                                                                             FILED
                             NOT FOR PUBLICATION                              OCT 05 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROBERT BENNING BALTHROPE, II,                     No. 09-17213

               Plaintiff - Appellant,             D.C. No. 2:09-cv-01874-FCD-
                                                  KJM
  v.

SACRAMENTO COUNTY                                 MEMORANDUM *
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Frank C. Damrell, Jr., District Judge, Presiding

                           Submitted September 22, 2010 **

Before:        WALLACE, HAWKINS, and THOMAS, Circuit Judges.

       The district court did not abuse its discretion by applying judicial estoppel

because Robert Benning Balthrope, II, (“Balthrope”) attempted to pursue legal

claims that he did not disclose during his bankruptcy proceedings. See Hamilton v.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001) (applying judicial

estoppel where debtor failed to disclose a pending claim as an asset in a bankruptcy

proceeding). Contrary to Balthrope’s contention, he was required to amend his

bankruptcy petition to include the post-petition claim because his Chapter 13

bankruptcy proceeding had not been closed, dismissed, or converted, and the

property of the bankruptcy estate had not revested in him. See 11 U.S.C.

§ 1306(a)(1); see also Hamilton, 270 F.3d at 784 (“Judicial estoppel will be

imposed when the debtor has knowledge of enough facts to know that a potential

cause of action exists during the pendency of the bankruptcy, but fails to amend his

schedules or disclosure statements to identify the cause of action as a contingent

asset.”) (citation omitted).

      The district court did not abuse its discretion by denying Balthrope’s motion

to proceed in forma pauperis after considering his income and assets as set forth in

his bankruptcy action. See 28 U.S.C. § 1915(e)(2)(A) (case must be dismissed if

“the allegation of poverty is untrue”); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th

Cir. 1990).

      Balthrope’s remaining contentions are unpersuasive.

      AFFIRMED.




                                          2                                     09-17213
