Kelly v. Bank of America
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff Dolores Kelly, a pro se litigant who has filed numerous similar complaints, submitted a largely unintelligible complaint against Bank of America accompanied by a blank application to proceed in forma pauperis (IFP) and a motion for counsel. The court denied the IFP application and motion for counsel, and dismissed the case with prejudice as frivolous.
| What the court decided | The model |
|---|---|
Denial of Application to Proceed In Forma Pauperis“Therefore, Plaintiff’s application to proceed IFP [Doc. Nos. 2] is DENIED” | agree with court The court correctly applied the standard from Escobedo v. Applebees, requiring a plaintiff to allege poverty with particularity. Because the plaintiff's application was blank and failed to provide any information regarding income, assets, or expenses, the court was legally correct in finding it insufficient to demonstrate an inability to pay. |
Denial of Motion for Counsel“Plaintiff’s motion to appoint counsel [Doc. No. 3] is DENIED as moot.” | agree with court The court denied the motion as moot following the denial of the IFP application. While the court did not explicitly analyze the merits of the motion for counsel (such as the factors under 28 U.S.C. § 1915(e)(1)), denying it as moot when the underlying action is being dismissed is a defensible procedural outcome. |
Dismissal of Case with Prejudice“it is hereby ORDERED that this case is DISMISSED. The Clerk of Court shall CLOSE this case. No further filings under this case number will be accepted.” | agree with court The court dismissed the case with prejudice based on the finding that the complaint was 'utterly frivolous' and that granting leave to amend would be futile. Under 28 U.S.C. § 1915(g), a court may dismiss a case with prejudice if the plaintiff is a 'three-time storer' of frivolous or malicious actions. The order recites that the plaintiff has filed at least seventeen similar complaints in the district, which supports the finding of futility and justifies dismissal with prejudice. |
The order itself: sound — The order is procedurally sound. It correctly identifies the deficiency in the IFP application (blank form) and applies the correct legal standard from the Ninth Circuit (Escobedo). It also provides a factual basis for dismissing the case with prejudice by noting the plaintiff's history of filing numerous similar, frivolous complaints, which supports a finding of futility. The reasoning is concise but sufficient for a pro se dismissal.
How this analysis was made · dispute it
record incompleteOpinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOLORES KELLY, Case No.: 23-CV-691-CAB-WVG 12 Plaintiff, ORDER DENYING APPLICATION 13 v. TO PROCEED IN FORMA PAUPERIS [Doc. No. 2], DENYING 14 BANK OF AMERICA, MOTION FOR COUNSEL [Doc. No. 15 Defendant. 3], AND DISMISSING CASE WITH PREJUDICE 16 17 18 Over the past several weeks, Plaintiff Dolores Kelly has filed at least seventeen 19 complaints in this district.1 The one or two-page hand-written and largely unintelligible 20 complaints are against various well-known business executives (including Elon Musk, Jeff 21 Bezos, Tim Cook, and Bill Gates), politicians and world leaders (including Xi Jingping, 22 23 24 1 See Case Numbers 23cv592-JO-DDL, 23cv618-CAB-KSC, 23cv619-JAH-BLM, 23cv620-DMS-DDL, 25 23cv621-TWR-NLS, 23cv622-RSH-DDL, 23cv623-BAS-JLB, 23cv624-AGS-NLS, 23cv625-AGS- MSB, 23cv626-AGS-BGS, 23cv627-CAB-KSC, 23cv684-AGS-DEB, 23cv685-RBM-AHG, 23cv686- 26 RSH-WVG, 23cv687-DMS-MSB, 23cv691-CAB-WVG, 23cv692-TWR-WVG, 23cv693-RBM-BLM. Approximately one year ago, Plaintiff filed four additional complaints. See Case Numbers 22cv430-CAB- 27 KSC, 22cv464-CAB-KSC, 22cv500-CAB-KSC, 22cv501-CAB-KSC. Each of these four cases was terminated after Plaintiff’s blank IFP applications were denied without prejudice and she failed to re-file 28 1 Kamala Harris, and Jerry Yang), and companies (including U.S. Bank and Bank of 2 America), and all are accompanied by almost entirely blank applications to proceed in 3 forma pauperis (“IFP”) and motions to appoint counsel. 4 This case, against Bank of America, is similar to the others. The complaint is less 5 than 100 words, lacks complete sentences, and prays for the relief of “Repocession [sic] of 6 the banks.” Like the other cases, the complaint was accompanied by a blank IFP 7 application and a motion to appoint counsel. For the following reasons, the IFP application 8 and motion to appoint counsel are denied, and this case is dismissed. 9 Generally, all parties instituting a civil action in this court must pay a filing fee. See 10 28 U.S.C. § 1914(a); CivLR 4.5(a). But the court may authorize a party to proceed without 11 paying the fee if that party submits an affidavit demonstrating an inability to pay. 28 U.S.C. 12 § 1915(a). “An affidavit in support of an IFP application is sufficient where it alleges that 13 the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. 14 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking IFP status must 15 allege poverty with some particularity, definiteness and certainty.” Id. (internal quotation 16 marks omitted). 17 Here, Plaintiff’s IFP application is almost entirely blank. She fails to answer any of 18 the questions regarding whether she has any income, assets, or expenses. Without such 19 details, the Court cannot determine whether Plaintiff is entitled to proceed IFP. In other 20 words, based on the lack of “particularity, definiteness and certainty” in the information 21 provided, the Court is not persuaded that Plaintiff lacks the funds to pay the filing fee and 22 “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, Plaintiff’s 23 application to proceed IFP [Doc. Nos. 2] is DENIED, and Plaintiff’s motion to appoint 24 counsel [Doc. No. 3] is DENIED as moot. 25 Further, because the complaint is utterly frivolous, the Court finds that granting 26 Plaintiff leave to file an amended IFP application would be futile. Even if Plaintiff could 27 satisfy the requirements to proceed IFP, the complaint would be subject to sua sponte 28 dismissal. Accordingly, because Plaintiff is not entitled to proceed IFP and did not pay the 1 || filing fee with her complaint, it is hereby ORDERED that this case is DISMISSED. The 2 Clerk of Court shall CLOSE this case. No further filings under this case number will be 3 || accepted. 4 IT IS SO ORDERED. 5 Dated: April 18, 2023 € □ 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28