1 2 3 4 5 IN THE DISTRICT COURT 6 FOR THE TERRITORY OF GUAM 7 8 CLIFFORD HACKETT, ) CIVIL CASE NO. 20-00002 ) 9 Plaintiff, ) ORDER ) 1. Dismissing Complaint with Leave 10 vs. ) to Amend ) and 11 REGAL GUAM, ) 2. Denying Application to Waive ) Fees, File by Fax and to Serve 12 Defendant. ) Opposing Party by Fax or Email ) 13 14 This matter is before the court on the Plaintiff’s “3Part Motion” requesting, in part, a waiver 15 of the filing fees. See ECF No. 2. 16 I. In Forma Pauperis Application 17 Plaintiff is proceeding in this action pro se, without an attorney. Among other things, he has 18 requested to proceed in forma pauperis, meaning without paying the required filing fee.1 19 Section 1915(a)(1) permits a court to authorizes a person to commence a civil action without 20 prepaying the required filing fee if said person “submits an affidavit [stating] that the person is 21 unable to pay such fees[.]”

(a)(1).2 22 Here, the court will construe the Plaintiff’s motion, see ECF No. 2, as the “affidavit” required 23 24 1 Pursuant to

(a) and the Judicial Conference Schedule of Fees, a $400 filing fee is required to from the party instituting any civil action in federal court. 25 2 Under this statute, federal courts can authorize the filing of a law suit without prepayment 26 of fees or security by a person who submits an affidavit that includes a statement setting forth all the 27 person’s assets and demonstrates an inability to pay such costs or give such security. Here, the Plaintiff is proceeding pro se, so the court will construe his motion, see ECF No. 2, as the “affidavit” 28 required under

(a)(1). 1 under Section 1915(a)(1). Based on said motion, the Plaintiff’s only income is “$600 social 2 security” and he pays $500 for rent. While it appears that the Plaintiff has demonstrated that he does 3 not have the resources to pay the filing fee, this does not end the court’s inquiry. The court must still 4 subject the Plaintiff’s Complaint to mandatory screening before allowing the case to move forward 5 and issue summons, requiring an answer or responsive pleading. See Lopez v. Smith,

, 6 1126-27 (9th Cir. 2000) (en banc). 7 II. Screening Complaint 8 Pursuant to

(e), the court is required to review the complaint and dismiss 9 the case if the court determines that the action is “frivolous or malicious,” “fails to state a claim upon 10 which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 11 relief.”

(e)(2)(B); Lopez,

(stating that

(e) “not 12 only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails 13 to state a claim). “A complaint is frivolous within the meaning of § 1915(d) if it lacks an arguable 14 basis either in law or in fact.” Cato v. United States,

(9th Cir. 1995) (citing 15 Denton v. Hernandez,

(1992)). 16 When screening a complaint, the court is mindful that allegations of a pro se complaint are 17 held to less stringent standards than the pleadings drafted by attorneys. Erickson v. Pardus, 551 18 (U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, 19 however, inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 20 by lawyers.”) (internal quotations marks and citation omitted); Hebbe v. Pliler,

, 342 21 n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after Ashcroft v. 22 Iqbal,

(2007)). However, pro se litigants “should not be treated more favorably than 23 parties with attorneys of record,” Jacobsen v. Filler,

(9th Cir. 1986); rather, 24 they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran,

52, 54 (9th Cir. 1995). 26 A complaint must meet the requirements of Federal Rule of Civil Procedure 8, which 27 mandates that a complaint include 28 (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the 1 court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to 2 relief; and (3) a demand for the relief sought, which may include relief in the alternative or 3 different types of relief. 4 Fed. R. Civ. P. 8(a). 5 Here, the Complaint appears to assert a claim for relief for alleged violations of the 6 Americans with Disabilities Act (“ADA”),

et seq. To satisfy the Constitution’s 7 Article III standing requirements, a plaintiff seeking injunctive relief to remove architectural barriers 8 in an action alleging ADA violations “requires a sufficient showing of likely injury in the future 9 related to the plaintiff’s disability to ensure that injunctive relief will vindicate the rights of the 10 particular plaintiff rather than rights of third parties.” Chapman v. Pier 1 Imports (U.S.) Inc., 631

(9th Cir. 2011). “[A]n ADA plaintiff can show a likelihood of future injury when he 12 intends to return to a noncompliant accommodation and is therefore likely to reencounter a 13 discriminatory architectural barrier. Alternatively, a plaintiff can demonstrate sufficient injury to 14 pursue injunctive relief when discriminatory architectural barriers deter him from returning to a 15 noncompliant accommodation.”

. According to the Ninth Circuit: 16 An ADA plaintiff must show at each stage of the proceedings either that he is 17 deterred from returning to the facility or that he intends to return to the facility and is therefore likely to suffer repeated injury. He lacks standing if he is indifferent to 18 returning to the store or if his alleged intent to return is not genuine, or if the barriers he seeks to enjoin do not pose a real and immediate threat to him due to his particular 19 disabilities. 20

. The party invoking federal jurisdiction bears the burden of satisfying each of Article III’s 21 standing requirements. See FW/PBS, Inc. v. City of Dallas,

(1990). 22 In this case, the court finds a number of deficiencies with the Plaintiff’s Complaint. First, 23 the Complaint lacks factual allegations to establish that the Plaintiff has standing to bring a claim 24 under the ADA. In order for a plaintiff to establish standing in the context of an ADA claim, he 25 must allege that he “personally suffered discrimination as defined by the ADA as to encountered 26 barriers on account of his disability.”

The Complaint fails to identify the specific barriers at the 27 business, nor does the Complaint indicate how his disability was affected by the said barriers so as 28 1 to deny him full and equal access. The Complaint merely asserts that “Defendant “blocks disabled” 2 and “Defendant’s business has barriers,” Compl. at ¶¶ 5, 10 and 13. The Complaint fails to allege 3 what the specific architectural barriers are and fails to connect the alleged barriers to his disability. 4 Furthermore, the Complaint does not contain any factual allegations describing how the barriers 5 precluded or deterred the Plaintiff from accessing the Defendant’s business. While the Complaint 6 states that “Plaintiff wants to use the [D]efendant’s business,” id. at ¶18, the Complaint does not 7 assert that the alleged barriers deterred the Plaintiff from visiting or patronizing the business due to 8 his disability. Plaintiff does not allege any past patronage of the Defendant’s business, the proximity 9 of said business to his residence, any specific instances of deterrence, and that he would patronize 10 the business but for the barriers. Although the court must liberally construe the pleadings of a pro 11 se litigant, “a pro se litigant is not excused from knowing the most basic pleading requirements.” Am. 12 Ass’n of Neuropathic Physicians v. Hayhurst,

(9th Cir. 2000). A complaint 13 “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing 14 party to defend itself effectively.” Starr v. Baca,

(9th Cir. 2011). 15 Second, the Complaint fails to allege that the Plaintiff is a person with a disability. The 16 Complaint is only one page in length, and none of the 20 numbered paragraphs alleges that the 17 Plaintiff has a disability. See Compl., ECF No. 1. The Plaintiff’s application requesting a waiver 18 of the filing fees does assert that the Plaintiff is “deaf/blind.” See ECF No. 2. There is no indication 19 why the Plaintiff could not have included this assertion in the Complaint. As noted above, Rule 8(a) 20 requires that a complaint must contain a “short and plain statement of the claim showing that the 21 pleader is entitled to relief.” A complaint must state the elements of the claim, and here the 22 Plaintiff’s Complaint fails to state an important element of his ADA – that he is a person with a 23 disability. 24 Because the allegations in the Plaintiff’s Complaint are insufficient to satisfy his burden to 25 establish standing under the Ninth Circuit’s standard set forth in Chapman and fails to meet the 26 pleading requirements of Rule 8(a), the court hereby dismisses the Complaint without prejudice. 27 III. Leave to Amend 28 When dismissing a complaint, a court should grant leave to amend “unless it determines that Clifford Hackett v. Regal Guam, Civil Case No. 20-00002 Order page 5 of 5 1 || the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith,

|| 1122, 1127 (9th Cir. 2000). Plaintiff may be able to overcome the identified standing defects by 3 |] amending his Complaint. Because Plaintiff is a pro se litigant, he is“entitled to notice of the 4 || complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. 5 || Dep’t of Corr.,

(9th Cir. 1995) (per curiam). Plaintiff is directed to add more 6 || specific allegations that explain that he is a person with a disability, what barriers did he encounter 7 || at the Defendant’s business, when and how Plaintiff personally encountered the alleged barriers, how 8 || he was affected or deterred by barriers on account of his specific disability. Any amended complaint 9 || must be complete within itself without reference to any prior pleading or document filed by the 10 Plaintiff. IV. Conclusion 12 Under the Ninth Circuit’s standard set forth in Chapman, the allegations in the Plaintiff's 13 || Complaint are insufficient to satisfy his burden to establish standing. Accordingly, the court denies 14 || his application to waive filing fees and hereby dismisses the Complaint with leave to amend. The 15 || court ORDERS the Plaintiff to file an amended complaint no later than September 15, 2020. Failure 16 || to file an amended complaint may result in the dismissal of the action pursuant to Rule 41(b) of the 17 || Federal Rules of Civil Procedure. Finally, the Plaintiff's requests to file by fax and to serve the 18 || opposing party by fax or email, see ECF No. 2, are denied without prejudice, subject to the Plaintiff 19 || renewing said requests upon the filing of an amended complaint. 20 IT IS SO ORDERED. 71 Lys /s/ Frances M. Tydingco-Gatewood 22 ne. Chief Judge 33 ae □ Dated: Aug 26, 2020

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