(PC) Osuna v. Campbell ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMIE OSUNA, Case No. 1:24-cv-01156-EPG (PC) 10 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW 11 CAUSE WHY THIS CASE SHOULD NOT BE v. DISMISSED FOR FILING A FALSE IFP 12 AFFIDAVIT T. CAMPBELL, et al., 13 (ECF No. 2) Defendants. 14 RESPONSE DUE BY NO LATER THAN NOVEMBER 18, 2024 15 16 Plaintiff Jamie Osuna is a state prisoner proceeding pro se in this civil action. (ECF No. 17 1). Plaintiff’s complaint is dated September 24, 2024 (id. at 33) and was filed on September 30, 18 2024. (See docket). Before the Court is Plaintiff’s application to proceed in forma pauperis (IFP), 19 also dated September 24, 2024. (ECF No. 2). For the reasons given below, the Court will require 20 Plaintiff to show cause why this case should not be dismissed for filing a false IFP affidavit. 21 The Court normally requires a $405 filing fee for a civil action. However, a federal 22 statute, 28 U.S.C. § 1915, permits a plaintiff to commence a lawsuit without prepaying a filing 23 fee. This statute requires “an affidavit that includes a statement of all assets such prisoner 24 possesses that the person is unable to pay such fees or give security therefor.” § 1915(a)(1). In 25 addition to filing an affidavit, a prisoner “shall submit a certified copy of the trust fund account 26 statement (or institutional equivalent) for the prisoner for the 6-month period immediately 27 preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.” § 1915(a)(2). 28 1 Importantly, under § 1915(e)(2)(A), a “court shall dismiss” a case if it determines that 2 “the allegation of poverty is untrue.” But “[t]o dismiss [a] complaint pursuant to § 1915(e)(2), a 3 showing of bad faith is required, not merely inaccuracy.” Escobedo v. Applebees, 787 F.3d 1226, 4 1235 n. 8 (9th Cir. 2015). In reviewing an IFP application, a court is “entitled to consider [a plaintiff’s] own economic choices about how to spend his money.” Olivares v. Marshall, 59 F.3d 5 109, 112 (9th Cir. 1995). For example, the Court can consider that a plaintiff thought it more 6 worthwhile to spend his money on commissary items than to pay the filing fee for his civil rights 7 suit. Id. Other courts have found bad faith where “prisoner-plaintiffs have diverted funds in the 8 period leading up to their IFP application.” Witkin v. Lee, No. 2:17-cv-0232-JAM-EFB P, 2020 9 WL 2512383, at *4 (E.D. Cal. May 15, 2020) (collecting cases). 10 With these standards in mind, the Court notes that Plaintiff filed the standard IFP 11 application, which includes a declaration signed by Plaintiff answering questions about his 12 finances under penalty of perjury. (ECF No. 2 at 2). Importantly, Plaintiff stated that (1) he 13 received no money from any source over the last twelve months and (2) he had no cash or any 14 other assets. (Id.) 15 However, according to Plaintiff’s trust account statement (ECF No. 5), the information in 16 his IFP application is false. Among other things, the statement shows that: 17 (1) Plaintiff received numerous deposits in his account in the six-month period 18 preceding the filing of the complaint, totaling over $874; and 19 (2) Plaintiff had account balance of $253.17 on September 16, 2024, shortly before he 20 signed his IFP application. Plaintiff received another JPAY deposit the day after he 21 signed his application, bringing his trust account balance to $313.17 as of 22 September 30, 2024, when his IFP application was filed with this Court. 23 From these facts, it appears that Plaintiff intentionally made false statements on his IFP affidavit by claiming that he received no money in the last twelve months and had no funds, and 24 that he may have intentionally diverted funds by making commissary purchases shortly before 25 filing his complaint. 26 \\\ 27 \\\ 28 1 Based on these circumstances, IT IS ORDERED as follows: 2 1. By no later than November 18, 2024, Plaintiff shall file a response to this order, showing 3 cause why this case should not be dismissed for filing a false IFP affidavit. 4 2. If Plaintiff fails to timely respond to this order, he is advised that this case may be 5 dismissed. IT IS SO ORDERED. 7 g | Dated: _ October 16, 2024 [Jee ey □ 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28