(PC) Witkin v. Chapnick et al

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 07/08/2024 RECOMMENDING that 20 Motion to Dismiss be Denied. Referred to Judge Daniel J. Calabretta. Objections due within 14 days after being served with these Findings and Recommendations. (Murphy, J)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, 12 Plaintiff, 13 14 No. 2:22-CV-1222-DJC-DMC-P v. FINDINGS AND RECOMMENDATIONS CHAPNICK, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the Court is Defendants’ motion to dismiss. See ECF No. 20. 19 Defendants contend this action must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(A) because 20 the allegation of poverty contained within Plaintiff’s application for leave to proceed in forma 21 pauperis (IFP) is not true. See id. Plaintiff opposes the motion. See ECF Nos. 23 and 24. 22 Defendants filed a reply. See ECF No. 25. Upon leave of Court, Plaintiff filed a sur-reply. See 23 ECF No. 29. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. APPLICABLE STANDARD 1 2 Under 28 U.S.C. § 1915(e)(2)(A), “notwithstanding any filing fee, the court shall 3 dismiss the case at any time if the court determines that … the allegation of poverty is untrue.” 28 4 U.S.C. § 1915(e)(2)(A) (emphasis added). A showing of bad faith is required to dismiss a 5 complaint pursuant to § 1915(e)(2)(A). See Escobedo v. Applebee’s, 787 F.3d 1226, 1235 (9th 6 Cir. 2015). 7 Courts have not been uniform in the application of § 1915(e)(2)(A). Courts have, 8 however, applied a consistent guiding analysis. See id. at 1234. Courts have concluded that 9 where the allegation of poverty is untrue but there is no showing of bad faith, the court should 10 impose a lesser sanction than dismissal with prejudice. Camp v. Oliver, 798 F.2d 434, 438 (11th 11 Cir. 1986); Mahone v. Pierce County, No. C14-5665 BHS-KLS, 2014 U.S. Dist. LEXIS 170997, 12 at *7-8 (W.D. Wash. 2014); Jacobson v. Am. Honda Motor Co., No. CV 10-134-PK, 2010 U.S. 13 Dist. LEXIS 80060, at *4-9 (recommending dismissal without prejudice where plaintiff failed to 14 disclose income on IFP application but the evidence did not conclusively show intentional 15 misrepresentation). Another lesser sanction option is revocation of IFP status and requiring 16 payment of the filing fee. See Witkin v. Sloan, No. 2:16-cv-2950-JAM-EFB P, 2019 U.S. Dist. 17 LEXIS 218427, at *7 (E.D. Cal. 2019). 18 Courts that have declined dismissal of an action under § 1915(e)(2)(A) based their 19 decisions on the actual poverty of the plaintiff, despite a technical inaccuracy in the IFP 20 application and the absence of a showing of bad faith. See Escobedo, 787 F.3d at 1234 21 n.8 (dismissal not warranted where plaintiff claimed to be paying a certain amount in "rent" 22 despite actually owning her home, because her mortgage payment was equivalent to a payment of 23 rent and plaintiff owned no equity in the home); see also Camp, 798 F.2d at 438-39 (reversing 24 district court's dismissal where there was no finding that plaintiff's inaccuracy foreclosed IFP 25 eligibility); Hammler v. Alvarez, 2019 U.S. Dist. LEXIS 22837, at *2-5 (S.D. Cal. 26 2019) (dismissal not warranted where plaintiff failed to reveal over $1,000 in settlement funds 27 because such funds were immediately and entirely used to pay plaintiff's restitution fines); Ruffin 28 v. Baldwin, No. 18-cv-1774-NJR, 2018 U.S. Dist. LEXIS 203411, at *7-10 (S.D. Ill. Nov. 30, 2 1 2018) (dismissal not warranted where plaintiff did not list over $4,000 in settlement funds 2 received in the six months preceding the application because the funds were revealed on the 3 accompanying trust account statement, indicating no intent to conceal them, and because, by the 4 date of the application, plaintiff had spent the money and was thus eligible for IFP); Griffin v. 5 Moon, No. 1:12-cv-02034-LJO-BAM (PC), 2016 U.S. Dist. LEXIS 130812, at *7 (E.D. Cal. 6 Sept. 23, 2016) (dismissal not warranted where plaintiff had received funds between 8 and 20 7 years prior to his IFP application and there was no evidence that he currently had such funds). 8 II. DISCUSSION 9 Defendants assert that this action must be dismissed under § 1915(e)(2)(A) 10 11 because Plaintiff’s allegation of poverty was untrue, intentionally misleading, and made in bad 12 faith consistent with false allegations of poverty in two prior cases. See ECF No. 20, pg. 3. For 13 the reasons discussed below, the Court does not agree. 14 15 A. Plaintiff’s Allegations of Poverty are Not Untrue When Plaintiff filed his application for IFP status, he was paroled as a transient 16 and was later granted a pass to reside with his wife temporarily. See ECF No. 20-1 at 2. On July 17 7, 2022, Plaintiff submitted his request for IFP status. See id. On the same day, Plaintiff got 18 married to his current wife, Rasheetah Foster. See ECF No. 20 at 6. Plaintiff did not disclose his 19 wife’s financial information in his request for IFP status. See ECF No. 2. Plaintiff’s wife was 20 employed at Chevron Headquarters and had housing (Plaintiff’s alternate address), but this 21 information was not included in Plaintiff’s IFP application. See id. In Plaintiff’s sur-reply, 22 Plaintiff contends that he had no knowledge of any requirement to disclose his wife’s financial 23 status. See ECF No. 23 at 1, 5. 24 Plaintiff’s parole officer listed Plaintiff’s wife’s residence as an alternate residence 25 upon parole. See ECF No. 20-1 at 2. Plaintiff’s IFP application indicated that Plaintiff was 26 “transient” even though Plaintiff was permitted to reside with his wife temporarily. See ECF 20- 27 1 at 1. Plaintiff asserts that the parole authorities gave him the transient designation even though 28 Plaintiff intended to live with his wife. See ECF No. 23 at 5. Plaintiff’s previous parole officer, N. 3 1 Coutoure, indicated that a Transfer Investigation Request was pending, and Plaintiff’s residence 2 was approved as “transient.” See id. at 1. When Plaintiff presented Coutoure with a valid 3 marriage certificate, Coutoure updated Plaintiff’s residence of record to the alternate address 4 pending the approval of the Transfer Investigation Report. See id. at 2. Plaintiff’s report was later 5 denied, and Plaintiff had to continue obtaining permission to continue traveling to and living at 6 his wife’s residence. See id. Based on these facts, Plaintiff properly disclosed his residence as 7 “transient.” 8 9 While Plaintiff failed to disclose his marital status in the IFP application, the Court is not convinced that Plaintiff intentionally misled the Court. Where spouses share their 10 respective incomes, it may be appropriate to consider a spouse’s income as a part of the analysis 11 leading to the ruling on the IFP application. See Escobedo, 787 F.3d at 1236. Neither Plaintiff 12 nor Defendants indicated that Plaintiff relies on or shares Plaintiff’s wife’s income. To the 13 contrary, Plaintiff specifically states that he does not rely on his wife’s finances. See ECF 29 at 14 3. The Court finds that Plaintiff did not deliberately try to conceal his marital status or his wife’s 15 financial status. Additionally, there is no evidence that Plaintiff’s wife’s finances would have 16 changed the IFP determination in this case. B. 17 Plaintiff Did Not Act in Bad Faith 18 Defendants assert that Plaintiff failed to provide financial information regarding 19 his employed spouse and failed to provide accurate statements regarding his living situation on 20 his IFP application. In support of this argument, Defendants identify two cases where Plaintiff 21 was found to have made false allegations of poverty, specifically Witkin v. Sloan, et al., E. Dist. 22 Cal. Case No. 2:16-cv-2950-JAM-EFB-P, and Witkin v. Lee, et al., E. Dist. Cal. Case No. 2:17- 23 cv-0232-JAM-EFB-P. See ECF No. 20 at 4. Defendants also cite court record and note that 24 Plaintiff is an experienced litigant and has been the plaintiff in sixteen cases against state prison 25 officials for alleged civil rights violations. In each case, Plaintiff sought IFP status. 26 /// 27 /// 28 /// 4 1 Although Plaintiff is an experienced litigant and is aware of the rules governing 2 IFP status, there is no indication in this case that Plaintiff knew about the necessary disclosure of 3 his marital status and his wife’s financial status. The Court finds that Plaintiff’s lack of 4 knowledge does not amount to bad faith. 5 Moreover, Plaintiff’s two previous cases where allegations of poverty were found 6 to be untrue are distinguishable from the current case as they involved misrepresentations related 7 to settlement proceeds received by Plaintiff in other cases. See Witkin v. Sloan, et al., 2019 U.S. 8 Dist. LEXIS 218427 (E.D. Cal. 2019); See also Witkin v. Lee, et al., 2020 U.S. Dist. LEXIS 9 86104 (E.D. Cal. 2020). No evidence shows that Plaintiff had been married at the time of any 10 previous IFP filing. Thus, the current issue of alleged non-disclosure of spousal assets was not 11 the basis of the prior rulings. Finally, as for Plaintiff’s “transient” status, based on Plaintiff’s previous parole 12 13 officer’s declarations, Plaintiff did not omit information regarding his living situation. From July 14 7, 2022, through his transfer to the Vallejo Parole office, Plaintiff had a travel permit to live with 15 his wife in Vallejo. Plaintiff’s previous parole officer (N. Coutoure) noted that Plaintiff initially 16 sought to obtain a Transfer Investigation Request to allow Plaintiff to live with his then-fiancé. 17 See ECF 20-1 at 1. That request was denied because they were not legally married. See id. When 18 Plaintiff reported to Natomas Parole office, he provided a copy of his marriage certificate, which 19 showed he was married on July 7, 2022. Plaintiff’s residence of record was updated to the 20 Alternate Address pending the Transfer Investigation Report. See id. at 2. In turn, Plaintiff was 21 permitted to travel and stay at Plaintiff’s alternate address at his wife’s residence until his transfer 22 request was completed. Plaintiff was denied his transfer request and was subsequently issued 23 multiple travel passes to continue living with his wife at the listed alternate address. The Court 24 finds Plaintiff did not falsely report his “transient” residence, as that was the residence approved 25 by Plaintiff’s parole officer at the time of his release. Even if reporting as “transient” were 26 technically untrue, the Court cannot find that Plaintiff was acting in bad faith. 27 /// 28 /// 5 III. CONCLUSION 1 2 3 Based on the foregoing, the undersigned recommends that Defendants’ motion to dismiss pursuant to 28 U.S.C. § 1915(e)(2)(A), ECF No. 20, be denied. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 6 after being served with these findings and recommendations, any party may file written objections 7 with the Court. Responses to objections shall be filed within 14 days after service of objections. 8 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 Dated: July 8, 2024 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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