United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NO. 1) AND COMPLAINT (ECF NO. 1-2)
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court are pro se Plaintiff David Shu's
application to proceed in forma pauperis (ECF No. 1)
and complaint (ECF No. 1-2). For the reasons stated below,
Shu's in forma pauperis application is granted.
The Court, however, orders that Shu's complaint be
dismissed without prejudice.
filings present two questions: (1) whether Shu may proceed
in forma pauperis under 28 U.S.C. § 1915(e) and
(2) whether Shu's complaint states a plausible claim for
relief. Each is discussed below.
Whether Shu May Proceed In Forma Pauperis
's application to proceed in forma pauperis is
granted. Under 28 U.S.C. § 1915(a)(1), a plaintiff may
bring a civil action “without prepayment of fees or
security thereof” if the plaintiff submits a financial
affidavit that demonstrates the plaintiff “is unable to
pay such fees or give security therefor.” According to
Shu's affidavit, he receives $1, 307 per month from
Social Security and the vast majority of that amount is used
to cover monthly expense such as housing payments and
utilities. (ECF No. 1). Plaintiff's application to
proceed in forma pauperis is, therefore, granted.
Whether Shu's Complaint States a Plausible Claim
the Court grants Shu's application to proceed in
forma pauperis, it must review Shu's complaint to
determine whether the complaint is frivolous, malicious, or
fails to state a plausible claim. 28 U.S.C. §
1915(e)(2)(B). Federal Rule of Civil Procedure 8(a) provides
that a complaint “that states a claim for relief”
must contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.”
The Supreme Court's decision in Ashcroft v.
Iqbal states that to satisfy Rule 8's requirements,
a complaint's allegations must cross “the line from
conceivable to plausible.” 556 U.S. 662, 680 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 547, (2007)).
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). If the Court dismisses a complaint under §
1915(e), the plaintiff should be given leave to amend the
complaint with directions as to curing its deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
complaint is difficult to follow. It is 69 pages long, not
taking into account the attached exhibits. (ECF No. 1-2).
Though there are two defendants named in the caption, Shu
often refers to a “Defendant” without indicating
which of the defendants the statement applies to. It is
unclear whether Shu intended to include the Santa Maria Post
Office as a defendant in addition to the individual
Postmaster General, as Shu refers to “Defendant Sierra
Costal District office” on several occasions.
(Id. at 32). On several occasions, Shu refers to
Johnny Ala as a “Defendant, ” although Ala is not
named in the caption. (Id. at 28). Shu spends many
pages going into great depth regarding Mr. Bacilio, who is
also not named as a defendant. (Id. at 5-27).
these reasons, Shu's complaint does not constitute a
“short and plain statement of the claim showing that
the [plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a). Shu must amend the complaint to clarify the parties
involved and focus on the facts relevant to his claims. To
provide further guidance, the Court will also analyze the
merits of Shu's complaint, to the extent possible.
Jurisdiction and Venue
major allegations in Shu's complaint are that, after a
false accusation of causing a car accident, he was wrongfully
terminated by the Santa Maria Post Office in 2013 and put
through fraudulent arbitration related to his termination in
2015. (ECF No. 1-2 at 2-5). Shu brings a claim for fraud
against the arbitrator and claims for negligence, wrongful
payment on a fraudulent claim, intentional infliction of
emotional distress, and due process violations against the
Postmaster General. (Id. at 54-65). Shu asks that
the Court to vacate the arbitration award, reinstated him to
his job with the Santa Maria Post Office, and compensate him
for Defendants' actions. (Id. at 69). Shu
asserts the Court has jurisdiction over this case based on
diversity of citizenship and federal questions. (Id.
at 1-2). According to the complaint, Defendants are residents
of California and the District of Columbia. (Id. at
Defendants' out-of-state residences make it possible for
the Court to have diversity jurisdiction over this case. 28
U.S.C. § 1332(a)(1). However, they also make it doubtful
that this Court has personal jurisdiction over the Defendants
or could be considered a proper venue. “Constitutional
due process requires that defendants ‘have certain
minimum contacts' with a forum state ‘such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.'” Morrill
v. Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017)
(quoting Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). The rules regarding proper venue emphasize