Kelly v. Marine Corps
- Proceeding
- district
- Area
- civil
- Panel
- Todd W. Robinson (author)
Analysis
The court considered Plaintiff Dolores Kelly's nearly blank application to proceed in forma pauperis (IFP) and motion to appoint counsel in a case against the Marine Corps. The court denied the IFP application and motion, 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 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 'almost entirely blank' and failed to answer questions regarding income, assets, or expenses, the court was justified in finding the application insufficient to demonstrate an inability to pay. |
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. While the order does not explicitly state that counsel is only appointed in IFP cases, it is a standard procedural practice in this district that the denial of IFP status renders the motion moot or unnecessary for the court to address on the merits. |
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 under 28 U.S.C. § 1915(e)(2)(B) because the complaint was 'frivolous.' The court noted that the complaint was a two-page handwritten document lacking complete sentences and seeking the 'repocession [sic] of Marine Corps and the Pentagon.' Given the plaintiff's history of filing over twenty similar complaints in the district, the court found that granting leave to amend would be futile. Dismissal with prejudice is appropriate for frivolous complaints filed by a serial litigant. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal standard for IFP applications and applies it to the specific facts of the blank application. It also correctly applies the statute allowing dismissal of frivolous cases, noting the futility of amendment given the plaintiff's history. The reasoning is concise but sufficient for the procedural posture.
Opinion
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-621 TWR (NLS)
12 Plaintiff, ORDER (1) DENYING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DENYING 14 MARINE CORPS, MOTION FOR APPOINTMENT OF 15 Defendant. COUNSEL; AND (3) DISMISSING 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, 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-RSH-WVG, 26 23cv687-DMS-MSB, 23cv690-CAB-BLM; 23cv691-CAB-WVG, 23cv692-TWR-WVG, 23cv693- RBM-BLM, and 23cv696-TWR-KSC. A year prior, Plaintiff had also filed four other complaints. See 27 Case 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 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 “Marine Corps,” is similar to the others—it is a two-page 7 handwritten complaint that lacks complete sentences and seeks “repocession [sic] of 8 Marine Corps and the Pentagon” and for NATO forces to intervene. (ECF No. 1 at 2–3.) 9 Like the other cases, the Complaint was accompanied by a nearly blank IFP application 10 (ECF No. 2) and a Motion to Appoint Counsel (ECF No. 3). For the following reasons, 11 the IFP application and Motion to Appoint Counsel are DENIED, and this case is 12 DISMISSED WITH PREJUDICE. 13 Generally, all parties instituting a civil action in this Court must pay a filing fee. See 14 28 U.S.C. § 1914(a); S.D. Cal. CivLR 4.5(a). But the Court may authorize a party to 15 proceed without paying the fee if that party submits an affidavit demonstrating an inability 16 to pay. 28 U.S.C. § 1915(a). “An affidavit in support of an IFP application is sufficient 17 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 18 life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). “[A] plaintiff seeking 19 IFP status must allege poverty ‘with some particularity, definiteness and certainty.’” Id. 20 (citation omitted). 21 Here, Plaintiff’s IFP application is almost entirely blank. She fails to answer any of 22 the questions regarding whether she has any income, assets, or expenses. Without such 23 details, the Court cannot determine whether Plaintiff is entitled to proceed IFP. In other 24 words, based on the lack of “particularity, definiteness and certainty” in the information 25 provided, the Court is not persuaded that Plaintiff lacks the funds to pay the filing fee and 26 “still afford the necessities of life.” Escobedo, 787 F.3d at 1234. Therefore, Plaintiff’s 27 application to proceed IFP is DENIED, and Plaintiff’s Motion to Appoint Counsel is 28 DENIED as moot. 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