Carton v. Carroll Ventures Inc.

Filing 44

MEMORANDUM OPINION AND ORDER denying motion to reconsider 42 and DISMISSING CASE by Chief Judge M. Christina Armijo. (vv)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ALYSSA CARTON,
Plaintiff,
v.

CIV 17-0037 KG/SCY

CARROLL VENTURES, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO RECONSIDER AND
DISMISSING THIS CASE WITH PREJUDICE
THIS MATTER comes before the Court on Plaintiff’s “Appeal to Memorandum
Opinion and Order Filed 10/26/17,” Doc. 42, filed November 14, 2017 (“Motion to
Reconsider”).
Plaintiff filed 99 cases asserting that Defendants violated the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12181 et seq., and related regulations. Plaintiff proceeded in forma
pauperis in all but two of the cases.1 The statute governing proceedings in forma pauperis
states: “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous
or malicious.” 28 U.S.C. § 1915(e)(2).
The Court dismissed with prejudice Plaintiff’s claims against Defendants as malicious
pursuant to the statute governing proceedings in forma pauperis, 28 U.S.C. § 1915(e)(2).2 See

1

The Court denied Plaintiff’s IFP motions in Carton v. Carroll Ventures, Inc,. 01cv37 KG/SCY,
and in Carton v. Aryavart, Inc., 17cv210 SCY/WPL (now closed).
2
Dismissal of Plaintiff’s claims includes her claims in this case, Carton v. Carroll Ventures, Inc.,
01cv37 KG/SCY, where the Court denied her motion to proceed in forma pauperis. See Mallard
v. United States Dist. Court, 490 U.S. 296, 307-08 (1989) (“Statutory provisions may simply
codify existing rights or powers. Section 1915(d), for example, authorizes courts to dismiss a

Doc. 40, filed October 26, 2017 (“Dismissal Order”). The Dismissal Order noted that Plaintiff
has filed 99 cases resulting in a total of $39,600.00 in Court fees, that the Court has received
payments of $1,300.00, and ordered that “payment of the remaining filing fees shall be made
within three weeks of entry of [the Dismissal Order].” See Doc. 40 at 6.
Plaintiff now asks the Court to reconsider the language in the Dismissal Order which
orders payment of the remaining filing fees. Plaintiff states that her “ability to pay filing fees is
through my agreement with LMFS [Litigation Management and Financial Services].” Motion to
Reconsider at 1. Plaintiff sent a copy of the Dismissal Order to LMFS and reminded LMFS “of
their responsibility to pay” the filing fees. Motion to Reconsider at 1. LMFS did not respond to
Plaintiff. See Motion to Reconsider at 1. Plaintiff states that she does not “have the money to
pay these fees,” and “ask[s] the court to hold LMFS directly responsible for the court fees due
now and any court costs which may arise in the future.” Motion to Reconsider at 2.
“Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). The statute governing filing fees states: “The clerk of each district court shall require the
parties instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of
$350” and “such additional fees only as are prescribed by the Judicial Conference of the United
States.”3 28 U.S.C. § 1914(a) and (b) (emphasis added).

‘frivolous or malicious’ action, but there is little doubt they would have power to do so even in
the absence of this statutory provision”). The Court also denied Ms. Carton’s motion to proceed
in forma pauperis in Carton v. Aryavart, Inc., 17cv210 SCY/WPL, which is now closed.
3

The fee for instituting any civil action, suit or proceeding in this Court is $400.00, which is
comprised of the $350.00 filing fee, see 28 U.S.C. 1914(a), and a $50.00 administrative fee.
2

Plaintiff does not argue that there has been an intervening change in the controlling law
or that there is new evidence previously unavailable. Plaintiff appears to allege that LMFS
breached its contract with Plaintiff, a claim that is not before this Court, and asks the Court to
“hold LMFS directly responsible for the court fees now due.” Motion to Reconsider at 2. LMFS
is not a party to the cases Plaintiff has filed. Plaintiff does not cite any legal authority to support
her request. The absence of language in the Dismissal Order holding LMFS responsible for the
remaining fees does not constitute manifest injustice. See Black’s Law Dictionary (10th ed.
2014) (“manifest injustice” means a “direct, obvious, and observable error in a trial court”). The
Court will, therefore, deny Plaintiff’s Motion to Reconsider.
The Court previously dismissed with prejudice Plaintiff’s claims in this case against
Defendant with prejudice as malicious pursuant to the statute governing proceedings in forma
pauperis, 28 U.S.C. § 1915(e)(2), and granted Defendant leave to file counterclaims and motions
for attorney fees. See “Dismissal Order at 6. No counterclaims or motions for attorney fees
have been filed in this case. The Court will, therefore, dismiss this case with prejudice.
IT IS ORDERED that:
(i) Plaintiff’s “Appeal to Memorandum Opinion and Order Filed 10/26/17,” Doc. 42,
filed November 14, 2017, is DENIED; and
(ii) this case is DISMISSED with prejudice.

_________________________________________
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE

3