(PC)Williams v. Soto

[6] UNITED STATES DISTRICT COURT [7] EASTERN DISTRICT OF CALIFORNIA [9] MELVIN WILLIAMS, Case No. 1:23-cv-00547-EPG (PC) [10] Plaintiff, ORDER DENYING PLAINTIFF’S 11 APPLICATION TO PROCEED IN FORMA v. PAUPERIS, WITHOUT PREJUDICE [12] SOTO, et al., (ECF No. 2) [13] Defendants. ORDER DIRECTING PLAINTIFF TO SUBMIT APPLICATION TO PROCEED IN [14] FORMA PAUPERIS OR PAY FILING FEE WITHIN 30 DAYS [15] ORDER DIRECTING CLERK TO SEND 16 PLAINTIFF A BLANK APPLICATION TO PROCEED IN FORMA PAUPERIS [18] 19 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 20 U.S.C. § 1983 . On April 7, 2023, Plaintiff filed an application to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915 , along with a Trust Account Statement. (ECF No. 2). According to 22 Plaintiff’s application, he is not employed, he has not received money from any sources in the last 23 twelve months, and he has no money or other assets. However, according to the attached Trust 24 Account Statement, between October 7, 2022, and April 7, 2023, Plaintiff received $3,735.56 in 25 deposits to his Trust Account. 26 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court 27 shall dismiss the case at any time if the court determines that … the allegation of poverty is 28 untrue.” 28 U.S.C § 1915(e)(2)(A). Additionally, “courts routinely dismiss with prejudice cases 1 upon finding that the plaintiff has intentionally withheld information that may have disqualified 2 plaintiff from obtaining IFP status or has otherwise manipulated his finances to make it appear 3 that a plaintiff is poorer than he actually is; i.e., where the facts show that the inaccuracy on the 4 IFP application resulted from the plaintiff’s bad faith.” Witkin v. Lee, 2020 WL 2512383 , at *3 5 (E.D. Cal. May 15, 2020), report and recommendation adopted, 2020 WL 4350094 (E.D. Cal. 6 July 29, 2020), appeal dismissed, 2020 WL 8212954 (9th Cir. Dec. 9, 2020). See also Steshenko 7 v. Gayrard, 2015 WL 1503651 , at *5 (N.D. Cal. Apr. 1, 2015) (“Where the applicant has 8 knowingly provided inaccurate information on his or her IFP application, the dismissal may be 9 with prejudice.”) (citing Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 10 2002); Attwood v. Singletary, 105 F.3d 610, 612-13 (11th Cir. 1997); Romesburg v. Trickey, 908 11 F.2d 258, 260 (8th Cir. 1990); Thompson v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983)), aff’d 12 sub nom. Steshenko v. Albee, 691 F. App’x 869 (9th Cir. 2017). 13 As of the date of the last transaction in Plaintiff’s Trust Account, Plaintiff’s account 14 balance was only $142.82. (ECF No. 2, p. 6). However, as discussed above, between October 7, 15 2022, and April 7, 2023, Plaintiff received $3,735.56 in deposits to his Trust Account. Plaintiff 16 provides no explanation of these deposits in his application. As the evidence before the Court of 17 Plaintiff’s assets is inconclusive, the Court will deny Plaintiff’s application without prejudice and 18 provide Plaintiff with an opportunity to clarify his financial condition and adequately demonstrate 19 financial hardship.1 As Plaintiff is receiving money but swears under penalty of perjury that he is 20 not, the Court also warns Plaintiff that knowingly providing inaccurate information on the 21 application may result in dismissal of the action with prejudice. 22 Accordingly, IT IS ORDERED that: 23 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is denied without 24 prejudice; 25 2. Within thirty (30) days from the date of service of this order, Plaintiff shall submit 26 the attached application to proceed in forma pauperis, completed and signed, or in 27 1 In his application, Plaintiff also states: “Full check payment to follow $450.00.” (ECF No. 2, p. 1). The Court notes that, if Plaintiff pays the filing fee in full, he does not need to submit another application to proceed in 28 forma pauperis. The Court also notes that the filing fee is $402, not $450. 1 the alternative, pay the $402.00 filing fee for this action; 2 3. Failure to comply with this order may result in dismissal of this action; and 3 4. The Clerk of Court is directed to send Plaintiff a blank application to proceed in 4 forma pauperis. [5] 6 IT IS SO ORDERED. 7) Dated: _ April 10, 2023 [Je hey 8 UNITED STATES MAGISTRATE JUDGE