Balthrope v. Sacramento County Department of Health & Human Services , 398 F. App'x 285 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT BENNING BALTHROPE, II, No. 09-17213
Plaintiff - Appellant, D.C. No. 2:09-cv-01874-FCD-
KJM
v.
SACRAMENTO COUNTY MEMORANDUM *
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted September 22, 2010 **
Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges.
The district court did not abuse its discretion by applying judicial estoppel
because Robert Benning Balthrope, II, (“Balthrope”) attempted to pursue legal
claims that he did not disclose during his bankruptcy proceedings. See Hamilton v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001) (applying judicial
estoppel where debtor failed to disclose a pending claim as an asset in a bankruptcy
proceeding). Contrary to Balthrope’s contention, he was required to amend his
bankruptcy petition to include the post-petition claim because his Chapter 13
bankruptcy proceeding had not been closed, dismissed, or converted, and the
property of the bankruptcy estate had not revested in him. See 11 U.S.C.
§ 1306(a)(1); see also Hamilton, 270 F.3d at 784 (“Judicial estoppel will be
imposed when the debtor has knowledge of enough facts to know that a potential
cause of action exists during the pendency of the bankruptcy, but fails to amend his
schedules or disclosure statements to identify the cause of action as a contingent
asset.”) (citation omitted).
The district court did not abuse its discretion by denying Balthrope’s motion
to proceed in forma pauperis after considering his income and assets as set forth in
his bankruptcy action. See 28 U.S.C. § 1915(e)(2)(A) (case must be dismissed if
“the allegation of poverty is untrue”); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th
Cir. 1990).
Balthrope’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-17213