(PC) Moody v. Paul ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DOMINIC MOODY, Case No. 1:23-cv-01541-NODJ-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S IFP 12 v. APPLICATION BE DENIED FOR FILING A FALSE IFP AFFIDAVIT 13 STEVEN PAUL, (ECF No. 2) 14 Defendant. OBJECTIONS, IF ANY, DUE WITHIN 15 FOURTEEN (14) DAYS 16 17 Plaintiff Dominic Moody is a pro se prisoner in this civil rights action. This matter is 18 before the Court on Plaintiff’s application to proceed in forma pauperis (IFP). (ECF No. 2). For 19 the reasons given below, the Court recommends that Plaintiff’s IFP application be denied for 20 filing a false IFP affidavit. 21 I. BACKGROUND 22 Plaintiff filed this case pursuant to 42 U.S.C. § 1983 on October 31, 2023, with a 23 complaint dated October 25, 2023. (ECF No. 1). Plaintiff filed an IFP application (which included 24 an affidavit) also dated October 25, 2023. (ECF No. 2). Importantly, Plaintiff stated that (1) he 25 received no money from any source over the last twelve months; and (2) that he had no cash or 26 any other assets. (ECF No. 2). 27 However, according to Plaintiff’s trust account statement, the information in his IFP 28 application is false. (ECF No. 5). Among other things, the statement, which lists transactions from 1 May 1, 2023, to October 28, 2023, shows that (1) Plaintiff routinely received deposits in his 2 account; (2) he at times had over the formerly $4021 filing fee in his account; and (3) that he had 3 an account balance of $227.04 as of October 19, 2023 (the last date on the statement before he 4 signed his IFP application). However, Plaintiff spent $216.65 from his account on October 11, 2023—two weeks before he dated his IFP application—on unspecified sales, which brought his 5 account balance down from $443.99 to $227.34. 6 Noting that it appeared that Plaintiff intentionally made false statements on his IFP 7 affidavit, the Court ordered Plaintiff to show cause why this case should not be dismissed for 8 filing a false IFP affidavit. (ECF No. 6). On November 13, 2023, Plaintiff filed declaration stating 9 that (1) he was not currently employed nor had he been employed from July 2022 to November 10 2023; (2) that his last date of employment was May 2022; (3) that he depends on his mother for 11 support while he is in prison; (4) that he has no cash or other assets; and (5) that his case should 12 not be dismissed because he has proof regarding his claim. (ECF No. 7). 13 II. ANALYSIS 14 The Court normally requires a filing fee paid in full to proceed in a civil action. However, 15 a federal statute, 28 U.S.C. § 1915, permits a plaintiff to commence a lawsuit without prepaying a 16 filing fee. This statute requires “an affidavit that includes a statement of all assets such prisoner 17 possesses that the person is unable to pay such fees or give security therefor.” § 1915(a)(1). In 18 addition to filing an affidavit, a prisoner “shall submit a certified copy of the trust fund account 19 statement (or institutional equivalent) for the prisoner for the 6-month period immediately 20 preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of 21 each prison at which the prisoner is or was confined.” § 1915(a)(2). 22 Importantly, under § 1915(e)(2)(A), a “court shall dismiss” a case if it determines that 23 “the allegation of poverty is untrue.” But “[t]o dismiss [a] complaint pursuant to § 1915(e)(2), a showing of bad faith is required, not merely inaccuracy.” Escobedo v. Applebees, 787 F.3d 1226, 24 1235 n. 8 (9th Cir. 2015). “[C]ourts routinely dismiss with prejudice cases upon finding that the 25 plaintiff has intentionally withheld information that may have disqualified plaintiff from 26 obtaining IFP status or has otherwise manipulated his finances to make it appear that a plaintiff is 27 28 1 The Court’s filing fee recently increased to $405 during the pendency of this case. 1 poorer than he actually is; i.e., where the facts show that the inaccuracy on the IFP application 2 resulted from the plaintiff's bad faith.” Witkin v. Lee, No. 2:17-CV-0232-JAM-EFB P, 2020 WL 3 2512383, at *3 (E.D. Cal. May 15, 2020), report and recommendation adopted, No. 2020 WL 4 4350094 (E.D. Cal. July 29, 2020). With these standards in mind, the Court concludes that Plaintiff’s allegation of poverty is 5 untrue. Specifically, Plaintiff claimed to (1) receive no funds from any source from the last twelve 6 months and (2) have no cash or other assets. (ECF No. 2). But according to Plaintiff’s trust 7 account statement, which Plaintiff does not contest the accuracy of, Plaintiff received routine 8 deposits, e.g., $100 on May 6, 2023; $240 on June 3, 2023; $100 on July 4, 2023; $50 on August 9 2, 2023; $220 on September 19, 2023; and $120 on October 8, 2023. And Plaintiff now admits in 10 his declaration that he receives funds from his mother. (ECF No. 7, p. 2). 11 While Plaintiff continues to claim that he has no assets, this assertion is false for purposes 12 of the relevant time at issue here. (Id.). Plaintiff had $227.04 as of October 19, 2023, which is the 13 last date on the statement before he signed his IFP application. However, he spent $216.65 from 14 his account on October 11, 2023—two weeks before he dated his IFP application—on 15 unspecified sales, which brought his account balance down from $443.99 to $227.34. Had he not 16 spent this money, he could have paid the full filing fee. But even setting his expenditure aside, he 17 still had funds at the time he filed his IFP application. 18 Having determined that the allegations in the affidavit are untrue, the Court considers 19 whether Plaintiff acted in bad faith. Here, Plaintiff represented that he received no funds from any 20 source, but now admits that he receives support from his mother. Moreover, although he stated 21 that he had no assets, he had enough money to pay the filing fee shortly before filing his 22 complaint, but he spent the money in what appears to be an attempt to avoid paying the filing fee. 23 Other courts have found bad faith where “prisoner-plaintiffs have diverted funds in the period leading up to their IFP application.” Witkin v. Lee, 2020 WL 2512383, at *4. Moreover, despite 24 the Court giving Plaintiff a chance to explain his false statements, he has provided no satisfactory 25 explanation, and in fact continues to falsely claim that he has no cash or other assets. Even setting 26 aside Plaintiff’s expenditure of over $200 shortly before filing this complaint, he still had a 27 balance of $227.04 when he submitted his IFP application. 28 1 Nevertheless, and while it is within the Court’s discretion to dismiss this case with 2 | prejudice based on the authority noted above, the Court will stop short of recommending the 3 | harshest sanction in this case. Instead, the Court will recommend that Plaintiff be required to pay 4 | the filing fee in full should he wish to proceed with this case. 5 | Il. CONCLUSION AND RECOMMENDATIONS 6 Because Plaintiff's allegation of poverty is untrue and because circumstances indicate that 7 Plaintiff acted in bad faith to avoid paying the filing fee, IT IS RECOMMENDED as follows: 8 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) be denied; and 9 2. Plaintiff be ordered to pay the $405 filing fee in full should he wish to proceed in this 10 case. These findings and recommendations are submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 2 (14) days after being served with these findings and recommendations, Plaintiff may file written 13 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 15 Plaintiff is advised that failure to file objections within the specified time may result in the 16 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 17 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 IT IS SO ORDERED. 20 | Dated: _ December 15, 2023 [Je hey □ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28