Kelly v. Washington D.C. District Court
- Proceeding
- district
- Area
- civil
- Panel
- Todd W. Robinson (author)
Analysis
The court considered Plaintiff Dolores Kelly's application to proceed in forma pauperis (IFP) and motion to appoint counsel in a case against the Washington D.C. District Court. The court denied the IFP application and motion to appoint counsel, and dismissed the case with prejudice.
| What the court decided | The model |
|---|---|
Denial of Application to Proceed In Forma Pauperis“Therefore, Plaintiff’s application to proceed IFP is DENIED” | agree with court The court correctly applied the standard from Escobedo v. Applebees, requiring a plaintiff to allege poverty with particularity. The order recites that the application was 'almost entirely blank' and failed to answer questions regarding income, assets, or expenses. Under 28 U.S.C. § 1915(a), an affidavit must demonstrate inability to pay; a blank form does not meet this burden. The denial is supported by the record recited in the order. |
Denial of Motion for Appointment of Counsel“Plaintiff’s Motion to Appoint Counsel is DENIED as moot.” | agree with court The court denied the motion as moot because the IFP application was denied. In the context of pro se civil litigation, the appointment of counsel is often tied to the ability to proceed or the complexity of the case. Given the frivolous nature of the complaint and the failure to establish IFP status, denying the motion as moot is a defensible procedural step, though typically courts might address the merits of the appointment request separately. However, since the case is dismissed, the motion is effectively moot. |
Dismissal of Case With Prejudice“it is hereby ORDERED that this case is DISMISSED WITH PREJUDICE.” | agree with court The court dismissed the case with prejudice based on two grounds: (1) the plaintiff failed to pay the filing fee and was denied IFP status, and (2) the complaint was frivolous, making leave to amend futile. Under 28 U.S.C. § 1915(e)(2)(B), a court may dismiss a case if it is frivolous. The order recites that the complaint is 'frivolous' and 'lacks complete sentences' and seeks 'repocession [sic] of Washington DC district court,' which is not a viable legal claim against a court. Dismissal with prejudice is appropriate when the complaint is frivolous and amendment would be futile, especially given the plaintiff's history of filing similar unintelligible complaints. The court correctly cited 28 U.S.C. § 1915(e)(2)(B) as authority for sua sponte dismissal of frivolous cases. |
The order itself: sound — The order is sound. It correctly applies the statutory requirements for IFP status under 28 U.S.C. § 1915(a) and the Ninth Circuit precedent in Escobedo v. Applebees regarding the need for particularity in poverty allegations. It also correctly applies 28 U.S.C. § 1915(e)(2)(B) to dismiss a frivolous complaint. The court's finding that the complaint is frivolous is supported by the recitation that it is handwritten, unintelligible, lacks complete sentences, and seeks an impossible remedy ('repocession of Washington DC district court'). The dismissal with prejudice is justified by the futility of amendment given the nature of the complaint and the plaintiff's history of similar filings.
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-692 TWR (WVG)
12 Plaintiff, ORDER (1) DENYING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DENYING 14 WASHINGTON D.C. DISTRICT MOTION FOR APPOINTMENT OF COURT, 15 COUNSEL; AND (3) DISMISSING Defendant. CASE WITH PREJUDICE 16 17 (ECF Nos. 2, 3) 18 19 Over the past several weeks, Plaintiff Dolores Kelly has filed at least twenty 20 complaints in this District.1 Each complaint typically consists of one or two-page hand- 21 written and largely unintelligible complaints against various well-known business 22 23 24 1 See Case Numbers 23cv592-JO-DDL, 23cv618-CAB-KSC, 23cv619-JAH-BLM, 23cv620-DMS- 25 DDL, 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, 26 23cv686-RSH-WVG, 23cv687-DMS-MSB, 23cv690-CAB-BLM; 23cv691-CAB-WVG, 23cv693-RBM- BLM, and 23cv696-TWR-KSC. A year prior, Plaintiff had also filed four other complaints. See Case 27 Numbers 22cv430-CAB-KSC, 22cv464-CAB-KSC, 22cv500-CAB-KSC, 22cv501-CAB-KSC. Each of those cases was terminated after Plaintiff’s blank IFP applications were denied without prejudice and she 28 1 executives (including Elon Musk, Jeff Bezos, Tim Cook, and Bill Gates), politicians and 2 world leaders (including Xi Jingping and Kamala Harris), companies (including U.S. Bank 3 and Bank of America), and government agencies (including the Department of Labor and 4 the FBI). Each complaint is also accompanied by almost entirely blank applications to 5 proceed in forma pauperis (“IFP”) and motions to appoint counsel. 6 This case, against “Washington D.C. District Court,” is similar to the others—it is a 7 two-page handwritten complaint that lacks complete sentences and seeks “repocession [sic] 8 of Washington DC district court.” (ECF No. 1 at 2–3.) Like the other cases, the Complaint 9 was accompanied by a nearly blank IFP application (ECF No. 2) and a Motion to Appoint 10 Counsel (ECF No. 3). For the following reasons, the IFP application and Motion to 11 Appoint Counsel are DENIED, and this case is DISMISSED WITH PREJUDICE. 12 Generally, all parties instituting a civil action in this Court must pay a filing fee. See 13 28 U.S.C. § 1914(a); S.D. Cal. CivLR 4.5(a). But the Court may authorize a party to 14 proceed without paying the fee if that party submits an affidavit demonstrating an inability 15 to pay. 28 U.S.C. § 1915(a). “An affidavit in support of an IFP application is sufficient 16 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 17 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking 18 IFP status must allege poverty ‘with some particularity, definiteness and certainty.’” Id. 19 (citation omitted). 20 Here, Plaintiff’s IFP application is almost entirely blank. She fails to answer any of 21 the questions regarding whether she has any income, assets, or expenses. Without such 22 details, the Court cannot determine whether Plaintiff is entitled to proceed IFP. In other 23 words, based on the lack of “particularity, definiteness and certainty” in the information 24 provided, the Court is not persuaded that Plaintiff lacks the funds to pay the filing fee and 25 “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, Plaintiff’s 26 application to proceed IFP is DENIED, and Plaintiff’s Motion to Appoint Counsel is 27 DENIED as moot. 28 / / / 1 Further, because the Complaint is frivolous, the Court finds that granting Plaintiff 2 || leave to file an amended IFP application would be futile. Even if Plaintiff could satisfy the 3 || requirements to proceed IFP, the Complaint would be subject to sua sponte dismissal. See 4 1/28 U.S.C. § 1915(e)(2)(B). Accordingly, because Plaintiff is not entitled to proceed IFP 5 || and did not pay the filing fee with her Complaint, it is hereby ORDERED that this case is 6 || DISMISSED WITH PREJUDICE. The Clerk of Court SHALL CLOSE this case. No 7 || further filings under this case number will be accepted. 8 IT IS SO ORDERED. 9 Dated: May 2, 2023 —_—— [59 (OQ bre 11 Honorable Todd W. Robinson D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28