Opinion
3:21-cv-1049-L-BN
08-17-2021
MARIBEL MUNOZ, Plaintiff, v. WENONE INC., Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE
On May 7, 2021, Plaintiff Maribel Munoz filed multiple actions in this district under the Americans with Disabilities Act. In two of her cases referred to the undersigned United States magistrate judge for screening under 28 U.S.C. 636(b), she moved for leave to proceed in forma pauperis (IFP), submitting substantively identical financial affidavits. See Dkt. No. 4. And, in both cases, the undersigned entered a notice of deficiency on May 11, 2021, providing:
The IFP statute, 28 U.S.C. 1915, “was designed to ensure that litigants would not be deprived of meaningful access to the federal judicial system due to their financial circumstances.” Bucklew v. St. Clair, No. 3:18-cv-2117-N-BH, 2019 WL 2250886, at *2 (N.D. Tex. May 15, 2019) (citing Neitzke v. Williams, 490 U.S. 319, 324 (1989)), rec. accepted, 2019 WL 2249718 (N.D. Tex. May 24, 2019). But, to gain access, “[a] litigant seeking IFP status must submit an affidavit identifying all assets he possesses, as well as a statement that he is unable to pay the necessary fees of bringing a federal civil action.” Smith-Garcia v. Harrison Cnty., 776 Fed.Appx. 226, 227 (5th Cir. 2019) (per curiam) (citing 28 U.S.C. 1915(a)(1)).
The Court must then examine the financial condition of the applicant in order to determine whether the payment of fees would “cause undue financial hardship.” Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). “This entails a review of other demands on individual [applicants'] financial resources, including whether the expenses are discretionary or mandatory.” Id.
And, while “[t]he term ‘undue financial hardship' is not defined and, therefore, is a flexible concept[, ] ... a pragmatic rule of thumb contemplates that undue financial hardship results when prepayment of fees or costs would result in the applicant's inability to pay for the ‘necessities of life.'” Walker v. Univ. of Tex. Med. Branch, No. 1:08-CV-417, 2008 WL 4873733, at *1 (E.D. Tex. Oct. 30, 2008) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also Williams v. Louisiana, Civ. A. No. 14-00154-BAJ-EWD, 2017 WL 3124332, at *1 (M.D. La. Apr. 14, 2017) (noting that the applicable standard “requires a showing of more than an inconvenience to the applicant” (citations omitted)).
“[W]hether the litigant is ‘unable to pay' the costs [associated with initiating a lawsuit also] ... depend[s] in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend.” Williams v. Spencer, 455 F.Supp. 205, 209 (D. Md. 1978); see Fridman v. City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or can get from those who ordinarily provide the applicant with the necessities of life, such as from a spouse, parent, adult sibling or other next friend.” (citations and internal quotation marks omitted)); accord Pisano v. Astrue, No. 11-30269-KPN, 2012 WL 79188, at *2 (D. Mass. Jan. 10, 2012) (collecting cases).
And a financial affidavit that is either “incomplete” or “internally inconsistent” is insufficient to find that a movant qualifies for leave to proceed IFP. Muhammad v. La. Attorney Disciplinary Bd., Civ. A. No. 09-3431, 2009 WL 3150041, at *2 (E.D. La. Sept. 25, 2009) (citing Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976) (“[W]here the in forma pauperis affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question ... of whether the asserted claim is frivolous or malicious.”); collecting cases).
The IFP affidavits as submitted appear to be incomplete or internally inconsistent. For example, Munoz represents that she owns an automobile but does not identify any expense associated with owning a car, such as paying for gas or insurance. And, if she does not pay such expenses - or any other expenses she may incur - directly, her affidavit must identify that she receives support from others such that the Court may examine whether Munoz has the ability to get funds - including to initiate these cases - from a spouse, a parent, an adult sibling, or other next friend.
The Court therefore ORDER S Munoz to, by June 10, 2021, either pay the $402 filing fee in both cases or file, in each case, an amended IFP motion that addresses the concerns set out in the order and shows the Court that requiring her to pay the filing fee will “cause undue financial hardship” consistent with the legal standards set out above.
Failure to timely follow the directions in this order subjects both lawsuits to dismissal without prejudice under Federal Rule of Civil Procedure 41(b).Dkt. No. 6.
In the other action referred to the undersigned, Munoz paid the filing fee in response to the May 11 order. In this action, however, she merely resubmitted, on May 24, 2021, the IFP motion the undersigned previously found to be incomplete or internally inconsistent. Compare Dkt. No. 4, with Dkt. No. 7-1. And she has not otherwise contacted the Court since then.
Rule 41(b) “authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with [a Federal Rule of Civil Procedure or] a court order.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 Fed.Appx. 383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d 798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) does not extend to a failure to comply with a court's local rule insofar as that violation does not also qualify as a failure to prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992))).
This authority “flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to ‘achieve the orderly and expeditious disposition of cases.'” (quoting Link, 370 U.S. at 631)); Campbell, 988 F.3d at 800 (“It is well established that Rule 41(b) permits dismissal not only on motion of the defendant, but also on the court's own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248, 251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))).
And the Court's authority under Rule 41(b) is not diluted by a party proceeding pro se, as “[t]he right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality, 754 Fed.Appx. 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981))).
A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
Although “[l]esser sanctions such as fines or dismissal without prejudice are usually appropriate before dismissing with prejudice, ... a Rule 41(b) dismissal is appropriate where there is ‘a clear record of delay or contumacious conduct by the plaintiff and when lesser sanctions would not serve the best interests of justice.'”Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that “lesser sanctions” may “‘include assessments of fines, costs, or damages against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings'” (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).
“When a dismissal is without prejudice but ‘the applicable statute of limitations probably bars future litigation, '” that dismissal operates as - i.e., it is reviewed as - “a dismissal with prejudice.” Griggs, 905 F.3d at 844 (quoting Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 Fed.Appx. at 300 (affirming dismissal under Rule 41(b) - potentially effectively with prejudice - where “[t]he district court had warned Wright of the consequences and ‘allowed [her] a second chance at obtaining service'” but she “disregarded that clear and reasonable order”).
Munoz's failure to either pay the filing fee or submit a corrected IFP motion violated the May 11, 2021 order and prevents this action from proceeding. A Rule 41(b) dismissal of this lawsuit without prejudice is warranted under these circumstances. The undersigned concludes that lesser sanctions would be futile, as the Court is not required to delay the disposition of this case until such time as Munoz decides to obey the Court's order. The Court should therefore exercise its inherent power to prevent undue delays in the disposition of pending cases and sua sponte dismiss this action without prejudice.
Recommendation
The Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b).
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).