Carrillo v. Comenity Capital Bank, No. CV-24-00874-PHX-DMF (2024)

CV-24-00874-PHX-DMF

07-25-2024

Judy Carrillo, Plaintiff, v. Comenity Capital Bank, et al., Defendants.

Honorable Deborah M. Fine, United States Magistrate Judge

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine, United States Magistrate Judge

TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:

On April 17, 2024, Plaintiff Judy Carrillo (“Plaintiff”) filed a pro se Complaint. (Doc. 1) Plaintiff also filed an Application for Leave to Proceed in District Court Without Prepaying Fees or Costs (“Application” or “IFP Application”) (Doc. 2), which is a request for leave to proceed in this matter in forma pauperis. Plaintiff consented to proceed before a United States Magistrate Judge. (Doc. 7)

Before appearances and consent of defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.

On June 13, 2024, the Court denied without prejudice Plaintiff's Application for Plaintiff's failure to answer certain questions on the Application. (Doc. 9) The Court ordered Plaintiff to either pay the filing fee in full or submit a completed and signed amended Application by July 9, 2024. (Id. at 2-3) To date, Plaintiff has not paid the filing fee has, nor has Plaintiff filed a completed and signed amended Application. Thus, as outlined below, it is recommended that this matter be dismissed without prejudice for Plaintiff's failure to timely pay the filing fee or file a completed and signed amended Application to Proceed Without Prepaying Fees or Costs.

I. PROCEDURAL HISTORY AND POSTURE

On April 17, 2024, Plaintiff filed a pro se Complaint initiating this matter. (Doc. 1) Plaintiff is not incarcerated. (Id.) In her Complaint, Plaintiff names as Defendants Comenity Capital Bank, Caesar's Casino, Harrah's Ak-Chin Casino “Kathy from New York (guest services),” and the Casa Grande Police Department. (Id. at 2) Plaintiff alleges violations of the Fourteenth Amendment “Equal Protection and procedural due process”; the First Amendment “Right to Privacy of Personal Information”; and 18 U.S.C. § 1961, et seq. (Racketeer Influenced and Corrupt Organizations, or RICO) for fraud, breach of contract, and negligence. (Id. at 3) Plaintiff asserts that the events in the Complaint occurred between 2019 and December 2022. (Id. at 4-5)

On the same date as the filing of the Complaint, Plaintiff filed a short form Application for Leave to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) (“Application” or “IFP Application”). Question 2 of the Application directed Plaintiff, if not incarcerated, to answer “If I am employed, my employer's name and address are: [...]” (Doc. 2 at 1) Plaintiff did not answer Question 2. Question 3 of the Application directed Plaintiff to check whether she had received income in the past 12 months from listed sources, and if so, to “describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.” (Id.) Although Plaintiff checked that she received income from “Business, profession, or other self-employment” in Question 3, Plaintiff did not explain her answer in the latter half of Question 3 as directed. (Id.)

On June 13, 2024, the Court denied without prejudice Plaintiff's Application because “certain questions on the IFP Application have been left unanswered, and as a result, the Application is incomplete.” (Doc. 9 at 1-2) Specifically, the Court found that Plaintiff had left blank Question 2 and the latter half of Question 3 in the short form IFP Application which Plaintiff had used. (Id., footnote 1) Because the Court could not properly evaluate Plaintiff's IFP Application unless the questions were fully and truthfully answered, the Court ordered that “no later than July 9, 2024, Plaintiff must either pay the filing fee associated with this action or file a completed, signed Amended IFP Application in the form attached hereto that fully answers every question.” (Id. at 2-3) (emphasis in original) The Court warned Plaintiff that “if Plaintiff fails to pay the filing fee or file a signed, completed Application to Proceed in District Court Without Prepaying Fees or Costs in compliance with this order by July 9, 2024, this action is subject to dismissal without prejudice.” (Id. at 3) (emphasis in original)

Despite that the deadline for payment of the filing fee or submission of a completed and signed amended Application was July 9, 2024, Plaintiff has not paid the filing fee or submitted a completed and signed amended Application to Proceed Without Prepaying Fees and Costs.

II. FILING FEE AND IN FORMA PAUPERIS APPLICATION

A party initiating a civil action in this Court must pay a filing fee. 28 U.S.C. § 1914. Nevertheless, if a plaintiff submits a proper affidavit of indigence demonstrating that she is unable to pay the filing fee or costs, the Court may permit a plaintiff to proceed in forma pauperis. 28 U.S.C. § 1915(a); see also Local Rule of Civil Procedure (“LRCiv”) 3.3(a). The affidavit accompanying a plaintiff's in forma pauperis application shall include statements regarding the plaintiff's current or last employment, any money received in the past twelve months, any money in possession or in a financial institution, any valuable property, any dependents, and inability to pay due to poverty, as well as the plaintiff's belief that the plaintiff is entitled to relief. LRCiv 3.3(a). An affidavit supporting an in forma pauperis application “is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life” and alleges “poverty with some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).

Importantly, proceeding in forma pauperis is a privilege, not a right, and this Court has discretion to grant in forma pauperis status in exceptional circ*mstances. Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963). This Court also has discretion “to restrict a litigant's ability to commence abusive litigation in forma pauperis[,]” Visser v. Supreme Ct. of State of Cal., 919 F.2d 113, 114 (9th Cir. 1990), and may deny in forma pauperis status when such a privilege is abused. Demos v. U.S. Dist. Ct. for E.D. of Wash., 925 F.2d 1160, 1160-61 (9th Cir. 1991) (denying IFP status to litigant who filed 24 actions); see also In re Golden, 2020 WL 5819753, at *2-3 (S.D. Cal. Sept. 30, 2020) (denying IFP for abuse of process and failure to prosecute where plaintiff filed 44 cases).

As the Court recognized in its June 13, 2024, Order denying Plaintiff's in forma pauperis Application (Doc. 9 at 2), Senior District Judge McNamee previously observed that:

Plaintiff has filed forty-six (46) cases in this district since April 4, 2024. The most recent cases were filed on May 24, 2024. Multiple cases have already been dismissed by the Court for failure to prosecute after Plaintiff failed to file an amended Complaint in accordance with the Court's orders. It is abundantly clear that Plaintiff is abusing the Court's process for in forma pauperis litigants, which is intended to ensure access to the justice system for claimants who cannot afford to pay the filing fee. Plaintiff's multitude of cases, which Plaintiff shows no sign of prosecuting beyond filing the initial Complaint, will evidently only result in an unnecessary expenditure of the Court's resources. The Court finds it appropriate to deny Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2). If Plaintiff intends to prosecute the multitude of cases that Plaintiff has brought, Plaintiff must pay the filing fee and proceed as other litigants in this Court do.

See also Case Nos. 2:24-cv-00757-PHX-JZB; 2:24-cv-00758-PHX-SMM; 2:24-cv-00759-PHX-SMB; 2:24-cv-00769-PHX-SPL; 2:24-cv-00770-PHX-MTM; 2:24-cv-00771-PHX-SMM; 2:24-cv-00806-PHX-SPL; 2:24-cv-00807-PHX-MTL; 2:24-cv-00808-PHX-DLR; 2:24-cv-00809-PHX-ESW; 2:24-cv-00873-PHX-MTL; 2:24-cv-00874-DMF; 2:24-cv-00884-PHX-ASB; 2:24-cv-00885-PHX-SMM; 2:24-cv-00886-PHX-DJH; 2:24-cv-00937-PHX-JZB; 2:24-cv-00938-PHX-DWL; 2:24-cv-01184-PHX-MTL; 2:24-cv-01185-PHX-SMB; 2:24-cv-01186-PHX-DWL; 2:24-cv-01187-PHX-DLR; 2:24-cv-01188-PHX-ASB; 2:24-cv-01189-PHX-SMB; 2:24-cv-01190-PHX-DLR; 2:24-cv-01191-PHX-GMS; 2:24-cv-01192-PHX-GMS; 2:24-cv-01193-PHX-SMM; 2:24-cv-01194-PHX-JJT; 2:24-cv-01195-PHX-ESW; 2:24-cv-01196-PHX-MTM; 2:24-cv-01197-PHX-GMS; 2:24-cv-01198-PHX-DMF; 2:24-cv-01199-PHX-ASB; 2:24-cv-01200-PHX-DWL; 2:24-cv-01201-PHX-DLR; 2:24-cv-01202-PHX-SPL; 2:24-cv-01203-PHX-DLR; 2:24-cv-01239-PHX-DWL; 2:24-cv-01240-PHX-ESW; 2:24-cv-01241-PHX-JFM; 2:24-cv-01242-PHX-CDB; 2:24-cv-01244-PHX-DWL; 2:24-cv-01245-PHX-SPL.

Plaintiff has not been granted leave to proceed in forma pauperis and has not paid the filing fee as required by law. Thus, the Complaint should be dismissed without prejudice and this matter terminated.

III. FAILURE TO COMPLY WITH COURT ORDERS

Further, the Court may dismiss this matter for Plaintiff's failure to comply with Court orders that Plaintiff either pay the filing fee in full or file a completed and signed amended Application to Proceed Without Prepaying Fees or Costs.

In the absence of a motion to dismiss from a party, the United States Supreme Court has recognized that a district court has the inherent power to dismiss an action sua sponte for failure to comply with court orders, such as failure to pay the filing fee or file a proper in forma pauperis application, or for lack of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). This inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31.

To determine whether a plaintiff's failure to comply with a court's orders warrants dismissal, a court weighs five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 2:24-cv-01239-PHX-DWL; 2:24-cv-01240-PHX-ESW; 2:24-cv-01241-PHX-JFM; 2:24-cv-01242-PHX-CDB; 2:24-cv-01244-PHX-DWL; 2:24-cv-01245-PHX-SPL. defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (internal citations omitted).

Here, the first and second factors weigh in favor of dismissal. Dismissal would allow the Court to manage its docket and would satisfy the “public's interest in expeditious resolution” of Plaintiff's claims. Henderson, 779 F.2d at 1423. If Plaintiff does not pay the filing fee, submit a completed and signed amended Application to Proceed Without Prepaying Fees or Costs, or comply with Court orders, this matter cannot proceed, and the resolution of Plaintiff's claims will be delayed, including appropriate screening of a complaint if leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1914(a); 28 U.S.C. § 1915(a); LRCiv 3.3(a).

As for the third factor, the risk of prejudice to Defendants, no Defendant has received notice of Plaintiff's lawsuit, nor has Plaintiff served any Defendant with the Complaint (Doc. 1). The date range of the events alleged in the Complaint is 2019 through at least December 2022. (Id. at 5) Although the loss of “a quick victory” is not prejudicial, Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000), if this matter proceeds, Defendants would have to defend against claims regarding events that allegedly occurred between 2019 and late 2022, up to five years ago. The third factor weighs in favor of dismissal.

The fourth factor does not support dismissal, as dismissal of Plaintiff's claims at this early stage would not support “the public policy favoring disposition of cases on their merits[.]” Henderson, 779 F.2d at 1423.

Finally, as to the fifth factor, whether less drastic sanctions are available, alternative sanctions would likely be futile, which weighs in favor of dismissal. In the Court's June 13, 2024, Order, Plaintiff was ordered to pay the filing fee in full or submit an amended long form Application to Proceed Without Prepaying Fees or Costs that Plaintiff had completed and signed. (Doc. 9 at 2-3) Plaintiff did not pay the filing fee. Nor did Plaintiff file an amended, long form Application to Proceed Without Prepaying Fees or Costs that Plaintiff had fully completed and signed. Plaintiff has not made any filings in this matter since June 3, 2024. (Doc. 7)

Moreover, the Court has warned Plaintiff about the possibility of dismissal of Plaintiff's lawsuit. In its June 13, 2024, Order, the Court warned Plaintiff that “if Plaintiff fails to pay the filing fee or file a signed, completed Application to Proceed in District Court Without Prepaying Fees or Costs in compliance with this Order by July 9, 2024, this action is subject to dismissal without prejudice.” (Doc. 9 at 3) Despite the Court's warning, Plaintiff has not paid the filing fee or completed a proper Application. As discussed supra, Plaintiff has also filed numerous other cases in this Court that Plaintiff has failed to prosecute by failing to comply with the court rules and failing to file amended complaints when her initial complaints were screened and found insufficient to state claims and/or invoke this Court's jurisdiction. Further, several of Plaintiff's other cases in this Court have been dismissed for failure to pay the filing fee or file a proper IFP application, despite Court orders to do so.

See, e.g., Carrillo v. Only Fans, et al., No. 2:24-cv-00758-SMM (Doc. 6); Carrillo v. Truwest Federal Credit Union, et al., 2:24-cv-00806-SPL (Doc. 6); Carrillo v. Fox New Corp., 2:24-cv-0886-DJH (Doc. 6); Carrillo v. Go Fund Me, et al., 2:24-cv-01183-DGC (Doc. 6); Carrillo v. Landmark Event Center, 2:24-cv-01193-SMM (Doc. 6); Carrillo v. Filibertos Mexican Food, et al., 2:24-cv-01194-JJT (Doc. 6); Carrillo v. Burger King, 2:24-cv-01197-GMS (Doc. 7); Carrillo v. Anderson Lock & Safe, 2:24-cv-01243-SMM (Doc. 6); Carrillo v. Coca Cola Company, 2:24-cv-01369-MTL (Doc. 6).

Under the circ*mstances before the Court, a less strict sanction than dismissal would not be effective. Plaintiff has failed to pay the filing fee or submit a completed and signed amended Application and has therefore failed to comply with this Court's orders in this matter. Thus, the Court may use its discretion to dismiss this lawsuit, and it is recommended that the Court do so. See Link, 370 U.S. at 630-631; see also RaulFestone v. Halikowski, 2019 WL 13214765, at *1 (D. Ariz. June 25, 2019) (accepting Report and Recommendation for dismissal based on failure to comply with Court orders and failure to pay filing fee); Halloum v. Ryan, 2012 WL 12951307, at *2 (D. Ariz. Nov. 28, 2012) (dismissing for failure to pay filing fee).

IV. CONCLUSION

Because Plaintiff has neither paid the filing fee nor submitted a completed and signed amended Application to Proceed Without Prepaying Fees or Costs, it is recommended that the Complaint be dismissed without prejudice and this matter be terminated.

Accordingly, IT IS RECOMMENDED that the Complaint be dismissed without prejudice and this matter be terminated.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.