(PC) Witkin v. Thomas

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MICHAEL AARON WITKIN, No. 2:22-cv-01310-DJC-DB-P

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Plaintiff,

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v. ORDER

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R. THOMAS, et al.,

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Defendants.

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18 Plaintiff Michael Aaron Witkin, a former state prisoner proceeding pro se, filed

19 this civil rights action seeking relief under 42 U.S.C. § 1983. Plaintiff alleges that Chief

20 Deputy Warden R. Thomas, Warden L. Bird, K. Johnson, Lieutenant Hughes, Sergeant

21 N. Martinez, and Does 1–20 (together, “Defendants”) have violated Plaintiff’s

22 constitutional rights by denying him exercise opportunities during the COVID-19

23 pandemic and by retaliating against Plaintiff for filing complaints related to these

24 alleged violations. The matter was referred to a United States Magistrate Judge

25 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

26 On February 13, 2024, the Magistrate Judge filed Findings and

27 Recommendations herein which were served on all parties and any objections to the

28 Findings and Recommendations were to be filed within fourteen days. (See ECF No.

1 32.) The Magistrate Judge recommended granting Defendants’ Motion to Revoke

2 Plaintiff’s in forma pauperis or “IFP” status. (See ECF No. 23.) For the reasons set forth

3 below, the Court rejects the Magistrate Judge’s Findings and Recommendations,

4 concluding that Plaintiff’s allegation of poverty was true at the time he made the

5 statement and that Plaintiff did not make any statements in his application in bad faith.

6 As a result, Plaintiff’s case is not dismissed, but Plaintiff is required to pay the filing fee

7 within 30 days.

8 BACKGROUND

9 Plaintiff filed the instant lawsuit on July 25, 2022. (See ECF No. 1.) At the same

10 time, Plaintiff filed a motion to proceed in forma pauperis, claiming that he had no

11 sources of income in the past twelve months. (See ECF No. 2 at 1.) Under a question

12 asking about “[a]ny housing, transportation, utilities, or loan payments, or other

13 regular monthly expenses[,]” Plaintiff stated that he was “paroled by [the California

14 Division of Adult Parole Operations] as a ‘transient’ with an ‘alternate’ address at the

15 mailing address on the front of the Complaint.” (Id. at 2.) Plaintiff signed the

16 declaration attached to his IFP Motion on July 7, 2022. (See id.; also ECF No. 6

17 (providing Plaintiff’s IFP Motion filed on 7/28/2022 that states the same and was also

18 signed on 7/7/2022).) The Magistrate Judge granted Plaintiff’s motion to proceed in

19 forma pauperis on February 28, 2023. (See ECF No. 9.)

20 Following screening by the Magistrate Judge and the removal of a First

21 Amendment claim, the Complaint was served on Defendants. (See ECF No. 11.) On

22 September 11, 2023, Defendants filed the Motion to revoke Plaintiff’s IFP status. (See

23 ECF No. 23.) The Magistrate Judge subsequently ordered Plaintiff to complete a form

24 to proceed without prepaying fees or costs. (See ECF No. 30.) Plaintiff then filed a

25 Notice regarding his IFP status on January 16, 2024, stating that “[b]ecause of

26 plaintiff’s full-time employment, he is able to pay such fees and cannot assert

27 otherwise.” (See ECF No. 31 at 1.) As a result, Plaintiff stated that there was no need

28 for him to file another notice regarding his IFP status. (See id.)

1 On February 13, 2024, the Magistrate Judge issued the Findings and

2 Recommendations regarding the Motion to revoke Plaintiff’s IFP status. (See ECF No.

3 32.) The Magistrate Judge recommended dismissing Plaintiff’s Complaint with

4 prejudice, finding that Plaintiff fabricated the allegations of poverty and that Plaintiff

5 made these allegations in bad faith. (See id. at 4–7.) The parties timely filed their

6 objections and response. (See ECF Nos. 33–34.)

7 DISCUSSION

8 I. Legal Standard

9 When a party objects to a portion of a magistrate judge’s findings and

10 recommendations, the court must review those portions de novo. See 28 U.S.C.

11 § 636(b)(1). A district judge need not re-consider those portions of the Findings and

12 Recommendations to which there is no objection. See, e.g., United States v. Ramos,

13 65 F.4th 427, 433 (9th Cir. 2023) (citing United States v. Reyna-Tapia, 328 F.3d 1114,

14 1121 (9th Cir. 2003)). After conducting de novo review, the district court “may accept,

15 reject, or modify, in whole or in part, the findings and recommendations made by the

16 magistrate judge.” Ramos, 65 F.4th at 433 (quoting 28 U.S.C. § 636(b)(1)(C)). “In

17 providing for a de novo determination . . . [,] Congress intended to permit whatever

18 reliance a district judge, in the exercise of sound judicial discretion, chose to place on

19 a magistrate[ ] [judge’s] proposed findings and recommendations.” Id. (quoting

20 United States v. Raddatz, 447 U.S. 667, 676 (1980)) (omission included; alterations

21 added). In contrast, where no objection is made, that portion of the findings and

22 recommendations are only reviewed for clear error. See Fed. R. Civ. P. 72(b).

23 II. Analysis

24 A plaintiff may proceed in federal court without paying filing fees if the plaintiff

25 is sufficiently poor, which requires the plaintiff to submit an affidavit in support under

26 28 U.S.C. § 1915(a). However, “the court shall dismiss the case at any time if the court

27 determines that” the allegation of poverty is untrue, that the action is frivolous or

28 malicious, that the action fails to state a claim on which relief may be granted, or that

1 action seeks monetary relief against a defendant who is immune from such relief. Id.

2 § 1915(e)(2). Thus, there are four independent reasons for dismissing a complaint.

3 First, a complaint may be dismissed where the plaintiff made false allegations of

4 poverty. See, e.g., Witkin v. Lee, No. 2:17-CV-0232-JAM-EFB-P, 2020 WL 2512383, at

5 *5–7 (E.D. Cal. May 15, 2020), R and R adopted, 2020 WL 4350094 (E.D. Cal. July 29,

6 2020). Second, a complaint may be dismissed where the action is frivolous, that is,

7 where the action “is ‘of little weight or importance: having no basis in law or fact.’”

8 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (first quoting Webster’s Third

9 International Dictionary 913 (1993); and then citing Goland v. United States, 903 F.2d

10 1247, 1258 (9th Cir. 1990)). Third, a complaint may be dismissed “if it was filed with

11 the ‘intention or desire to harm another.’” Id. (quoting Webster’s Third New

12 International Dictionary 1367 (1993)). Finally, a complaint may be dismissed if the

13 action fails to state a claim upon which relief can be granted and would thus fail under

14 Federal Rule of Civil Procedure 12(b)(6). See, e.g., Knapp v. Hogan, 738 F.3d 1106,

15 1109 (9th Cir. 2013).

16 As a fellow judge on the Eastern District has observed regarding dismissal for

17 making false allegations of poverty: “Courts have not been totally uniform in their

18 application of § 1915(e)(2)(A), but a close reading of the cases applying the statute

19 reveals consistent considerations guiding the courts’ analyses.” Witkin v. Lee, No.

20 2:17-CV-0232-JAM-EFB-P, 2020 WL 2512383, at *3 (E.D. Cal. May 15, 2020), R and R

21 adopted, 2020 WL 4350094 (E.D. Cal. July 29, 2020). “Consistent with [the Ninth

22 Circuit’s approach in Escobedo v. Applebees, 787 F.3d 1226, 1234 n.8 (9th Cir. 2015)],

23 other courts have concluded that, where the allegation of poverty is untrue but there

24 is no showing of bad faith, the court should impose a lesser sanction than outright

25 dismissal with prejudice . . . .” Id. [F]or example, revoking IFP and provid[ing] a

26 window for the plaintiff to pay the filing fees, or dismissing without prejudice[ ]” are

27 appropriate sanctions in the absence of bad faith. Id. “On the flip side, courts

28 routinely dismiss with prejudice cases upon finding that the plaintiff has intentionally

1 withheld information that may have disqualified plaintiff from obtaining IFP status or

2 has otherwise manipulated his finances to make it appear that a plaintiff is poorer than

3 he actually is . . . .” Id. In a good number of cases finding bad faith, prisoner-plaintiffs

4 have diverted funds in the period leading up to their IFP application to others, usually

5 family members. Id. at *4 (collecting cases). In total, “[t]hese cases reveal that the

6 essential questions before the court are: (1) was plaintiff’s allegation of poverty untrue

7 and, if so, (2) did plaintiff submit the untrue IFP application in bad faith?” Id. at *5.

8 A. The Allegation of Poverty Was True at the Time of the Application

9 1. Changes That Occurred After Plaintiff Filed Are Irrelevant

10 First, Plaintiff objects to the Magistrate Judge findings of fact, arguing that “the

11 Magistrate draws all the purported facts from the defendants’ motion instead of the

12 record.” (ECF No. 33 at 5 (citing ECF No. 32 at 6–8).) However, the Magistrate Judge

13 properly took judicial notice of prior filings involving Plaintiff and only took judicial

14 notice of those facts not subject to reasonable dispute. See, e.g., Harris v. Cnty. of

15 Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (holding that the court “may take judicial

16 notice of undisputed matters of public record . . . including documents on file in

17 federal or state courts” (citations omitted)). Accord Karas v. Cal. Dep’t of Corr. and

18 Rehab., No. 21-15905, 2023 WL 8889552, at *1 n.3 (9th Cir. Dec. 26, 2023) (citing

19 Harris and taking judicial notice of the plaintiff’s prior habeas petition in state court

20 and the related dockets and orders while affirming the district court’s dismissal of the

21 complaint under 28 U.S.C. § 1915A). Thus, even under a de novo review, there was

22 no error here in relying on material subject to judicial notice.

23 However, based on the undisputed evidence on record, the Court disagrees

24 with the Magistrate Judge that Plaintiff fabricated his impoverished status. Indeed,

25 although Plaintiff submitted two IFP applications on July 25, 2022 and July 28, 2022

26 that stated that he was “transient” and that he had no money available, Plaintiff

27 disclosed all the information required by the application. (See ECF No. 2 at 2; ECF

28 No. 6 at 2.) That, as Defendants and the Magistrate Judge pointed out, Plaintiff did

1 not disclose his employment status in his August 18, 2022 Notice is irrelevant to

2 whether the allegation of poverty was true on July 7, 2022, when Plaintiff signed the

3 declaration supporting his IFP Motion. (See ECF No. 23 at 2, 7–8; ECF No.32 at 7–8.)

4 Similarly, the only argument Defendants made regarding the availability of

5 assets from Plaintiff’s partner was that “California is a community property state, such

6 that all property acquired during the marriage is community property.” (ECF No. 29 at

7 3 (citing Cal. Fam. Code § 760).) However, as that definition makes clear, communal

8 property only exists after the marriage is consummated and after the property was

9 acquired by the married couple. See, e.g., In re Bace, 908 F.3d 531, 537 (9th Cir.

10 2018) (explaining that “classification of property as community or separate property

11 depends on the time of its acquisition[,]” and that property acquired before the

12 marriage is separate property but property acquired during the marriage is

13 community property except as provided by statute (collecting sources)). Thus, as of

14 July 7, 2022, Plaintiff had no community property and only had separate property, all

15 of which he accurately reported. Therefore, Plaintiff did not fail to disclose any

16 financial assets acquired as a result of his marriage.

17 At base, Defendants seek to discredit Plaintiff’s July 7, 2022 declaration by

18 relying on information and changes that came after Plaintiff filed his IFP application.

19 Thus, that information has no bearing on whether Plaintiff’s allegation of poverty was

20 false at the time it was made. And, based on the undisputed record and materials

21 submitted with Plaintiff’s applications, the Court cannot find that Plaintiff fabricated

22 allegations of poverty. Therefore, the Court declines to dismiss Plaintiff’s Complaint

23 under 28 U.S.C. § 1915 for making untrue allegations of poverty.

24 2. Plaintiff Did All That Was Explicitly Required of Him

25 Moreover, even though Plaintiff is an “experienced litigator,” he should not be

26 faulted for failing to disclose the financial status of his then-fiancée and now-wife

27 because it was not clear to Plaintiff that he ever had a duty to disclose such

28 information. (See ECF No. 23 at 7–8; ECF No. 32 at 8.) Here, Defendants cite cases to

1 argue that “[t]he Court may consider Plaintiff’s spouse’s financial resources in

2 determining whether he is entitled to in forma pauperis status.” (ECF No. 23 at 9

3 (citing Lafavor v. Comm’r of Soc. Sec., No. 1:23-cv-00745-CDB-SS, 2023 WL 3872172

4 (E.D. Cal. May 23, 2023); Calderon v. Comm’r of Soc. Sec., No. 1:22-cv-00890-SAB,

5 2022 WL 3088494 (E.D. Cal. July 27, 2022); Escobedo, 787 F.3d at 1226)).) However,

6 Lafavor merely stated, without any support or discussion, the unremarkable

7 proposition that the “Court may consider Plaintiff’s spouse’s financial resources in

8 determining whether she is entitled to in forma pauperis status.” Lafavor, 2023 WL

9 3872172, at *1. Lafavor does not stand for the proposition that the court must

10 consider the financial resources of a party’s spouse, much less that a plaintiff seeking

11 IFP status must disclose their spouse’s financial resources, which is what Defendants

12 suggest with their citation and what the Magistrate Judge apparently understood

13 those cases to establish. (See ECF No. 32 at 8 (“Plaintiff did not commit a minor

14 misstatement or omission; instead, he manipulated his housing status to appear that

15 he was homeless, omitted his wife’s income, and deliberately misrepresented his

16 employment status to conceal the true facts from the court.”).)

17 Furthermore, the form Plaintiff was required to complete makes no mention of

18 spouses or partners or people upon whom the plaintiff might be depending upon, but

19 it does ask the person to list anyone depending on them for support. (See ECF Nos.

20 2, 6.) See also Application to Proceed in District Court Without Prepaying Fees or

21 Costs (revised July 2010),

22 https://www.caed.uscourts.gov/caednew/assets/File/IFP%20Form.pdf. Plaintiff

23 cannot be faulted for heeding directions and not doing something he was not told.1

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25 1 Indeed, the Magistrate Judge cited to Witkin v. Lee, which cited to Kennedy v. Huibregtse, 831 F.3d

441, 443–44 (7th Cir. 2016), to argue that Plaintiff had notice of the need to provide information on his

26 partner’s income, but Kennedy and Witkin both involved plaintiffs who diverted resources to hide assets

from the court, see Witkin, 2020 WL 2512383, at *5; Kennedy, 831 F.3d at 444, which is not present

27 here. Thus, Witkin and Kennedy are better understood for the proposition that a plaintiff cannot hide

financial assets by diverting resources within its control — not that a plaintiff must disclose every piece of

28 financial information, including that of any partners or spouses.

1 3. The Suggestion of Bad Faith Over Allegations of

Homelessness Are Overstated

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3 Finally, Defendants overstate the inferences that can be drawn from Plaintiff

4 disclosing his “transient” status on his IFP applications. (See ECF No. 23 at 7–8; ECF

5 No. 33 at 7–8.) While Plaintiff did write that he was released on parole as a “transient,”

6 Plaintiff does not state that he is homeless. While the Court has concerns that Plaintiff

7 may have created a suggestion of homeless that was not true, there is no showing that

8 Plaintiff’s inaccuracy foreclosed IFP eligibility and Defendants have not argued

9 otherwise. Compare with Witkin, 2020 WL 2512383, at *3 (citing Camp v. Oliver, 798

10 F.2d 434, 438–39 (11th Cir. 1986)). Thus, Defendants’ interpretation of Plaintiff’s

11 truthful disclosure of his status on parole is not enough to establish bad faith.

12 Compare with Escobedo, 787 F.3d at 1234 n.8 (describing the defendant’s evidence

13 as a “scanty offering” that revealed “[n]o significant misrepresentations” regarding

14 expenses).

15 B. Plaintiff Did Not Bring This Case Maliciously

16 Defendants also argue, and the Magistrate Judge concluded, that Plaintiff

17 brought this lawsuit in bad faith. (See ECF No. 23 at 9–10; ECF No. 32 at 4–6.) Here,

18 both rely on statements Plaintiff apparently revealed indicating that Plaintiff wanted to

19 bring the authorities to justice and to “knock down CDCR for about $250,000.” (ECF

20 No. 23 at 5–6; ECF No. 32 at 4.) However, before a dismissal can be characterized as

21 malicious, the court must specifically find that the complaint was filed with the

22 intention or desire to harm another. See Washington v. Los Angeles Cnty. Sheriff’s

23 Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016) (quoting Andrews, 398 F.3d at 1118).

24 Here, the docket reveals that Plaintiff brought a limited lawsuit that was already

25 screened as raising legitimate claims. (See ECF No. 11.) Therefore, Plaintiff’s claims

26 are not frivolous based on the Magistrate Judge’s own determination. See Andrews,

27 398 F.3d at 1121 (citations omitted). This thus cuts against finding that the case was

28 brought maliciously or with the intent to harm because, by brining non-frivolous

1 claims, Plaintiff seeks to vindicate his rights, which means that there is a plausible

2 reason to bring this suit other than to harm or harass Defendants.

3 Moreover, Plaintiff clearly takes the position that he is bringing this lawsuit to

4 fight what he perceives to be injustices within the California prison and legal system,

5 thus further detracting from a finding that Plaintiff brought this lawsuit to harm or

6 harass Defendants. Indeed, although Plaintiff wrote that he hoped to extract $250,000

7 from Defendants, that statement does not automatically suggest that Plaintiff intended

8 to harm Defendants to the tune of $250,000. Rather, Plaintiff seems to seek such

9 money to “significantly impact the[ ] perpetual evil practices[ ]” allegedly committed

10 by Defendants. (See ECF No. 33 at 3.) That does not suggest an intent to harm or

11 harass Defendants.

12 Further, almost every plaintiff suing prisons and correctional officials is seeking

13 money as compensation, so a stated desire to extract large sums of money from

14 defendants cannot — alone — form the basis for a finding of maliciousness, or else

15 almost every lawsuit would be dismissed maliciously. And even though the Magistrate

16 Judge found malice based on Plaintiff’s litigation history (see ECF No. 32 at 6), that

17 history undermines that conclusion because Plaintiff has never had a lawsuit dismissed

18 as frivolous in his 15-year litigation history. (See ECF No. 33 at 3.)

19 Admittedly, Plaintiff re-asserts claims he has previously litigated against new

20 parties now. (See ECF No. 23 at 5, 9–10; ECF No. 32 at 4–6.) But Plaintiff’s denial of

21 exercise claim was successful, meaning that it was not frivolous and that it was

22 deserving of a remedy, which would suggest that the claim was brought with the

23 intent to remedy a real harm. (Compare with ECF No. 32 at 6 (“However, plaintiff’s

24 2021 statements that he intended to prosecute 20 cases against CDCR in this district

25 court to net $250,000, considered with his litigation history, shows an intent to abuse

26 the federal justice system for the purpose of harming or harassing defendants in

27 bringing such a claim in the present case.”).) That Plaintiff brings a similar claim

28 against other defendants does not detract from the potentially remedial aims of the

1 | underlying lawsuit. If anything, the prior success suggests that the subsequent lawsuit

2 | was brought to “significantly impact the[ ] perpetual evil practices[ ]” allegedly

3 | committed by Defendants. (See ECF No. 33 at 3.)

4 As a result, the Court concludes that there is insufficient evidence to establish

5 | that Plaintiff brought this lawsuit with the intention to harass or harm Defendants,

6 | rather than with the intention to ensure compliance with constitutional requirements

7 | for all incarcerated individuals.

8 CONCLUSION

9 For the reasons set forth above, the Court REJECTS the Magistrate Judge’s

10 | Findings and Recommendations (ECF No. 32). The Court hereby ORDERS Plaintiff to

11 | pay the filing fee within 30 days of this Order being docketed. IT |S SO ORDERED.

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13 IT IS SO ORDERED.

14 | Dated: September 20, 2024 “Dane A Ch brett

Hon. Daniel alabretta

UNITED STATES DISTRICT JUDGE

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