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Gerwald v. Charities

United States District Court, S.D. Georgia, Savannah Division

August 7, 2014



G.R. SMITH, Magistrate Judge.

Anaissa Beth Gerwald, proceeding pro se, is back with another largely indecipherable, scatter-shot lawsuit. Doc. 1 (asking the Court to "open a new complaint - motion 1982/83/1985-2441 while petitioner was in jail for unjustified violation & denial of 2nd Chance Act law - Fraud, Theft, False Accused....").[1]She also moves for leave to proceed in forma pauperis (IFP). Doc. 2. Convicted of bankruptcy fraud, CR411-249, doc. 55 (S.D. Ga. Sep. 18, 2012), she is apparently free from prison and now claims she is debt-ridden, homeless and completely penniless. Doc. 13 at 1-2.

Of course, the obvious question must be posed to this convicted fraudster: How exactly does she live? Courts have inquired:

In an effort to prevent fraud, courts required the supporting affidavit to state facts concerning the plaintiff's poverty with some level of "particularity, definiteness, and certainty." Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (per curiam). Courts also retained the authority to deny IFP status if a plaintiff deliberately failed to report available assets. See, e.g., Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 517-19 (11th Cir. 1991) (affirming the lower court's denial of IFP status because it appeared that the applicant had access to an unknown amount of money either through his family, his extortion activities, or his legal work on behalf of fellow inmates). But see Acevedo v. Reid, 653 F.Supp. 347, 348-49 (S.D.N.Y. 1986) (excusing an inmate's failure to report his veterans' benefits and prison salary on his application for IFP status where (1) there was no evidence that he had acted in bad faith, and (2) he would have been eligible for IFP status even if those assets were taken into account). Similarly, courts could deny IFP status if they found that an applicant had intentionally depleted his resources in order to qualify for a fee waiver. See, e.g., Collier v. Tatum, 722 F.2d 653, 655 (11th Cir. 1983) (authorizing the lower court to examine the plaintiff's financial dealings during the time period immediately preceding the filing of the suit to determine whether he had intentionally shifted or wasted assets that he otherwise could have used to finance the action).

Julia Colarusso, Out of Jail... But Still Not Free to Litigate? Using Congressional Intent to Interpret 28 U.S.C. § 1915(b)'s Application to Released Prisoners, 58 AM. U. L. REV. 1533, 1566 n. 41 (2009).

It undeniably costs money to live, but Gerwald swears she has zero assets of any kind, coupled with $286, 000 in debt. Doc. 13 at at 1-2. The Court doubts the credibility of that statement. Wary of such indigency claims and cognizant of how easily one may consume a public resource with no financial skin in the game, [2] this Court demands supplemental information from dubious IFP movants. See, e.g., Kareem v. Home Source Rental, 986 F.Supp.2d 1345 (S.D. Ga. 2013); Robbins v. Universal Music Group, CV412-292, 2013 WL 1146865 at * 1 (S.D. Ga. Mar. 19, 2013).[3]

To that end, it tolerates no lies. Ross v. Fogam, CV411-114, 2011 WL 2516221 at * 1 (S.D. Ga. June 23, 2011) ("Ross, a convicted criminal, chose to burden this Court with falsehoods, not honesty. The Court thus rejects Ross's show cause explanation, as it is clear that he purposefully chose to disguise his filing history and financial status."); Johnson v. Chisolm, CV411-127, 2011 WL 3319872 at * 1 n. 3 (S.D. Ga. Aug. 1, 2011) ("This Court does not hesitate to invoke dismissal and other sanctions against inmates who lie to or otherwise deceive this Court."); see also Moss v. Premiere Credit, LLC, CV411-123, doc. 54 (S.D. Ga. Mar. 6, 2013) (Eleventh Circuit Order: "Moss's [IFP on appeal] motion is DENIED because her allegation of poverty appears to be untrue in light of her financial affidavit and filings in the district court.").[4]

Given the totality of the circumstances, it will do likewise here.[5] Therefore, within 14 days from the date of this Order, Gerwald shall disclose to the Court the following information:

(1) What she spends each month for basic living expenses such as food, clothing, shelter, and utilities, and the dollar value of any public or private assistance she may receive;
(2) Where she gets the money to pay for those expenses (include all "off-the-books" income, whether in cash or in-kind);
(3) Whether she owns any means of transportation and, if she does not, whether she has regular access to same, as owned by another (including a rental company);
(4) Whether she possesses a cellular telephone, TV set, and any home electronics equipment (include estimated value and related carrying expenses, such as carrier and subscription fees);
(5) Whether she has any credit or debit cards;
(6) Whether she is the account owner, or has signature power, as to any accounts with a bank or other financial institution;
(7) Whether she anticipates any future income within the next year.
(8) A list of any other cases (beyond those noted here) showing an indigency-based, filing fee reduction or waiver granted by any other court (include the full case name, case number and the name of the court granting same).
(9) Any other source of financial support (friends, relatives, etc).

Answering these points will better illuminate Gerwald's true financial condition. In that regard, she must again declare the facts she pleads to be true under penalty of perjury.[6] If she does not use a preprinted IFP form to respond (hence, if she uses a blank sheet of paper), she must insert this above her signature: "I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date)." 28 U.S.C. § 1746(1). The Clerk is DIRECTED to serve with this Order a blank IFP form for Gerwald's convenience. In her response to this Order she must reproduce each enumerated item above and legibly write (or type) her complete answer directly after it. Failure to comply with this directive will result in a recommendation of dismissal. Kareem v. Home Source Rental, 2014 WL 106632 at *1 (S.D. Ga. Jan. 9, 2014) (advising dismissal for non-compliance in similar IFP-information case), adopted, 2014 WL 2700632 (S.D. Ga. Jun 13, 2014).


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