Opinion
00 Civ. 8170 (JSM).
May 3, 2002
OPINION AND ORDER
Defendants have moved to dismiss this action and to remove Plaintiff's counsel pursuant to 28 U.S.C. § 1915 (e)(2) because Plaintiff was not fully candid about his income and assets in the in forma pauperis filings that he made in connection with this case.
Plaintiff's first Declaration in Support of Request to Proceed In Forma Pauperis was dated August 9, 2000, and listed his total income for the previous year as approximately $4,000. He stated that he owned a house in Harrisburg, Pennsylvania, valued at $2,500, and that he had cash or bank accounts that totaled $1,200 or less. In his second such Declaration, made in connection with a request for appointment of counsel, dated April 27, 2001, Plaintiff stated that his income for the previous year had been approximately $6,000, that he owned a house in Pennsylvania valued at approximately $2,500, and that he owned cash or bank accounts that totaled less than $1,000.
Based on discovery, including Plaintiff's deposition, Defendants charge that Plaintiff had additional income and assets that he failed to list on his Declarations, including rebates from sales of products of Golden Pride, Inc., allegedly totaling $3,000 in the year prior to the filing of the August 2000 Declaration, and $4,700 in the year prior to the filing of the April 2001 Declaration. In addition, Plaintiff received, but did not report, approximately $700 busking and/or begging at the Palisades Center during November 2000 and April 2001, as well as $1,025 in rent payments during 2000-2001. Finally, Plaintiff owns two cars (apparently of little value), and the corporation, Read the Bible America, Inc., which is controlled by Plaintiff, owns a building in Dauphin County, Pennsylvania, which is valued at $15,100.
Although Plaintiff contests the facts presented and the conclusions drawn by Defendants, the Court will assume, for purposes of this motion, that Defendants are correct in their conclusions as to Plaintiff's income and resources. 28 U.S.C. § 1915 provides, in pertinent part, that:
(e)(1) The court may request an attorney to represent any person unable to afford counsel.
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue
Defendants argue that pursuant to § 1915(e)(2), the Court is required to dismiss any action in which it is found that a plaintiff has misrepresented his income or assets in an application to proceed in forma pauperis. This is not the law, however. Rather, "dismissal is a harsh remedy to be saved for the most extreme cases of misrepresentation."Christensen v. Bristol-Myers Co., No. 86 Civ. 0183, 1990 WL 6554, at *2 (S.D.N Y Jan. 22, 1990)
The purpose of the statute permitting litigants to proceed in forma pauperis is to insure that indigent persons have equal access to the judicial system. Moreover, a party need not be absolutely destitute in order to qualify. Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000). "No party must be made to choose between abandoning a potentially meritorious claim or foregoing the necessities of life." Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (citing Adkins v. E.I. DuPont de Nemours Co., Inc., 335 U.S. 331, 69 S.Ct. 85, 89 (1948)). An in forma pauperis affidavit is sufficient which states that one cannot because of his poverty `pay or give security for the costs . . . and still be able to provide' himself and dependents `with the necessities of life.'" Adkins, 69 S.Ct. at 89.
Thus, the question before the Court is not the accuracy of every specific representation made by Plaintiff in support of his application to proceed in forma pauperis, but whether Plaintiff's "allegation of poverty is untrue." (emphasis added). As the Eighth Circuit stated in Lee v. McDonald's Corp., 231 F.3d at 459,
"[§ 1915(e)(2)] does not mandate that the district court dismiss [Plaintiff's] claim if it finds that certain assertions in his affidavit are untrue; instead, it requires the district court to dismiss the claim if it finds that [Plaintiff] is not sufficiently spoor to qualify for in forma pauperis status given the facts that are true. Indeed, "[t]he purpose of this provision is to `weed out the litigants who falsely understate their net worth in order to obtain in forma pauperis status when they are not entitled to that status based on their true net worth.'" Attwood [v. Singletary], 105 F.3d [610,] 613 [11th Cir. 1997] (citing Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir. 1990)).
Thus, despite the apparently mandatory language of the statute, this question is addressed to the discretion of the district court. Lee v. McDonald's Corp., 231 F.3d at 458. See also Choi v. Chemical Bank, 939 F. Supp. 304, 308-09 (S.D.N.Y. 1996); Acevedo v. Reid, 653 F. Supp. 347, 348 (S.D.N.Y. 1986).
In this case, assuming the truth of all of Defendants' claims, Plaintiff's income and assets still are so meager that he qualifies to proceed in forma pauperis anyway. Given this finding, as well as the lack of a clear showing of bad faith on Plaintiff's part, Defendants' motion to dismiss is denied.
Defendants' motion to remove Plaintiff's counsel also must be denied. Plaintiff's attorneys have submitted an affidavit stating that they are volunteers who wish to represent Plaintiff because of their concern with the issues raised by this action. This voluntariness of counsel's representation is further confirmed by a review of the Court docket, which reveals that Plaintiff's application for appointment of counsel from the pro bono panel was denied (subject to reconsideration on his renewed motion after discovery and subsequent proceedings) on June 13, 2001.
Since the Court has no authority under § 1915(e) to compel an attorney to represent an indigent litigant in a civil case, Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 1818 (1989);Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1224-1225 (D. Neb. 1995), and, in any event, Plaintiff's attorneys are not making, and cannot make, any claim upon the Court or the public for payment for their services, their continuation as counsel is a private matter between them and the Plaintiff. Cf. Christensen v. Bristol-Myers Co., 1990 WL 6554, at *3 (acknowledging that volunteer lawyer time is a precious commodity that should not be wasted, but finding no authority to order plaintiff, whose in forma pauperis status was revoked, to pay her attorneys for past pro bono services).
For the foregoing reasons, Defendants' motion to dismiss and to remove Plaintiff's counsel is denied.