Ondrick II v. Chatham County, Georgia

Filing 3

ORDERED that the Clerk is directed to serve plaintiff with this Order and a blank IFP form. Signed by Magistrate Judge G. R. Smith on 8/13/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MARK ONDRICK, II,

)

)

Plaintiff,

)

)

I,,

)

Case No. CV414-159

)

CHATHAM COUNTY, GEORGIA,
)

Defendant.

)

ORDER
Mark Ondrick II, proceedingpro Se, has filed three 42 U.S.C. § 1983
lawsuits. Like his other two cases, this one appears to be based on his
state court guilty plea and conviction for criminal trespass.

See doc. 1 at

2-3 (complaining that he "never got appeal hearing for my bond!");
attached state court record. He also moves for leave to proceed in forma

pauperis (IFP). Doe. 2. Located at the address that he provides (doc. 1
at 5) is a 5-bedroom, 4-bathroom home (see attached print-out), yet on an
IFP form that he's left largely blank, he claims to be completely penniless.
Doc 2at 1-2.
Of course, the obvious question must be posed to this convicted
criminal: How exactly does he live? Courts have inquired:

In an effort to prevent fraud, courts required the supporting
affidavit to state facts concerning the plaintiffs 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 plaintiffs 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
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. REV. 1533, 1566 n. 41 (2009).
It undeniably costs money to live, but Ondrick declares "under
penalty of perjury" that he has zero assets of any kind. Doe. 2 at 1-2.
The Court doubts the credibility of that statement. Wary of such
2

indigency claims and cognizant of how easily one may consume a public
resource with no financial skin in the game, ' 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, 2013) .2
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,

"[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).
1

See also Lister v. Dept 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).
2

3

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, doe. 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.").'
Given the totality of the circumstances, it will do likewise here.'
Furthermore, liars are prosecuted. See United States v. Dickerson, CR608-36, doe.
1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant indicted for perjury for knowingly lying in
his motion seeking collateral relief from his conviction); id., doe. 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).
3

4

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. §
4

Therefore, within 14 days from the date of this Order, Ondrick shall
disclose to the Court the following information:
(1)

What he spends each month for basic living expenses such as
food, clothing, shelter, and utilities, and the dollar value of any
public or private assistance he may receive;

(2)

Where he gets the money to pay for those expenses (include all
"off-the-books" income, whether in cash or in-kind);

(3)

Whether he owns any means of transportation and, if he does
not, whether he has regular access to same, as owned by
another (including a rental company);

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, 20 10) ("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

(4)

Whether he 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 he has any credit or debit cards;

(6)

Whether he is the account owner, or has signature power, as to
any accounts with a bank or other financial institution;

(7)

Whether he 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 Ondrick's true

financial condition. In that regard, he must again declare the facts he
pleads to be true under penalty of perjury. 5 If he does not use a
preprinted IFP form to respond (hence, if he uses a blank sheet of paper),
he must insert this above his 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

5

He has done so on his Financial Affidavit. Doc. 2 at 2.
6

is DIRECTED to serve with this Order a blank IFP form for Ondrick's
convenience. In his response to this Order he must reproduce each
enumerated item above and legibly write (or type) his complete answer
directly after it. Failure to comply with this directive will result in a
recommendation of dismissal.
106632 at

Kareem v. Home Source Rental, 2014 WL

*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

/3" day of August, 2014.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

'1

Case Details

http://www.chathamcourts.org/Case-Details/caseno/R142443

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ONDRICK, MARK II

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Case Information

DefendanInformation

Court:

State

Name:

ONDRICK, MARK II

Case Number

R142443

DIN:

P1003353

Case Type:

CRIMINAL - STATE COURT

Gender: MALE

Judge:

HONORABLE GREGORY SAPP

Race:

Fines & Payments

WHITE

Assistant District Attorney. VANDANA MURTY

Height: 71

Date Filed:

4/30/2014

Weight: 180

Status:

CLOSED - GUILTY PLEA(N)

Eyes:

BROWN

Disposition Date:

6/30/2014

Hair:

BROWN

Disposition.

GUILTY PLEA(N)

Attorney Information
DONDRA Suzanne 0 NEAL
24 Commerce Place Suite A
Savannah, GA
31406

Bondsman Information
N/A
Case Events

Date

Time

/30/2014
6/27/2014

Code

Action

GREGORY SAPP

CANCELLED EVENT - CL

ARRAIGNMENT

119:00AM

Judge

JURYTRIAL

9:00AM

GREGORY SAPP

ICANCELLED EVENT - CL

[Return to To

Charges
Counts

Charge

Description

16-7-21

CRIMINAL TRESPASS

Severity

Charge Date

MISDEMEANOR

:1

1/9/2014 9:24:40 PM

JiFine

Sentencing Details: Description
Prison

$0.00

n

Duration
30 Days-PRISON

You are banished from 502 W. BAY STREET $0.00

-OTHER

Credit Time Served NO NEW ARRESTS

-OTHER

$0.00

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CASE DISPOSED
CASE DISPOSED

GUILTY PLEA
NEGOTIATED

:ASE DISPOSED GN

-

ENTENCING ORDER, PLEA,PLEA
VORKSHEET

JURY TRIAL

CANCELLED EVENT - GREGORY
CL
SAPP

ARRAIGNMENT

iRRAIGNMENT MATTER

CANCELLED EVENT - GREGORY
CL
kAPP

ACCUSATION FILED ENTERED
SCANNED INITIAL CASE
FILING (SCA)
11:26:37

SCREENING
COMMITMENT DATE

GREGORY
SAPP

rIAL CASE SCREENING
STATE COURT

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