Tijerino v. USA Pawn Jewelry

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Breanick Tijerino, No. CV-22-01569-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 USA Pawn Jewelry, 13 Defendant. [14] 15 Pending before the Court is Plaintiff’s Application to Proceed in District Court 16 Without Prepaying Fees or Cost (Doc. 2). Upon review, Plaintiff’s Application, signed 17 under penalty of perjury, indicates that he is financially unable to pay the filing fee. The 18 Court will grant Plaintiff’s Application and allow him to proceed in forma pauperis 19 (“IFP”). Pursuant to 28 U.S.C. § 1915 (e)(2), the Court will proceed to screen Plaintiff’s 20 Complaint (Doc. 1). 21 I. Discussion 22 Plaintiff’s Complaint purports to bring a cause of action under Title VII of the Civil 23 Rights Act, alleging he was discriminated against based on his sexual identity. (Doc. 1 at 24 3). Plaintiff has filed three prior Complaints with substantially similar allegations against 25 the same Defendant. The Court has dismissed each of the previous Complaints with 26 express warnings to Plaintiff that if he failed to comply with the Court’s Order, the Court 27 may dismiss the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 28 A. Federal Rule of Civil Procedure 41(b) 1 Under Rule 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules 2 or a court order, a defendant may move to dismiss the action or any claim against it. Unless 3 the dismissal order states otherwise, a dismissal under this subdivision (b) and any 4 dismissal not under this rule . . . operates as an adjudication on the merits.” Fed. R. Civ. 5 P. 41 (b). “Rule 41(b) dismissals are considered adjudications on the merits for res judicata 6 purposes.” Agfa-Gevaert, A.G. v. A.B. Dick Co., 770 F. Supp. 441, 444 (N.D. Ill. 1991) 7 (citing Costello v. United States, 365 U.S. 265, 285 (1961)). 8 The Supreme Court has concluded an “adjudication upon the merits” under Rule 9 41(b) is synonymous with a dismissal with prejudice. See Semtek International Inc. v. 10 Lockheed Martin Corp., 531 U.S. 497, 505 (2001). “[T]he effect of the ‘adjudication upon 11 the merits’ default provision of Rule 41(b) . . . is simply that, unlike a dismissal ‘without 12 prejudice,’ the dismissal in the present case barred refiling of the same claim in the 13 [dismissing court].” Id. at 506–07. 14 B. Plaintiff’s Prior Complaints 15 On February 9, 2022, Plaintiff filed his first Complaint, alleging he was 16 discriminated against based on his sexual orientation. Tijerino v. USA Pawn Jewelry, No. 17 2:22–cv–00219–GMS (D. Ariz.). Plaintiff claimed he was denied promotion opportunities, 18 vacation, and treated unfairly. Id. The Court denied Plaintiff’s IFP application because he 19 failed to complete certain sections. Id. Plaintiff did not file a second application and the 20 Court terminated the case. Id. 21 On April 5, 2022, Plaintiff filed a second Complaint, alleging he was discriminated 22 against based on his sexual orientation. Tijerino v. USA Pawn Jewelry, No. 2:22–cv– 23 00552–DJH (D. Ariz.). Plaintiff claimed he was met with retaliation when he reported the 24 harassment and subsequently fired. Id. The Court dismissed Plaintiff’s Complaint because 25 he failed to provide sufficient factual detail and therefore the Court could not infer a 26 plausible claim. Id. The Court provided an express warning to Plaintiff that if he failed to 27 comply with the Court order, the Court may dismiss the action with prejudice pursuant to 28 Rule 41(b). Plaintiff did not file an amended complaint and the Court dismissed the action 1 under Rule 41(b). Id. 2 On June 8, 2022, Plaintiff filed a third Complaint, alleging he was discriminated 3 against based on his race.1 Tijerino v. USA Pawn Jewelry, No. 2:22–cv–00997–DJH (D. 4 Ariz.). Plaintiff claimed he was met with retaliation when he reported the harassment. Id. 5 The Court dismissed Plaintiff’s Complaint because he failed to provide sufficient factual 6 detail and thus the Court could not infer a plausible claim. Id. There too, the Court 7 provided an express warning to Plaintiff that if he failed to comply with the Court order, 8 the Court may dismiss the action with prejudice pursuant to Rule 41(b). Id. Plaintiff did 9 not file an amended complaint and the Court dismissed the action under Rule 41(b). Id. 10 The Court provided Plaintiff with an opportunity to file an amended complaint in 11 each of the previous cases. The Court also expressly warned him that failure to do so may 12 result in dismissal under Rule 41(b). Plaintiff never filed any amended complaints, and the 13 Court accordingly dismissed his actions under Rule 41(b). 14 Where, as here, the Court dismissed the prior three actions under Rule 41(b), the 15 dismissed claim cannot be brought again in the dismissing court. Id. Plaintiff’s current 16 Complaint contains the same allegations as his previous ones. Because his previous 17 Complaints were adjudications on the merits, this Court finds Rule 41(b) bars Plaintiff’s 18 current Complaint and it must be dismissed. 19 Accordingly, 20 IT IS HEREBY ORDERED that the Application to Proceed in District Court 21 Without Prepaying Fees or Costs (Doc. 2) is granted. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / [27] 28 1 The Complaint did not specify the grounds of discrimination and the Court inferred it was racial. 1 IT IS HEREBY ORDERED that Plaintiff's Complaint (Doc. 1) is dismissed. The || Clerk of the Court shall terminate this action. 3 Dated this 30th day of September, 2022. [4] 5 ( . 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