IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I
KIMBERLY GRAY Case No. 24-cv-00185-DKW-WRP
Plaintiff, ORDER: (1) GRANTING APPLICATION TO PROCEED IN vs. DISTRICT COURT WITHOUT PREPAYMENT OF FEES AND HAWAII POLICE DEPARTMENT and COSTS; AND (2) DISMISSING OFFICER SAMUEL PRINCE, COMPLAINT WITH LEAVE TO AMEND1 Defendants.
On April 23, 2024, Plaintiff Kimberly Gray, proceeding pro se, filed a Complaint against the Hawaiʻi Police Department (“HPD”) and HPD Officer Samuel Prince,2 alleging that Officer Prince violated Article 9 of the Hawaiʻi Constitution when he “ran a red light and t-boned [her].” Dkt. No. 1. That same day, Gray additionally filed an application to proceed in forma pauperis (“IFP Application”). Dkt. No. 2. I. The IFP Application Pursuant to 28 U.S.C. § 1915(a)(1), federal courts may authorize the commencement of suit without prepayment of fees or securities by a person who
1Pursuant to Local Rule 7.1(d), the Court elects to decide these matters without a hearing. 2It is not clear whether Plaintiff intends to name both the HPD and Officer Prince because only the former is listed as a defendant in the caption, while both are listed as defendants on page 2 of the Complaint. See Dkt. No. 1 at 1–2. Accordingly, because the Court liberally construes a pro se complaint, Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), both are assumed to be defendants in this case. submits an affidavit which demonstrates that they lack the ability to pay. Though an IFP applicant need not demonstrate absolute destitution, Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 339 (1948), he or she must “allege poverty with some particularity, definiteness, and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quotation marks and citations omitted). The affidavit
is sufficient where it alleges that the applicant “cannot pay the court costs and still afford the necessities of life.” Id. (citing Adkins, 335 U.S. at 339); see 28 U.S.C. § 1915(a)(1). Here, Gray has satisfied the requirements of Section 1915(a). In her IFP
Application, Gray explains that she earns $26,000 annually or approximately $2,166 monthly. See Dkt. No. 2 at 1. Her monthly expenses for her vehicle, housing, groceries, and loans total $2,005.3 Id. Moreover, she has no money in a
checking or savings account, and no items or assets of value. Id. As such, once Gray’s basic monthly expenses are taken into account, she has $161 per month in income left over to cover her non-basic monthly expenses—an amount significantly less than the $405 filing fee. In light of these figures, the
Court finds that she lacks the ability to pay or give security for the filing fee for
3More specifically, Gray’s expenses break down into $650 monthly for housing, $295 monthly for her car, $110 weekly for groceries, and $310 biweekly for loans. Dkt. No. 2 at 2. this action while still being able to afford the necessities of life. See Escobedo, 787 F.3d at 1234–36. Her IFP Application, Dkt. No. 2, is therefore GRANTED.
II. Screening When a plaintiff files an action in forma pauperis pursuant to 28 U.S.C. § 1915(a), the Court subjects it to mandatory screening and may order the
dismissal of any claim it determines “is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Though, as stated above, the Court must liberally construe a pro se complaint, Eldridge, 832 F.2d at 1137,
the Court cannot act as counsel for a pro se litigant, including by providing 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). Moreover, “even
when screening complaints under the in forma pauperis statute, ‘a district court must first determine whether it has jurisdiction before it can decide whether a complaint states a claim.’” Taylor v. Higashi, 2024 WL 1770484, at *1 (D. Haw. Apr. 4, 2024) (quoting Moore v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 890, 895
(9th Cir. 2011)); Fed. R. Civ. P. 12(h)(3). Here, the Complaint fails to establish that the Court has subject matter jurisdiction over this dispute.4 “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)). As such, for the Court to hear a case, the
plaintiff must generally establish either: (1) diversity of citizenship—i.e., that no plaintiff is a citizen of the same state as any defendant and the amount in controversy exceeds $75,000, see 28 U.S.C. § 1332; or (2) a federal question—i.e., a colorable claim which “aris[es] under” the federal Constitution or the laws of the
United States, see 28 U.S.C. § 1331. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Gray asserts that her case is premised on federal question jurisdiction. See
Dkt. No. 1 at 4. Her sole claim, however, is brought pursuant to Article 9 of the Hawaiʻi Constitution. Id. In other words, Gray attempts to use a state law claim to establish federal question jurisdiction. This she may not do.5 The Court therefore DISMISSES the Complaint for lack of subject matter jurisdiction. See Arbaugh,
4In dismissing on jurisdictional grounds, the Court does not address any other potential deficiencies that may exist in the Complaint. 5Nor, in any case, would there be diversity jurisdiction given that both Gray and Officer Prince appear to be citizens of Hawaiʻi. See Dkt. No. 1 at 4. 546 U.S. at 514 (“when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”).
Should Gray choose to do so, she may attempt to remedy this defect by filing an amended Complaint. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (holding “a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.”).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I
KIMBERLY GRAY Case No. 24-cv-00185-DKW-WRP
Plaintiff, ORDER: (1) GRANTING APPLICATION TO PROCEED IN vs. DISTRICT COURT WITHOUT PREPAYMENT OF FEES AND HAWAII POLICE DEPARTMENT and COSTS; AND (2) DISMISSING OFFICER SAMUEL PRINCE, COMPLAINT WITH LEAVE TO AMEND1 Defendants.
On April 23, 2024, Plaintiff Kimberly Gray, proceeding pro se, filed a Complaint against the Hawaiʻi Police Department (“HPD”) and HPD Officer Samuel Prince,2 alleging that Officer Prince violated Article 9 of the Hawaiʻi Constitution when he “ran a red light and t-boned [her].” Dkt. No. 1. That same day, Gray additionally filed an application to proceed in forma pauperis (“IFP Application”). Dkt. No. 2. I. The IFP Application Pursuant to 28 U.S.C. § 1915(a)(1), federal courts may authorize the commencement of suit without prepayment of fees or securities by a person who
1Pursuant to Local Rule 7.1(d), the Court elects to decide these matters without a hearing. 2It is not clear whether Plaintiff intends to name both the HPD and Officer Prince because only the former is listed as a defendant in the caption, while both are listed as defendants on page 2 of the Complaint. See Dkt. No. 1 at 1–2. Accordingly, because the Court liberally construes a pro se complaint, Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), both are assumed to be defendants in this case. submits an affidavit which demonstrates that they lack the ability to pay. Though an IFP applicant need not demonstrate absolute destitution, Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 339 (1948), he or she must “allege poverty with some particularity, definiteness, and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (quotation marks and citations omitted). The affidavit
is sufficient where it alleges that the applicant “cannot pay the court costs and still afford the necessities of life.” Id. (citing Adkins, 335 U.S. at 339); see 28 U.S.C. § 1915(a)(1). Here, Gray has satisfied the requirements of Section 1915(a). In her IFP
Application, Gray explains that she earns $26,000 annually or approximately $2,166 monthly. See Dkt. No. 2 at 1. Her monthly expenses for her vehicle, housing, groceries, and loans total $2,005.3 Id. Moreover, she has no money in a
checking or savings account, and no items or assets of value. Id. As such, once Gray’s basic monthly expenses are taken into account, she has $161 per month in income left over to cover her non-basic monthly expenses—an amount significantly less than the $405 filing fee. In light of these figures, the
Court finds that she lacks the ability to pay or give security for the filing fee for
3More specifically, Gray’s expenses break down into $650 monthly for housing, $295 monthly for her car, $110 weekly for groceries, and $310 biweekly for loans. Dkt. No. 2 at 2. this action while still being able to afford the necessities of life. See Escobedo, 787 F.3d at 1234–36. Her IFP Application, Dkt. No. 2, is therefore GRANTED.
II. Screening When a plaintiff files an action in forma pauperis pursuant to 28 U.S.C. § 1915(a), the Court subjects it to mandatory screening and may order the
dismissal of any claim it determines “is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Though, as stated above, the Court must liberally construe a pro se complaint, Eldridge, 832 F.2d at 1137,
the Court cannot act as counsel for a pro se litigant, including by providing 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). Moreover, “even
when screening complaints under the in forma pauperis statute, ‘a district court must first determine whether it has jurisdiction before it can decide whether a complaint states a claim.’” Taylor v. Higashi, 2024 WL 1770484, at *1 (D. Haw. Apr. 4, 2024) (quoting Moore v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 890, 895
(9th Cir. 2011)); Fed. R. Civ. P. 12(h)(3). Here, the Complaint fails to establish that the Court has subject matter jurisdiction over this dispute.4 “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)). As such, for the Court to hear a case, the
plaintiff must generally establish either: (1) diversity of citizenship—i.e., that no plaintiff is a citizen of the same state as any defendant and the amount in controversy exceeds $75,000, see 28 U.S.C. § 1332; or (2) a federal question—i.e., a colorable claim which “aris[es] under” the federal Constitution or the laws of the
United States, see 28 U.S.C. § 1331. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Gray asserts that her case is premised on federal question jurisdiction. See
Dkt. No. 1 at 4. Her sole claim, however, is brought pursuant to Article 9 of the Hawaiʻi Constitution. Id. In other words, Gray attempts to use a state law claim to establish federal question jurisdiction. This she may not do.5 The Court therefore DISMISSES the Complaint for lack of subject matter jurisdiction. See Arbaugh,
4In dismissing on jurisdictional grounds, the Court does not address any other potential deficiencies that may exist in the Complaint. 5Nor, in any case, would there be diversity jurisdiction given that both Gray and Officer Prince appear to be citizens of Hawaiʻi. See Dkt. No. 1 at 4. 546 U.S. at 514 (“when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”).
Should Gray choose to do so, she may attempt to remedy this defect by filing an amended Complaint. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (holding “a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.”). To do so, she must briefly and plainly explain to the Court: (1) the specific basis for the Court’s jurisdiction; (2) the constitutional, statutory, or legal rights she believes were violated; (3) the names of the Defendants who violated those rights; (4) each
Defendant’s precise actions or inactions; (5) when each Defendant acted or failed to act; (6) how each Defendant’s actions or inactions are connected to the alleged violations of her rights; and (7) the specific injuries that she suffered as a result of
Defendants’ conduct. Gray may have until May 21, 2024 to file an amended Complaint. The Court cautions Gray that failure to file an amended Complaint, consistent with the guidance in this Order, by May 21, 2024 will result in the automatic
dismissal of this action without prejudice. The Clerk of Court is DIRECTED to serve Gray with a copy of the form “Pro Se 1” “Complaint for a Civil Case.” IT IS SO ORDERED. DATED: April 30, 2024 at Honolulu, Hawai‘t.
dot Derrick K. Watson Rn Chief United States District Judge
Kimberly Gray v. Hawaii Police Department and Officer Samuel Prince; Civil No. 24-00185 DK W-WRP; ORDER: (1) GRANTING APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYMENT OF FEES AND COSTS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND
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