(PC) Witkin v. Thomas ( 2024 )

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. FINDINGS AND RECOMMENDATIONS 14 R. THOMAS, 15 Defendant. 16 17 18 Plaintiff, a former state prisoner, proceeds without counsel under 42 U.S.C. § 1983. On 19 February 28, 2023, plaintiff was granted leave to proceed in forma pauperis (“IFP”). See 28 20 U.S.C. § 1915(a). Defendants’ motion to revoke plaintiff’s IFP status and to dismiss the case is 21 before the court. (ECF No. 23.) Defendants argue (1) plaintiff made false allegations of poverty 22 and (2) his filing of this suit was malicious. For the reasons set forth below, the motion to dismiss 23 should be granted. 24 I. Background 25 Plaintiff, a former prisoner in custody of the California Department of Corrections and 26 Rehabilitation (“CDCR”), was released from custody on July 6, 2022. (See ECF No. 23 at 15, 27 Couture Decl., ¶ 2.) Plaintiff initiated this action with a complaint and IFP application filed on 28 July 25, 2022. (ECF Nos. 1, 2.) In his IFP application, plaintiff alleged he had no funds in any 1 account, he was unemployed, he had no income in the previous twelve months, and he had no 2 assets. (ECF No. 2.) As to his regular monthly expenses, plaintiff stated “Plaintiff was paroled… 3 as a ‘transient’ with an ‘alternate’ address of the mailing address on the front of the complaint.” 4 (Id. at 2.) Plaintiff signed the form under penalty of perjury on July 7, 2023.1 (Id.) 5 On August 22, 2022, plaintiff filed a “Notice regarding IFP Status” indicating that after 6 submission of the IFP application, plaintiff agreed to a settlement in Witkin v. Rosario, et al., 7 2:20-cv-0126 TLN DMC, and expected to receive settlement funds in the amount of $3,000 8 within 180 days. (ECF No. 7.) The Notice regarding IFP Status further stated, in relevant part: 9 When plaintiff filed his application for IFP status he was paroled as a transient to the Sac-Natomas region, and has since been granted a 10 pass to temporarily reside with his wife at the address captioned above. Along with that move comes a number of living expenses, the 11 extent of which is not yet known. 12 (Id. at 1-2.) 13 On February 28, 2023, the court granted plaintiff leave to proceed in forma pauperis and 14 screened the complaint. (ECF No. 9.) The court determined plaintiff’s complaint stated the 15 following claims: (1) denial of outdoor exercise in violation of the Eighth Amendment against 16 defendants Thomas, Bird, Johnson, and Hughes; and (2) retaliation in violation of the First 17 Amendment against defendant Martinez. (Id.) Pursuant to plaintiff’s notice of election and the 18 court’s order of May 16, 2023, this case proceeded on those claims. (ECF No. 10, 16.) On March 19 30, 2023, the undersigned ordered service of the complaint on the defendants. (ECF No. 11.) 20 On September 11, 2023, defendants filed the motion to revoke plaintiff’s IFP status 21 presently before the court. (ECF No. 23.) Defendants argue plaintiff made false allegations of 22 poverty such that the case should be dismissed under 28 U.S.C. § 1915(e)(2)(A). (ECF No. 23.) 23 Defendant also argue plaintiff’s financial circumstances have improved. (Id.) Finally, defendants 24 seek to have the case dismissed as malicious under 28 U.S.C. § 1915(e)(2)(B)(i). (Id.) 25 On November 27, 2023, the undersigned ordered plaintiff to submit, within 21 days, an 26 Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (“AO 27 1 On July 28, 2022, plaintiff filed another copy of the IFP affidavit signed on July 7, 2022. (ECF 28 No. 6.) 1 239”). (ECF No. 30.) On January 16, 2024, plaintiff filed a “Notice re IFP.” (ECF No. 31.) 2 Therein, plaintiff states his financial circumstances have changed due to his employment, and 3 thus that there is no basis for him to file a further IFP application. (Id. at 2.) Plaintiff indicates he 4 is prepared to pay the fees in full. (Id.) 5 II. Legal Standard 6 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court 7 shall dismiss the case at any time if the court determines that… the allegation of poverty is 8 untrue; or … the action or appeal… is frivolous or malicious.” 28 U.S.C. § 1915(e)(2). “To 9 dismiss [a] complaint pursuant to § 1915(e)(2), a showing of bad faith is required, not merely 10 inaccuracy.” Escobedo v. Applebees, 787 F.3d 1226, 1235 n.8 (9th Cir. 2015). 11 Where “the allegation of poverty is untrue but there is no showing of bad faith, the court 12 should impose a lesser sanction than outright dismissal with prejudice....” Witkin v. Lee, No. 13 2:17-cv-0232-JAM-EFB P, 2020 WL 2512383, at *3 (E.D. Cal. May 15, 2020), report and 14 recommendation adopted, 2020 WL 4350094 (E.D. Cal. July 29, 2020), appeal dismissed, 2020 15 WL 8212954 (9th Cir. Dec. 9, 2020). “Courts that have declined to dismiss an action under § 16 1915(e)(2)(A) have generally based their decisions on the actual poverty of the plaintiff, despite a 17 technical inaccuracy in the IFP application, and the absence of a showing of bad faith.” Id. (citing 18 collected cases). 19 “On the flip side, courts routinely dismiss with prejudice cases upon finding that the 20 plaintiff has intentionally withheld information that may have disqualified plaintiff from 21 obtaining IFP status or has otherwise manipulated his finances…; i.e., where the facts show that 22 the inaccuracy on the IFP application resulted from the plaintiff’s bad faith.” Witkin v. Lee, 2020 23 WL 2512383, at *3; see also Steshenko v. Gayrard, Nos. 13-CV-03400–LHK & 13-CV–04948– 24 LHK, 2015 WL 1503651, at *5 (N.D. Cal. Apr. 1, 2015) (“Where the applicant has knowingly 25 provided inaccurate information on his or her IFP application, the dismissal may be with 26 prejudice.”) (citing Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002); 27 Attwood v. Singletary, 105 F.3d 610, 612-13 (11th Cir. 1997); Romesburg v. Trickey, 908 F.2d 28 258, 260 (8th Cir. 1990); Thompson v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983)), aff’d sub 1 nom. Steshenko v. Albee, 691 F. App’x 869 (9th Cir. 2017). In determining whether a plaintiff 2 acted in bad faith, a court may consider whether the plaintiff is an experienced litigator. See, e.g., 3 Vann v. Comm’r of N.Y. City Dep’t of Correction, 496 F. App’x 113, 115 (2nd Cir. 2012) (“To 4 determine whether a plaintiff has acted in bad faith a court may consider a plaintiff’s familiarity 5 with the in forma pauperis system and history of litigation.”). 6 Separately, a court may deem an action to be malicious by finding it was “filed with the 7 intention or desire to harm another.” Washington v. Los Angeles Cnty. Sheriff's Dep’t, 833 F.3d 8 1048, 1055 (9th Cir. 2016) (discussing maliciousness in the context of the three strikes provision 9 of § 1915(g)) (quoting Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (“A case is 10 malicious if it was filed with the “intention or desire to harm another.”); see also Lindell v. 11 McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (although “‘malicious’ ... is sometimes treated as 12 a synonym for ‘frivolous,’ ... [it] is more usefully construed as intended to harass”). In evaluating 13 maliciousness under § 1915(e)(2), a district court engages in “a subjective inquiry into the 14 litigant’s motivations at the time of the filing of the lawsuit to determine whether the action is an 15 attempt to vex, injure, or harass the defendants.” Deutsch v. United States, 67 F.3d 1080, 1086 16 (3rd Cir. 1995). 17 III. Analysis 18 A. Maliciousness 19 In 2021, plaintiff filled out a “SMART Goal-Planning” worksheet. (See ECF No. 23-1 at 20 4-5, “Worksheet”.) Plaintiff’s stated objective on the Worksheet was “[b]ringing the authorities to 21 justice.” (Id. at 4.) His stated goal was “complete the litigation of 20 federal lawsuits against 22 CDCR” in the Eastern District of California. (Id. at 4.) Plaintiff would try to reach this goal by 23 December 1, 2023, and it would be completed when he “knock[ed] down CDCR for about 24 $250,000.” (Id. at 5.) Plaintiff indicated he would know he reached his goal when he “received 20 25 checks.” (Id. at 4.) Plaintiff filed this action on July 25, 2022. (ECF No. 1.) 26 Defendants argue this suit was maliciously filed based on plaintiff’s prior statements in 27 the “SMART Goal-Planning” worksheet, which show an intent to harm CDCR through pursuit of 28 litigation. (ECF No. 23 at 11-12.) Defendants argue plaintiff’s litigation activity shows he is 1 pursuing his goal of attempting to harm, rather than attempting to remedy a wrong, by filing this 2 case. (Id. at 12.) 3 In response, plaintiff declares that none of his civil rights actions were filed for an 4 improper purpose or any reason other than an honest attempt to vindicate violations of his 5 constitutional rights. (ECF No. 25-1, ¶ 6.) Plaintiff argues the court’s screening order finding 6 cognizable claims disposes of any contention that the complaint is not an appropriate effort to 7 vindicate his rights. (ECF No. 25 at 4.) The court notes, however, the screening of the complaint 8 under subsections (ii) and (iii) of 28 U.S.C. § 1915(e)(2)(B) is a distinct inquiry from any 9 determination of maliciousness under 28 U.S.C. § 1915(e)(2)(B)(i). See 28 U.S.C. § 10 1915(e)(2)(B). 11 Defendants request the court to take judicial notice of 18 exhibits, including Party Search 12 Results for Michael Witkin from the PACER Case Locator and Orders or Findings and 13 Recommendations from 17 cases. (ECF No. 23-3.) The court takes judicial notice of the PACER 14 Party Search results for plaintiff, which is publicly available on PACER. See Harris v. Cnty. of 15 Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (a court may take judicial notice of “undisputed 16 matters of public record”). Plaintiff has filed a total of 16 civil rights lawsuits against various 17 CDCR defendants beginning in 2012. (See ECF No. 23-3 at 6-8, Request for Judicial Notice 18 (“RJN”).) Plaintiff filed eight lawsuits against CDCR defendants between 2020 and 2022 and 19 four lawsuits against CDCR defendants in 2021 and 2022. (Id. at 7-8.) 20 In addition, plaintiff has filed three separate lawsuits bringing denial of exercise claims. 21 Significantly, plaintiff’s present claim in this case alleging denial of outdoor exercise is similar to 22 claims he previously litigated in more than case. The court takes judicial notice of the court 23 filings in Witkin v. Swarthout, et al., 2:13-cv-01931-GEB-KJN and Witkin v. Wise, et al., 2:19- 24 cv-00974-KJM-KJN. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th 25 Cir. 2006) (courts “may take judicial notice of court filings”). In Witkin v. Swarthout, plaintiff 26 alleged he was denied outdoor exercise for nearly three months. (See ECF No. 23-3 at 24-26, 27 RJN.) Subsequently, in Witkin v. Wise, plaintiff alleged he was denied outdoor exercise time for 28 90 days and was retaliated against. (Id. at 94-95.) In opposition to the defendants’ motion to opt 1 out of the court’s ADR Pilot Program in Witkin v. Wise, plaintiff argued the exercise claim he 2 was bringing was “identical” to one in which he had obtained a $10,540 settlement. (Id. at 151.) 3 In the instant case, too, plaintiff alleges he was denied outdoor exercise for 92 days (from 4 December 8, 2020, through March 10, 2021) and was retaliated against. (ECF No. 1 at 4-6.) 5 The court does not infer maliciousness based on plaintiff’s filing of three similar denial of 6 exercise claims. However, plaintiff’s 2021 statements that he intended to prosecute 20 cases 7 against CDCR in this district court to net $250,000, considered with his litigation history, shows 8 an intent to abuse the federal justice system for the purpose of harming or harassing the 9 defendants in bringing such a claim in the present case. Considering the allegations in the present 10 case, plaintiff’s litigation history, and the statements in plaintiff’s “SMART Goal-Planning” 11 worksheet, plaintiff filed this action as part of his stated goal to extract $250,000 from CDCR. It 12 was, therefore, filed with the intent or desire to harm or harass, and is malicious. See Washington, 13 833 F.3d at 1055; King, 398 F.3d at 1121; Lindell, 352 F.3d at 1109; Deutsch, 67 F.3d at 1086. 14 B. Plaintiff’s Allegations of Poverty 15 1. Prior Cases 16 The court takes judicial notice of the filings in in this court in Witkin v. Sloan, 2:16-cv- 17 02950-JAM-EFB, and Witkin v. Lee, 2:17-cv-00232-JAM-EFB. See Reyn’s, 442 F.3d at 746 n.6. 18 In both cases, the court concluded plaintiff had failed to disclose the settlement funds he instead 19 had elected to divert to his mother. (ECF No. 23-3 at 48-57 & 62-71.) In those cases, the court 20 considered the timeline and determined plaintiff was aware of the potential litigation when he 21 elected to have funds sent to his mother rather than pay the filing fees. (See id.) The court found 22 plaintiff was an experienced litigator and acted in bad faith in failing to include the settlement 23 funds in his IFP application and intentionally keep funds out of his prison account in order to 24 improve his chances of obtaining IFP status. (See id.) 25 2. This Case 26 Prior to his release from custody, plaintiff sought permission to live with his then-fiance, 27 Rasheetah Foster. (ECF No. 23 at p. 15, ¶ 3.) Plaintiff sought a transfer from Sacramento to 28 Vallejo for parole supervision for that purpose, which resulted in a transfer investigation. (Id.) 1 During this investigation, Ms. Foster confirmed she was employed at Chevron headquarters. (Id.) 2 Plaintiff’s request was initially denied because the two were not legally married, and, instead, his 3 residence was approved as “Transient.” (Id., ¶¶ 3, 4.) Plaintiff was released from CDCR custody 4 on July 6, 2022, (Id., ¶ 2.) 5 Plaintiff reported to parole the next day on July 7, 2022, and presented a marriage license 6 showing he was married to Rasheetah Foster the same day. (ECF No. 23 at p. 15, ¶¶ 4, 5.) His 7 address was updated to the “Alternate Address” on Kentucky Street in Vallejo, California, on July 8 7, 2022. (Id., ¶¶ 4, 6.) Plaintiff was issued a travel permit allowing him to travel to and live in 9 Vallejo at the Kentucky Street address. (Id., ¶¶ 6-9, 10.) Plaintiff filed his first IFP declaration on 10 July 25, 2022. (ECF No. 2.) Plaintiff signed the declaration on July 7, 2022. (Id.) He filed the 11 “Notice regarding IFP Status” reporting his expected settlement funds on August 22, 2022. (ECF 12 No. 7.) 13 Plaintiff informed his parole officer he began working on August 9, 2022. (ECF No. 23 at 14 p. 15-16, ¶¶ 8, 9.) Plaintiff confirmed his continued employment on August 19, 2022. (Id., ¶ 11.) 15 Plaintiff confirmed his continued employment on September 20, 2022, and November 8, 2022. 16 (ECF No. 23 at p. 17, ¶¶ 3, 4.) Plaintiff’s wife also remained employed for Chevron. (Id., ¶ 3.) 17 Defendants argue plaintiff’s statements asserting his impoverished status, which were 18 filed on July 25, 2022, and updated on August 22, 2022, failed to include information regarding 19 his employment. (ECF No. 23 at 3.) They also argue plaintiff provided misleading statements 20 regarding his residence. (Id.) 21 Plaintiff denies that he made false allegations of poverty. (ECF No. 25 at 4.) He notes the 22 parole authorities deemed him a transient, he had no money, and did not know the extent of his 23 living expenses when he so stated. (ECF No. 25 at 2.) He notes he immediately reported the 24 $3,000 settlement in this instance. (ECF No. 25-1, ¶ 11.) He states he initially obtained a 25 temporary day labor position, was no longer working as of September 2022, and did not obtain 26 regular employment until January 10, 2023. (Id., ¶¶ 9, 14.) 27 Plaintiff’s statement in the IFP application that he was paroled as “transient” was 28 technically accurate if only for the day of his release and part of the following day, which is the 1 same day he signed the IFP application. However, it appears plaintiff deliberately misrepresented 2 his housing status to appear that he was homeless. Plaintiff signed his first IFP declaration on July 3 7, 2022. Even though plaintiff was married that same day, had his address updated to the Vallejo 4 address on the same day, and was authorized to travel to and live at the Vallejo address on the 5 same day, he nevertheless indicated to the court he was paroled as transient. (See ECF No. 23 at 6 p. 15, ¶¶ 4-6, 9, 10.) Moreover, plaintiff did not file the IFP form until July 25, 2022, well after he 7 was living at the Vallejo address with his gainfully employed spouse, and well after the 8 information contained therein was stale. 9 Moreover, plaintiff’s Notice regarding IFP Status filed on August 22, 2022, while 10 reporting his $3,000 settlement funds, did not disclose his recent employment or any support from 11 his employed spouse with whom he resided. Plaintiff does not dispute that he informed his parole 12 agent he had obtained employment as of August 9, 2022. (See ECF No. 23 at p. 15-16, ¶¶ 8, 9.) 13 Moreover, told his parole officer he was still working construction jobs on September 20, 2022, 14 and November 8, 2022. (Id. at p. 17, ¶¶ 3, 4.) 15 Plaintiff, who was an experienced litigator, was familiar with the IFP system and the need 16 to accurately disclose all income, having been sanctioned for bad faith omissions twice 17 previously. This history and the present circumstances support a finding of bad faith. See, e.g., 18 Witkin v. Lee, 2020 WL 2512383, at *3. Specifically, the court infers plaintiff intentionally 19 withheld information regarding his housing status, employment, and other support that may have 20 disqualified him from obtaining IFP status. Plaintiff did not commit a minor misstatement or 21 omission; instead, he manipulated his housing status to appear that he was homeless, omitted his 22 wife’s income, and deliberately misrepresented his employment status to conceal the true facts 23 from the court. Accordingly, the case should be dismissed with prejudice. See Thomas, 288 F.3d 24 at 306. 25 //// 26 //// 27 //// 28 //// 1 IV. Conclusion 2 For the reasons stated above, IT IS RECOMMENDED that the motion to revoke 3 | plaintiff's in forma pauperis status and to dismiss the case as malicious (ECF No. 23) be 4 | GRANTED and this case be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(A). 5 These findings and recommendations are submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after 7 | being served with these findings and recommendations, any party may file written objections with 8 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 9 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 10 | filed and served within 7 days after service of the objections. The parties are advised that failure 11 || to file objections within the specified time may waive the right to appeal the District Court’s 12 | order. Martinez vy. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 | Dated: February 12, 2024 14 15 16 ORAH BARNES DLB7 UNITED STATES MAGISTRATE JUDGE 17 | witk1310.ifp.fr 18 19 20 21 22 23 24 25 26 27 28