Scanlan v. State Actors and Officials

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DANA SCANLAN,
Plaintiff,
vs.
STATE ACTORS AND OFFICIALS,
IN THEIR OFFICIAL CAPACITIES;
JEFFREY NG, JUDGE OF THE
FAMILY COURT OF THE THIRD
CIRCUIT, STATE OF HAWAII;
JUDGES OF THE HAWAII
INTERMEDIATE COURT OF
APPEALS, IN THEIR OFFICIAL
CAPACITIES , FOR PROSPECTIVE
INJUNCTIVE RELIEF ONLY;
JUSTICES OF THE HAWAII
SUPREME COURT, IN THEIR
OFFICIAL CAPACITIES, FOR
PROSPECTIVE INJUNCTIVE
RELIEF ONLY; CAROL A.
PLUMMER, COURT-APPOINTED
GUARDIAN AD LITEM/CUSTODY
EVALUATOR/REUNIFICATION
THERAPIST; WOODROW OSCAR
GRAY, OPPOSING PARENT; JO
KIM, ATTORNEY FOR MR. GRAY;
KRISTEN-MARIA MATTOS, DHS
CHILD WELFARE SERVICES;
MARCE MOSSMAN, DHS/CHILD
WELFARE SERVICES; KARLAN
OSORIO, DHS CHILD WELFARE
SERVICES; FNU HOOKANO,
OFFICER, HAWAII POLICE
DEPARTMENT; C. SIMEONA,
CIV. NO. 26-00069 LEK-RT
FINDINGS AND
RECOMMENDATION TO GRANT
APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT
PREPAYING FEES OR COSTS
AND DISMISS THE FIRST
AMENDED COMPLAINT
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OFFICER, HAWAII POLICE
DEPARTMENT; JOHN BALBERDE,
LIEUTENANT, JUVENILE AID
SECTION, HAWAII POLICE
DEPARTMENT; B. K. ARQUITOLA,
OFFICER, HAWAII POLICE
DEPARTMENT; N. L. YOEMAN,
OFFICER, HAWAII POLICE
DEPARTMENT; B. U. MARKHAM,
OFFICER, HAWAII POLICE
DEPARTMENT; R. K. N. PAGAN,
OFFICER, HAWAII POLICE
DEPARTMENT; T. ISHIBASHI,
OFFICER, HAWAII POLICE
DEPARTMENT; A. FA'ANUNU,
OFFICER, HAWAII POLICE
DEPARTMENT; J. FIGUEROA,
OFFICER, HAWAII POLICE
DEPARTMENT; K. PALEA,
OFFICER, HAWAII POLICE
DEPARTMENT; BENJAMIN
MOSZKOWICZ, CHIEF OF POLICE,
HAWAII POLICE DEPARTMENT;
KENNETH GOODENOW, DEPUTY
ATTORNEY GENERAL, STATE OF
HAWAII; ROXANNE COSTA,
SALVATION ARMY JUVENILE
FACILITY; SARAH LNU,
SALVATION ARMY JUVENILE
FACILITY (DOE DEFENDANT);
JONI LNU, SALVATION ARMY
JUVENILE FACILITY (DOE
DEFENANT); AND DOES 1-24,
INCLUDING ADDITIONAL LAW
ENFORCEMENT OFFICERS, DHS
PERSONNEL, JUDICIAL STAFF,
ETC.,
Defendants.
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FINDINGS AND RECOMMENDATION TO GRANT APPLICATION
TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING
FEES OR COSTS AND DISMISS THE FIRST AMENDED COMPLAINT
Plaintiff Dana Scanlan (“Plaintiff”), proceeding pro se, seeks to litigate this
case in forma pauperis, and has filed an Application to Proceed in District Court
Without Prepaying Fees or Costs (“IFP Application”) to do so. ECF No. 3.
Pursuant to Rule 7.1(d) of the Local Rules of Practice for the United States District
Court for the District of Hawaii (“Local Rules”), the Court decides to issue
findings and recommendation on this matter without a hearing.
After carefully considering the IFP Application, First Amended Complaint
(ECF No. 12) (“FAC”), applicable law and records in this case, the Court FINDS
that although Plaintiff has sufficiently demonstrated entitlement to proceed in
forma pauperis, after conducting the mandatory screening of the FAC, the Court
RECOMMENDS that the FAC should be DISMISSED WITHOUT
PREJUDICE and WITH LEAVE TO AMEND.
DISCUSSION
I. 	IFP Application
Plaintiff filed an IFP Application on February 12, 2026. ECF No. 3. In the
IFP Application, Plaintiff provided her estimated income, assets, expenses and
debts, and has declared that she has a minor dependent, her daughter. The Court
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shall review the IFP Application and may authorize the commencement and
prosecution of this lawsuit without the prepayment of fees if Plaintiff has
established that she is unable to pay the required fees. See Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948)) (the affidavit “is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the necessities of life”).
In determining whether to grant Plaintiff in forma pauperis status, the Court
considers whether Plaintiff’s income surpasses the poverty threshold, which is
determined by the Department of Health and Human Services (“HHS”) 2024
Poverty Guidelines. See Office of the Assistant Secretary for Planning and
Evaluation, Poverty Guidelines, https://aspe.hhs.gov/topics/poverty-economic-
mobility/poverty-guidelines (last visited March 31, 2026). The poverty threshold
figure is based on the number of people in a household. In this case, it appears that
Plaintiff resides in a two-person household. The poverty threshold for a two-
person household in Hawaii is $24,890.00 and $21,640.00 in the 48 contiguous
states and the District of Columbia.
Plaintiff claims that she receives Section 8 housing of $1,800.00 per month,
and normally, she receives variable income of approximately $700.00 per month.
However, currently, Plaintiff claims she is having issues with her vehicle and
blames “court-related disruptions” for her inability to continue working as a self-
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employed rideshare driver (Uber). ECF No. 3 at PageID.15. Under Plaintiff’s
current situation, her annual income is $21,600.00, which Plaintiff indicates is paid
directly to her landlord for her rent. This amount is below the poverty threshold
for a two-person household in Hawaii, the 48 contiguous states and the District of
Columbia. Even if the Court were to include with its calculation the estimated
$700.00 a month, Plaintiff’s estimated monthly expenses are approximately
$400.00 a month. The Court notes that this amount is likely understated,
especially since Plaintiff claims a modest $100 per month of food and household
necessities for two people. For these reasons, the Court cannot find that Plaintiff is
able to afford paying Court fees and still afford the necessities of life. The Court
thus finds it appropriate to award Plaintiff the status of in forma pauperis, and thus
RECOMMENDS that the IFP Application be GRANTED.
II. 	Screening of the Complaint
The Court’s inquiry into the IFP Application does not end with the
recommendation that Plaintiff should be granted in forma pauperis status. When a
plaintiff seeks to proceed in forma pauperis, the court must conduct a mandatory
screening of the operative complaint pursuant to 28 U.S.C. § 1915(e).
In this case, the operative complaint is the FAC. Plaintiff filed her original
Complaint on February 12, 2026. ECF No. 1. On February 23, 2026, before the
IFP Application has been ruled upon, Plaintiff filed a First Amended Complaint.
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ECF No. 12. Under Rule 15 in the Federal Rules of Civil Procedure (“Fed. R. Civ.
P.”), Plaintiff “may amend [her] pleading once as a matter of course no later than:”
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
Neither condition has occurred, but “[t]he court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). The Court will permit the FAC, but
reminds Plaintiff that because she may only amend her pleading once as a matter
of course, she may not file another amended pleading without seeking leave of
court by filing a motion or receiving the opposing party’s written consent. Id. Any
request for leave to amend a pleading must comply with Local Rule 10.4.
When screening the FAC, the Court construes Plaintiff’s pleadings liberally
because Plaintiff is proceeding pro se. Bernhardt v. Los Angeles Cty., 339 F.3d
920, 925 (9th Cir. 2003) (citations omitted). After careful review, there are several
reasons why the FAC should be dismissed. The Court shall discuss its reasoning
for each below.
A. 	The FAC is in Violation of Local Rule 10.4
At the outset, the Court notes that the FAC must be a stand-alone document
and may not incorporate by reference the original Complaint. This rule is set forth
in the Local Rules:
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Any party filing or moving to file an amended complaint, counterclaim,
third-party complaint, or answer or reply thereto shall reproduce the entire
pleading as amended and may not incorporate any part of a prior pleading
by reference, except with leave of court.
Local Rule 10.4 (emphasis added). The FAC does not contain factual allegations,
but lists names of defendants and descriptions of their employer or employment.
The FAC states that “[a]ll factual allegations, legal claims, jurisdiction statements,
and requests for relief set forth in the [original Complaint] filed February 9, 2026
are incorporated herein by reference and remain unchanged.” ECF No. 12 at
PageID.63 (emphasis added). The language in the FAC is in clear violation of
Local Rule 10.4 because the FAC attempts to incorporate by reference the original
Complaint. The FAC is not a stand-alone document and should thus be dismissed
in its entirety.
B. 	The FAC is in Violation of Fed. R. Civ. P. 15(a)(2)
Once a party has amended their pleading once as a matter of course, any
further amendment is governed by Fed. R. Civ. P. 15(a)(2):
(2) Other Amendments. In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The
court should freely give leave when justice so requires.
Rule 15 clearly sets forth the requirements of making further amendments –
Plaintiff must either (a) obtain the opposing’s party consent in writing or (b) must
obtain the court’s leave to file an amended pleading. However, the FAC states,
“Plaintiff reserves the right to amend this pleading to substitute true names for Doe
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defendants as discovery and public-records disclosures proceed.” ECF No. 12 at
PageID.66. Plaintiff may not claim to reserve the right to amend her FAC because
any further amendment is not a “right” and requires an approval pursuant to Fed.
R. Civ. P. 15(a)(2). If Plaintiff seeks to substitute the names for any Doe
defendants, she must seek leave of court to do so. Thus, Plaintiff’s statement to
“reserve the right to amend” her FAC is therefore in violation of Fed. R. Civ. P.
15(a)(2).
C. 	The FAC is in Violation of Fed. R. Civ. P. 8
All litigants, whether pro se or represented by counsel, are required to follow
the rules of civil procedure when litigating their case. Although the Court
construes Plaintiff’s pleading liberally because she is proceeding pro se, Plaintiff
must clearly set forth her allegations and clearly identify against whom she asserts
her claim. Rule 8 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) sets
forth the pleading standard and requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ.
P. 8(a)(2). “The Federal Rules require that averments ‘be simple, concise, and
direct.’” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Although the
federal rules adopt a flexible pleading policy, a complaint must “give[ ] fair notice
and state[ ] the elements of the claim plainly and succinctly.” Jones v. Cmty.
Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (citation omitted).
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Fed. R. Civ. P. 8 does not require detailed factual allegations, but the rule
“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citation omitted). “[A] complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. In this instance, the FAC is in violation of Fed. R. Civ. P. 8 in that the pleading
fails to state a claim in several different ways as explained below.
1. 	The FAC Fails to State a Claim for Relief
The FAC is essentially a list of names that Plaintiff claims are the defendants
in her lawsuit and does not contain any factual allegations. Instead, as noted in an
earlier section, the FAC improperly states that the original Complaint is
incorporated by reference. As stated previously, incorporation of the original
Complaint in the FAC by reference is not permitted.1 Even carefully reading the
1 If Plaintiff is permitted leave to amend the FAC, it is presumed that the
individuals named in the FAC would be the people who committed the acts alleged
in the original Complaint. Here, even if the original Complaint is viewed in light
of the FAC, which this Court has stated it declines to do, the original Complaint
generally refers to “Defendants” when describing all allegations, and there is no
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FAC liberally, there is no method of determining who is accused of what specific
omission or conduct. As a result, the FAC does not even make a “threadbare
recital” of a cause of action against any defendant and thus fails to state a claim for
relief and should be dismissed.
2. 	The Judges are Immune from Liability
The FAC lists several judges as defendants. ECF No. 12 at PageID.64.
Judge Jeffrey Ng of the Family Court of the Third Circuit, State of Hawaii is listed
by name. Other judges are listed generally as “Judges of the Hawaii Intermediate
Court of Appeals” and “Justices of the Hawaii Supreme Court.” Id.
“It is well established that judges are absolutely immune from liability for
acts done by them in the exercise of their judicial functions.” Guity v. Hawaii, Civ.
No. 21-00055 LEK-KJM, 2022 WL 106110, at *3 (D. Haw. Jan. 11, 2022) (citing
Sakuma v. Ass’n of Condominium Owners of Tropics at Waikele, Civ. No. 08-
00502 HG-KSC, 2009 WL 89119, at *3 (D. Hawai‘i Jan. 13, 2009); Miller v.
Davis, 521 F.3d 1142, 1145 (9th Cir. 2008)) (citation omitted). There are two
exceptions to the doctrine of judicial immunity: (1) actions that are taken “in the
complete absence of all jurisdiction[;]” and (2) “only judicial acts are protected by
absolute judicial immunity.” Id. (citations omitted).
way to determine—or even infer—which defendant is accused of committing
which act or omission.
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Although the Court and Local Rules do not permit Plaintiff to incorporate by
reference the original Complaint into the FAC, the Court cautions Plaintiff that
based on the facts of the original Complaint, her claims against the judges are
likely futile. Plaintiff alleges in the original Complaint that:
state courts repeatedly denied or ignored requests for protection while
continuing to permit new filings seeking custody control based on recycled
or unsupported allegations . . . Although the Intermediate Court of Appeals
later restored Plaintiff’s sole legal and physical custody, family-court
proceedings continued to impose or threaten child-specific medical,
psychological, and scheduling directives without adjudicated child-safety
findings and without lawful custodial authority.
ECF No. 1 at PageID.7. There are additional allegations that may apply to the
judicial defendants where Plaintiff refers to “Defendants” without identifying
which specific defendants, and claims that “Defendants” violated Plaintiff’s
Fourteenth Amendment rights “by subjecting them [sic] to repeated custody-
controlling and enforcement-oriented proceedings” and that Plaintiff was
“deprived of notice and a meaningful hearing . . . .” Id. Plaintiff also alleges First
Amendment violations by claiming that “Defendants . . . impos[ed] adverse
consequences, including labeling lawful objections as ‘non-compliance’ and using
enforcement pressure to compel silence or acquiescence.” Id. at 9. Plaintiff
further alleges that “Plaintiff[ is] suffering ongoing and irreparable harm as a direct
result of continued state-enabled coercive family-court proceedings and the
absence of effective judicial protection.” Id. at 10.
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It appears that Plaintiff may be seeking relief from state family court
proceedings and court ordered child-custody issues. In the original Complaint,
Plaintiff states that adjudicating child custody issues before the family court has
resulted in a coercive process where instead of helping her with her child custody
issues, the litigation itself has resulted in harm to herself and her child. ECF No. 1
at PageID.3-4. If these are the facts that underlie the claims Plaintiff intends to
allege against the judicial defendants, Plaintiff’s claim(s) would fail due to judicial
immunity. Plaintiff has not alleged that any of these court proceedings were held
in the absence of jurisdiction, and it is clear that her claims originate from judicial
acts determining child custody issues. Plaintiff is thus cautioned that when
amending her pleading, she must allege facts sufficient to overcome judicial
immunity. Otherwise, her claims against the judicial defendants will fail.
3. 	Plaintiff’s Claims Under 42 U.S.C. § 1983 Fail
In the original Complaint, Plaintiff alleges four claims: (1) Count I:
violation of the Fourteenth Amendment (Procedural Due Process); (2) Count II:
violation of the Fourteenth Amendment (Substantive Due Process); and (3) Count
III: First Amendment (Retaliation and Interference with Petitioning Activity). All
claims were brought pursuant to 42 U.S.C. § 1983. However, “[t]o state a valid
cause of action under 42 U.S.C. § 1983 for deprivation of a constitutional right,
[Plaintiff] must demonstrate that the deprivation occurs ‘under color of any statute,
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ordinance, regulation, custom, or usage of any State[.]’” Yellen v. Hara, Civ. No.
15-00300 JMS-KSC, 2015 WL 8664200, at *12 (D. Haw. Dec. 10, 2015) (quoting
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982)). In other words, the
allegations must establish that there was “state action” or that there was an action
under color of state law. Yellen, 2015 WL 8664200, at *12. This requirement
necessarily “excludes from [1983’s] reach merely private conduct, no matter how
discriminatory or wrongful.’” Id. (quoting American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999)) (internal quotation marks and citation omitted).
a. 	A Court-Appointed Defendant’s Actions are Not
Automatically Considered to be State Action
As explained previously, the FAC clearly fails to establish any of these
requirements as it merely lists names of defendants. See supra Part II.C.1.
However, if Plaintiff intends to amend her pleading using the facts alleged in the
original Complaint and apply them to the defendants listed in the FAC, Plaintiff
should be aware that the FAC only alleges constitutional violations pursuant to 42
U.S.C. § 1983. Because of this, Plaintiff must establish that each defendant’s
conduct constituted state action or that each defendant’s action(s) amounted to
state action. It is not enough to simply allege that a defendant, such as Carol A.
Plummer, court-appointed guardian ad litem, was appointed by the Court. See
Yellen v. Hara, Civ. No. 15-00300 JMS-KSC, 2015 WL 8664200, at *12 (D. Haw.
Dec. 10, 2015) (“a court-appointed guardian ad litem who acts independently and
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as an advocate for the best interests of a dependent person . . . does not act under
‘color of state law’ for purposes of § 1983”) (quoting Kirtley v. Rainey, 326 F.3d
1088, 1096 (9th Cir. 2003)).
b. 	To Allege a Section 1983 Claim against A Non-Government
Party, Plaintiff Must Establish that the Non-Government
Party’s Actions Amounted to State Action
It appears that Plaintiff may also allege constitutional violations pursuant to
42 U.S.C. § 1983 against non-government parties, such as defendants Woodrow
Oscar Gray, Jo Kim and the Salvation Army Juvenile Facility defendants.
However, a 1983 action can only be brought against a private party if that party “is
a willful participant in joint action with the State or its agents.” Id. (quoting
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)) (internal quotation mark
and citation omitted). If this is the case, Plaintiff should be aware that she will
have to establish that each non-government party’s actions amounted to a state
action by meeting four tests: “(1) the public function test; (2) the joint action test;
(3) the state compulsion test; and (4) the governmental nexus test.” Id. (quoting
Ohno v. Yasuma, 723 F.3d 984, 995 (9th Cir. 2013)) (citations and internal
editorial marks omitted).
c. 	Child Welfare Services Defendants
It appears that Plaintiff may intend to bring claims against employees of the
Department of Human Services (“DHS”), Child Welfare Services (“CWS”)
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department. ECF No. 12 at PageID.64. If Plaintiff is seeking injunctive relief
against a government officer in that officer’s official capacity, the claim must be
alleged against the employing entity. R.W. v. Columbia Basin Coll., 77 F.4th 1214,
1222 (9th Cir. 2023) (citation omitted). The courts “treat a claim against a
government officer in her official capacity as a claim against the employing
entity.” Id. Thus, “[a]n official-capacity suit for injunctive relief is properly
brought against persons who ‘would be responsible for implementing any
injunctive relief.’” Id. (quoting Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir.
2012)) (citation omitted).
However, claims against DHS are barred as a matter of law. McCoy v. State
of Hawaii Dep’t of Hum. Serv., Civ. No. 21-00063 LEK-RT, 2021 WL 5040197, at
*7 (D. Haw. Oct. 29, 2021)). This is because the Supreme Court has determined
that “a state agency, is not a ‘person’ under § 1983.” Id. (citations omitted).
Moreover, “[t]he Eleventh Amendment bars claims for damages against a state
official acting in his or her official capacity.” Id. (quoting Mitchell v. Washington,
818 F.3d 436, 442 (9th Cir. 2016) (citation omitted). In other words, Plaintiff
should be aware that she may not sue the employees of CWS in their official
capacity. However, the Eleventh Amendment “does not . . . bar claims for
damages against state officials in their personal capacities.” Id., 2021 WL
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5040197 at *8 (quoting Mitchell, 818 F.3d at 442). (citation omitted). Thus, “[a]
state official may be sued under § 1983 in their individual capacity.” Id.
d. 	The Prosecutor is Immune from Liability
The Court is not aware of why Plaintiff names Attorney Kenneth Goodenow
in the FAC as a defendant. Because the FAC lacks any factual allegation and the
original Complaint lacks any reference to Mr. Goodenow, the Court is unable to
determine what claims Plaintiff plans to assert against him. However, Plaintiff
should be aware that the Supreme Court of Hawaii has determined that “the
judicially fashioned immunity still shields the county prosecutors and their
deputies in their individual capacities, as such county prosecutors enjoy absolute
immunity from § 1983 suits for damages when they act within the scope of their
prosecutorial duties.” Gonsalves v. Alm, Civ. No. 25-00053 SASP-WRP, 2025
WL 2182693, at *1 (D. Haw. June 26, 2025) (citation omitted). In other words,
absolute prosecutor immunity applies to Attorney Kenneth Goodenow, provided
that he was acting within the scope of his duties.
D. 	Use of Artificial Intelligence
It appears that Plaintiff may have used artificial intelligence (“AI”) to draft
her original Complaint because the original Complaint fails to name any defendant.
The original Complaint also reads excessively broad and technical with little
factual allegations. However, it is also possible that Plaintiff may have used
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another source to draft her original Complaint. Regardless, the Court cautions
Plaintiff about using AI to draft her pleading because AI has been known to result
in fictional citations, and if used in this context where factual allegations are
sparse, AI may allege fictional facts. See In re Snowflake, Inc., No. MDL 3126,
2026 WL 323102, at *2 (U.S. Jud. Pan. Mult. Lit. Feb. 5, 2026). The Court also
reminds Plaintiff that it is Plaintiff’s responsibility to carefully review all case
citations, quotes and factual allegations before submitting them to the Court. “In
addition, in future submissions in which [she] has made use of AI, [she] must
submit a declaration therewith that (1) discloses [her] reliance on AI and (2)
verifies that [she] has confirmed that the materials generated are not fictitious.”
Martin v. Hawaii, Civ. No. 24-00294 MWJS-WRP, 2024 WL 3877013, at *2 (D.
Haw. Aug. 20, 2024), appeal dismissed sub nom. Hawaii v. Martin, Civ. No. 24-
5447, 2024 WL 5007071 (9th Cir. Nov. 5, 2024) (citing United States District
Court for the District of Hawai‘i, General Order 23-1, In Re: Use of Unverified
Sources (Nov. 14, 2023)).
E. 	Leave to Amend
Despite the foregoing deficiencies, Plaintiff is proceeding pro se and the
deficiencies could potentially be cured by amendment. See Tripati v. First Nat’l
Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987) (“pro se plaintiffs proceeding
in forma pauperis must also be given an opportunity to amend their complaint
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unless it is absolutely clear that the deficiencies of the complaint could not be
cured by amendment”) (citations omitted). The Court thus recommends that the
Complaint be dismissed without prejudice and that Plaintiff be permitted leave to
file an amended complaint.
Plaintiff shall not file an amended complaint until the district court renders a
decision on this Court’s Findings and Recommendation to Grant Application to
Proceed in District Court Without Prepaying Fees or Costs and Dismiss the First
Amended Complaint (“Findings and Recommendation”) and grants Plaintiff leave
to amend the FAC. If Plaintiff is granted leave to amend, Plaintiff shall title the
amended pleading “Second Amended Complaint” (“SAC”) and must address the
deficiencies noted in this Findings and Recommendation and/or in the district
court’s order, as directed by the district court. Plaintiff shall also comply with the
deadline set forth by the district court to file the SAC.
Failure to cure the deficiencies identified in the district court’s order or
failure to timely file an amended pleading that conforms with the district court’s
order may result in dismissal of this action without leave to amend. Plaintiff is
reminded that if an SAC is filed, the original pleading may not be incorporated into
the amended pleading, and the prior pleadings—the original Complaint and FAC—
shall no longer serve any function in this case. The Court reminds Plaintiff to state
all claims clearly and concisely, but with enough factual allegations to determine
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from the face of the SAC that Plaintiff has stated a claim upon which relief can be
granted.
CONCLUSION
Based on the foregoing, the Court FINDS that Plaintiff is unable to pay the
required fees and RECOMMENDS that the district court GRANT the IFP
Application. However, the Court FINDS that the Complaint fails to state a claim
and RECOMMENDS that the FAC be DISMISSED without prejudice with leave
to amend.
IT IS SO FOUND AND RECOMMENDED.
DATED: Honolulu, Hawaii, March 31, 2026.
Civ. No. 26-00069 LEK-RT; Dana Scanlan vs. State Actors and Officials, in Their
Official Capacities, et al.; Findings and Recommendation to Grant Application to
Proceed in District Court Without Prepaying Fees or Costs and Dismiss the First
Amended Complaint
Rom A. Trader
United States Magistrate Judge
Andrade
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