Peltier v. Foodland et al

Filing 8

ORDER (1) GRANTING APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS, AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND re #1 , #3 - Signed by JUDGE DERRICK K. WATSON on 9/16/2022. Plaintiff may have until October 7, 2022 to file an amended complaint. The Court cautions Plaintiff that failure to file an amended complaint by October 7, 2022 may result in the automatic dismissal of this action without prejudice. The Clerk of Court is DIRECTED to serve Plaintiff a copy of (1) form "Pro Se 1" "Complaint for a Civil Case" and (2) form "Pro Se 7" "Complaint for Employment Discrimination." (eta)COURT'S CERTIFICATE OF SERVICE - Leilani K. Peltier has been served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on September 16, 2022. A copy of (1) form "Pro Se 1" "Complaint for a Civil Case" and (2) form "Pro Se 7" "Complaint for Employment Discrimination" were included in the mailing to Plaintiff.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
LEILANI K. PELTIER,
Plaintiff,
v.
FOODLAND, et al.,

Case No. 22-cv-00398-DKW-WRP
ORDER (1) GRANTING
APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS,
AND (2) DISMISSING
COMPLAINT WITH LEAVE TO
AMEND 1

Defendants.
On August 31, 2022, Plaintiff Leilani Peltier, proceeding pro se, filed a
Complaint against three Defendants, Foodland, Justin Piposo, and Gorge Ayala
(collectively, “Defendants”), alleging that she was wrongfully terminated from her
position at Foodland. Dkt. No. 1 at 5. Plaintiff has also filed an application to
proceed in forma pauperis (“IFP Application”). Dkt. No. 3.
I.

IFP Application
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). While
Section 1915(a) does not require a litigant to demonstrate absolute destitution,
1

The Court finds these matters suitable for disposition without a hearing pursuant to Local Rule
7.1(c).

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Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant
must nonetheless show that she is “unable to pay such fees or give security
therefor,” 28 U.S.C. § 1915(a).
Here, on the current record, Plaintiff has made a sufficient showing under
Section 1915(a) to proceed in this case without prepaying the required fees. In the
IFP Application, Plaintiff states that she is employed and takes home pay of $1,200
every 2 weeks. Plaintiff further states that she has $749 in a bank account.
Plaintiff also states that she has various monthly expenses, including rent, utilities,
and food, of a little under $2,400 per month in total, as well as a 17-year-old son as
a dependent. In light of these figures, although Plaintiff’s current income does not
fall below the poverty threshold identified by the Department of Health and
Human Services’ (“HHS”) 2022 Poverty Guidelines, see HHS Poverty Guidelines,
available at: https://aspe.hhs.gov/poverty-guidelines, once her monthly expenses
are taken into account, Plaintiff’s income is essentially break-even. As a result, on
this record, the Court does not find that Plaintiff is able to pay the $402 filing fee
while still affording the necessities of life. See Escobedo v. Applebees, 787 F.3d
1226, 1234 (9th Cir. 2015). The same is true of Plaintiff’s assets. As a result, the
Court GRANTS the IFP Application, Dkt. No. 3.

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II.

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Screening2
The Court liberally construes a pro se complaint. Eldridge v. Block, 832

F.2d 1132, 1137 (9th Cir. 1987). However, the Court cannot act as counsel for a
pro se litigant, such as by supplying the essential elements of a claim. Pliler v.
Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d
266, 268 (9th Cir. 1982).
The Complaint, prepared on a Court prepared form for “Violation[s] of Civil
Rights[,]” alleges that, on November 9, 2021, Defendants Justin Piposo and Gorge
Ayala “fraudulently rewrote” and signed Peltier’s name on a statement that they
then handed to Foodland’s Human Resources. Dkt. No. 1 at 5. Peltier appears to
further allege that, due to her 15 years of employment with Foodland, Foodland
should have known that the statement was fraudulent because Foodland “has
record of my previous filed penmenship.” Peltier concludes by alleging that the
above-stated fraud resulted in her termination. Id. No other facts are alleged in
the Complaint. Perhaps more importantly at the present juncture, no basis for
federal subject matter jurisdiction is alleged either. Notably, in the “Basis for
Jurisdiction” section of the form Complaint, Peltier either checks no boxes or

2

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).
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writes “none” next to all of the available jurisdictional options. Id. at 4. Perhaps,
this may be due to the fact that Peltier selected the wrong prepared form.
Specifically, in choosing the form for “Violation[s] of Civil Rights[,]” Peltier
selected the form that concerns violations of civil rights by state, local, and/or
federal officials. In other words, none of the Defendants named in the Complaint.
Moreover, based upon the facts alleged, the Court cannot discern any federal basis
for jurisdiction here. As a result, the Complaint must be dismissed for lack of
subject matter jurisdiction. See Fed.R.Civ.P. 8(a)(1)-(2) (requiring a short and
plain statement of the court’s jurisdiction and “the claim showing that the pleader
is entitled to relief[.]”).
Dismissal, however, is without prejudice and with leave to amend. See
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (explaining that “a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.”). Should Plaintiff choose to amend the
Complaint, among other things, she must allege the basis for federal subject matter
jurisdiction in this case. More specifically, Plaintiff must write short, plain
statements telling the Court: (1) the specific basis of this Court’s jurisdiction;
(2) the constitutional, statutory, or legal right(s) she believes were violated; (3) the
name of the defendant(s) who violated those right(s); (4) exactly what each
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defendant did or failed to do; (5) how the action or inaction of that defendant is
connected to the violation of Plaintiff’s right(s); and (6) what specific injury she
suffered because of a defendant’s conduct.
Finally, in light of the possible misplaced use of one of the Court’s prepared
forms, with this Order, the Court shall also send to Plaintiff copies of (1) a
“Complaint for a Civil Case” and (2) a “Complaint for Employment
Discrimination.” Should Plaintiff choose to use one of the forms mailed to her in
amending her Complaint, she is only allowed to file one of those documents.
While the Court provides the documents for Plaintiff’s convenience, it is up to her
to decide which, if either, is best to present her claim(s) in this case.
III.

Conclusion
Plaintiff may have until October 7, 2022 to file an amended complaint.

The Court cautions Plaintiff that failure to file an amended complaint by
October 7, 2022 may result in the automatic dismissal of this action without
prejudice.
The Clerk of Court is DIRECTED to serve Plaintiff a copy of (1) form “Pro
Se 1” “Complaint for a Civil Case” and (2) form “Pro Se 7” “Complaint for
Employment Discrimination.”

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IT IS SO ORDERED.
Dated: September 16, 2022 at Honolulu, Hawai‘i.

Peltier v. Foodland, et al., Case No. 22-cv-00398-DKW-WRP; ORDER (1) GRANTING
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES
OR COSTS, AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND

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