Kelly v. FBI

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-696 TWR (KSC)

12 Plaintiff, ORDER (1) DENYING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS, (2) DENYING 14 FBI, MOTION FOR APPOINTMENT OF 15 Defendant. COUNSEL, AND (3) DISMISSING ACTION WITH PREJUDICE 16 17 (ECF Nos. 2, 3) 18 19 Presently before the Court is Plaintiff Dolores Kelly’s Application to Proceed in 20 Forma Pauperis (ECF No. 2, “IFP App.”) and Motion for Appointment of Counsel (ECF 21 No. 3, “Appt. Mot.”). For the reasons set forth below, the Court DENIES both the 22 Application to Proceed in Forma Pauperis (“IFP Application”) and the Motion for 23 Appointment of Counsel and DISMISSES this action with prejudice. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 BACKGROUND 2 Over the past several weeks, Plaintiff Dolores Kelly has commenced at least twenty 3 actions in this District.1 Typically, each of Plaintiff’s complaints is handwritten and one 4 or two pages in length. Though largely unintelligible, the complaints are generally directed 5 against various well-known business executives (including Elon Musk, Jeff Bezos, Tim 6 Cook, and Bill Gates), politicians and world leaders (including Xi Jingping and Kamala 7 Harris), companies (including U.S. Bank and Bank of America), and government agencies 8 (including the Department of Labor and the Treasury Department). Each complaint is also 9 accompanied by an almost entirely blank application to proceed in forma pauperis and a 10 motion to appoint counsel. 11 The instant action against the FBI is similar to Plaintiff’s preceding actions. Here, 12 Plaintiff has filed a two-page handwritten Complaint, (see generally ECF No. 1), an 13 incomplete IFP Application, (see generally IFP App.), and a Motion for Appointment of 14 Counsel, (see generally Appt. Mot.). The extent of the allegations in Plaintiff’s Complaint 15 are as follows: “FBI was not registered? Normally is federal tax funding I see fraud FBI. 16 Not all are corrupt like DC or New York Needs further evaluation Registered FBI 88-435- 17 3398 You can not illegally assign must be registered You might wan to hire me!” (See 18 ECF No. 1 at 2 (no alterations).) Based on these allegations, Plaintiff seeks repossession 19 of the FBI. (See id.) 20 / / / 21 / / / 22 23 1 See Case Numbers 23-CV-592-JO-DDL, 23-CV-618-CAB-KSC, 23-CV-619-JAH-BLM, 23-CV- 24 620-DMS-DDL, 23-CV-621-TWR-NLS, 23-CV-622-RSH-DDL, 23-CV-623-BAS-JLB, 23-CV-624- 25 AGS-NLS, 23-CV-625-AGS-MSB, 23-CV-626-AGS-BGS, 23-CV-627-CAB-KSC, 23-CV-684-AGS- DEB, 23-CV-685-RBM-AHG, 23-CV-686-RSH-WVG, 23-CV-687-DMS-MSB, 23-CV-689-JLS-NLS, 26 23-CV-690-CAB-BLM; 23-CV-691-CAB-WVG, 23-CV-692-TWR-WVG, 23-CV-693-RBM-BLM, 23- CV-694-JAH-JLB, and 23-CV-695-JLS-MSB. Plaintiff also filed four additional complaints in 2022. See 27 Case Numbers 22-CV-430-CAB-KSC, 22-CV-464-CAB-KSC, 22-CV-500-CAB-KSC, and 22-CV-501- CAB-KSC. All four of these complaints were terminated because Plaintiff filed blank IFP applications, 28 1 ANALYSIS 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.2 See 28 U.S.C. § 1914(a); S.D. Cal. Civ. L.R. 4.5(a). An action may proceed despite 5 a plaintiff’s failure to prepay the entire fee only if they are granted leave to proceed in 6 forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 7 1176, 1177 (9th Cir. 1999). “All persons, not just prisoners, may seek IFP status.” Moore 8 v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 890, 892 (9th Cir. 2011). A plaintiff seeking 9 IFP status must allege poverty “with some particularity, definiteness and certainty.” 10 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing McQuade, 647 F.3d at 11 940). “An affidavit in support of an IFP application is sufficient where it alleges that the 12 affiant cannot pay the court costs and still afford the necessities of life.” Id. 13 Here, Plaintiff’s IFP Application is almost entirely blank. (See generally IFP App.) 14 Plaintiff merely asserts, in a summary fashion, that her monthly income is $0.00 and her 15 monthly expenses are $0.00. (See id. at 2, 5.) Yet, Plaintiff has failed to answer any other 16 question on the extensive five-page form. (See generally IFP App.) She has not indicated 17 whether she is employed or what income she uses to pay for the necessities of life. (See 18 id.) She has not identified any bank accounts, assets, housing, spousal relationships, 19 dependents, expenses, or income. (See id.) Without such details, the Court cannot 20 determine whether Plaintiff is entitled to proceed IFP. In other words, based on the lack 21 of “particularity, definiteness and certainty” in the information provided, the Court is not 22 persuaded that Plaintiff lacks the funds to pay the filing fee and “still afford the necessities 23 of life.” Escobedo, 787 F.3d at 1234. 24 / / / 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave 28 l Furthermore, the Court finds that leave to amend Plaintiff's IFP Application would 2 ||be futile. See, e.g., Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 3 2008) (allowing dismissal without leave to amend if amendment would be futile); DeSoto 4 ||v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (same). Notwithstanding 5 || any filing fee paid, as a pro se litigant, Plaintiff's Complaint is still subject to sua sponte 6 review under 28 U.S.C. § 1915(e)(2)(B). Under this statute, the Court must dismiss any 7 ||action brought by a pro se plaintiff which (1) “is frivolous or malicious,” (2) “fails to state 8 claim on which relief may be granted,” or (3) “seeks monetary relief against a defendant 9 || who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Here, Plaintiff's Complaint 10 undoubtedly frivolous, and it fails to state a claim upon which relief may be granted. 11 || Moreover, “it is absolutely clear that the deficiencies of the complaint could not be cured 12 ||by amendment.” See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (quoting 13 || Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 14 For the foregoing reasons, the IFP Application (ECF No. 2) is DENIED and the 15 ||Motion to Appoint Counsel (ECF No. 3) is DENIED as moot. It is hereby ORDERED 16 |/that this action is DISMISSED WITH PREJUDICE. The Clerk of Court SHALL 17 || CLOSE the case. No further filings under this case number will be accepted. 18 IT IS SO ORDERED. 19 || Dated: May 9, 2023 —_—— 20 | (2 re Honorable Todd W. Robinson 3 United States District Judge 23 24 25 26 27 28