Gerwald v. Dimass Charities et al
Filing
14
ORDER of Instructions re 13 MOTION for Leave to Proceed in forma pauperis filed by Anaissa Gerwald. Signed by Magistrate Judge G. R. Smith on 8/7/2014. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANAISSA B. GERWALD,
Plaintiff,
v.
Case No. CV414-079
DIMASS CHARITIES;
KATINA WHEELER;
COMMUNITY CENTER
MANAGEMENT, a/k/a
BUREAU OF PRISONS,
Defendants.
ORDER
Anaissa Beth Gerwald, proceeding pro se , is back with another
largely indecipherable, scatter-shot lawsuit. Doc. 1 (asking the Court to
“open a new complaint -- motion 1982/83/ 1985-2441 while petitioner was
in jail for unjustified violation & denial of 2nd Chance Act law -- Fraud,
Theft, False Accused. . . .”). 1 She also moves for leave to proceed in forma
Gerwald v. Bulloch County Jail , CV612-033, doc. 6 (S.D. Ga. May
30, 2012) (case dismissed for failure to comply with Court Order); Gerwald v. GMAC
Mortgage, CV412-066, doc. 19 (S.D. Ga. Oct. 10, 2012) (case dismissed for lack of
jurisdiction); Gerwald v. United States , CV412-252, doc. 60 (S.D. Ga. Apr. 28, 2014)
(judgment denying her 28 U.S.C. § 2255 motion); Gerwald v. United States ,
CV413-152, doc. 9 (S.D. Ga. June 27, 2014) (judgment denying her second 28 U.S.C. §
2255 motion as successive); Gerwald v. United States , CV413-231, doc. 8 (S.D. Ga. Dec.
1 Her other cases:
pauperis (IFP). Doc. 2. Convicted of bankruptcy fraud, CR411-249, doc.
55 (S.D. Ga. Sep. 18, 2012), she is apparently free from prison and now
claims she is debt-ridden, homeless and completely penniless. Doc. 13 at
1-2.
Of course, the obvious question must be posed to this convicted
fraudster: How exactly does she live? Courts have inquired:
In an effort to prevent fraud, courts required the supporting
affidavit to state facts concerning the plaintiff's poverty with some
level of “particularity, definiteness, and certainty.” Jefferson v.
United States , 277 F.2d 723, 725 (9th Cir. 1960) (per curiam). Courts
also retained the authority to deny IFP status if a plaintiff
deliberately failed to report available assets. See, e.g., Cofield v. Ala.
Pub. Serv. Comm'n , 936 F.2d 512, 517-19 (11th Cir. 1991) (affirming
the lower court's denial of IFP status because it appeared that the
applicant had access to an unknown amount of money either
through his family, his extortion activities, or his legal work on
behalf of fellow inmates). But see Acevedo v. Reid , 653 F. Supp. 347,
348-49 (S.D.N.Y. 1986) (excusing an inmate's failure to report his
veterans’ benefits and prison salary on his application for IFP status
where (1) there was no evidence that he had acted in bad faith, and
(2) he would have been eligible for IFP status even if those assets
were taken into account). Similarly, courts could deny IFP status if
they found that an applicant had intentionally depleted his
resources in order to qualify for a fee waiver. See, e.g., Collier v.
Tatum , 722 F.2d 653, 655 (11th Cir. 1983) (authorizing the lower
court to examine the plaintiff's financial dealings during the time
period immediately preceding the filing of the suit to determine
whether he had intentionally shifted or wasted assets that he
17, 2013) (judgment dismissing 28 U.S.C. § 2241 petition); Gerwald v. United States ,
CV124-064 (S.D. Ga. May 1, 2014) (another § 2241 petition, case still pending).
2
otherwise could have used to finance the action).
Julia Colarusso, Out of Jail ... But Still Not Free to Litigate? Using
Congressional Intent to Interpret 28 U.S.C. § 1915(b)'s Application to
Released Prisoners, 58 AM . U. L. R EV . 1533, 1566 n. 41 (2009).
It undeniably costs money to live, but Gerwald swears she has zero
assets of any kind, coupled with $286,000 in debt. Doc. 13 at at 1-2. The
Court doubts the credibility of that statement. Wary of such indigency
claims and cognizant of how easily one may consume a public resource
with no financial skin in the game, 2 this Court demands supplemental
information from dubious IFP movants.
See, e.g. , Kareem v. Home
Source Rental , 986 F. Supp. 2d 1345 (S.D. Ga. 2013); Robbins v. Universal
Music Group , CV412-292, 2013 WL 1146865 at * 1 (S.D. Ga. Mar. 19,
“[A] litigant whose filing fees and court costs are assumed by the public . . . lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”
Neitzke v. Williams , 490 U.S. 319, 324 (1989). Courts thus deploy appropriate
scrutiny. See Hobby v. Beneficial Mortg. Co. of Va ., 2005 WL 5409003 at *7 (E.D. Va.
June 3, 2005) (debtor denied IFP status where, although she was unable to find
employment as a substitute teacher, she had not shown she is unable to work and earn
income in other ways); In re Fromal, 151 B.R. 733, 735 (E.D. Va. 1993) (denying IFP
application where debtor was licensed attorney and accountant and she offered no
reason why she cannot find employment), cited in In re Zow , 2013 WL 1405533 at * 2
(Bkrtcy. S.D. Ga. Mar. 4, 2013) (denying IFP to “highly educated” bankruptcy debtor
who, inter alia, had “not shown he is physically unable to work or earn income in other
ways.”); Nixon v. United Parcel Service , 2013 WL 1364107 at *1-2 (M.D. Ga. Apr. 3,
2013) (court examined income and expenses on long-form IFP affidavit and
determined that plaintiff in fact had the ability to pay the court’s filing fee).
2
3
2013). 3
To that end, it tolerates no lies.
Ross v. Fogam , CV411-114, 2011
WL 2516221 at * 1 (S.D. Ga. June 23, 2011) (“Ross, a convicted criminal,
chose to burden this Court with falsehoods, not honesty. The Court thus
rejects Ross’s show cause explanation, as it is clear that he purposefully
chose to disguise his filing history and financial status.”); Johnson v.
Chisolm , CV411-127, 2011 WL 3319872 at * 1 n. 3 (S.D. Ga. Aug. 1, 2011)
(“This Court does not hesitate to invoke dismissal and other sanctions
against inmates who lie to or otherwise deceive this Court.”); see also
Moss v. Premiere Credit, LLC , CV411-123, doc. 54 (S.D. Ga. Mar. 6, 2013)
(Eleventh Circuit Order: “Moss’s [IFP on appeal] motion is DENIED
because her allegation of poverty appears to be untrue in light of her
financial affidavit and filings in the district court.”). 4
See also Lister v. Department of Treasury , 408 F.3d 1309, 1313 (10th Cir. 2005)
(court did not abuse its discretion by denying status to Social Security benefits
claimant seeking judicial review of Commissioner's benefits denial; claimant, after
having been specifically instructed on how to establish IFP status, failed to fill out
proper forms or otherwise provide court with requisite financial information); Mullins
v. Barnhart, 2010 WL 1643581 at * 1 (D. Kan. Mar, 30, 2010) (denying, after
scrutinizing IFP affidavit’s financial data, leave to proceed IFP on financial ability
grounds).
3
Furthermore, liars are prosecuted. See United States v. Dickerson , CR608-36, doc.
1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant indicted for perjury for knowingly lying in
4
4
Given the totality of the circumstances, it will do likewise here. 5
Therefore, within 14 days from the date of this Order, Gerwald shall
his motion seeking collateral relief from his conviction); id ., doc. 47 (guilty verdict),
cited in Colony Ins. Co. v. 9400 Abercorn, LLC , 866 F. Supp. 2d 1376, 1378 n. 2 (S.D.
Ga. 2012) (collecting sanction cases).
5
Three important points must be underscored here:
First, proceeding [IFP] in a civil case is a privilege or favor granted by the
government. Rowland v. California Men's Colony, Unit II Men's Advisory
Council , 506 U.S. 194, 198, 113 S. Ct. 716, 121 L. Ed. 2d 656 (1993). Second, the
statute reads that the court “may authorize the commencement” of an action.
28 U.S.C. § 1915(a)(1). The grant, denial, or other decision concerning an [IFP]
application requires the court to exercise discretion. Denton v. Hernandez , 504
U.S. 25, 31, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); see also Lee v. McDonald's
Corp ., 231 F.3d 456, 458 (8th Cir. 2000) (explaining the purpose of 28 U.S.C. §
1915 and stating the decision of whether to grant or deny [IFP] status under 28
U.S.C. § 1915 is discretionary).
Lafontaine v. Tobin , 2013 WL 4048571 at * 1 (N.D. Iowa Aug. 9, 2013) (emphasis
added); see also Marceaux v. Democratic Party , 79 F. App’x 185, 186 (6th Cir. 2003)
(no abuse of discretion when court determined plaintiff could afford to pay the
filing fee without undue hardship because he had no room and board expenses,
owned a car, and spent the $250.00 earned each month selling plasma on
completely discretionary items).
Lafontaine also extended to non-prisoner IFP movants a pay-to-play,
installment payment plan analogous to what Congress imposed upon prisoners
under its Prison Litigation Reform Act (PLRA), which is expressed in statutory
provisions like § 1915 (a)(1), (b)(1)(2). Lafontaine , 2013 WL 4048571 at * 2; see
also Kelner v. Harvin , 2010 WL 2817262 at * 1 n. 5 (D. Kan. July 16, 2010) (“It has
been held that the exhaustion, full/initial partial payment, and three-strikes
provisions of the current [IFP] statutes do not apply to in [IFP] litigants who are
not prisoners. Nevertheless, several courts including the Tenth Circuit have
applied this subsection which does not refer to prisoners, to suits brought by non
prisoners.”). The Court is considering likewise here, since cost-free litigation too
easily enables recreational if not nuisance litigation. That further necessitates
more detailed financial data from the plaintiff.
5
disclose to the Court the following information:
(1)
What she spends each month for basic living expenses such as
food, clothing, shelter, and utilities, and the dollar value of any
public or private assistance she may receive;
(2)
Where she gets the money to pay for those expenses (include
all “off-the-books” income, whether in cash or in-kind);
(3)
Whether she owns any means of transportation and, if she
does not, whether she has regular access to same, as owned by
another (including a rental company);
(4)
Whether she possesses a cellular telephone, TV set, and any
home electronics equipment (include estimated value and
related carrying expenses, such as carrier and subscription
fees);
(5)
Whether she has any credit or debit cards;
(6)
Whether she is the account owner, or has signature power, as
to any accounts with a bank or other financial institution;
(7)
Whether she anticipates any future income within the next
year.
(8)
A list of any other cases (beyond those noted here) showing an
indigency-based, filing fee reduction or waiver granted by any
other court (include the full case name, case number and the
name of the court granting same).
(9)
Any other source of financial support (friends, relatives, etc).
Answering these points will better illuminate Gerwald’s true
financial condition. In that regard, she must again declare the facts she
6
pleads to be true under penalty of perjury. 6 If she does not use a
preprinted IFP form to respond (hence, if she uses a blank sheet of paper),
she must insert this above her signature: “I declare under penalty of
perjury under the laws of the United States of America that the foregoing
is true and correct. Executed on (date).” 28 U.S.C. § 1746(1). The Clerk
is DIRECTED to serve with this Order a blank IFP form for Gerwald’s
convenience. In her response to this Order she must reproduce each
enumerated item above and legibly write (or type) her complete answer
directly after it. Failure to comply with this directive will result in a
recommendation of dismissal. Kareem v. Home Source Rental , 2014 WL
106632 at
*1 (S.D. Ga. Jan. 9, 2014) (advising dismissal for
non-compliance in similar IFP-information case), adopted, 2014 WL
2700632 (S.D. Ga. Jun 13, 2014).
SO ORDERED , This 7th Day of August, 2014.
UNITED STATES MAUI S TRATE JUDGE
SOUTHERN DISTRICT OF GEORGLA
6
She has done so on her Financial Affidavit. Doc. 13 at 2.
7
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