Wentworth v. AT &T

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 DAWN WENTWORTH, Case No. 21-cv-01937-BAS-AGS 7 Plaintiff, ORDER: 8 9 v. (1) GRANTING MOTION FOR LEAVE TO PROCEED IN 10 A T&T, FORMA PAUPERIS (ECF No. 2); 11 Defendant. (2) DENYING MOTION TO 12 APPOINT COUNSEL 13 (ECF No. 3); AND 14 (3) DISMISSING COMPLAINT 15 DAWN WENTWORTH, Case No. 21-cv-01942-BAS-AGS 16 Plaintiff, 17 ORDER:

18 v. (1) CONSOLIDATING CASE; 19 XFINITY, 20 Defendant. (2) GRANTING MOTION FOR LEAVE TO PROCEED IN 21 FORMA PAUPERIS (ECF No. 2);

22 (3) DENYING MOTION TO 23 APPOINT COUNSEL (ECF No. 3); AND 24 25 (4) DISMISSING COMPLAINT 26 27 28 1 On April 16, 2021, Ms. Dawn Wentworth, on her own behalf and on behalf of her 2 two children, Yaw Appiah and Journee Hudson, filed 74 complaints in this federal district 3 court. Many of these complaints are duplicative, suing the same defendants with the same 4 allegations. The Court issued an order consolidating most of the cases. (Case No. 21-cv- 5 00757-BAS-AGS, Electronic Case Filing (“ECF”) No. 5.) The Court also issued an order 6 setting a hearing to discuss Ms. Wentworth’s many lawsuits. (Id., ECF No. 8.) Ms. 7 Wentworth did not appear at the hearing. (Id., ECF No. 10.) 8 In November 2021, Ms. Wentworth filed more than a dozen additional lawsuits, 9 including the two matters shown above against AT&T and Xfinity. Both lawsuits include 10 allegations regarding an internet service provider and home security system. In each 11 lawsuit, Ms. Wentworth moves to proceed in forma pauperis (“IFP”) and for appointment 12 of counsel. For the following reasons, the Court grants the requests to proceed IFP, 13 consolidates these cases, denies the motions to appoint counsel, and dismisses the actions 14 with prejudice. 15 I. Motions to Proceed In Forma Pauperis 16 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 17 required fees or security to commence a legal action may petition the court to proceed 18 without making such payment. The determination of indigency falls within the district 19 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 20 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 21 discretion in determining whether the affiant has satisfied the statute’s requirement of 22 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party 23 need not be completely destitute to proceed in forma pauperis (“IFP”)—without paying 24 the filing fee. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To 25 satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient 26 which states that one cannot because of his poverty pay or give security for costs . . . and 27 still be able to provide himself and dependents with the necessities of life.” Id. at 339. At 28 the same time, however, “the same even-handed care must be employed to assure that 1 federal funds are not squandered to underwrite, at public expense . . . the remonstrances of 2 a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 3 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 4 Having read and considered Ms. Wentworth’s motions, the Court finds that she 5 meets the requirements in 28 U.S.C. § 1915 for IFP status. Ms. Wentworth has two 6 children and lists expenses exceeding her income. She is not employed and has minimal 7 assets. Under these circumstances, the Court finds that requiring Ms. Wentworth to pay 8 the court filing fees would impair her ability to obtain the necessities of life. See Adkins, 9 335 U.S. at 339. Therefore, the Court GRANTS Ms. Wentworth’s requests to proceed 10 without paying the filing fees for these two cases. 11 II. Consolidation 12 Federal Rule of Civil Procedure 42(a)(2) provides that when “actions before the 13 court involve a common question of law or fact, the court may . . . consolidate the actions.” 14 “The primary purpose of the rule is to promote trial court efficiency and avoid the danger 15 of inconsistent adjudications.” Malone v. Strong, No. 3:16-CV-05284-RBL-DWC, 2016 16 WL 3546037, at *4 n.2 (W.D. Wash. May 20, 2016). Courts may consolidate cases on 17 their own initiative. In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987) 18 (“Because consolidation is within the broad discretion of the district court, . . . trial courts 19 may consolidate cases sua sponte.”). 20 Here, the Court finds consolidation is appropriate for the two cases listed above. 21 They were filed on the same day and raise similar allegations against AT&T and Xfinity 22 concerning the same subject matter. Therefore, the Court will consolidate the cases and 23 address the sufficiency of their pleadings and Ms. Wentworth’s requests for appointment 24 of counsel together. 25 III. Appointment of Counsel 26 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 27 Tr. Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, federal courts do not 28 have the authority “to make coercive appointments of counsel.” Mallard v. U.S. District 1 Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 2 54 F.3d 564, 569 (9th Cir. 1995). 3 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1) to 4 “request” that an attorney represent indigent civil litigants upon a showing of “exceptional 5 circumstances.” See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); 6 accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). “A finding of the 7 exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation 8 of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s 9 ability to articulate his claims ‘in light of the complexity of the legal issues involved.’” 10 Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 11 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 12 Here, Ms. Wentworth seeks appointment of counsel for these cases because she 13 argues she lacks funds to hire an attorney and has no legal training. (No. 21-cv-1937, ECF 14 No. 3; No. 21-cv-1942, ECF No. 3.) Having reviewed Ms. Wentworth’s requests, the 15 Court concludes there are not “exceptional circumstances” warranting an appointment in 16 these cases. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2004). Therefore, the Court 17 DENIES Ms. Wentworth’s Motions for Appointment of Counsel. 18 IV. Screening of Complaints 19 Because she is proceeding IFP, Ms. Wentworth’s Complaints are subject to 20 screening. Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action where the 21 plaintiff is proceeding IFP if the court determines that the action “is frivolous or malicious.” 22 An IFP complaint “is frivolous if it has ‘no arguable basis in fact or law.’” O’Loughlin v. 23 Doe, 920 F.2d 614, 617 (9th Cir. 1990) (quoting Franklin v. Murphy, 745 F.2d 1221, 1228 24 (9th Cir. 1984)). This standard grants the court “the unusual power to pierce the veil of the 25 complaint’s factual allegations and dismiss those claims whose factual contentions are 26 clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Consequently, “a court 27 is not bound, as it usually is when making a determination based solely on the pleadings, 28 1 to accept without question the truth of the plaintiff’s allegations.” Denton v. Hernandez, 2 504 U.S. 25, 32 (1992). 3 Clearly baseless factual allegations include those “that are ‘fanciful,’ ‘fantastic,’ and 4 ‘delusional.’” Denton, 504 U.S. at 32–33 (quoting Neitzke v. Williams, 490 U.S. 319, 325, 5 327, 328 (1989)). Accordingly, “a finding of factual frivolousness is appropriate when the 6 facts alleged rise to the level of the irrational or the wholly incredible, whether or not there 7 are judicially noticeable facts available to contradict them.” Id. at 33. These outlandish 8 claims are those “with which federal district judges are all too familiar.” Neitzke, 490 U.S. 9 at 328. 10 Ms. Wentworth claims Defendant Xfinity (Comcast) breached a home security 11 contract. (No. 21-cv-1942, Compl., ECF No. 1.) Specifically, she claims Xfinity sent out 12 a technician “with extremely bad hygiene and smell” who installed faulty equipment and 13 sensors. (Id.) She also claims a supervisor “walked the neighborhood” and harassed her, 14 saying “glad I know where you live,” leading to her filing a police report. (Id.) For this 15 conduct, Ms. Wentworth requests the same amount of damages as she has in other cases— 16 $13 million, but “for each temporar[ily] endangered occupant within the home.” (Id.) She 17 also adds derogatory allegations about a man screaming at her while crossing the street to 18 the federal courthouse, which appear unrelated to her allegations concerning Xfinity. (Id.) 19 As for the action against Defendant AT&T, she claims an agent for the internet 20 service provider intentionally “changed [the] internet name and password” to leave the 21 home’s “occupants without a security system.” (No. 21-cv-1937, Compl., ECF No. 1.) 22 Because this conduct allegedly caused the home security system to not work, Ms. 23 Wentworth again seeks $13 million in damages. (Id.) She also repeats the derogatory 24 allegations about a man screaming at her while she tried to cross the street. (Id.) 25 In short, Ms. Wentworth seeks millions of dollars for what appears to be a run-of- 26 the-mill customer service incident with her internet service provider. She adds outlandish 27 allegations about the service agents and other matters. The Court finds these allegations 28 1 || do not survive screening under 28 U.S.C. § 1915(e)(2)(B)(G). See Neitzke, 490 U.S. at 328. 2 || Therefore, the Court will dismiss these actions with prejudice. 3 ||V. Conclusion 4 For the foregoing reasons, the Court rules as follows. 5 (1) The Court GRANTS Ms. Wentworth’s Motions to Proceed IFP. (No. 21-cv- 6 || 1937, ECF No. 2; No. 21-cv-1942, ECF No. 2.) 7 (2) The Court orders the Clerk to consolidate Case No. 21-cv-1942 with Case No. 8 ||21-cv-1937. The lead case shall be Case No. 21-cv-1937. All filings shall be in the lead 9 || case. 10 (3) The Court DENIES Ms. Wentworth’s Motions to Appoint Counsel. (No. 21- 11 || cv-1937, ECF No. 3; No. 21-cv-1942, ECF No. 3.) 12 (4) The Court DISMISSES WITH PREJUDICE the Complaint in each action 13 |/under 28 U.S.C. § 1915(e)(2)(B)G). (No. 21-cv-1937, ECF No. 1; No. 21-cv-1942, ECF 14 || No. 1.) 15 (5) The Court shall enter judgment and close both cases. 16 IT IS SO ORDERED. 17 ) 18 || DATED: November 22, 2021 (Yin A (Lyohan. 19 United States District Judge 20 21 22 23 24 25 26 27 28