(PC) Witkin v. Thomas ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, No. 2:22-cv-01310 DJC DB P 12 Plaintiff, 13 v. ORDER 14 R. THOMAS, 15 Defendant. 16 17 Plaintiff, a former state prisoner, proceeds without counsel in an action brought under 42 18 U.S.C. § 1983. On February 28, 2023, plaintiff was granted leave to proceed in forma pauperis 19 (“IFP”). See 28 U.S.C. § 1915(a). 20 On September 11, 2023, defendants filed a motion to revoke plaintiff’s IFP status. (ECF 21 No. 23.) Defendants argue plaintiff made false allegations of poverty, and in addition, that his 22 financial circumstances have improved. (ECF No. 23.) Defendants also seek to have the case 23 dismissed as malicious under 28 U.S.C. § 1915(e)(2)(B)(i). (Id.) The motion is fully briefed. For 24 the reasons set forth below, the court orders plaintiff to submit, within 21 days of the date of this 25 order, an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) 26 (“AO 239”).1 27 1 This form is available at https://www.uscourts.gov/forms/fee-waiver-application- 28 forms/application-proceed-district-court-without-prepaying-fees-or. 1 “IFP status may be acquired or lost during the course of the litigation, and the court may 2 || waive or order payment of costs for any of the benefits that may arise under the statute.” 3 | Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), aff’d in part, vacated in part on 4 | other grounds sub nom. Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995); see also Evans v. 5 | Croom, 650 F.2d 521, 525 n. 12 (4th Cir. 1981). The court may revoke plaintiffs IFP status “if 6 | there is sufficient evidence that plaintiffs financial condition has improved to the point that 7 | plaintiffs economic situation is no longer a significant barrier to maintaining the action.” Murphy 8 | v. Jones, 801 F. Supp. 283, 289 (E.D. Mo. 1992); see also Carter v. Telectron, Inc., 452 F. Supp. 9 | 939, 942 (S.D. Tex. 1976) (“if the allegation of poverty is no longer true because of a subsequent 10 | improvement in the economic status of plaintiff, it is within the authority of this Court to dismiss 11 | the proceeding... or... require that the costs of the litigation to date be paid by plaintiff in lieu of 12 | dismissal” (internal citations omitted)). 13 In accordance with the above, IT IS ORDERED as follows: 14 1. Within 21 days of the date of this order, plaintiff shall submit a fully completed 15 and signed Application to Proceed in District Court Without Prepaying Fees or Costs (Long 16 | Form) (“AO 239”). 17 2. Plaintiff is cautioned that failure to submit a fully completed and signed AO 239 18 | form will result in a recommendation that this action be dismissed for failure to obey a court 19 | order. 20 | Dated: November 27, 2023 21 22 23 wiak1310.tp long ORDH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28