Smallwood v. Fed. Bureau of Investigation

• Decision Date: 16 September 2016
• Docket Number: CV. NO. 16-00505 DKW-KJM
• Parties: CRAIG S. SMALLWOOD, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION; CITY & COUNTY OF HONOLULU; and HAWAII DISABILITY RIGHTS CENTER, Defendants.
• Court: U.S. District Court — District of Hawaii

CRAIG S. SMALLWOOD, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION; CITY & COUNTY OF HONOLULU;and HAWAII DISABILITY RIGHTS CENTER, Defendants.

CV. NO. 16-00505 DKW-KJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI'I

September 16, 2016

ORDER (1) DENYING APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; (2) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER; AND (3) DISMISSING COMPLAINT WITH LEAVE TO AMEND

INTRODUCTION

On September 14, 2016, Plaintiff Craig S. Smallwood, proceeding pro se, filed a Complaint against the Federal Bureau of Investigation ("FBI"), City and County of Honolulu ("City"), and the Hawaii Disability Rights Center, alleging violations of his civil rights on the basis of race and disability. Smallwood also filed a request for TRO and Ex Parte Emergency Federal Protection Order ("Motion for TRO"), seeking a court order directing: (1) that an unnamed Honolulu Police Department ("HPD") officer be reassigned; and (2) that the FBI investigate unspecified agencies within the State of Hawaii for purported system-wide civil rights violations.

Smallwood's Motion for TRO fails to establish that he is entitled to the relief he seeks, and is accordingly DENIED. Moreover, because the Complaint fails to state a claim for relief, the Court DISMISSES it pursuant to 28 U.S.C. § 1915(e) and GRANTS Smallwood leave to file an amended complaint by no later than October 10, 2016. Smallwood's concurrently filed Application For Leave To Proceed Without Prepayment of Fees, requesting to proceed in forma pauperis ("IFP Application"), is also DENIED for the reasons detailed below.¹

DISCUSSION

I. The IFP Application Is Denied

Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates he is unable 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, 787F.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 Smallwood is not employed and supports two dependents, his wife and daughter. His wife is employed and earns $350 per month. Smallwood's other income consists of SSI disability, and VA pension and/or disability payments, which total $4,190 per month. He lists $50 in a bank account. Based on the IFP Application, Smallwood's income falls significantly above the poverty threshold identified by the Department of Health and Human Services ("HHS") 2016 Poverty Guidelines. See HHS Poverty Guidelines, https://www.federalregister.gov/articles/2016/01/25/2016-01450/annual-update-of-the-hhs-poverty-guidelines (annual income of $23,190 for family of three living in Hawaii). The Court acknowledges that Plaintiff's enumerated monthly expenses and his stated debts consume much of his monthly income. Nevertheless, Plaintiff's IFP Application does not establish that he cannot both pay the costs of litigating this case "and still be able to provide himself . . . with the necessities of life." See Adkins, 335 U.S. at 339 (internal quotation marks omitted). Accordingly, the Court finds that Plaintiff has not made the required showing under Section 1915 to proceed without prepayment of fees, and his IFP Application is DENIED. If Smallwood wishes to proceed with this action, he must remit the appropriate filing fee.

II. Motion for TRO

A court may issue a TRO without written or oral notice to the adverse party only if the party requesting the relief provides an affidavit or verified complaint providing specific facts that "clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A).

Smallwood seeks, on an expedited basis,

[an] order of protection to have police officer assigned different beat as he has harassed and threatened to deprive me of life or liberty which has caused extreme mental and emotional distress.

Actually causes me great harm and damage every time I see him at the moment and for the welfare of my person is medically reasonable I should not have to endure fear and mental duress of the presence o[f] officer who has seriously violated my most fundamental civil and human rights to the point I am in fear for my life. Told by city and [HPD] that there is process that must be [fo]llowed even though it is slow and keeps me remaining in [imminent] danger of loss of freedom or life. A process that would not be necessary as immediate had my civil right of equal justice and due process not been violated by [HPD]. Had I been allowed to file police report and file charges which is 5[th] amendment right officer would not be on beat to create unimaginable mental duress.

. . . .

Again, I ask that the court intervene in this matter because of the serious nature of violations and as emergency as timing is that I face immense distress and danger. Plaintiff will file within days federal complaint of civil rights violations of federal and criminal nature but I need to survive and be free long enough to do that.

Complaint at unnumbered page 4.

Although the allegedly harassing HPD officer is not named anywhere on the face of the Complaint, appended to the Complaint are several exhibits, two of which clarify to a certain degree the otherwise vague allegations: (1) a Petition for Ex Parte Temporary Restraining Order, filed by Smallwood on September 9, 2016 against Corporal L. Juarez in the District Court of the First Circuit, State of Hawaii; and (2) a Honolulu Police Commission Complaint filed by Smallwood on September 6, 2016 against Corporal L. Juarez.

Here, neither the Complaint nor the exhibits attached thereto establish any plausible likelihood of irreparable injury. In the portion of the Court's form Complaint devoted to "irreparable injury," Smallwood states:

Because of intentional infliction extreme mental duress my disability has begun an episode so severe I will never be the same again. State Judge denied TRO against C&C Honolulu HPD Officer who by actions which violated numerous constitutional 5, 9, 14th Amendments when clearly I am suffering harm and in imminent danger.

Complaint at 5. Although Smallwood proclaims that he fears for his life, he has not provided any specific, credible facts establishing that immediate and irreparable injury, loss, or damage will result.

Smallwood also failed to certify in writing any efforts made to give notice to defendants or the reasons why notice should not be required before a TRO is considered or issued. See Fed.R.Civ.P. 65(b)(1)(B). Nor has Smallwood made any effort to demonstrate that notice is impossible or fruitless, as required for an ex parte TRO. Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (finding that a TRO was improperly issued because notice to the adverse party was neither impossible nor would it render the action fruitless).

Moreover, even if defendants did have notice of the Motion for TRO, Smallwood fails to meet the substantive burden to justify the remedy he seeks. Thestandard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1247 (D. Haw. 1999). A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). "That is, 'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Winter emphasized that plaintiffs seeking preliminary relief must demonstrate that "irreparable injury is likely in the absence of an injunction." 555 U.S. at 22; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

As discussed below, Smallwood fails to state a claim upon which relief may be granted against any defendant. In short, nothing in the Complaint demonstrates any past or imminent future injury caused by defendants sufficient to justify the relief sought. The allegations in the Complaint present no serious question that he is in danger of irreparable injury, that the balance of equities tips in his favor, or thatan injunction is in the public interest. Alliance for Wild Rockies, 632 F.3d at 1135. Accordingly, Smallwood's Motion for TRO is DENIED.

III. The Complaint Is Dismissed with Limited Leave to Amend

A. Standard of Review

The Court subjects each civil action commenced pursuant to Section 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...