:13-cv-00160 SOM-KSC; 1:13-cv-00179 JMS-RLP; 1:13-cv-00187 HG-RLP; 1:13-cv-00194
JMS-RLP; 1:13-cv-00226 HG-RLP; 1:13-cv-00335 DKW-RLP; 1:13-cv-00451 JMS-KSC;
1:15-cv-00075 JMS-BMK; 1:15-cv-00107 LEK-RLP; 1:15-cv-00159 DKW-BMK;
1:15-cv-00199 JMS-KSC; 1:15-cv-00215 DKW-BMK; 1:15-cv-00351 SOM-RLP;
1:16-cv-00033 LEK-BMK; 1:16-cv-00421 LEK-KJM; 1:16-cv-00483 DKW-KSC;
1:16-cv-00522 SOM-KSC; 1:16-cv-00523 DKW-KJM; 1:16-cv-00604 DKW-RLP;
1:16-cv-00633 LEK-RLP; 1:16-cv-00645 JMS-KSC; 1:17-cv-00025 DKW-KJM; 1:17-cv-00026
JMS-RLP; 1:17-cv-00027 SOM-KSC; 1:17-cv-00028 LEK-RLP; 1:17-cv-00041 SOM-KSC;
1:17-cv-00043 LEK-KSC; 1:17-cv-00089 LEK-KSC; 1:17-cv-00092 LEK-RLP; 1:17-cv-00093
LEK-RLP; 1:17-cv-00094 JMS-KSC; 1:17-cv-00095 SOM-KSC; 1:17-cv-00097 LEK-KSC;
1:17-cv-00099 DKW-KSC; 1:17-cv-00100 JMS-KJM; 1:17-cv-00102 LEK-KSC; 1:17-cv-00136
LEK-KSC; 1:17-cv-00161 DKW-RLP; 1:17-cv-00191 JMS-KJM; 1:17-cv-00205 SOM-KJM;
1:17-cv-00236 DKW-RLP; 1:17-cv-00249 DKW-KSC; 1:17-cv-00284 LEK-RLP; 1:17-cv-00303
HG-RLP; 1:17-cv-00310 SOM-KJM; 1:17-cv-00312 DKW-KSC;1:17-cv-00369 JMS-KJM;
1:17-cv-00412 DKW-KSC; 1:17-cv-00433 LEK-KJM; 1:17-cv-00452 LEK-KJM; 1:17-cv-00523
JMS-RLP; 1:17-cv-00612 JMS-RLP; 1:18-cv-00040 HG-KSC. See PACER Case Locator,
available at http://pcl.uscourts.gov.
3

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
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 following his release from prison, Tia
has been sporadically employed in an hourly capacity, but does not work regularly
due to disability. He currently receives $677.00 in disability insurance benefits and
$93.00 in supplemental security income per month. Based upon the IFP
Application, Tia’s income falls below the poverty threshold identified by the
4

Department of Health and Human Services (“HHS”) 2018 Poverty Guidelines. See
Annual Update of the HHS Poverty Guidelines, available at
https://www.federalregister.gov/documents/2018/01/18/2018-00814/annual-update
-of-the-hhs-poverty-guidelines. Accordingly, the Court finds that Tia has made the
required showing under Section 1915 to proceed without prepayment of fees, and
GRANTS his IFP Application.
II.

The Complaint Fails To State A Claim And Is Dismissed
Upon review of the Complaint, the Court finds that Tia fails to state a claim

upon which relief may be granted. As discussed below, even liberally construed,
the Complaint fails to allege any discernable basis for judicial relief against any
party.
A.

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).
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
5

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

6

misconduct” do not show that the pleader is entitled to relief as required by Rule 8.
Id. at 679. For the reasons that follow, Tia fails to meet this standard.
B.

The Complaint Fails To State A Claim For Relief

As a preliminary matter, the Court observes that Tia has recently filed other
actions based upon what appear to be similar incidents against many of these same
Defendants, at least one of which has been summarily dismissed pursuant to the
court’s Section 1915 screening.5 This Court has also dismissed a prior civil rights
lawsuit seeking damages related to Tia’s anti-global warming satellite invention,
which is one of the several grievances raised in the instant case.6

Although it

5

See, e.g., Tia v. Honolulu Police Dep’t, Civil No. 17-00523 JMS-RLP, Dkt. No. 13 (D. Haw. Jan.
4, 2018) (dismissing frivolous complaint, noting that “[a]ny potential constitutional claim is based
on the fantastic, irrational, and delusional theory that the FBI, HPD, [Halawa Correctional
Facility], [Tennessee Dept. of Corrections], or their agents and officers are somehow connected to
a ‘homosexual mafia’ that seeks to harm Plaintiff through: (1) Bird cutting off Plaintiff’s unlimited
data plan; (2) DeCaires threatening to harm and arrest Plaintiff rather than enforce Plaintiff’s
contractual rights against Walmart; and (3) all Defendants seeking to kill Plaintiff.”); see also Tia
v. Am. Savings Bank, Civil No. 17-00612 JMS-RLP (in which Tia requests the arrest of FBI Agent
Bird, who allegedly obstructed his ability to withdraw money from an ATM and conspired with a
state court judge).
6
Tia alleges that, due to unspecified conduct by Bird and “hackers,” he has been “blocked [in his]
attempts to email Dr. [Luke] Flynn” of “UH Manoa’s NASA Program in relation[] to one of
Plaintiffs inventions cited in this court’s 2015 May filing No. CV 15-00159 DKW-BMK[.]”
Compl. at 3. Tia alleges that, “to this day [he] has not been able to contact Dr. Flynn to
corroborate making a satellite to prevent global warming[,] billions or trillions of dollars net worth
to Plaintiff!” Id.
The Court previously dismissed as frivolous Tia’s claims for damages relating to this same
invention, in which he alleged that “Defendants violated his constitutional rights under the First,
Fifth, Eighth, and Fourteenth Amendments [and] Defendants conspired to injure his business or
property (his anti-global warming satellite), through racketeering activity under the Racketeer
7

alleges claims for retaliation (Count I), “obstruction per conspiracy” (Count II),
“conspiracy II” (Count III), and “more internet–data violations” (Count IV), the
current Complaint, like its predecessors, fails due to the lack of cognizable legal
theories or coherent facts.
The Complaint attempts to string together several unrelated incidents. For
example, Tia claims that his Gmail account was hacked, refers to HPD incident
reports in which he reported a stolen bike, and documents a patent attorney’s failure
to help with an invention. See Exs. 2–6, Dkt. Nos. 1-2 through 1-7. He also
alleges:
On 12-20-2017, Plaintiff tried to contact on internet to hopefully
receive a job [at website]. The day before, the Plaintiff was
followed by defendants FBI outta Tennessee tie[d] to also
Defendant Bird as he was at [jobs website] company. Now as a
result they are destructing thru cited in caption Mormon hackers
does 1–10 (see exhibit 1) by not allowing the site to be reached
by Plaintiff to deter plaintiff from making money in hopes to
make him homeless!
Compl. at 2. Tia seeks the following relief for his injuries:
Declare Plaintiff’s claims are true and reasonable against
defendants! Injunction to stop and prevent all unlawful
violations against Plaintiff! RICO Act Govt. U.S. Attorneys
Intervention per 28 U.S.C. § 1961(7–8) prosecutions! [$]20
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 (7-8).” Tia v. Staggs,
Civil No. 15-00159 DKW-BMK, Dkt. No. 4 (D. Haw. May 5, 2015); Dkt. No. 11 (9th Cir. Aug.
10, 2015) (dismissing appeal No. 15-16098).
8

million punitive and [$]15 million compensation lost wages.
Any other reliefs.
Compl. at 6.
The Complaint is deficient for several reasons. First, the Complaint fails to
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”). That is the case here. Even applying the most liberal
pleading standard, the Court cannot discern from the Complaint the conduct on
which any claim is based, other than Tia’s continued attempt to collect proceeds for
his anti-global warming satellite invention and allegations that his accounts and data
were hacked by the government or unknown actors to prevent him from obtaining
employment. See Compl. at 3. These implausible and unsubstantiated claims are

9

frivolous. See, e.g., Mendes v. United States, 88 Fed. Cl. 759 (Fed. Cl.), appeal
dismissed, 375 F. App’x 4 (Fed. Cir. 2009) (upholding dismissal of frivolous
complaint alleging that “zealot, fanatical women” employed by the FBI and CIA
used “laser beam technology” against plaintiff); Vidmar v. Honolulu Police Dep’t,
2016 WL 4523586, at *6 (D. Haw. Aug. 29, 2016) (dismissing as frivolous
complaint alleging that city and state agencies and officials conspired to harm
plaintiff by failing to stop the spraying of deadly poison in residence); Cain v. City of
Ventura, 2011 WL 4403290, at *1 (C.D. Cal. July 7, 2011) (collecting cases).
Second, insofar as he seeks damages for violations of his federal
constitutional rights, Tia fails to state a Section 1983 claim.7 In order to state a
claim under Section 1983, a plaintiff must allege: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under color of law. West v. Atkins, 487
U.S. 42, 48 (1988). Even though he vaguely asserts a violation of his Fourteenth
Amendment rights, Tia’s factual allegations supporting the claim are largely
7

Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation,
custom, or usage . . . subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress. . . .

10

incomprehensible. Although pro se pleadings are liberally construed, a plaintiff
must allege that he or she suffered a specific injury as a result of specific conduct of
a defendant and show an affirmative link between the injury and the conduct of that
defendant, which the Complaint fails to do. See Rizzo v. Goode, 423 U.S. 362,
371–72, 377 (1976). Accordingly, Tia’s Section 1983 claims are dismissed.
Insofar as he asserts that these acts constitute the basis for a civil RICO claim, he
likewise falls short of stating a plausible claim for relief.8
Finally, to the extent he complains of acts that were the subject of prior
judicial proceedings, those claims or issues that were previously decided by a
competent tribunal may be barred by the doctrines of res judicata and/or collateral

8

To allege a federal racketeering claim, Tia must establish: “(1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity and, additionally must establish that (5) the
defendant caused injury to plaintiff’s business or property.” Chaset v. Fleer/Skybox Int’l, LP, 300
F.3d 1083, 1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)); see also 18 U.S.C. § 1961.
The Complaint does not sufficiently plead any of these elements. Tia, for instance, does not
identify the predicate acts that form the basis of the alleged “scheme of racketeering.” See Graf v.
Peoples, 2008 WL 4189657, at *6 (C.D. Cal. Sept. 4, 2008) (“Plaintiff does not expressly identify
any RICO predicate acts, but simply incorporates his previous allegations. Such ‘shotgun’
pleading is insufficient to plead a RICO claim.”) (citing Savage v. Council on American–Islamic
Relations, Inc., 2008 WL 2951281, at *14 (N.D. Cal. July 25, 2008) (finding that a RICO claim
was insufficient where plaintiff set forth a “redundant narrative of allegations and conclusions of
law, but [made] no attempt to allege what facts are material to his claims under the RICO statute,
or what facts are used to support what claims under particular subsections of RICO”); and Federal
Reserve Bank of San Francisco v. HK Systems, 1997 WL 227955, at *3 (N.D. Cal. Apr. 24, 1997)
(finding that a complaint was insufficient for failure to “identify exactly which acts are ‘predicate
acts’ for RICO liability”)).
11

estoppel (or “claim preclusion” and “issue preclusion”).9 Because the Court cannot
determine with any certainty whether Tia has actually raised all of these claims or
issues, and whether any body has entered a final judgment on the merits, it is not
clear whether either of these doctrines presently bars Tia’s present allegations. Tia
is cautioned, however, that these doctrines may operate to bar any claims or issues
that were decided in his prior cases.
In sum, because Tia fails to state a plausible claim for relief, the Complaint is
DISMISSED. Because amendment of some claims may be possible, Tia is granted
leave to attempt to cure the deficiencies noted in this Order, with instructions below.
III.

The Motion For Appointment Of Counsel Is Denied Without Prejudice
Tia’s Motion for Appointment of Counsel asserts that he has “a 6th Amend.

Right to counsel,” and that this is a “complex case [that] involves computer
technology and criminal laws!” Dkt. No. 6. He fails, however, to explain his
efforts to obtain legal counsel and the specific reason he needs court-appointed

9

“[C]laim preclusion prevents a party from relitigating not only issues which were actually
litigated in a prior action, but also all grounds of claim and defense which might have been
properly litigated in the prior action.” Hanson v. Palehua Cmty. Ass’n, 2013 WL 1751504, at *7
(D. Haw. Apr. 23, 2013), aff’d, 599 F. App’x 299 (9th Cir. 2015) (citations omitted). “[I]ssue
preclusion similarly prevents a subsequent suit between the parties or their privies on a different
cause of action and prevents the parties or their privies from relitigating any issue that was actually
litigated and finally decided in the earlier action.” Id. (citation omitted).
12

counsel in this matter. Under the circumstances, the Court is unable to assess his
request at this time.
A district court may, under the discretionary authority conferred upon it under
28 U.S.C. § 1915(e)(1), designate counsel to represent an indigent civil litigant.
There is no absolute right to counsel in civil proceedings, Hedges v. Resolution Trust
Corp., 32 F.3d 1360, 1363 (9th Cir. 1994), and counsel may be designated under
section 1915 only in “exceptional circumstances.” See Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986). A finding of exceptional circumstances requires
an evaluation of both “the likelihood of success on the merits [and] the ability of the
petitioner to articulate his claims pro se in light of the complexity of the legal issues
involved.” Id. (citing Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).
Neither of these factors is dispositive and both must be viewed together before
reaching a decision on a request for counsel under section 1915. Wilborn, 789 F.2d
at 1331.
Because the Court has dismissed Tia’s Complaint and granted leave to amend
in accordance with the terms of this Order, his Motion for Appointment of Counsel
is denied without prejudice, pending the filing of an amended complaint.

13

IV.

Limited Leave To Amend Is Granted
The dismissal is without prejudice, and Tia is granted limited leave to amend

to attempt to cure the deficiencies identified above. If Tia 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 Tia 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.
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
Cty., 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
14

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 prior complaints. Rather, any
specific allegations must be retyped or rewritten in their entirety. Tia may include
only one claim per count. Failure to file an amended complaint by March 2, 2018
will result in the automatic dismissal of this action without prejudice.
CONCLUSION
Based upon the foregoing, Tia’s IFP Application is GRANTED (Dkt. No. 5),
the Motion for Appointment of Counsel is DENIED WITHOUT PREJUDICE (Dkt.
No. 6), and the Complaint is DISMISSED with limited leave to amend (Dkt. No. 1).
///

///

///

///

15

Tia is granted limited leave to file an amended complaint in accordance with
the terms of this Order by March 2, 2018. The Court CAUTIONS Tia that failure
to file an amended complaint by March 2, 2018 will result in the automatic
dismissal of this action without prejudice.
IT IS SO ORDERED.
Dated: February 7, 2018 at Honolulu, Hawai‘i.

Tia v. Honolulu Police Dep’t; Civil No. 17-00607 DKW-KJM; ORDER (1) GRANTING
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS;
(2) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (3) DENYING WITHOUT
PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL

16