Seruge v. Hawaiian Properties, Ltd. et al

Filing 8

ORDER (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING WITHOUT PREJUDICE APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS AND MOTION FOR APPOINTMENT OF PRO BONO COUNSEL re 1 , 4 , 5 - Signed by JUDGE DERRICK K. WA TSON on 1/22/2018. "Based upon the foregoing, Seruge's Complaint is DISMISSED with leave to amend. Seruge is granted leave to file an amended complaint in accordance with the terms of this Order by February 23, 2018. The Court CAUTION S Seruge that failure to file an amended complaint by February 23, 2018 may result in the automatic dismissal of this action without prejudice. Seruge's IFP Application (Dkt. No. 4) and Motion for Appointment of Pro Bono Co unsel (Dkt. No. 5) are DENIED without prejudice. If he elects to file an amended complaint, Seruge shall file a fully executed IFP Application or pay the requisite filing fee by February 23, 2018. The Clerk of Court is DIRECTED t o mail Seruge a blank Application to Proceed In District Court Without Prepaying Fees or Costs (AO 240) so that he may comply with the directions in this Order." (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). Jalil Seruge served by first class mail to the address of record on January 22, 2018. A copy of the Court's Application to Proceed in District Court Without Prepaying Fees or Costs form was included in the mailing to Mr. Seruge.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

JALIL SERUGE,

CV. NO. 18-00024 DKW-KSC

Plaintiff,
v.
HAWAIIAN PROPERTIES, LTD., et
al.,
Defendants.

ORDER (1) DISMISSING
COMPLAINT WITH LEAVE TO
AMEND; AND (2) DENYING
WITHOUT PREJUDICE
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES OR COSTS AND MOTION
FOR APPOINTMENT OF PRO
BONO COUNSEL

INTRODUCTION
On January 17, 2018, Plaintiff Jalil Seruge, proceeding pro se, filed a
Complaint alleging age and national origin discrimination by Hawaiian Properties,
Ltd., Hawaii Civic Service, Inc., and Thomas Dulan. Dkt. No. 1. Seruge also filed
an incomplete application to proceed in forma pauperis (“IFP Application”) and a
Motion for Appointment of Pro Bono Counsel.1 Dkt. Nos. 4 and 5. The
Complaint fails to include factual allegations demonstrating that Seruge’s rights
have been violated or that he is plausibly entitled to relief from any Defendant.
Because Seruge fails to state a cognizable claim for relief or establish this Court’s

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Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.

subject matter jurisdiction, the Complaint is DISMISSED with leave to amend
pursuant to 28 U.S.C. § 1915(e), with instructions below. The incomplete IFP
Application and Motion for Appointment of Pro Bono Counsel are denied without
prejudice, pending the filing of an amended complaint.
DISCUSSION
Because Seruge 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 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).
I.

Plaintiff’s IFP Application Is Denied Without Prejudice
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

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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).
The Court cannot consider Plaintiff’s IFP Application because it is
incomplete. Although he indicates that he has $50.00 in a checking or savings
account, no regularly monthly expenses, no dependents, and no debt, Seruge failed
to indicate whether he is currently employed or has any sources of income, such as
from a pension, annuity, disability payment, or from “any other sources.” See Dkt.
No. 4 at 1. Because he has not provided responses to the sections of the IFP
Application form regarding employment or income, the Court is unable to determine
whether Seruge has made the required showing under Section 1915 to proceed

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without prepayment of fees, and denies his IFP Application without prejudice. If
he elects to file an amended complaint, as discussed below, Seruge may resubmit a
complete, fully executed IFP Application on the court’s form or pay the civil filing
fee in full. The failure to do so will result in the dismissal of this action without
further consideration of the merits of Seruge’s claims.
II.

The Complaint Is Dismissed With Leave To Amend
Upon review of the Complaint, the Court finds that Seruge fails to state a

claim upon which relief may be granted or to establish a basis for the Court’s subject
matter jurisdiction. 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
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

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“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. For the reasons that follow, Seruge fails to meet this standard.

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B.

The Complaint Is Dismissed With Leave to Amend

Even given a liberal construction, the allegations in the Complaint fail to state
a plausible claim against any Defendant. The Complaint does not set forth
identifiable causes of action, and does not provide sufficient factual content to
enable the Court to draw the reasonable inference that any Defendant is liable for the
misconduct alleged or that the allegations state cognizable legal claims. Although
the factual averments in the Complaint are not entirely clear, Seruge appears to
allege that he suffered discrimination and/or retaliation based upon his age, national
origin and/or race when his car was maliciously towed from the parking lot of his
residence by the building manager, and that the management company took no
action when he complained about the towing. Assuming the truth of his
allegations, however, dismissal of the Complaint is necessary due to the “lack of a
cognizable legal theory [and] the absence of sufficient facts alleged.’” UMG
Recordings, Inc., 718 F.3d at 1014.
Seruge lives in an apartment at Haleiwa Senior Citizen Housing Center,
which he alleges is managed by Defendant Hawaiian Properties, Ltd. or Hawaiian
Property Management (“HPM”), receives funds from “HUD/USDA,” and is
“wasting time and tax payers[’] money and federal government subsi[di]ze[d]
money,” in light of the conduct of its employee, on-site manager Defendant Thomas
Gulan. Compl. Ex. 1 at 2, Dkt. No. 1-1. According to Seruge, on May 31, 2016,

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Gulan directed him to park his van in a handicap parking stall because Seruge has a
handicap placard hanging on the mirror. Compl. Ex. 1 at 1. The next day,
however, Gulan called a towing company and had Seruge’s van towed, without
notifying Seruge in advance. Seruge alleges that Gulan notified owners of the other
cars in the parking lot that their cars would be towed, and that as a result, his van was
the only vehicle towed on that day. Compl. Ex. 1 at 1. He asserts that Gulan
“purposely told me to park in the stall and then he got my car towed . . . with a
handicap placard. I have been dealing with discrimination for months and I have
been set up.” Compl. Ex. 1 at 2. Seruge states in a June 8, 2016 letter to HPM,
without providing specific names, dates, or other details, “I have been called Arab,
immigrant, minority and told to go home.” Compl. Ex. 1 at 2–3.
In his Complaint, Seruge explains that he attempted to sue the towing
company and report his issues with HPM and Gulan to HUD and USDA:
On June 29, 2016 I took . . . the towing company to court. . . .
On July 20, 2016 Honorable Judge Melanie May dismissed my
case. BIASED. On March 1, 2017, I went to court, Honorable
Judge Ching Hon dismissed my case. BIASED.
Lawyer from the JAG office Schofield . . . helped me to go to
HUD and complain[]. HUD and USDA did the investigation.
Jelani Madaraka, the HUD investigator, dismissed my case. . . .
Jelani Madaraka behaves as fraudulent, corrupt member of
HUD, etc. Jelani Madaraka betrayed me Jalil Seruge, the poor
Palestinian to be friends with HPM.

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Compl. at 2–3. Seruge states that for “past two years, I didn’t sleep good at all, for
the mental elder abuse, and suffering[,] distress[,] etc. which I have from the HMP
and Court.” Compl. at 3.
These allegations of the Complaint suffer from several deficiencies. 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. Seruge
does not clearly identify in any coherent or organized manner the separate causes of
action that he is asserting, nor does he 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, other
than Seruge’s allegation that he suffered discrimination as a result of his age and

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national origin, and his dissatisfaction with the results of prior investigations and
state court proceedings. See Compl. at 1–4.
Second, insofar as he seeks damages for violations of his federal
constitutional rights, Seruge fails to satisfy the pleading requirements to state a claim
under 42 U.S.C. § 1983.2 In order to state a Section 1983 claim, 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). Seruge alleges neither.
Even though he concludes he “has been discriminated against by the Hawaiian
Property Management,” because of his national origin, Seruge’s factual allegations
supporting the claim are largely 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). “A person ‘subjects’ another to the
deprivation of a constitutional right, within the meaning of § 1983, if he does an

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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. . . .
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affirmative act, participates in another’s affirmative acts, or omits to perform an act
which he is legally required to do that causes the deprivation of which complaint is
made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Accordingly, any
Section 1983 claim is dismissed.
Finally, to the extent he complains of acts that were the subject of prior
judicial proceedings or government agency adjudications, those claims or issues that
were previously decided by a competent tribunal may be barred by the doctrines of
res judicata and/or collateral estoppel (or “claim preclusion” and “issue
preclusion”).3 Because the Court cannot determine with any certainty whether
Seruge has actually raised 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 any portion of Seruge’s allegations. Seruge is cautioned, however,
that these doctrines may operate to bar any claims or issues that were decided or
could have been decided in his prior cases. Moreover, to the extent he is unsatisfied
with the outcome of his state court cases, he may not seek appellate review in federal

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“[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).
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court based on the decisionmaker’s alleged “bias,” but must appeal those matters in
state court.4
In sum, because Seruge fails to state a plausible claim for relief, the
Complaint is DISMISSED. Because amendment may be possible, Seruge is
granted leave to attempt to cure the deficiencies noted in this Order, with
instructions below.
C.

Subject Matter Jurisdiction Not Clearly Alleged

Claims may also be dismissed sua sponte where the Court does not have
federal subject matter jurisdiction. 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
Grp., L.P., 541 U.S. 567, 593 (2004) (“[I]t is the obligation of both the district court
and counsel to be alert to jurisdictional requirements.”). “A party invoking the
federal court’s jurisdiction has the burden of proving the actual existence of subject
matter jurisdiction.” See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).

4

Under the Rooker-Feldman doctrine (Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), collectively referred to as
Rooker-Feldman), “‘a losing party in state court is barred from seeking what in substance would
be appellate review of the state judgment in a United States District Court, based on the losing
party’s claim that the state judgment itself violates the loser’s federal rights.’” Bennett v.
Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998) (quoting Johnson v. De Grandy, 512 U.S. 997,
1005–06 (1994)). The Rooker-Feldman doctrine divests federal district courts of jurisdiction to
conduct direct reviews of state court judgments even when a federal question is presented.
Although not entirely clear, to the extent Plaintiff contests the dismissal of his state court actions,
any such challenge must be made through the state court appellate process. Seruge may neither
collaterally attack nor seek to relitigate such state court determinations in this Court.
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“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)). At the pleading stage, a plaintiff must allege sufficient facts to show a
proper basis for the Court to assert subject matter jurisdiction over the action.
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Johnson v.
Columbia Props. Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006); Fed. R. Civ. P.
8(a)(1).
In general, a plaintiff may establish subject matter jurisdiction in one of two
ways. First, he may assert federal question jurisdiction based on allegations that a
defendant violated the Constitution, a federal law, or treaty of the United States.
See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”). The
United States Supreme Court has recognized that a “plaintiff properly invokes
§ 1331 jurisdiction” by pleading “a colorable claim ‘arising’ under the Constitution
or laws of the United States.” Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006).
Second, a plaintiff may invoke the court’s diversity jurisdiction, which applies
“where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States.” 28 U.S.C.
§ 1332(a)(1). In order to establish diversity jurisdiction, a plaintiff must establish

12

complete diversity of the parties. See Morris v. Princess Cruises, Inc., 236 F.3d
1061, 1067 (9th Cir. 2001) (explaining that § 1332(a) “requires complete diversity
of citizenship; each of the plaintiffs must be a citizen of a different state than each of
the defendants”).
Plaintiff has not identified a jurisdictional basis for this case. See Fed. R.
Civ. P. 8(a) (“A pleading that states a claim for relief must contain: (1) a short and
plain statement of the grounds for the court’s jurisdiction, unless the court already
has jurisdiction and the claim needs no new jurisdictional support.”). Seruge fails
to establish either diversity or federal question jurisdiction. First, although he does
not allege the citizenship of any party for purposes of Section 1332(a), it appears that
all parties are citizens of Hawai‘i. Next, his bare allegations of “discrimination,”
without more, are not sufficient to create federal question jurisdiction. Any such
cause of action is “so patently without merit as to justify the court’s dismissal for
want of jurisdiction.” Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U.S. 59, 70 (1978); Avila v. Pappas, 591 F.3d 552, 553 (7th Cir. 2010) (“It
is not enough to utter the word ‘Constitution’ and then present a claim that rests on
state law. If it were, every claim that a state employee committed a tort, or broke a
contract, could be litigated in federal court. It is therefore essential that the federal
claim have some substance—that it be more than a pretext to evade the rule that
citizens of a single state must litigate their state-law disputes in state court.”).

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Moreover, any grievances sounding in tort (e.g., fraud, intentional and/or
negligent misrepresentation, among others) are state law claims that may be
appropriately brought in Hawaii state courts. These claims may not, however, be
brought in federal court, absent a clearly-pled basis for federal jurisdiction. See
Thompson, 99 F.3d at 353 (“A party invoking the federal court’s jurisdiction has the
burden of proving the actual existence of subject matter jurisdiction.”).
Accordingly, given the absence of a clearly-alleged basis for this Court’s subject
matter jurisdiction, the Complaint is dismissed with leave to amend, as detailed
below.
III.

The Motion For Appointment Of Counsel Is Denied Without Prejudice
The Court next turns to Seruge’s request for counsel. Seruge filed a Motion

for Appointment of Pro Bono Counsel utilizing the Court’s form. However, he did
not complete all of the necessary portions of the form, including describing (1) his
efforts to obtain legal counsel, and (2) the reason he needs appointed pro bono
counsel in this matter. Dkt. No. 5. 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

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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; see also Hicks v. Makaha Valley Plantation Homeowners Ass’n, 2015 WL
1608454, at *3 (D. Haw. Apr. 9, 2015) (denying request for appointment of counsel
in case alleging discriminatory practice under the Fair Housing Act, 42 U.S.C.
§ 3613(b), finding no exceptional circumstances where the Court was unable to
determine whether certain claims were “patently frivolous” and was “unable to find
any factual allegations supporting Plaintiffs’ claims that Defendants’ actions were
discriminatory under the Fair Housing Act, and thus, Plaintiffs have not
demonstrated that their race and disability discrimination claims have merit”).
Because the Court has dismissed Seruge’s Complaint and granted leave to
amend in accordance with the terms of this order, his Motion for Appointment of Pro
Bono Counsel is denied without prejudice, pending the filing of an amended
complaint and IFP Application.

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IV.

Limited Leave To Amend Is Granted
The Complaint is dismissed without prejudice and Seruge is granted leave to

amend to attempt to cure the deficiencies identified above. If Seruge 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 Seruge 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

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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 complaint. Rather, any
specific allegations must be retyped or rewritten in their entirety. Seruge may
include only one claim per count. Failure to file an amended complaint by
February 23, 2018 will result in the automatic dismissal of this action without
prejudice.
CONCLUSION
Based upon the foregoing, Seruge’s Complaint is DISMISSED with leave to
amend. Seruge is granted leave to file an amended complaint in accordance with
the terms of this Order by February 23, 2018. The Court CAUTIONS Seruge that
failure to file an amended complaint by February 23, 2018 may result in the
automatic dismissal of this action without prejudice.
Seruge’s IFP Application (Dkt. No. 4) and Motion for Appointment of Pro
Bono Counsel (Dkt. No. 5) are DENIED without prejudice. If he elects to file an
amended complaint, Seruge shall file a fully executed IFP Application or pay the
requisite filing fee by February 23, 2018.

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The Clerk of Court is DIRECTED to mail Seruge a blank Application to
Proceed In District Court Without Prepaying Fees or Costs (AO 240) so that he may
comply with the directions in this Order.
IT IS SO ORDERED.
Dated: January 22, 2018 at Honolulu, Hawai‘i.

Seruge v. Hawaiian Properties, Ltd. et al. CV 18-00024 DKW-KSC; ORDER (1) DISMISSING
COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING WITHOUT PREJUDICE
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS AND
MOTION FOR APPOINTMENT OF PRO BONO COUNSEL

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