Askew v. Union Pacific Motor Freight Co.

998 F.2d 1018 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. James ASKEW, Appellant, v. UNION PACIFIC MOTOR FREIGHT CO., a Corporation; Pacific Rail System, Inc.; Highway, City & Ait Freight Drivers, Dockmen, Marine Officers Association, DAiry Workers & Helpers, Local Union No. 600 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, a Labor Union, Appellees. No. 93-1102 United States Court of Appeals, Eighth Circuit. Submitted: July 2, 1993. Filed: July 9, 1993. Appeal from the United States District Court for the Eastern District of Missouri. E.D.Mo. AFFIRMED. Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges. PER CURIAM. [1] James Askew appeals from the district court's1 order dismissing his action with prejudice for making deliberate misstatements on his application to proceed in forma pauperis. We affirm. [2] On July 29, 1991, Askew filed a request to proceed IFP on a complaint against his employer and others. He filed an affidavit of poverty attesting that he earned $350 per month, that he had not received income from other sources in the preceding twelve months, that he had no money in a checking account, and that he did not own a car. Based on this information, a magistrate judge2 allowed Askew to file his complaint without payment of costs. Defendants moved to dismiss the complaint with prejudice, arguing that Askew had materially misrepresented his financial status to the court. At the court-ordered hearing, defendants presented evidence that Askew had monthly gross earnings of between $1267 and $2161 from June through October 1991, he had received $78 per week in unemployment benefits from January to May 1991, he had a checking account in July 1991 which saw much activity that month, and he owned a 1988 Ford with the title certificate held by his creditor and with a bluebook value exceeding the debt on the car. The court agreed that Askew had deliberately misstated his financial condition, and dismissed his complaint with prejudice. This appeal followed. [3] A district court may dismiss a case filed in forma pauperis "if the allegation of poverty is untrue." 28 U.S.C. § 1915(d). The court has the discretion to dismiss the case with prejudice if the plaintiff has in bad faith filed a false affidavit of poverty. Romesburg v. Trickey, 908 F.2d 258, 260 (8th Cir. 1990). Our review of the record persuades us that there is sufficient evidence of bad faith to support the district court's decision. See id. Given the holding in Romesburg, we decline Askew's invitation to apply an analysis applicable to dismissals under Federal Rule of Civil Procedure 41(b). We also reject his remaining arguments as meritless. Footnotes [1] The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge for the Eastern District of Missouri, adopting the report and recommendation of The HONORABLE DAVID D. NOCE, United States Magistrate Judge for the Eastern District of Missouri [2] The HONORABLE ROBERT D. KINGSLAND, United States Magistrate Judge for the Eastern District of Missouri, now retired