Steshenko v. McKay et al

Filing 1018

ORDER TO SHOW CAUSE RE CONTINUATION OF IN FORMA PAUPERIS STATUS. Signed by Judge Richard Seeborg on 4/13/15. (cl, COURT STAFF) (Filed on 4/14/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY NICHOLAS STESHENKO,

Case No. 09-cv-05543-RS

United States District Court
Northern District of California

Plaintiff,
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v.
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THOMAS MCKAY, et al.,

ORDER TO SHOW CAUSE RE
CONTINUATION OF IN FORMA
PAUPERIS STATUS

Defendants.
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Plaintiff moves to have a trial transcript prepared at public expense, pursuant to 28 U.S.C.

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§ 753(f). That section provides, in relevant part, that “[f]ees for transcripts furnished in other

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proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United

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States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a

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substantial question).” Where a party is seeking public funding for trial transcripts, “courts must

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be rigorous in their examination of applications . . . to ensure that the treasury is not unduly

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imposed upon.” Walker v. People Exp. Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989)

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Here, plaintiff is proceeding in forma pauperis (“IFP”) on appeal based on Rule 24 of the

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Federal Rules of Appellate Procedure, which generally permits a litigant who was granted IFP

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status in the district court to maintain that status on appeal absent an order to the contrary.

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Plaintiff filed his application for IFP status in the district court in November of 2009, and it was

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granted the following day. See Dkt. Nos. 2 and 4. Item 5 of the IFP application form asked, “Do

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you own or are you buying a home?” Plaintiff checked “No.” Recently, in two other cases

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pending in this court, a judicial finding of fact has been entered against plaintiff that his

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representation on the IFP application in this case, as well as identical representations made in

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those two other cases, that he did not own a home were knowingly false when made. See

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Steshenko v. Gayard, C 13-3400 LHK, Order dated April 1, 2015 (Dkt. No. 111) and Steshenko v.

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Albee, C 13-4948 LHK, Order dated April 1, 2015 (Dkt. No. 79). Through principles of issue

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preclusion, that factual finding may very well be binding on plaintiff in this action, absent it

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subsequently being set aside as the result of the reconsideration plaintiff is seeking or the appeal

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he has expressed intent to pursue if necessary.
Even assuming plaintiff is free to relitigate the factual question, however, it appears that

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United States District Court
Northern District of California

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his only quarrel is with the legal conclusions drawn in Gayard and Albee. Neither in those cases

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nor in this one has he offered any basis to refute the finding that he was the legal owner of his

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residence in November of 2009 (and still is), and that he had full knowledge of that fact when he

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answered “no” to item 5 on his IFP application. Plaintiff instead merely argues that his interest in

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the property is, in effect, fully encumbered as the result of certain unrecorded familial loan

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transactions. While plaintiff asserts he offered to present yet further evidence in camera in the

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Gayard and Albee matters, there is no conceivable basis on which such evidence would serve to

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vitiate plaintiff’s legal ownership of the property.
In his motions for reconsideration in Gayard and Albee and in his reply brief here, the

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thrust of plaintiff’s argument is his insistence that he is truly indigent now, and that he was truly

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indigent at the time his IFP applications were filed, notwithstanding holding legal title to the real

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property.1 While that may be so, plaintiff is missing the point. His IFP application was submitted

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under penalty of perjury. Plaintiff expressly acknowledged in writing that he understood any false

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Plaintiff incorrectly asserts that defendants previously raised the issue of his home ownership in
a “failed” motion in limine regarding the testimony of Dr. Phillip Allman. In fact, defendants
raised the issue in a separate motion seeking to exclude evidence of the financial resources of
either side. See Dkt. No. 842. That motion was granted, on grounds or relevance and potential
prejudice, without any determination of the factual basis of plaintiff’s claims of indigence.

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CASE NO.

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09-cv-05543-RS

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statement in the application “may result in the dismissal of my claims.” Item 5 of the application

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asks a simple, straightforward, non-ambiguous, “yes or no” question: “Do you own or are you

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buying a home?” The following line of item 5 solicits information from the applicant as to the

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amount of any mortgage on such property.
Plaintiff elected to check “no” and to leave the mortgage information blank. Even under

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plaintiff’s present characterizations of the facts, his response to item 5 was knowingly false when

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made. Plaintiff may have genuinely believed then, and may believe now, that a court evaluating

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his eligibility for IFP status in 2009 should not have considered his home an asset in light of the

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familial loans and/or other circumstances. It was not, however, plaintiff’s prerogative to decide

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unilaterally that his legal home ownership was irrelevant, and then to submit an IFP application

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United States District Court
Northern District of California

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that was false on its face. Plaintiff’s obligation was to disclose truthfully his ownership of the

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home (as he had done in a prior action, see Steshenko v. Christey, C 04-3626 JF) and then provide

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whatever further information he believed necessary to support his position that the home was

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effectively not an asset.
Thus, the immediate question is not whether plaintiff is indigent within the standards of 28

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U.S.C. §1915 today, or whether he met those standards in November of 2009. Even if plaintiff

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were to establish that the court likely would have found that he lacked any equity in his home in

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2009, or that he lacks it now, that would not excuse his false answer to item 5 on the IFP

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application.2 The issue, in light of that false representation, is whether it would be appropriate to

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permit plaintiff to retain IFP status on appeal, regardless of whether a fully truthful application

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submitted today would likely be granted. Accordingly, within 15 days of the date of the order,

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plaintiff may submit a brief and/or declaration, not to exceed 15 pages total, presenting any

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The orders in Gayard and Albee reached the further conclusions of law and/or fact that
plaintiff’s false answer to item 5 rendered his allegation of poverty untrue, such that dismissal
under 28 U.S.C §1915 (e)(2)(a) was warranted. As judgment has already been entered in this
action, it would not be appropriate for this court to reach those issues. Whether the Court of
Appeal might conclude dismissal of the appeal to be warranted on that basis is, of course, a
question for that tribunal.

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CASE NO.

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09-cv-05543-RS

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arguments he may have against revocation of his IFP status. Because entitlement to a trial

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transcript at public expense depends on IFP status in the first instance, a ruling on plaintiff’s

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transcript request will be deferred pending resolution of this issue.

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It is not clear that defendants have standing to support or oppose continuation of plaintiff’s

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IFP status, although the Court certainly has discretion to consider arguments or authority they may

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wish to bring to its attention. Accordingly, while defendants are not encouraged to submit a

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response to plaintiff’s filing, they may do so within 5 days if they deem it appropriate, and any

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such response shall not exceed 10 pages.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: April 13, 2015
______________________________________
RICHARD SEEBORG
United States District Judge

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CASE NO.

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09-cv-05543-RS