Pasene v. Correa et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IOSEFA PASENE,
Plaintiff,
vs.
HONOLULU POLICE CHIEF
BOISSE CORREA, et al.,
Defendants.
Case No. 21-cv-427-DKW-KJM
ORDER (1) GRANTING
PLAINTIFF’S APPLICATION TO
PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR
COSTS; AND (2) DIRECTING
SERVICE OF THE COMPLAINT1
On October 29, 2021, Plaintiff Iosefa Pasene, proceeding pro se, filed a
Complaint against six current and/or former members of the Honolulu Police
Department and the City and County of Honolulu2 (collectively, “Defendants”),
alleging myriad civil rights violations. Dkt. No. 1. Pasene’s claims arise from
Defendants’ actions between 2009 and 2019 that led to his incarceration for over
ten years without a criminal conviction. Id. Pasene also filed an application to
proceed in forma pauperis (“IFP Application”). Dkt. No. 4.
1 Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing.
2 Five of the HPD defendants are named (former Chief Boisse Correa, Detectives Gregory
McCormick and Theodore Coons, and Officers Daniel Sellers and Albert Lee), while one is
identified only as John Doe. Dkt. No. 1 at 1. The City and County of Honolulu is named in
Count 6, but not on the cover page of the Complaint. Id. at 13.
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DISCUSSION
I. 	IFP Application
Federal courts may authorize the commencement of any civil suit without
prepayment of fees or security by a person who submits an affidavit that
demonstrates his inability to pay. See 28 U.S.C. § 1915(a)(1). The litigant must
“allege poverty with some particularity, definiteness, and certainty,” Escobedo v.
Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation omitted), but he is not
required to demonstrate absolute destitution. Adkins v. E. I. Du Pont de Nemours
& Co., 335 U.S. 331, 339 (1948). “[W]here the affidavit[ is] written in the
language of the statute, . . . [it] should ordinarily be accepted.” Id.
Here, Pasene has made the required showing under Section 1915(a). In his
IFP Application, Pasene alleges he receives $626 in take-home pay per week—
$2,712.67 per month—from his employment at Spectra 360 in Burlingame,
California. See Dkt. No. 4. He has $0 in checking and savings, owns no assets of
value, and owes $18,000 for his furniture and car. Id. His rent, furniture and car
loans, insurance, and utilities total $1,964 per month. Id. That leaves $748.67 for
monthly living expenses for himself and his minor daughter, whom he supports.
See id.
The Court finds that these financial circumstances sufficiently demonstrate
Pasene’s inability to pay the costs and fees associated with litigation in federal
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court. Although Pasene’s income does not put him under the poverty guideline for
a two-person household in California,3 he has alleged under penalty of perjury and
with particularity that he is “unable to pay the costs of these proceedings.” See
Adkins, 335 U.S. at 339. Thus, the Court GRANTS the IFP Application, Dkt. No.
4.
II. 	Service
Because Pasene has been granted leave to proceed in forma pauperis, and
because his claims have not been dismissed,4 the Court finds that service of
summons and the Complaint is appropriate. To facilitate service, the Court
ORDERS as follows:
1. For each of the six (6) named Defendants (five individual defendants,
plus the City and County), the Clerk’s Office is directed to send to
Plaintiff: one copy of the Complaint, Dkt. No. 1; one summons; one
USM-285 form; one Notice of Lawsuit and Request for Waiver of
Service of Summons form (AO 398); two Waiver of Service of Summons
3See HHS Poverty Guidelines (updated Jan. 13, 2021), https://aspe.hhs.gov/poverty-guidelines
(last visited Nov. 30, 2021) (stating that the poverty guideline for a two-person household in the
48 contiguous states and the District of Columbia is $17,420, or $1,452 per month).
4 The Court subjects each civil action commenced pursuant to 28 U.S.C. § 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 monetary relief from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). In conducting this screen, the Court liberally
construes a pro se litigant’s filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this initial stage of proceedings, and without
any responsive pleading from Defendants, the Court has screened the Complaint and finds
service of the same to be appropriate.
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forms (AO 399); an instruction sheet; and a copy of this Order. The
Clerk shall also send a copy of this Order to the U.S. Marshal.
2. For each of these named Defendants, Plaintiff shall complete the forms as
directed and submit the following documents to the U.S. Marshal in
Honolulu, Hawai’i: a completed USM-285 form; a copy of the
Complaint; the summons; a completed Notice of Lawsuit and Request for
Waiver of Service of Summons form (AO 398); and two (2) completed
Waiver of Service of Summons forms (AO 399).
3. Upon receipt of these documents from Plaintiff, the U.S. Marshall shall
mail to each Defendant: a copy of the Complaint; a completed Notice of
Lawsuit and Request for Waiver of Service form (AO 398); and two (2)
completed Waiver of Service of Summons forms (AO 399), as directed
by Plaintiff without payment of costs. See Fed. R. Civ. P. 4(c)(3).
4. The U.S. Marshal shall retain the summons and a copy of the Complaint.
For each Defendant, the U.S. Marshal shall file a returned Waiver of
Service of Summons form as well as any Waiver of Service of Summons
form that is returned as undeliverable, as soon as it is received.
5. If a Defendant does not return a Waiver of Service of Summons form
within sixty days from the date that such forms are mailed, the U.S.
Marshal shall:
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a. 	Personally serve such Defendant pursuant to Rule 4 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 566(c).
b. Within ten days after personal service is effected, file the return of
service for such Defendant, along with evidence of any attempts to
secure a waiver of service of summons and of the costs
subsequently incurred in effecting service. Said costs shall be
enumerated on the USM-285 form and shall include the costs
incurred by the U.S. Marshal’s office in photocopying additional
copies of the summons and the Complaint and for preparing new
USM-285 forms, if required. Costs of service will be taxed against
the personally served Defendant in accordance with the provisions
of Federal Rule of Civil Procedure 4(d)(2).
6. If Pasene does not wish to use the U.S. Marshal for service, as outlined
above, he may serve the Defendants on his own, in compliance with
Federal Rule of Civil Procedure 4.
7. Pasene is cautioned that if he fails to comply with this Order and his non-
compliance prevents timely and proper service as set forth in Federal
Rule of Civil Procedure 4(m), this action is subject to dismissal for
failure to serve.
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8. After service of the summons and the Complaint, whether accomplished
on his own or with the service of the U.S. Marshal, Pasene must serve on
Defendants or their attorneys a copy of all further documents he submits
to the Court. The U.S. Marshal is not responsible for serving such further
documents on Plaintiff’s behalf. Pasene shall include, with any original
paper filed with the Clerk of Court, a certificate stating the date that a
copy of the document was served on Defendants or their counsel, and the
manner in which service was accomplished. Any paper received by a
District or Magistrate Judge that has not been filed with the Clerk of
Court or that does not include a certificate of service will be disregarded.
9. Pasene is further notified that he must comply with the Federal Rules of
Civil Procedure and the Local Rules for the District of Hawai’i.
IT IS SO ORDERED.
DATED: November 30, 2021 at Honolulu, Hawai’i.
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Iosefa Pasene v. Honolulu Police Chief Boisse Correa, et al; Civil No. 21-00427
DKW-KJM; ORDER (1) GRANTING PLAINTIFF’S APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR
COSTS; AND (2) DIRECTING SERVICE OF THE COMPLAINT
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