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Walker v. Wechsler

United States District Court, E.D. California

June 10, 2017

JEFF WALKER, Plaintiff,
v.
WECHSLER, et al., Defendants.

          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.

         INTRODUCTION

         On 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.

         DISCUSSION

         I. Plaintiff's In Forma Pauperis Status

         A. Legal Standard

         An 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).

         “The 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).

         On 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.)[1]

         B. Defendant's Motion

         Defendant 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.[2] 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. § 1915(e)(2)(A)).)

         C. Plaintiff's Reply

         In 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 hospital.” (Id.)

         D. ...


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