           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 15, 2009

                                     No. 08-30166                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



VINCENT MARK CASTILLO

                                                   Plaintiff - Appellant
v.

KATHLEEN BABINEAUX BLANCO; STATE OF LOUISIANA; GENIE C
POWERS; DEPARTMENT OF PAROLE STATE OF LOUISIANA; LISA
CASSERA; HARRY LEE, Sheriff; JEFFERSON PARISH SHERIFF’S
OFFICE; NICK CONGEMI; KENNER CITY; WAL-MART LOUISIANA LLC;
UNIDENTIFIED PARTIES

                                                   Defendants - Appellees




           Appeal from the United States United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:07-CV-03386


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       On June 21, 2007, Vincent Mark Castillo sued Louisiana Governor
Kathleen Blanco, the City of Kenner, Kenner’s former police chief, other
Louisiana governmental entities, and Wal-Mart Louisiana L.L.C. for alleged



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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violations of 42 U.S.C. § 1983 and state tort claims. His allegations arose from
a June 21, 2006, incident at a Wal-Mart store in which Castillo claims police
unlawfully searched and seized him, accused him of stealing a car battery, and
subjected him to public embarrassment while questioning him at the store.
When Castillo brought his complaint, he requested in forma pauperis (“IFP”)
status and filed the requisite affidavits pursuant to 28 U.S.C. § 1915 disclosing
any income earned, assets, employment, disability or workers’ compensation
benefits received, gifts and inheritances, and any other sources of income. On
June 28, 2007, a magistrate judge (“MJ”) granted Castillo IFP status and the
right to proceed without paying the filing fee. The clerk accepted Castillo’s
complaint, and the lawsuit was docketed as filed June 28, 2007.
      The appellees answered and filed a motion to rescind the MJ’s order
granting Castillo IFP status, claiming that his § 1915 affidavits were false and
failed to disclose numerous sources of income.          Castillo did not file any
opposition to the motion. Rather than recommending dismissal under 28 U.S.C.
§ 1915(e)(2)(A), the MJ vacated and rescinded the order granting Castillo IFP
status and ordered Castillo to pay the filing fee or risk having his suit dismissed.
The MJ gave Castillo an additional two weeks to pay the filing fee. Later that
same day, Castillo filed a motion for leave to amend his petition and pauper
application. The MJ denied his motion the following day. Castillo then appealed
to the district judge to whom his case was assigned. The district judge denied
Castillo’s appeal and affirmed the MJ’s order.
      Castillo failed to pay the filing fee.    The appellees moved to dismiss
Castillo’s claims on the basis of the false § 1915 affidavits, under § 1915(e)(2)(A),
and as frivolous or for failure to state a claim because the statute of limitations
had expired, under § 1915(e)(2)(B). The district court set a hearing date, but
Castillo failed to respond. The district court deemed the motions unopposed and
dismissed all claims with prejudice. The district court did not specify the precise

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statutory basis for its dismissal, but found that “the motion [to dismiss] has
merit” because “any action against these Defendants has prescribed.” Next, the
appellees filed a motion for attorney’s fees and sanctions under 42 U.S.C. § 1988
and Rule 11 of the Federal Rules of Civil Procedure. A hearing date was set, but
because Castillo did not a file timely opposition the district court granted the
sanctions motion without holding the hearing. The court awarded attorney’s
fees and costs to the appellees in the amount of $12,611.92 because Castillo gave
false information in applying for IFP status and because Castillo refused to drop
his suit after being informed his claims were time-barred.                  Castillo timely
appealed.1
       Castillo argues that the district court improperly revoked his IFP status,
dismissed his claims, and ordered him to pay attorney’s fees and costs. Castillo
says he “is truly a pauper” and that the appellees erroneously relied on
unreliable information to show that his § 1915 affidavit was false. He claims he
is jobless, has no running water or electricity, is living out of his car, and owes
debts of more than $50,000. The appellees argue the district court correctly
revoked Castillo’s IFP status upon finding he provided false information on his
§ 1915 affidavits and was hiding income and assets. The appellees also argue
that the dismissal was proper because Castillo’s suit was barred by the statute
of limitations. They assert the district court properly assessed sanctions against
Castillo for providing false information on his § 1915 affidavits and for pursuing
a frivolous lawsuit.

       1
         We notified Castillo on April 1, 2008, that his appellant's brief was due 40 days from
that date. Castillo filed a motion for leave to appeal IFP April 14, 2008, which the appellees
opposed. Because Castillo failed to timely file his appellant’s brief, we dismissed his appeal
for want of prosecution under this Court’s Rule 42.3. Castillo filed a request to reinstate his
appeal June 16, 2008, which we granted. We also granted his motion for leave to proceed IFP
on appeal. In granting his motion, we took his allegations of poverty as true for the limited
purpose of addressing the IFP request. However, we warned Castillo that “this will not
prevent the court from taking appropriate action if the [§ 1915] affidavit is found to contain
false information” and “continuing to pursue a frivolous appeal will also result in sanctions.”

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        There is some unclarity regarding the standard of review for dismissals
under § 1915. In some cases, we have used an abuse of discretion standard to
review a district court’s dismissal of an IFP complaint as frivolous.      Marts v.
Hines, 117 F.3d 1504, 1505-06 (5th Cir. 1997) (reviewing “the trial court’s
exercise of discretion” in its dismissal of IFP complaints as frivolous or malicious
and citing to Denton v. Hernandez, 504 U.S. 25, 33-34 (1992), which held the
district court’s dismissal under the predecessor frivolousness statute “is properly
reviewed for an abuse of discretion”).       In other cases we have reviewed a
dismissal under § 1915 de novo, applying the same standard used to review a
dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999) (reviewing de novo the
dismissal of an IFP complaint under statutory provisions for dismissal both for
frivolousness and failure to state a claim); Bradley v. Puckett, 157 F.3d 1022,
1025 (5th Cir. 1998) (reviewing de novo the district court’s dismissal of an IFP
complaint under the § 1915 provision for dismissal for failure to state a claim).
We need not resolve this discrepancy here, because we find that the district
court was correct under either an abuse of discretion or de novo standard of
review. We review the Rule 11 sanctions for abuse of discretion. Am. Airlines,
Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 533 (5th Cir. 1992).
      Federal courts may authorize litigants to proceed in a suit without paying
any fees if they submit an affidavit disclosing all their assets and their reasons
for their inability to pay. 28 U.S.C. § 1915(a)(1). However, courts “shall dismiss”
a case upon finding an allegation of poverty is false, 28 U.S.C. § 1915(e)(2)(A),
or “the action ... is frivolous or malicious,” 28 U.S.C. § 1915(e)(2)(B)(I), or the
complaint “fails to state a claim on which relief may be granted,” 28 U.S.C. §
1915(e)(2)(B)(ii). Importantly, § 1915(e)(2) is phrased in mandatory rather than
permissive terms: “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

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determines that . . . the allegation of poverty is untrue.”                        28 U.S.C.
§ 1915(e)(2)(A) (emphasis added).2 Though the statute is silent as to whether
this dismissal should be with or without prejudice, we noted that cases are
appropriately dismissed with prejudice when “evidence exists of bad faith,
manipulative tactics, or litigiousness.” Id. at 286 (citing Camp v. Oliver, 798
F.2d 434 (11th Cir. 1986); Dawson v. Lennon, 797 F.2d 934 (11th Cir. 1986);
Harris v. Cuyler, 664 F.2d 388 (3d Cir. 1981)).
       In revoking Castillo’s IFP status, the MJ found that the “evidence . . . is
overwhelming that plaintiff is not entitled to proceed in forma pauperis and that
his Application to Proceed In Forma Pauperis . . . was false.” The MJ also
instructed Castillo that if he failed to pay the filing fee, his suit was subject to
dismissal under 28 U.S.C. § 1915(e)(2)(A). When Castillo failed to pay this fee
and also failed to respond to the appellees’ motions to dismiss, the district court
dismissed Castillo’s claims with prejudice. Though the MJ chose to give Castillo
time to pay the fees instead of dismissing his case outright when it revoked his
IFP status, under the statute the dismissal was appropriate any time the court
determined that the allegation of poverty was untrue.
       The appellees have provided proof of many inconsistencies in Castillo's §
1915 affidavits. In his affidavit, Castillo claimed (1) the only autos or other
valuable property he owned were an inoperable 1991 van and a 1991 truck worth


       2
         Interpreting the predecessor statute to 28 U.S.C. § 1915(e)(2)(A), 28 U.S.C. § 1915(d),
we observed that "[i]n proceedings brought in forma pauperis, the district court has discretion
to dismiss the case if the allegation of poverty is untrue." Lay v. Justices-Middle Dist. Court,
811 F.2d 285, 285 (5th Cir. 1987). The predecessor statute, 28 U.S.C. § 1915(d), stated a court
“may dismiss [a] case [brought in forma pauperis] if the allegation of poverty is untrue, or if
satisfied that the action is frivolous or malicious.” Humphries v. Various ISINS Employees,
164 F.3d 936, 940 n.4 (5th Cir. 1999). This language led courts to interpret the dismissal as
discretionary. However, when the statute was amended, the language was changed to the
current phrasing of “shall dismiss.” This change indicates Congress intended dismissals under
§ 1915(e)(2)(A) to be mandatory rather than discretionary. See Mathis v. New York Life Ins.
Co., 133 F.3d 546, 547 (7th Cir. 1998) (stating the amended language “mandated that a district
court ‘shall dismiss the case’ if, among other things, ‘the allegation of poverty is untrue’”).

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$200; (2) he had no cash or savings or checking accounts; (3) he had been
unemployed since 2005; and (4) he had not received money from any source in
the past year. Though Castillo claims that the district court relied on unreliable
evidence in finding that his allegation of poverty was false, the appellees have
presented an abundance of evidence that Castillo has numerous undisclosed
sources of income. Among other evidence, the record shows that Castillo owns
several vehicles, runs one or more businesses for which he was hiring employees,
filled out a credit application in 2007 credit application claiming a $100,000
salary, drew several months’ rent from his checking account, and paid the $750
filing fee to run for governor of Louisiana in September 2007. Castillo has failed
to rebut this evidence. Accordingly, we hold that the district court correctly
found that the allegations of poverty in Castillo’s § 1915 affidavits were untrue,
and properly dismissed the case. See Lay v. Justices-Middle Dist. Court, 811
F.2d 285, 285 (5th Cir. 1987).
      Further, the district court correctly dismissed Castillo’s claims with
prejudice. In his appellate brief, Castillo admits that he “is a frequent litigator
with dozens of open cases throughout the state and in the 19th, 24th, 29th, etc
Judicial District Courts for the State of Louisiana with tens upon thousands of
court related costs due . . . .” This is clear evidence of litigiousness, which under
Lay warrants a dismissal with prejudice. See Lay, 811 F.2d at 286. The record
also indicates that the same day Castillo filed suit in the instant case, he filed
another federal suit without paying fees and with a nearly identical § 1915
affidavit. In addition, the record shows that during a 2007 Spears hearing in
another of Castillo’s suits, he bragged about being Louisiana’s most prolific pro
se litigator. The MJ in that case noted Castillo had filed dozens of federal
lawsuits and his long history of frivolous litigation led this Court in 2004 to bar
Castillo from filing federal suits IFP during his frequent periods of incarceration.
Castillo v. Louisiana,108 Fed. App’x 156, 157 (5th Cir. 2004).

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      We also conclude that the district court correctly found that Castillo’s
claims were frivolous because they were barred by the statute of limitations.
When a plaintiff brings a § 1983 action in federal court, the court applies the
personal injury statute of limitations of the forum state. Hawkins v. McHugh,
46 F.3d 10, 12 (5th Cir. 1995). Here, Louisiana law provides a one-year statute
of limitations—a plaintiff must bring an action no later than one year after the
day of the alleged injury or damages. L A. C IV. C ODE A NN. art. 3492 (2008).
Castillo submitted his petition to the clerk’s office one year to the day after the
alleged Wal-Mart incident that gave rise to this suit, but the suit was not
officially docketed until a week later, following the approval of his IFP status.
If his IFP status had not been revoked, the statute of limitations might have
been equitably tolled for the time between the date he submitted his petition and
the date that his IFP status was granted. See United States v. Patterson, 211
F.3d 927, 931 (5th Cir. 2000) (citing Ynclan v. Dep’t of Air Force, 943 F.2d 1388,
1392 (5th Cir. 1991), for the proposition that a court clerk’s delay in stamping
complaint as “filed” due to a pending motion to proceed IFP justified equitable
tolling). However, since the district court revoked Castillo’s IFP status due to
the finding that his § 1915 affidavits were false, this equitable tolling no longer
applies. Accordingly, the district court correctly determined that his claims were
barred by the statute of limitations.
      Finally, we hold that the district court did not abuse its discretion when
it imposed sanctions against Castillo under Rule 11 by requiring him to pay the
defendants’ reasonable attorney’s fees and expenses. Rule 11 of the Federal
Rules of Civil Procedure provides that by submitting to the court a pleading,
written motion, or any other paper, a party certifies that it is not presented for
improper purposes (such as harassment or needless delay and costs), that legal
contentions and claims or defenses are supported by law and are not frivolous,
and that all allegations in the paper submitted likely will be found to have

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evidentiary support. F ED. R. C IV. P. 11(b). Rule 11 also allows a court, after
notice and opportunity to respond, to impose “an appropriate sanction” on a
party for violating Rule 11(b). F ED. R. C IV. P. 11(c). Such sanctions are limited
by the rule to whatever sufficiently deters the offensive conduct, but may include
orders to pay attorney's fees and other expenses. Id. Here, Castillo has failed
to show that the district court abused its discretion by imposing sanctions in the
amount of $12,611.92. The evidence clearly shows that Castillo's § 1915
affidavits were false. The attorney’s fees and costs the district court ordered him
to pay fell within the reasonable discretion of the court to deter Castillo from
further misconduct, especially considering Castillo’s history of filing IFP
lawsuits.
      Having concluded that Castillo’s § 1915 affidavits contained false
information, we find that Castillo’s appeal is without arguable merit and thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore,
it is dismissed as frivolous. See 5 TH C IR. R. 42.2. We also note that Castillo was
previously barred from proceeding IFP in any civil action or appeal filed during
his incarceration because he accumulated three strikes for purposes of 28 U.S.C.
§ 1915(g).   See Castillo v. Louisiana, 108 Fed. App’x 156 (5th Cir. 2004).
Accordingly, we invite the Appellees to move this Court for the imposition of
sanctions and costs under F ED. R. A PP. P. 38.
DISMISSED




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