United States District Court, E.D. California
ORDER ON DEFENDANT'S MOTION TO DISMISS (DOC. 26)
ORDER REVOKING IN FORMA PAUPERIS STATUS AND REQUIRING
PLAINTIFF TO PAY $400.00 FILING FEE 21-DAY DEADLINE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
April 18, 2017, Defendant filed a motion to dismiss this
action under 28 U.S.C. § 1915(e)(2)(A) based on
Plaintiff's false declaration of poverty in his
application for in forma pauperis status, or in the
alternative, to declare Plaintiff a vexatious litigant, and
to require him to post security. (Doc. 26.) Because Plaintiff
was not impoverished when he filed his application to be
granted IFP status, it is REVOKED and Plaintiff is required
to pay the $400.00 filing fee.
Plaintiff's In Forma Pauperis Status
indigent party may be granted permission to proceed IFP upon
submission of an affidavit showing inability to pay the
required fees. 28 USC § 1915(a). The determination as to
whether a plaintiff is indigent and therefore unable to pay
the filing fee falls within the court's sound discretion.
California Men's Colony v. Rowland, 939 F.2d
854, 858 (9th Cir. 1991) (reversed on other grounds).
trial court must be careful to avoid construing the statute
so narrowly that a litigant is presented with a Hobson's
choice between eschewing a potentially meritorious claim or
foregoing life's plain necessities.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984), citing
Potnick v. Eastern State Hospital, 701 F.2d 243, 244
(2d Cir. 1983) (per curiam); Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982). “But, the same
even-handed care must be employed to assure that federal
funds are not squandered to underwrite, at public expense,
either frivolous claims or the remonstrances of a suitor who
is financially able, in whole or in material part, to pull
his own oar.” Temple, 586 F.Supp. at 850,
citing Brewster v. North American Van Lines,
Inc., 461 F.2d 649, 651 (7th Cir. 1972).
September 23, 2016, Plaintiff filed both the original
complaint and a form application to proceed IFP.
(See Docs. 1, 2.) Though Plaintiff's efforts in
filling out the application were less than technically
correct, the Court construed it leniently in his favor and
granted it. (Doc. 5.)
contends that Plaintiff's IFP application was
intentionally misleading and that his declaration of poverty
was false, requiring dismissal of the action. (Doc. 26.) To
this end, Defendant submits evidence showing that, on
September 19, 2016, via pro bono counsel, Plaintiff received
$10, 000 in settlement of a lawsuit filed in the Northern
District of California -- Walker v. Jones,, Case No.
08-cv-0757 CRB. In that action, Plaintiff entered a
stipulation to dismiss the case with prejudice in exchange
for $10, 000. Defendant contends that this action must
be dismissed since Plaintiff's allegation of poverty on
his IFP application, which was filed on September 23, 2016
was untrue. (Doc. 26-1, p. 8 (citing 28 U.S.C. §
reply, Plaintiff acknowledges that he received a $10, 000
settlement in Walker v. Jones, but contends that he
“already had obligations.” (Doc. 31, p. 1.)
Plaintiff lists “8000.00 or so on business Aces floral
service Roses on line store, FTD, etc.”; “gave
mother and father 700.00”; “Phone bills 50.00 Mo,
or so”; and “Numerous bills still owed.”
(Id.) Plaintiff states this is why he “noted
Indigent” and that “money sent now is from family
or friends to help me get cosmeticts (sic) etc, here at the