     11-2200-pr
     Vann v. Comm’r of the New York City Dep’t of Corr.

 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT

 3                                         SUMMARY ORDER

 4   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 5   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 6   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 7   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
 8   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
 9   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
10   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
11   COUNSEL.

12          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
13   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
14   of September, two thousand twelve.

15   Present:
16               ROBERT A. KATZMANN,
17               SUSAN L. CARNEY,
18                           Circuit Judges.*
19   ________________________________________________

20   KOURIOCKEIN VANN,

21                  Plaintiff-Appellant,

22                         v.                                    No. 11-2200-pr

23   COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CORRECTION, et al.,

24                  Defendants-Appellees.**


            *
               The Honorable Roger J. Miner, who was originally assigned to the panel, passed away
     prior to the resolution of this case. The remaining two members of the panel, who are in
     agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States
     v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998).
            **
              The Clerk of Court is directed to amend the official caption in accordance with the
     foregoing.
 1   ________________________________________________

 2   For Plaintiff-Appellant:                      Kouriockein Vann, pro se, Attica Correctional
 3                                                 Facility, Attica, NY.

 4   For Defendants-Appellees:           Janet L. Zaleon, Leonard Koerner, Assistant
 5                                       Corporation Counsel, for Michael A. Cardozo,
 6                                       Corporation Counsel of the City of New York, New
 7                                       York, NY.
 8   ________________________________________________

 9          Appeal from the United States District Court for the Southern District of New York
10   (William H. Pauley III, J.).

11          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

12   DECREED that Appellant’s motion to proceed in forma pauperis is DENIED and the appeal is

13   DISMISSED.

14          Plaintiff-appellant Kouriockein Vann, pro se and incarcerated, appeals from an April 6,

15   2011 judgment entered in the United States District Court for the Southern District of New York

16   dismissing with prejudice Vann’s complaint alleging civil rights violations arising from

17   correctional officers’ refusal to allow Vann to wear Santeria Beads in the correctional facility’s

18   visiting room area. The District Court found that Vann had made false statements and had

19   intentionally concealed income on his application to proceed in forma pauperis and dismissed

20   the action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(A). Vann now moves this Court for

21   leave to proceed on appeal in forma pauperis. We assume the parties’ familiarity with the facts

22   and record of the underlying proceedings, which we reference only as necessary to explain our

23   decision.




                                                      2
 1          Under the Prison Litigation Reform Act of 1995 (Act), Pub. L. No. 104-134, tit. VIII, 110

 2   Stat. 1321 (1996) (codified as amended at 11 U.S.C. § 523(a) and 18 U.S.C. §§ 3624(b), 3626,

 3   and in scattered sections of Titles 28 and 42 of the United States Code) (the “PLRA”), all

 4   prisoners must pay the required filing fees and costs associated with commencing an action in

 5   the district court. 28 U.S.C. §§ 1915(b)(1)–(b)(2), 1915(f)(2). Notwithstanding this general rule,

 6   the PLRA provides a prisoner with the statutory privilege to demonstrate his or her indigence

 7   and to formally request a district court to allow him or her to proceed under in forma pauperis

 8   status. 28 U.S.C. § 1915(a)(1). If a district court finds that a prisoner’s “allegation of poverty is

 9   untrue,” however, then the court is required under the PLRA to dismiss the action. See 28

10   U.S.C. § 1915(e)(2)(A) (“[T]he court shall dismiss the case at any time if the court determines

11   that . . . the allegation of poverty is untrue.”); Thomas v. Gen. Motors Acceptance Corp., 288

12   F.3d 305, 306 (7th Cir. 2002) (stating that because “the allegation of poverty was false, the suit

13   had to be dismissed; the judge had no choice”). The PLRA also requires courts, including courts

14   of appeals, to dismiss cases filed by parties seeking in forma pauperis status if the case lacks an

15   arguable basis in law or fact. See 28 U.S.C. § 1915(e)(2)(B)(ii); Neitzke v. Williams, 490 U.S.

16   319, 325 (1989).

17          We have not previously held under what standard of appellate review we examine a

18   district court’s dismissal of an action pursuant to § 1915(e)(2)(A). Compare Giano v. Goord,

19   250 F.3d 146, 149–50 (2d Cir. 2001) (stating that“[w]e review a district court’s sua sponte

20   dismissal pursuant 28 U.S.C. § 1915(e)[(2)(B)(ii)] . . . de novo”), with Thomas, 288 F.3d at 308

21   (holding that a clear error standard of review should be applied to the district court’s sua sponte


                                                       3
 1   dismissal of the complaint under § 1915(e)(2)(A) because whether a prisoner has made truthful

 2   allegations on an application for in forma pauperis status is a pure finding of fact), and

 3   MacWade v. Kelly, 460 F.3d 260, 267 (2d Cir. 2006) (“[W]e review the District Court’s findings

 4   of fact for clear error, but we review de novo its conclusions of law and its resolution of mixed

 5   questions of fact and law.”). There is no need to reach this issue, however, because under either

 6   a de novo or clear error standard of review, the District Court properly dismissed Vann’s

 7   complaint. See Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998) (per curiam)

 8   (recognizing the question as to what standard of review applies to dismissals pursuant to

 9   § 1915(e)(2)(A) but declining to reach the issue because under any standard of review the action

10   was properly dismissed).

11          Section 1915(e)(2)(A) serves the purpose of preventing abuse of the judicial system by

12   “weed[ing] out the litigants who falsely understate their net worth in order to obtain in forma

13   pauperis status when they are not entitled to that status based on their true net worth.” Attwood

14   v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997) (per curiam); see also Adkins v. E.I. DuPont de

15   Nemours & Co., 335 U.S. 331, 344 (1948) (“The [in forma pauperis] statute was intended for the

16   benefit of those too poor to pay or give security for costs . . . .”). The in forma pauperis statute

17   neither requires a litigant to “demonstrate absolute destitution,” Potnick v. E. State Hosp., 701

18   F.2d 243, 244 (2d Cir. 1983) (per curiam), nor requires dismissal for inaccuracies,

19   misstatements, or minor misrepresentations made in good faith, see Lee v. McDonald’s Corp.,

20   231 F.3d 456, 459 (8th Cir. 2000); see also Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir.

21   1990) (per curiam) (stating that the purpose of 28 U.S.C. § 1915(d), the pre-PLRA version of §


                                                       4
 1   1915(e)(2)(A), is “not to punish litigants whose affidavits contain insignificant discrepancies”).

 2   Yet, although a prisoner’s misrepresentation of his or her financial assets might not necessarily

 3   rise to the level of an untrue allegation of poverty requiring dismissal in all cases, dismissal

 4   under § 1915(e)(2)(A) is certainly appropriate where a plaintiff conceals or misrepresents his or

 5   her financial assets or history in bad faith to obtain in forma pauperis status. See Cuoco v. U.S.

 6   Bureau of Prisons, 328 F. Supp. 2d 463, 467-68 (S.D.N.Y. 2004). Bad faith in this context

 7   includes deliberate concealment of income in order to gain access to a court without prepayment

8    of filing fees. Id. To determine whether a plaintiff has acted in bad faith a court may consider a

 9   plaintiff’s familiarity with the in forma pauperis system and history of litigation. See id. at 468-

10   69 (dismissing with prejudice plaintiff’s complaint where plaintiff received two settlements

11   totaling $13,500—which the plaintiff directed to be sent to her mother and not to her prison

12   account—but did not report those settlements on her in forma pauperis application despite

13   having extensive litigation experience); see also Thomas, 288 F.3d at 306–07 (affirming

14   dismissal with prejudice where plaintiff had failed to disclose $73,714 in retirement

15   distributions); Mathis, 133 F.3d at 547–48 (affirming district court’s dismissal with prejudice

16   where plaintiff, an experienced IFP litigant, failed to disclose ownership of a home with $14,000

17   of equity).

18          Here, we discern no error in the District Court’s finding that Vann’s allegation of poverty

19   was untrue. Vann’s declaration submitted in support of his application for in forma pauperis

20   status stated, under penalty of perjury, that he had not received any income from any source

21   other than thirty dollars from his mother-in-law for the twelve months preceding January 28,


                                                       5
 1   2010. Vann was also aware that if he gave a “false answer to any questions in [the] declaration,”

 2   that “the [c]ourt shall dismiss this case.” R. on Appeal, Doc. 1, Request to Proceed In Forma

 3   Pauperis, at 2, Jan. 28, 2010. Nevertheless, the record clearly supports the District Court’s

 4   finding that Vann had intentionally omitted from his application the $2,059.10 in deposits that he

 5   had received. Vann’s Inmate Transaction Account reveals that he had received $1,455.50 in

 6   non-payroll deposits and $603.60 in payroll deposits during the twelve months in question.

 7   Vann was required to state in his application that he had received that income, yet he did not do

 8   so. Moreover, when given the opportunity to respond to defendants’ motion to dismiss and

 9   explain the omission, Vann failed to provide a credible justification for the omission. Regardless

10   of whether Vann spent the money is his account for discretionary phone calls or commissary

11   purchases or gifted money to relatives during the twelve months preceding the filing of his

12   complaint and application for in forma pauperis status, Vann was required to accurately and

13   truthfully state his financial history and assets. 28 U.S.C. § 1915(a)(1), (a)(2). This he did not

14   do.

15          We also note that Vann is an experienced litigator with extensive knowledge and

16   familiarity with the in forma pauperis system. After Vann filed his appeal in this case, an

17   unrelated action commenced by Vann was dismissed by the district court for making false

18   allegations of poverty on his in forma pauperis application in that case. Vann v. Horn, No. 10-

19   cv-6777 (PKC), 2011 WL 3501880, at *3–4 (S.D.N.Y. Aug. 9, 2011); see also id. at *4 (noting

20   that Vann had filed at least five actions in federal court and had filed for in forma pauperis status

21   in each action in addition to having filed “numerous state court actions” against the New York

22   State Commissioner for Correctional Services and other employees of the Department of

23   Corrections).

                                                       6
 1          Finally, we also conclude that the District Court did not abuse its discretion in dismissing

 2   Vann’s complaint with prejudice. We review a district court’s decision to dismiss a case with

 3   the sanction of prejudice under the abuse-of-discretion standard of review. See Metz v. U.S. Life

 4   Ins. Co. in the City of N.Y., 662 F.3d 600, 602-03 (2d Cir. 2011) (per curiam); see also Mathis,

 5   133 F.3d at 547 (stating that in the absence of any limitation as to dismissal with prejudice under

6    the in forma pauperis statute, “Congress intended to leave the decision to dismiss with or

 7   without prejudice in the district court’s discretion” (internal quotation marks omitted)); accord

 8   Maynard v. Nygren, 372 F.3d 890, 893 (7th Cir. 2004); Romesburg v. Trikey, 908 F.2d 258, 260

 9   (8th Cir. 1990); Dawson v. Lennon, 797 F.2d 934, 935 (11th Cir. 1986) (per curiam); Thompson

10   v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983) (per curiam). Given the falsity of Vann’s

11   application and his declarations, Vann’s bad faith in this case evidenced by his litigation

12   experience and extensive familiarity of the in forma pauperis process, and Vann’s failure to

13   credibly explain or correct his declarations when given an opportunity to do so, the District

14   Court was well within its discretion when it dismissed Vann’s complaint with prejudice. See

15   Thomas, 288 F.3d at 308; Mathis, 133 F.3d at 547. Furthermore, under these circumstances,

16   there is no arguable basis in law or fact for Vann’s appeal. See 28 U.S.C. § 1915(e)(2)(B)(ii);

17   Neitzke, 490 U.S. at 325.

18          Accordingly, Vann’s motion for leave to proceed in forma pauperis is DENIED, and the

19   appeal is DISMISSED.

20                                                 FOR THE COURT:
21                                                 CATHERINE O’HAGAN WOLFE, CLERK


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