(PC) Howell v. Munoz ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KAREEM J. HOWELL, Case No. 1:23-cv-00048-EPG (PC) 10 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY HIS APPLICATION TO PROCEED IN 11 v. FORMA PAUPERIS SHOULD NOT BE DENIED BECAUSE HE CAN AFFORD TO 12 PAY THE FILING FEE E. MUNOZ, et al., 13 ORDER FOR PLAINTIFF TO SHOW CAUSE Defendants. WHY THIS CASE SHOULD NOT BE 14 DISMISSED BECAUSE HIS ALLEGATION OF POVERTY IS UNTRUE AND HE 15 KNOWINGLY PROVIDED INACCURATE INFORMATION 16 THIRTY-DAY DEADLINE 17 18 Kareem Howell (“Plaintiff”) is a prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. On January 30, 2023, Plaintiff filed an application to proceed in 20 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2). Plaintiff’s Trust Account Statement 21 was filed on February 1, 2023. (ECF No. 7). 22 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court 23 shall dismiss the case at any time if the court determines that … the allegation of poverty is 24 untrue.” 28 U.S.C § 1915(e)(2)(A). Additionally, “courts routinely dismiss with prejudice cases 25 upon finding that the plaintiff has intentionally withheld information that may have disqualified 26 plaintiff from obtaining IFP status or has otherwise manipulated his finances to make it appear 27 that a plaintiff is poorer than he actually is; i.e., where the facts show that the inaccuracy on the 28 IFP application resulted from the plaintiff’s bad faith.” Witkin v. Lee, 2020 WL 2512383, at *3 1 (E.D. Cal. May 15, 2020), report and recommendation adopted, 2020 WL 4350094 (E.D. Cal. 2 July 29, 2020), appeal dismissed, 2020 WL 8212954 (9th Cir. Dec. 9, 2020). See also Steshenko 3 v. Gayrard, 2015 WL 1503651, at *5 (N.D. Cal. Apr. 1, 2015) (“Where the applicant has 4 knowingly provided inaccurate information on his or her IFP application, the dismissal may be 5 with prejudice.”) (citing Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 6 2002); Attwood v. Singletary, 105 F.3d 610, 612-13 (11th Cir. 1997); Romesburg v. Trickey, 908 7 F.2d 258, 260 (8th Cir. 1990); Thompson v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983)), aff’d 8 sub nom. Steshenko v. Albee, 691 F. App’x 869 (9th Cir. 2017). 9 According to Plaintiff’s application, he has $936.36 in cash, but he is waiting on $402 to 10 be taken out for a different case and he “has bills.” Plaintiff also asserts that he has no other 11 income or assets. According to Plaintiff’s Trust Account Statement, the $402 filing fee has now 12 been paid. (ECF No. 7, p. 1). However, Plaintiff, a state prisoner, provides no information 13 regarding his “bills.” Additionally, Plaintiff still has $574.26 in his account, which is more than 14 enough to pay the filing fee. 15 Moreover, at least two courts have dismissed cases filed by Plaintiff because his allegation 16 of poverty was untrue. Both courts found, based on Plaintiff’s testimony in an August 26, 2021 17 deposition, that Plaintiff had a net worth of $200,000 to $300,000. Howell v. Villarreal, E.D. CA, 18 Case No. 1:19-cv-01178, ECF Nos. 65 & 67; Howell v. Johnson, E.D. CA, 2:20-cv-00520, ECF 19 Nos. 52 & 54. Plaintiff’s application to proceed in forma pauperis makes no mention of these 20 funds. 21 Thus, it appears that Plaintiff, who is a prisoner, can afford to pay the filing fee for this 22 case. Additionally, Plaintiff may have been dishonest in his application to proceed in forma 23 pauperis, and his allegation of poverty may be untrue. 24 Accordingly, based on the foregoing, IT IS ORDERED that: 25 1. Plaintiff has thirty days from the date of service of this order to show cause as to 26 why his application to proceed in forma pauperis should not be denied because he 27 can afford to pay the filing fee for this case; 28 2. Plaintiff has thirty days from the date of service of this order to show cause as to 1 why this case should not be dismissed because his allegation of poverty is untrue 2 and he knowingly provided inaccurate information; and 3 3. If Plaintiff fails to file a response to this order, the Court will issue findings and 4 recommendations to a district judge, recommending dismissal of this action. If the 5 Court finds that Plaintiff knowingly provided inaccurate information, the Court 6 may recommend that the dismissal be with prejudice. 7 3 IT IS SO ORDERED. 9| Dated: _February 1, 2023 [see hey 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28