United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in this action
brought under 42 U.S.C. § 1983. His motion to proceed in
forma pauperis (“IFP”) pursuant 28 U.S.C. §
1915 was granted on October 3, 2017. ECF No. 7. Defendants
now seek dismissal of the action, arguing that
plaintiff's allegation of poverty was false. ECF No.
30-1. For the reasons that follow, the motion must be
motion to proceed IFP, plaintiff declared, under penalty of
perjury, that he had received no income in the prior 12
months, had no valuable property, and had no assets. ECF No.
2 at 1-2. Plaintiff signed the motion on December 5, 2016,
and it was filed on December 19, 2016. Id. An
officer from his institution of incarceration (California
State Prison, Solano) signed the “certificate”
portion of the IFP application, indicating that, during the
prior six months, plaintiff's trust account had an
average monthly balance of $0 and average monthly deposits of
$0. Id. at 2. The attached trust account statement
showed that, on December 1, 2016, plaintiff had received into
his trust account a settlement check for $4, 722.77, but that
the same day the entirety of the amount was debited from his
account for various restitution fines and other obligations.
Id. at 3.
present evidence that plaintiff hid assets from the court in
his IFP application. First, defendants point to an August 12,
2016 settlement in Witkin v. Swarthout, No.
2:13-cv-01931-GEB-KJN. The record in that case shows that
plaintiff agreed to settle the case for $10, 625. ECF No.
30-2 at 7. Plaintiff agreed to use “approximately $4,
700” of the settlement amount to pay off his
restitution fines and asked that the remaining money be
forwarded to his mother. Id. at 7-8. Defendants'
evidence shows that a check for $5, 666.09 was issued to
Elena Witkin on November 9, 2016. Id. at 21.
court also takes judicial notice of the November 1, 2016
settlement conference in Witkin v. Solis, No.
1:12-cv-01256-AWI-MJS, in which plaintiff agreed to settle
the case for $1, 200. ECF No. 30-2 at 17. Defendants'
evidence shows that a check for $1, 200 was issued to Elena
Witkin on January 27, 2017. Id. at 23.
the court grants defendants' request for judicial notice
of the January 27, 2017 “Notice of Proof of
Availability of Funds for Plaintiff's Deposition of Dr.
B. Barnett” in Witkin v. Lotersztain, No.
2:15-cv-00638-MCE-KJN. ECF No. 30-2 at 25-27. That filing
shows checking and savings accounts held by “the Witkin
Family Trust” at Schools Financial Credit Union holding
$12, 205.10 in assets and $6, 200.76 in debts (a car loan and
a credit card) for the statement period of December 1, 2016
through December 31, 2016.
verified opposition, plaintiff does not dispute any of the
evidence presented by defendants. Instead, he claims it shows
his honesty in the IFP application. According to plaintiff,
the evidence shows that he did not have any settlement funds
under his control at the time he executed the application
because he had directed the $5, 666.09 payment be made to his
mother four months earlier. (Plaintiff does not address the
$1, 200 settlement payment but presumably would argue that he
did not have control over these funds either, because they
were paid to his mother over a month after he submitted the
IFP application.). According to plaintiff, he “owed his
parents about $44, 000 borrowed for legal expenses related to
his incarceration and wanted to start paying them back since
they weren't working anymore.” ECF No. 31 at 4.
claims that he does not own or control the assets in the
Witkin Family Trust. Id. at 5. Instead, he states
that his parents were willing to loan him money (presumably
from that account) to pay for the deposition in
The Motion to Dismiss
seek dismissal of the case with prejudice under 28 U.S.C.
§ 1915(e)(2)(A), which provides:
“[n]otwithstanding 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 allegation
of poverty is untrue[.]” The statute was amended in
April of 1996; it had previously provided that the court
“may dismiss the case if the allegation of
poverty is untrue[.]” 28 U.S.C. § 1915(e) (1996)
1915(e)(2)(A) regards procedures to be followed after an
individual has applied for, and been granted, permission to
proceed IFP under 28 U.S.C. § 1915(a). Section 1915(a)
allows a person to proceed IFP after submitting to the court
an affidavit that includes a statement of all of the
person's assets and a statement that the person cannot
pay the filing fee. Additionally, a prisoner seeking to
proceed IFP must also submit a certified copy of their prison
trust account statement for the six months prior to the
filing of the complaint. 28 U.S.C. § 1915(a)(2). An IFP
affidavit “is sufficient where it alleges that the
affiant cannot pay the court costs and still afford the
necessities of life.” Escobedo v. Applebees,
787 F.3d 1226, 1234 (9th Cir. 2015) (considering the impact
of the filing fee on the budget of the applicant in
determining that she should have been granted IFP status).
Where the IFP applicant is a prisoner, however, courts
recognize that most necessary life expenses are covered by
the government. Kennedy v. Huibregtse, 831 F.3d 441,
443 (7th Cir. 2016) (noting that plaintiff's entire $2000
in assets were available to him to pay for his lawsuit
because the prison paid for his food, clothing, shelter, and
district, plaintiffs generally seek IFP status by submitting
a form application. E.D. Cal. Website,
(last checked October 10, 2019). Relevant to this case, the
form asks the applicant to list all income from the prior 12
months, any money in a bank account, and any other assets of
value. The form concludes with the following declaration,
above the applicant's signature: “I declare under
penalty of perjury that the above information is true and
understand that a false statement may result in a dismissal
of my claims.”
completed and signed the 2002 version of this application.
ECF No. 2. (The form was revised in 2010). He averred that,
in the past 12 months, he had not received any money from any
source. Id. at 1. He further averred that he had no
money in any bank account and owned no other valuable
property or assets. Id. at 2. Plaintiff included the
required certification and trust account statement.
Id. at 2-4. The trust account statement showed that
plaintiff had received income from a settlement on December
1, 2016 (four days before plaintiff signed the IFP affidavit)
totaling $4, 722.77 but that the entire amount had been
applied to satisfy his restitution obligations on the same
day. Id. at 3. Because the affidavit and trust
statement indicated ...